.No 

Division 
Range    .................... 

Shelf.  .................. 

Received  ^'t~?-^^<^  18'} 


University  of  California. 


18 


7V. 


ELECTORAL    COUNT    OF    1877. 


PROCEEDINGS 


OF  THE 


ELECTORAL  COMMISSION 


AND   OF  THE 


TWO  HOUSES  OF  CONGRESS  IN  JOINT  MEETING 


RELATIVE   TO   THE 


COUNT  OF  ELECTORAL  VOTES  CAST  DECEMBER  6, 1876, 


FOR 


THE  PRESIDENTIAL  TERM  COMMENCING  MARCH  4,  J877. 


LIB  RAltY 

UN*  VK4t.$ 
CALIFORNIA. 


WASHINGTON: 

GOVERNMENT    PRINTING    OFFICE, 

1877. 


IN  THE  HOUSE  OF  REPRESENTATIVES, 

March  3,  1877. 

Resolved  by  the  House  of  Representatives,  (the  Senate  concurring,)  That  there  be  printed 
10,000  copies  of  the  proceedings  of  the  Electoral  Commission,  embracing  all  of  the  said 
proceedings  and  arguments  and  briefs  of  counsel,  together  with  the  proceedings  of  the 
joint  convention  regarding  all  States  the  returns  from  which  were  submitted  to  said 
commission,  7,500  copies  for  the  use  of  the  House  of  Representatives  and  2,500  copies 
for  the  use  of  the  Senate. 
Attest : 

G.  M.  ADAMS,  Clerk. 
\ 

IN  THE  SENATE  OF  THE  UNITED  STATES, 

March  3,  1877. 

Resolved,  That  the  Senate  concur  in  the  foregoing  resolution  of  the  House  of  Repre 
sentatives. 
Attest : 

GEO.  C.  GORHAM,  Secretary. 

IN  THE  SENATE  OF  THE  UNITED  STATES, 

March  15, 1877. 

Resolved,  That  the  volume  containing  the  proceedings  of  the  Electoral  Commission 
and  of  the  two  Houses  in  the  counting  of  electoral  votes,  directed  to  be  printed  by  a  con 
current  resolution  of  March  3,  be  prepared  for  publication  under  the  direction  of  the 
Committee  on  Printing. 

Resolved,  That  of  the  number  of  copies  of  said  publication  allotted  to  the  Senate  by 
said  concurrent  resolution  200  copies  be  furnished  to  the  justices  of  the  Supreme  Court 
who  were  members  of  the  Electoral  Commission. 
Attest : 

GEO.  C.  GORHAM,  Secretary. 


L  I  B  it  A  R  V 

UNIVERSITY   OF 


CALIFOKNIA.  j 

ELECTORAL  COUNT  OF  1811. 


The  disputes  as  to  the  votes  cast  in  some  of  the  States  by  the  respect 
ive  sets  of  persons  claiming  to  have  been  chosen  electors  at  the  popular 
elections  held  therein  on  the  7th  day  of  November,  A.  D.  1876,  were  of 
such  a  nature  as  to  lead  to  grave  fears  that  difficulty  might  ensue  if 
there  were  no  further  provision  for  the  case  than  was  contained  in  some 
of  the  sections  of  the  act  of  Congress  of  March  1,  1792,  and  the  act  of 
March  26,  1804,  embodied  in  the  Eevised  Statutes  from  section  135  to 
143,  which  sections  contained  all  the  legislation  that  had  been  provided 
for  any  such  contingency  and  that  seemed  to  be  entirely  inadequate. 
When  the  second  session  of  the  Forty-fourth  Congress  convened,  the 
subject  immediately  attracted  attention  in  both  Houses.  On  the  14th 
of  December,  1876,  the  House  of  Representatives  passed  a  resolution 
for  the  appointment  of  a  committee  of  seven,  with  power  to  act  in  con 
junction  with  any  similar  committee  appointed  by  the  Senate,  to  prepare 
and  report  without  delay  a  measure  for  the  removal  of  differences  of 
opinion  as  to  the  proper  mode  of  counting  the  electoral  votes  for  Presi 
dent  and  Yice-President  of  the  United  States  and  as  to  the  manner  of 
determining  questions  which  might  arise  as  to  the  legality  and  validity 
of  the  returns  of  such  votes  made  by  the  several  States,  to  the  end  that 
the  votes  should  be  counted  and  the  result  declared  "  by  a  tribunal 
whose  authority  none  can  question  and  whose  decision  all  will  accept 
as  final." 

On  the  18th  of  December  the  Senate  referred  the  message  of  the 
House  of  Representatives  communicating  its  resolution,  to  a  select  com 
mittee,  to  be  composed  of  seven  Senators,  with  power  u  to  prepare  and 
report,  without  unnecessary  delay,  such  a  measure,  either  of  a  legisla 
tive  or  other  character,  as  may,  in  their  judgment,  be  best  calculated  to 
accomplish  the  lawful  counting  of  the  electoral  votes  and  best  disposi 
tion  of  all  questions  connected  therewith,  and  the  due  declaration  of 
the  result,"  and  also  with  power  "  to  confer  and  act  with  the  committee 
of  the  House  of  Representatives." 

The  committees  provided  for  by  these  resolutions  were  composed,  on 
the  part  of  the  Senate,  of  George  F.  Edmunds  of  Vermont,  Oliver  P. 
Morton  of  Indiana,  Frederick  T.  Frelinghuysen  of  New  Jersey,  Roscoe 
Conkling  of  New  York,  Allen  G.  Thurman  of  Ohio,  Thomas  F.  Bayard 
of  Delaware,  and  Matt.  W.  Ransom  of  North  Carolina,  and  on  the 
part  of  the  House  of  Representatives  of  Henry  B.  Payne  of  Ohio,  Eppa 
Hunton  of  Virginia,  Abrarn  S.  Hewitt  of  New  York,  William  M. 
Springer  of  Illinois,  George  W.  McCrary  of  Iowa,  George  F.  Hoar  of 
Massachusetts,  and  George  Willard  of  Michigan.  . 

On  the  18th  of  January,  1877  these  committees  submitted  a  report  to 
the  respective  Houses,  signed  by  all  their  members  except  Senator  Mor 
ton,  recommending  the  passage  of  a  bill,  which,  after  discussion  in  both 
Houses,  became  a  law  on  the  29th  of  January,  in  the  precise  words  re 
ported,  as  follows : 


4  ELECTORAL    COUNT    OF    1(77. 

A"N"  ACT  to  provide  for  and  regulate  the  counting  of  votes  for  President  and  Vice-President,  and  tie 
decision  of  questions  arising  thereon,  for  the  teirn  commencing  March  fourth,  anno  Domini  eighteen 
hundred  and  seventy -seven. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United  States  of  America  in 
Congress  assembled,  That  the  Seriate  and  House  of  Representatives  shall  meet  in  the 
hall  of  the  House  of  Representatives,  at  the  hour  of  one  o'clock  post  meridian,  on  the 
first  Thursday  in  February,  anno  Domini  eighteen  hundred  and  seventy-seven  ;  and 
the  President  of  the  Senate  shall  be  their  presiding  officer.  Two  tellers  shall  be  pre 
viously  appointed  on  the  part  of  the  Senate,  and  two  on  the  part  of  the  House  of  Rep 
resentatives,  to  whom  shall  be  handed,  as  they  are  opened  by  the  President  of  the 
Senate,  all  the  certificates,  and  papers  purporting  to  be  certificates,  of  the  electoral 
votes,  which  certificates  and  paper*  shall  be  opened,  presented,  and  acted  ui.on  in  the 
alphabetical  order  of  the  States,  beginning  with  the  letter  A  ;  and  said  tellers  having 
then  read  the  same  in  the  presence  and  hearing  of  the  two  houses,  shall  make  a  list  of 
the  votes  as  they  shall  appear  from  the  said  certificates ;  and  the  votes  having  been 
ascertained  and  counted  as  in  this  act  provided,  the  result  of  the  same  shall  be  deliv 
ered  to  the  President  of  the  Senate,  who  shall  thereupon  announce  the  state  of  the 
vote,  and  the  names  of  the  persons,  if  any,  elected,  which  announcement  shall  be 
deemed  a  sufficient  declaration  of  the  persons  elected  President  and  Vice-President  of 
the  United  States,  and,  together  with  a  list  of  the  votes,  be  entered  on  the  journals  of 
the  two  housts.  Upon  such  reading  of  any  such  certificate  or  paper  when  there  shall 
be  only  one  return  from  a  State,  the  President  of  the  Senate  shall  call  for  objections, 
if  any.  Every  objection  shall  be  made  in  writing,  and  shall  state  clearly  and  con 
cisely,  and  without  argument,  the  ground  thereof,  and  shall  be  signed  by  at  least  one 
Senator  and  one  Member  of  the  House  of  Representatives  before  the  same  shall  be 
received.  When  all  objections  so  made  to  any  vote  or  paper  from  a  State  shall  have 
been  received  and  read,  the  Senate  shall  thereupon  withdraw,  and  such  objections 
shall  be  submitted  to  the  Senate  for  its  decision ;  and  the  Speaker  of  the  House  of 
Representatives  shall,  in  like  manner,  submit  such  objections  to  the  House  of  Repre 
sentatives  for  its  decision  ;  and  no  electoral  vote  or  votes  from  any  State  from  which 
but  one  return  has  been  received  shall  be  rejected  except  by  the  affirmative  vote  of  the 
two  houses.  When  the  two  houses  have  voted,  they  shall  immediately  again  meet, 
and  the  presiding  officer  shall  then  announce  the  decision  of  the  question  submitted. 

SEC.  2.  That  if  more  than  one  return,  or  paper  purporting  to  be  a  return  from  a 
Stat(j,  shall  have  been  received  by  the  President  of  the  Senate,  purporting  to  be  the 
certificates  of  electoral  votes  given  at  the  last  preceding  election  for  President  and 
Vice-President  in  such  State,  (unless  they  shall  be  duplicates  of  the  same  return,)  all 
such  returns  and  papers  shall  be  opened  by  him  in  the  presence  of  the  two  houses 
when  met  as  aforesaid,  and  read  by  the  tellers,  and  all  such  returns  and  papers  shall 
thereupon  be  submitted  to  the  judgment  and  decision  as  to  which  is  the  true  and  law 
ful  electoral  vote  of  such  State,  of  a  commission  constituted  as  follows,  namely  : 
During  the  session  of  each  house  on  the  Tuesday  next  preceding  the  first  Thurs 
day  in  February,  eighteen  hundred  and  seventy-seven,  each  house  shall,  by  viva 
voce  vote,  appoint  five  of  its  members,  who  with  the  five  associate  justices  of  the 
Supreme  Court  of  the  United  States,  to  be  ascertained  as  hereinafter  provided, 
shall  constitute  a  commission  for  the  decision  of  all  questions  upon  or  in  respect 
of  eucli  double  returns  named  in  this  section.  On  the  Tuesday  next  preceding  the 
first  Thursday  in  February,  anno  Domini  eighteen  hundred  and  seventy-seven,  or 
as  soon  thereafter  as  may  be,  the  associate  justices  of  the  Supreme  Court  of,  the 
United  States  now  assigned  to  the  first,  third,  eighth,  and  ninth  circuits  shall 
select,  in  such  manner  as  a  majority  of  them  shall  deem  fit,  another  of  the  associate 
justices  of  said  court,  which  five  persons  shall  be  members  of  said  commission;  and 
the  person  longest  in  commission  of  said  five  justices  shall  be  the  president  of  said 
commission.  The  members  of  said  commission  shall  respectively  take  and  subscribe 

the  following  oath  :  "  I, ,  do  solemnly  swear  (or  affirm,  as  the  case  may 

be)  that  I  will  impartially  examine  and  consider  all  questions  submitted  to  the  com 
mission  of  which  I  am  a  member,  and  a  true  judgment  give  thereon,  agreeably  to  the 
Constitution  and  the  laws  :  so  help  me  God  ;"  which  oath  shall  be  fiJed  with  the  Sec 
retary  of  the  Senate.  When  the  commission  shall  have  been  thus  organized,  it  shall 
not  be  in  the  power  of  either  house  to  dissolve  the  same,  or  to  withdraw  any  of  its 
members ;  but  if  any  such  Senator  or  member  shall  die  or  become  physically  unable 
to  perform  the  duties  required  by  this  act,  the  fact  of  such  death  or  physical  inability 
shall  be  by  said  commission,  before  it  shall  proceed  further,  communicated  to  the  Sen 
ate  or  House  of  Representatives,  as  the  case  may  be,  which  body  shall  immediately 
and  without  debate  proceed  by  viva  voce  vote  to  fill  the  place  so  vacated,  and  the 
person  so  appointed  shall  take  and  subscribe  the  oath  hereinbefore  prescribed,  and 
become  a  member  of  said  con  mission ;  and,  in  like  manner,  if  any  of  said  justices  of 
the  Supreme  Court  shall  die  or  become  physically  incapable  of  performing  the  duties 
required  by  this  act,  the  other  of  said  justices,  members  of  the  said  commission,  shall  im 
mediately  appoint  another  justice  of  said  court  a  member  of  said  commission,  and,  in 


ELECTORAL    COUNT    OF    Ic77.  5 

such  appointments,  regard  shall  be  had  to  the  impartiality  and  freedom  from  bias  sought 
by  the  original  appointments  to  said  commission,  who  shall  thereupon  immediately 
take  and  subscribe  the  oath  hereinbefore  prescribed,  and  become  a  member  of  said 
commission  to  fill  the  vacancy  so  occasioned.  All  the  certificates  and*  papers  purport 
ing  to  be  certificates  of  the  electoral  votes  of  each  State  shall  be  opened,  in  the  alpha 
betical  order  of  the  States,  as  provided  in  section  one  of  this  act ;  and  when  there 
shall  be  more  than  one  such  certificate  or  paper,  as  the  certificate  and  papers  from 
such  State  shall  so  be  opened,  (excepting  duplicates  of  the  same  return.)  they  shall  be 
read  by  the  tellers,  and  thereupon  the  President  of  the  Senate  shall  call  for  objections, 
if  any.  Every  objection  shall  be  made  in  writing,  and  shall  state  clearly  and  con 
cisely,  and  without  argument,  the  ground  thereof,  and  shall  be  signed  by  at  least  one 
Senator  and  one  member  of  the  House  of  Representatives  before  the  same  shall  be 
received.  When  all  such  objections  so  made  to  any  certificate,  vote,  or  paper  from  a 
State  shall  have  been  received  and  read,  all  such  certificates,  votes,  and  papers  so 
objected  to,  and  all  papers  accompanying  the  sam  >,  together  with  such  objections, 
shall  be  forthwith  submitted  to  said  commission,  which  shall  proceed  to  consider  the 
same,  with  the  same  powers,  if  any,  now  possessed  for  that  purpose  by  the  two  houses 
acting  separately  or  together,  and.  by  a  majority  of  votes,  decide  whether  any  and 
what  votes  from  such  State  are  the  votes  provided  for  by  the  Constitution  of  the 
United  States,  and  how  many  and  what  persons  were  duly  appointed  electors  in  such 
State,  and  may  therein  take  into  view  such  petitions,  depositions,  and  other  papers,  if 
any,  as  shall,  by  the  Constitution  and  now  existing  law,  be  competent  and  pertinent 
in  such  consideration  ;  which  decision  shall  be  made  in  writing,  stating  briefly  the 
ground  thereof,  and  signed  by  the  members  of  said  commission  agreeing  therein; 
whereupon  the  two  houses  shall  again  meet,  and  such  decision  shall  be  read  and  entered 
in  the  journal  of  each  house,  and  the  counting  of  the  votes  shall  proceed  in  conformity 
therewith,  unless,  upon  objection  made  thereto  in  writing  by  at  least  five  Ssnators  and 
five  members  of  the  House  of  Representatives,  the  two  houses  shall  separately  concur 
in  ordering  otherwise,  in  which  case  such  concurrent  order  shall  govern.  No  votes  or 
papers  from  any  other  State  shall  be  acted  upon  until  the  objections  previously  made 
to  the  votes  or  papers  from  any  State  shall  have  been  finally  disposed  of. 

SEC.  3.  That  while  the  two  houses  shall  be  in  meeting,  as  provided  in  this  act,  no 
debate  shall  be  allowed  and  no  question  shall  be  put  by  the  presiding  officer,  except 
to  either  house  on  a  motion  to  withdraw ;  and  he  shall  have  power  to  preserve  order. 

SEC.  4.  That  when  the  two  houses  separate  to  decide  upon  an  objection  that  may 
have  been  made  to  the  counting  of  any  electoral  vote  or  votes  from  any  State,  or  upon 
objection  to  a  report  of  said  commission,  or  other  question  arising  under  this  act,  each 
Senator  and  Representative  may  speak  to  such  objection  or  question  ten  minutes,  and 
not  oftener  than  once ;  but  afteV  such  debate  shall  have  lasted  two  hours,  it  shall  be 
the  duty  of  each  house  to  put  the  main  question  without  further  debate. 

SEC.  5.  That  at  such  joint  meeting  of  the  two  houses,  seats  shall  be  provided  as 
follows:  For  the  President  of  the  Senate,  the  Speaker's  chair  ;  for  the  Speaker,  imme 
diately  upon  his  left ;  the  Senators  in  the  body  of  the  hall  upon  the  right  of  the  presid 
ing  officer;  for  the  Representatives,  in  the  body  of  the  hall  not  provided  for  the  Sen 
ators  ;  for  the  tellers,  Secretary  of  the  Senate,  and  Clerk  of  the  House  of  Representa 
tives,  at  the  Clerk's  desk ;  for  the  other  officers  of  the  two  bouses,  in  front  of  the 
Clerk's  desk  and  upon  each  side  of  the  Speaker's  platform.  Such  joint  meeting  shall 
not  be  dissolved  until  the  count  of  electoral  votes  shall  be  completed  and  the  result 
declared ;  and  no  recess  shall  be  taken  unless  a  question  shall  have  arisen  in  regard  to 
counting  any  such  votes,  or  otherwise  under  this  act,  in  which  case  it  shall  be  compe 
tent  for  either  house,  acting  separately,  in  the  manner  hereinbefore  provided,  to  direct 
a  recess  of  such  house  not  beyond  the  next  day,  Sunday  excepted,  at  the  hour  of  ten 
o'clock  in  the  forenoon.  And  while  any  question  is  being  considered  by  said  commis 
sion,  either  house  may  proceed  with  its  legislative  or  other  business. 

SEC.  6.  That  nothing  in  this  act  shall  be  held  to  impair  or  affect  any  right  now  ex 
isting  under  the  Constitution  and  laws  to  question,  by  proceeding  in  the  judicial  courts 
of  the  United  States,  the  right  or  title  of  the  person  who  shall  be  declared  elected,  or 
who  shall  claim  to  be  President  or  Vice-President  of  the  United  States,  if  any  such 
right  exists. 

SEC.  7.  That  said  commission  shall  make  its  own  rules,  keep  a  record  of  its  proceed 
ings,  and  shall  have  power  to  employ  such  persons  as  may  be  necessary  for  the  trans 
action  of  its  business  and  the  execution  of  its  powers. 

Approved,  January  29,  1877. 

ORGANIZATION  OF  THE  ELECTORAL  COMMISSION. 

Under  the  provisions  of  the  second  section  of  this  act,  each  house  of 
Congress  on  Tuesday,  January  30,  proceeded  by  viva  vocc  vote  to  desig 
nate  five  of  its  members  to  be  members  of  the  Electoral  Commission 


6  ELECTORAL    COUNT    OF    1877. 

therein  provided  for,  and  the  following-named  gentlemen  were  selected 
by  their  respective  houses  : 

Senators  Edmunds,  Frelinglmysen,  Morton,  Thurman,  and  Bayard. 

Representatives  Payne,  Hunton,  Abbott,  Hoar,  and  Garfield. 

On  the  same  day,  the  Associate  Justices  of  the  Supreme  Court  of  the 
United  States,  designated  in  the  act,  met  and  selected  Associate  Jus 
tice  Joseph  P.  Bradley  to  be  a  member  of  the  Commission,  thus  com 
pleting  its  constitution,  which  fact  was  communicated  to  botli  houses 
of  Congress  on  the  morning  of  the  31st  of  January. 

« 
WEDNESDAY,  January  31,  1877. 

The  members  of  the  Commission  appointed  for  the  decision  of  certain 
questions  relating  to  the  counting  of  the  electoral  votes  for  the  offices 
of  President  and  Vice-President  of  the  United  States,  under  an  act 
entitled  u  An  act  to  provide  for  and  regulate  the  counting  of  votes  for 
President  and  Vice-President,  and  the  decision  of  questions  arising 
thereon,  for  the  term  commencing  March  4,  A.D.  1877,"  approved  Jan 
uary  29,  1877,  met  in  the  Supreme  Court  room  at  the  Capitol,  at  eleven 
o'clock  in  the  forenoon,  this  31st  day  of  January,  1877. 

Present :  Mr.  Justice  Clifford,  Associate  Justice  assigned  to  the  first 
circuit;  Mr.  Justice  Miller,  Associate  Justice  assigned  to  the  eighth 
circuit;  Mr.  Justice  Field,  Associate  Justice  assigned  to  the  ninth  cir 
cuit;  Mr.  Justice  Strong,  Associate  Justice  assigned  to  the  third 
circuit;  Mr.  Justice  Bradley  ;  Senators  Edmunds,  Morton,  Frelinghuy- 
sen,  Thurman,  and  Bayard ;  Representatives  Payne,  Huntou,  Abbott, 
Garfield,  and  Hoar. 

The  appointment  on  the  Commission  of  Associate  Justice  BRADLEY 
by  the  other  four  Associate  Justices  of  the  Supreme  Court  above  named 
was  presented  and  read,  as  follows : 

Hon.  JOSEPH  P.  BRADLEY, 

Associate  Justice  of  the  Supreme  Court  of  the  United  States  : 

Pursuant  to  the  provisions  of  the  second  section  of  the  act  of  Congress  entitled 
"  An  act  to  provide  for  and  regulate  the  counting  of  votes  for  President  and  Vice- 
President,  and  the  decision  of  questions  arising  thereon,  for  the  term  commencing 
March  4,  A.  D.  1877,"  approved  January  29,  1877,  the  undersigned,  Associate  Justices 
of  the  Supreme  Court  of  the  United  States  assigned  to  the  first,  third,  eighth,  and  ninth 
.circuits,  respectively,  have  this  day  selected  you  to  be  a  member  of  the  commission 
constituted  by  said  act. 
Respectfullv, 

NATHAN  CLIFFORD. 
SAM.  F.  MILLER. 
STEPHEN  J.  FIELD. 
W.  STRONG. 
WASHINGTON,  January  30,  1877. 

The  certificate  of  the  appointment  of  the  Senators  above  named  as 
members  of  the  Commission  was  read,  as  follows  : 

IN  THE  SENATE  OF  THE  UNITED  STATES, 

Tuesday,  January  30,  1877. 

The  Senate  proceeded  in  compliance  with  its  order  of  this  day  to  the  appointment 
by  viva  voce  vote  of  five  Senators  to  be  members  of  the  Commission  provided  for  in 
the  act  entitled  "  An  act  to  provide  for  and  regulate  the  counting  of  votes  for  Presi 
dent  and  Vice-President,  and  the  decision  of  questions  arising  thereou,  for  the  term 
commencing  March  4,  A.  D.  1877,"  approved  January  29,  1877  ;  and 

On  taking  and  counting  the  votes  it  appeared  that  the  following  Senators  were 
duly  and  unanimously  chosen  members  of  the'  said  Commission,  namely:  Mr.  George 
F.   Edmunds,  Mr.   Oliver  P.  Morton,  Mr.  Frederick  T.  Freliughuyseu,"  Mr.  Allen  G 
Thurman,  and  Mr.  Thomas  F.  Bayard. 
Attest : 

GEO.  C.  GORHAM,  Secretary. 


ELECTORAL   COUNT    OF    1877.  7 

The  certificate  of  the  appointment  of  the   Representatives    above 
named  as  members  of  the  Commission  was  read,  as  follows  : 

FORTY-FOURTH  CONGRESS,  SECOND  SESSION, 

CONGRESS  OF  THE  UNITED  STATES, 
IN  THE  HOUSE  OF  REPRESENTATIVES,  January  30,  1877. 

The  House  of  Representatives,  by  a  viva  voce  vote,  appointed  Mr.  Henry  B.  Payne  of 
Ohio;  Mr.  Eppa  Huuton,  of  Virginia ;  Mr.  Josiah  G.  Abbott,  of  Massachusetts:  Mr 
George  F.  Hoar,  of  Massachusetts,  and  Mr.  James  A.  Garfield,  of  Ohio,  members  of  the 
Commission  on  the  part  of  the  House  of  Representatives  provided  for  in  the  act  ap 
proved  January  29,  1877,  entitled  "An  act  to  provide  for  and  regulate  the  counting  of 
votes  for  President  and  Vice-President,  and  the  decision  of  questions  arising  thereon 
for  the  term  commencing  March  4,  A.  D.  1877." 
Attest : 
[SEAL  OF  THE  HOUSE  OF  REPRESENTATIVES.]  GEORGE  M.  ADAMS,  Clerk. 

Associate  Justice  Clifford  having  made  oath,  as  required  by  the  said 
act,  before  the  clerk  of  the  Supreme  Court  of  the  United  States,  and 
the  same  having  been  filed  with  the  Secretary  of  the  Senate,  the  other 
members  of  the  Commission  severally  took  and  subscribed  before  Mr  Jus 
tice  Clifford  the  oath  required  by  the  act,  and  the  Commission  was 
organized  and  called  to  order,  Associate  Justice  Clifford  presiding. 
On  motion  of  Mr.  Commissioner  THURMAN,  it  was 
Resolved,  That  a  committee  of  two  Justices,  two  Senators,  and  two  Representatives 
be  appointed  to  consider  and  propose  such  rules  of  proceeding,  and  officers  and  em 
ploy  6s  as  may  be  proper  for  the  Commission,  the  committee  to  be  appointed  by  the 
President. 

The  PRESIDENT  appointed  Commissioners  Edmunds,  Bayard, 
Field,  Payne,  and  Hoar  as  the  committee. 

On  motion  of  Mr.  Commissioner  HOAR,  it  was 

Resolved,  That  the  President  appoint  a  temporary  clerk  until  the  committee  above 
appointed  report. 

The  President  appointed  James  H.  McKenuey  temporary  clerk  to  the 
Commission. 
On  motion  of  Mr.  Commissioner  HOAR,  it  was 

Resolved,  That  the  proceedings  of  the  Commission,  until  otherwise  ordered,  be  con 
sidered  confidential,  except  as  to  the  fact  of  the  organization. 

The  certificates  of  the  oaths  of  the  members  of  the  Commission  were 
delivered  to  the  clerk,  who  was  directed  to  file  them  with  the  Secretary 
of  the  Senate. 

On  motion  of  Mr.  Commissioner  EDMUNDS,  the  Commission  ad 
journed  until  four  o'clock  p.  in. 


The  Commission  met  at  four  o'clock  p.  m.,  pursuant  to  adjournment. 

Present  all  the  members. 

The  report  of  the  Committee  on  Rules  was  presented  by  Mr.  Cornmis- 
Edmunds. 

On  motion  of  Mr.  Commissioner  BRADLEY,  the  rules  reported  were 
considered  seriatim,  and,  after  being  amended,  were  adopted  as  follows, 
namely : 

RDLE  I.  The  Commission  shall  appoint  a  secretary,  two  assistant  secretaries,  a  mar 
shal  and  two  deputy  marshals,  a  stenographer,  and  such  messengers  as  shall  be  need 
ful;  to  hold  during  the  pleasure  of  the  Coniuiission. 

RULE  II.  On  any  subject  submitted  to  the  Commission  a  hearing  shall  be  had,  and 
counsel  shall  be  allowed  to  conduct  the  case  on  each  side. 

RULE  III.  Counsel,  not  exceeding  two  in  number  on  each  side,  will  be  heard  by  the 
Commission  on  the  merits  of  any  case  presented  to  it,  not  longer  than  two  hours  being 
allowed  to  each  side,  unless  a  longer  time  and  additional  counsel  shall  be  specially  au 
thorized  by  the  Commission.  In  the  hearing  of  interlocutory  questions,  but  one  coun 
sel  shall  be  heard  on  each  side,  a,ud  he  not  longer  than  fifteen  minutes,  unless  the 


8  ELECTORAL    COUNT    OF    1877. 

Commission  allow  further  time  and  additional  counsel ;  and  printed  arguments  will  be 
received. 

EULE  IV.  The  objectors  to  any  certificate  or  vote  may  select  two  of  their  number 
to  support  their  objections  in  oral  argument  and  to  advocate  the  validity  of  any 
certificate  or  vote  the  validity  of  which  they  maintain  ;  and  in  like  manner  the 
objectors  to  any  other  certificate  may  select  two  of  their  nnmber  for  a  like  purpose ; 
but,  under  this  rule,  not  more  than  four  persons  shall  speak,  and  neither  side  shall  oc 
cupy  more  than  two  hours. 

RULE  V.  Applications  for  process  to  compel  the  attendance  of  witnesses  or  the  pro 
duction  of  written  or  documentary  testimony  may  be  made  by  counsel  on  either  side. 
And  all  process  shall  be  served  and  executed  by  the  marshal  of  the  Commission  or  his 
deputies.  Depositions  hereafter  taken  for  use  before  the  Commission  shall  be  suffi 
ciently  authenticated  if  taken  before  any  commissioner  of  the  circuit  courts  of  the 
United  States,  or  any  clerk  or  deputy  clerk  of  any  court  of  the  United  States. 

RULE  VI.  Admissions  to  the  public  sittings  of  the  Commission  shall  be  regulated  in 
such  manner  as  the  President  of  the  Commission  shall  direct. 

RULE  VII.  The  Commission  will  sit,  unless  otherwise  ordered,  in  the  room  of  the 
Supreme  Court  of  the  United  States,  and  with  open  doors,  (excepting  when  in  consul 
tation,)  unless  otherwise  directed. 

On  motion  of  Mr.  Commissioner  HOAR,  the  President  of  the  Com 
mission  was  requested,  on  consultation  with  Commissioners  Edmunds 
and  Payne,  to  nominate  officers  to  the  Commission. 

On  motion  of  Mr.  Commissioner  GARFIELD,  the  Committee  on  Rules 
were  authorized  to  report  rules  to  regulate  the  order  of  business  of  the 
Commission. 

On  motion  of  Mr.  Commissioner  FRELIKGHUYSE^,  the  Commis 
sion  adjourned  until  to-morrow  at  eleven  o'clock  a.  m. 


THURSDAY,  February  1,  1877. 

The  Commission  met  for  consultation  at  eleven  o'clock  a.  m. ;  and,  on 
motion  of  Mr.  Justice  CLIFFORD,  the  following-named  gentlemen  were 
selected  as  officers  of  the  Commission  : 

Secretary — James  H.  McKenuey. 

Assistant  Secretaries — B.  E.  Cattin  and  George  A.  Howard. 

Marshal — William  H.  Reardon. 

Deputy  Marshals — Albert  S.  Seely  and  J.  C.  Taliaferro. 

Stenographer — D.  F.  Murphy. 

On  motion,  the  Commission  adjourned  till  three  o'clock  p.  m.,  after 
having  sent  the  following  communications  to  the  respective  Houses  of 
Congress,  which  were  there  read  and  ordered  to  be  placed  on  their 
journals : 

WASHINGTON,  D.  C.,  February  1,  1877. 

SIR  :  I  have  the  honor  to  inform  the  Senate  that  the  Commission  constituted  under 
the  act  of  Congress  approved  January  29,  1877,  entitled  "An  act  to  provide  for  and 
regulate  the  counting  of  votes  for  President  and  Vice-President,  and  the  decision  of 
questions  arising  thereon,  for  the  term  commencing  March  4,  A.  D.  1877,"  has  met  and 
(the  members  thereof  having  taken  and  subscribed  the  oath  prescribed  by  law)  organ 
ized,  and  is  now  ready  to  proceed  to  the  performance  of  its  duties. 
Very  respectfully,  yours, 

NATHAN  CLIFFORD, 

President  of  the  Commission. 
To  the  PRESIDENT  OF  THE  SENATE. 


WASHINGTON,  February  1,  1877. 

SIR  :  I  have  the  honor  to  inform  the  House  of  Representatives  that  the  Commission 
constituted  under  the  act  of  Congress  approved  January  29,  1877,  entitled  "An  act  to 
provide  for  and  regulate  the  counting  of  votes  for  President  and  Vice-President,  and 


ELECTORAL    COUNT    OF    1677. 


the  decision  of  questions  arising  thereon,  for  the  term  commencing  March  4,  A.  D.  1377," 
has  met  and  (the  members  thereof  having  taken  and  subscribed  the  oath  prescribed  by 
law)  organized,  and  is  now  ready  to  proceed  to  the  performance  of  its  duties. 
Very  respectfully, 

NATHAN  CLIFFORD, 

President  of  the  Commission. 
Hon.  SAMUEL  J.  RANDALL, 

Speaker  of  the' House  of  Representatives. 


JOINT  MEETING  OF  THE  TWO  HOUSES. 

THURSDAY,  February  1,  1877. 

Prior  to  the  hour  fixed  for  the  joint  meeting  of  the  two  Houses,  the 
appointment  of  the  tellers  for  each  House  was  announced  by  the  presid 
ing  officer  thereof.  The  Speaker  of  the  House  of  Representatives  (Mr. 
Samuel  J.  Randall,  of  Pennsylvania)  appointed  as  tellers  on  the  part  of 
the  House  Mr.  Philip  Cook,  of  Georgia,  and  Mr.  William  H.  Stone,  of 
Missouri ;  and  the  President  pro  tempore  of  the  Senate  (Mr.  Thomas  W. 
Ferry,  of  Michigan)  appointed  Mr.  William  B.  Allison,  of  Iowa,  and  Mr. 
John  J.  Ingalls,  of  Kansas,  tellers  on  the  part  of  the  Senate. 

In  the  Senate,  at  twelve  o'clock  and  fifty-eight  minutes, 

The  PRESIDENT  pro  tempore.  The  Chair  will  announce  that  by  the 
provisions  of  an  act  approved  on  the  29th  instant,  known  as  the  electoral 
act,  the  Senate  is  required  to  appear  in  the  Hall  of  the  House  of  Repre 
sentatives  at  one  o'clock  on  this  day.  It  is  now  within  two  minutes  of 
that  time. 

Mr.  Senator  EDMUNDS.  I  move  that  the  Senate  proceed  to  the 
House  of  Representatives. 

The  motion  was  agreed  to  ;  and  the  Senate,  preceded  by  the  Sergeaut- 
at-Arms,  thereupon  proceeded  to  the  Hall  of  the  House  of  Representa 
tives. 

In  the  House  of  Representatives,  at  one  o'clock  the  Doorkeeper  an 
nounced  the  Senate  of  the  United  States. 

The  Senate  entered  the  Hall,  preceded  by  its  Sergeant-at-Arrns  and 
headed  by  its  President  pro  tempore  and  its  Secretary,  the  members  and 
officers  of  the  House  rising  to  receive  them. 

In  accordance  with  the  law,  seats  had  been  provided  as  follows :  For 
the  President  of  the  Senate,  the  Speaker's  chair ;  for  the  Speaker,  imme 
diately  upon  his  left;  for  the  Senators,  in  the  body  of  the  hall  upon  the 
right  of  the  presiding  officer ;  for  the  Representatives,  in  the  body  of  the 
hall  not  provided  for  the  Senators ;  for  the  tellers,  Secretary  of  the  Sen 
ate,  and  Clerk  of  the  House  of  Representatives,  at  the  Clerk's  desk ;  for 
the  other  officers  of  the  two  Houses,  in  front  of  the  Clerk's  desk  and  upon 
each  side  of  the  Speaker's  platform. 

The  PRESIDENT  pro  tempore  of  the  Senate  took  his  seat  as  presiding 
officer  of  the  joint  convention  of  the  two  Houses,  the  Speaker  of  the 
House  occupying  a  chair  upon  his  left. 

Senators  INGALLS  and  ALLISON,  the  tellers  appointed  on  the  part  of 
the  Senate,  and  Mr.  COOK  and  Mr.  STONE,  the  tellers  appointed  on  the 
part  of  the  House,  took  their  seats  at  the  Clerk's  desk,  at  which  the  Sec 
retary  of  the  Senate  and  the  Clerk  of  the  House  also  occupied  seats. 

The  PRESIDING  OFFICER.  The  joint  meeting  of  the  two  Houses 
of  Congress  for  the  counting  of  votes  for  President  and  Vice  President 
of  the  United  States  will  now  come  to  order.  In  obedience  to  the  Con 
stitution,  the  Senate  and  House  of  Representatives  have  met  to  be  pres 
ent  at  the  opening  of  the  certificates,  the  counting  and  the  declaring  of 


10  ELECTORAL    COUNT    OF    1877. 

the  result  of  the  electoral  votes  for  President  and  the  Viee-President 
of  the  United  States  for  the  term  of  four  years  commencing  on  the 
4th  day  of  March  next.  In  compliance  with  law,  the  President  of  the 
Senate  will  now  proceed,  in  the  presence  of  the  two  houses,  to  open  all 
the  certificates  of  the  several  States,  in  alphabetical  order,  beginning 
with  the  State  of  Alabama. 

Having  opened  the  certificate  of  the  State  of  Alabama,  received  by 
messenger,  the  Chair  hands  to  the  tellers  the  certificate,  to  be  read  in 
the  presence  and  hearing  of  both  Houses. 

Mr.  Senator  ALLISON  (one  of  the  tellers)  read  in  full  the  certificate 
of  the  electoral  vote  of  the  State  of  Alabama,  giving  10  votes  for  Sam 
uel  J.  Tilden,  of  New  York,  for  President,  and  10  votes  for  Thomas  A. 
Hendricks,  of  the  State  of  Indiana,  for  Vice-President  of  the  United 
States. 

The  PRESIDING  OFFICER.  The  certificate  of  the  vote  of  the  State 
of  Alabama  having  been  read,  the  Chair  has  opened  and  hands  to  the 
tellers  the  duplicate  certificate  received  by  mail  from  the  same  State, 
which  will  likewise  be  read. 

Mr.  Representative  STONE  (one  of  the  tellers)  proceeded  to  read  the 
duplicate  certificate. 

Mr.  Senator  CONKLING.  I  venture  to  interrupt  the  reading  to  sug 
gest  that  it  can  hardly  be  necessary  to  read  in  extenso  the  duplicate 
certificates  received  by  mail;  and,  if  that  should  be  the  impression  of 
the  Presiding  Officer  and  of  the  two  Houses,  I  make  the  further  sugges 
tion  that  hereafter  when  tellers  read  a  certificate  the  tellers  not  reading- 
had  better  overlook  the  duplicate  certificate  at  the  same  time,  in  order 
that  a  comparison  may  thus  be  made. 

The  PRESIDING  OFFICER.  The  suggestion  of  the  gentleman  from 
New  York  has  been  heard.  Is  there  objection  to  following  that  sugges 
tion  ?  The  Chair  hears  none  and  it  will  be  followed  hereafter. 

Mr.  Representative  STONE  (one  of  the  tellers)  then  concluded  the 
reading  of  the  duplicate  certificate  of  the  State  of  Alabama. 

The  PRESIDING  OFFICER.  Are  there  any  objections  to  the  cer 
tificate  of  the  State  of  Alabama?  The  Chair  hears  none,  and  the  votes 
of.the  State  of  Alabama  will  be  counted.  One  of  the  tellers  will  announce 
the  vote,  so  that  there  can  be  no  mistake. 

Mr.  Representative  COOK,  (one  of  the  tellers.)  The  State  of  Alabama 
gives  10  votes  for  Samuel  J.  Tilden,  of  New  York,  for  President  of  the 
United  States,  and  10  votes  for  Thomas  A.  Heudricks,  of  Indiana,  for 
Yice-President. 

The  PRESIDING  OFFICER.  The  Chair  hands  to  the  tellers  the  cer 
tificate  of  the  electoral  vote  of  the  State  of  Arkansas,  received  by  messen 
ger,  and  the  corresponding  one  received  by  mail.  In  accordance  with 
the  suggestion  of  the  Senator  from  New  York,  but  one  will  be  read,  and 
the  other  will  be  examined  as  the  original  is  read.  The  tellers  will  fol 
low  the  reading  of  the  one  received  by  messenger  in  every  case  with  the 
one  received  by  mail. 

The  tellers  then  proceeded,  in  the  manner  indicated,  to  announce  the 
electoral  votes  of  the  States  of  Arkansas,  California,  Colorado,  Connec 
ticut,  and  Delaware,  it  being  mentioned  in  each  case  that  the  certificate 
of  the  election  of  the  electors  was  signed  by  the  governor  and  counter 
signed  by  the  secretary  of  state,  %nd  in  each  case  the  Presiding  Officer 
asked  whether  there  were  any  objections  to  the  certificate  j  and,  there 
being  none,  the  vote  in  each  case  was  thereupon  counted. 

The  PRESIDING  OFFICER.  The  Chair  hands  to  the  tellers  a  certi- 


ELECTORAL    COUNT    OF    1877.  H 

ficate  from  the  State  of  Florida,  received  by  messenger,  and  the  corre 
sponding  one  by  mail. 

Mr.  Representative  STONE  (one  of  the  tellers)  read  the  certificate,  as 
follows : 

FLORIDA. 
CERTIFICATE  No.  1. 

EXECUTIVE  OFFICE, 
Tallahassee,  Florida,  December  6,  1376. 
STATE  OF  FLORIDA  : 

Pursuant  to  laws  of  the  United  States,  I,  Marcellus  L.  Stearns,  governor  cf  Florida, 
do  hereby  certify  that  Frederick  C.  Humphreys,  Charles  H.  Pearce,  William  H.  Holdeu, 
and  Thomas  W.  Long  have  been  chosen  electors  of  President  and  Vice-President  of 
the  United  States,  on  the  part  of  this  State,  agreeably  to  the  provisions  of  the  laws  of 
the  said  State  and  in  conformity  to  the  Constitution  of  the  United  States  of  America, 
for  the  purpose  of  giving  in  their  votes  for  President  and  Vice-President  of  the  United 
States,  for  the  term  prescribed  by  the  Constitution  of  said  United  States,  to  begin  on 
the  fourth  day  of  March,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
seventy- seven. 

Given  under  my  hand  and  the  seal  of  the  State,  at  Tallahassee,  this  sixth  day  of 
December,  A.  D.  one  thousand  eight  hundred  and  seventy-six,  and  in  the  one  hun 
dredth  year  of  the  Independence  of  the  United  States  of  America. 

[SEAL.]  M.  L.  STEARNS,    Governor. 

By  the  governor. 

Attest :  SAML.  B.  McLIN, 

Secretary  of  State. 


STATE  OF  FLORIDA  : 

We,  whose  names  are  mentioned  iu  the  annexed  certificate  of  appointment,  having, 
pursuant  to  the  Constitution  and  laws  of  the  United  States  of  America,  and  in  the 
manner  directed  by  the  laws  of  the  State  of  Florida,  been  appointed  electors  of  Presi 
dent  and  Vice-President  of  the  United  States  of  America,  and  having  assembled  at  the 
State  capitol  in  Tallahassee,  being  the  seat  of  government  of  said  State,  and  the  place 
designated  by  law  for  that  purpose,  on  the  first  Wednesday  in  December,  A.  D.  one 
thousand  eight  hundred  and  seventy-six,  being  the  sixth  day  of  said  mouth,  and  in  the 
one  hundredth  year  of  the  Independence  of  the  United  States  of  America,  have  voted, 
by  ballot,  for  President  and  Vice-President,  having  named  in  our  ballots  the  person 
voted  for  as  President  and  in  distinct  ballots  the  person  voted  for  as  Vice-President, 
and  in  the  same  ballots  there  were  four  (4)  votes  for  President  of  the  United  States  of 
America,  all  of  which  four  (4)  votes  were  cast  for  Rutherford  B.  Hayes,  of  Ohio. 

In  testimony  whereof  we  have  hereunto  set  our  hands  on  the  first  Wednesday,  being 
the  sixth  day  of  December,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
seventy-six.  * 

F.  C.  HUMPHREYS. 

C.  H.  PEARCE. 

W.  H.  HOLDEN. 

THOS.  W.  LONG. 


STATE  OF  FLORIDA  : 

We,  whose  names  are  mentioned  in  the  annexed  certificate  of  appointment,  having, 
pursuant  to  the  Constitution  and  laws  of  the  United  States  of  America,  and  in  the 
manner  directed  by  the  laws  of  the  State  of  Florida,  been  appointed  electors  of  Presi 
dent  and  Vice-Presideut  of  the  United  States  of  America,  and  having  assembled  at  the 
State  capitol,  in  Tallahassee,  in  the  State  aforesaid,  being  the  seat  of  government  of 
said  State,  and  the  place  designated  by  law  for  that  purpose,  on  the  first  Wednesday 
in  December,  A.  D.  one  thousand  eight  hundred  and  seventy-six,  being  the  sixth  day 
of  said  month,  and  in  the  one  hundredth  year  of  the  Independence  of  the  United  States 
of  America,  have  voted,  by  ballot,  for  President  and  Vice-President,  having  named  in 
our  ballots  the  person  voted  for  as  President,  and  in  distinct  ballots  the  person  voted 
for  as  Vice-Presideut,  and  in  the  same  ballots  there  were  four  (4)  votes  cast  for  Vice- 
President  of  the  United  States  of  America,  all  of  which  four  (4)  votes  were  cast  for 
William  A.  Wheeler,  of  New  York. 


12  ELECTORAL    COUNT    OF    1877. 

In  testimony  whereof  we  have  hereunto  set  our  hands  on  tlie  first  Wednesday,  being 
the  sixth  day  of  December,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
seventy-six. 

F.  C.  HUMPHREYS. 

C.  H.  PEARCE. 

W.  H.  HOLDEN. 

THOS.  W.  LONG. 

The  PRESIDING  OFFICER.  The  Chair  hands  another  certificate 
received  by  messenger  from  Florida  and  the  corresponding  one  received 
by  mail. 

Mr.  Representative  STONE  (one  of  the  tellers)  read  the  certificate,  as 
follows : 

CERTIFICATE  No.  2. 

STATE  OF  FLORIDA,  ATTORNEY-GENERAL'S  OFFICE, 

Tallahassee, ,  18—. 

List  of  electors  of  President  and  Vice- President  of  the  United  States  for  the  State  of  Florida. 

I.  William  Archer  Cocke,  attorney-general  of  the  State  of  Florida,  and  as  such  one 
of  the  members  of  the  board  of  State  canvassers  of  the  State  of  Florida,  do  certify 
that,  by  the  authentic  returns  of  the  votes  cast  in  the  several  couuties  of  the  State  of 
Florida,  at  the  general  election  held  on  Tuesday,  November  7,  1876,  said  returns  being 
on  file  in  the  office  of  the  secretary  of  state,  and  seen  and  considered  by  me,  as  such 
member  of  the  board  of  State  canvassers  of  the  said  State  of  Florida,  it  appears  and 
is  shown  that  Wilkinson  Call,  James  E.  Yonge,  Robert  B.  Hilton,  and  Robert  Bullock 
were  chosen  the  four  electors  of  President  and  Vice-President  of  the  Uuited  States  ; 
and  I  do  further  certify  that  under  the  act  of  the  legislature  of  the  State  of  Florida 
establishing  said  board  of  State  canvassers,  no  provision  has  been  enacted,  nor  is  any 
such  provision  contained  in  the  statute  law  of  this  State,  whereby  the  result  shown 
and  appearing  by  said  returns  to  said  board  of  State  canvassers  can  be  certified  to  the 
executive  of  the  said  State. 

Witness  my  hand  and  seal  this  6th  day  of  December,  1876,  at  the  capitol  in  Talla 
hassee. 

[SEAL.]  WM.  ARCHER  COCKE, 

Attorney-General,  State  of  Florida. 


STATE  OF  FLORIDA,  County  of  Leon : 

I,  Robert  Bullock,  and  I,  Wilkinson  Call,  and  I,  James  E.  Yonge,  and  I,  Robert  B- 
Hilton,  do  solemnly  swear  that  I  will  support,  protect,  and  defend  the  Constitution 
and  Government  of  the  Uuited  States  and  of  the  State  of  Florida  against  all  enemies, 
domestic  or  foreign,  and  that  I  will  bear  true  faith,  loyalty,  and  allegiance  to  the 
same ;  and  that  I  am  entitled  to  hold  office  under  the  constitution  of  this  State  ;  that  I 
will  well  and  faithfully  perform  all  the  duties  of  the  office  of  elector  of  President  and 
Vice-President  of  the  United  States,  on  which  I  am  about  to  enter. 

WILKINSON  CALL. 

J.  E.  YONGE. 

ROBERT  BULLOCK. 

ROBERT  B.  HILTON. 

Sworn  to  and  subscribed  before  me  this  sixth  day  of  December,  A.  D.  1876. 
[SEAL.]  FRED.  T.  MYERS, 

Clerk  Supreme  Court  of  the  State  of  Florida. 

STATE  OF  FLORIDA  : 

We,  the  undersigned,  electors  of  President  and  Vice-Presideut  of  the  United  States 
of  America  for  the  next  ensuing  regular  term  of  the  respective  office  thereof,  being 
electors  duly  and  legally  appointed  by  and  for  the  State  of  Florida,  as  appears  by  the 
annexed  list  of  electors,  made,  certified,  and  delivered  to  us  by  William  Archer  Cocke, 
attorney-general  of  the  State  of  Florida,  and,  as  such,  one  of  the  members  of  the  State 
board  of  canvassers  of  said  State,  having  met  and  convened  in  the  city  of  Tallahassee, 
at  the  capitol,  in  pursuance  of  the  direction  of  the  legislature  of  the  State  of  Florida, 
at  twelve  o'clock  m.,  on  the  first  Wednesday,  the  sixth  day,  of  December,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  seventy-six,  the  same  being  the  seat  of 
government  of  the  State  of  Florida,  do  hereby  certify  that,  being  so  assembled  and 


ELECTORAL    COUNT    OF    1877.  13 

duly  organized,  we  proceeded  to  vote  by  ballot,  and  balloted  first  for  such  President 
and  then  for  such  Vice-President,  by  distinct  ballots. 

And  we  further  certify  that  we,  and  each  of  us,  are  duly  qualified,  under  the  Consti 
tution  and  laws  of  the  United  States,  to  hold  the  said  office  of  elector  of  President  and 
Vice  President,  and  that  we  have  each  of  us  taken  the  oath  of  office  prescribed  by  the 
laws  of  the  State  of  Florida  for  electors  of  President  and  Vice-President,  and  that  we 
have  complied  with  all  and  singular  the  other  requirements  of  the  laws  of  this  State 
prescribing,  declaring,  and  establishing  the  duties  of  such  electors. 

And  we  further  certify  that  the  following  are  two  distinct  lists ;  one  of  the  votes 
for  President  and  the  other  of  the  votes  for  Vice-President. 

List  of  all  persons  voted  for  as  President,  with  the  number  of  votes  for  each  : 

For  President  of  the  United  States,  Samuel  J.  Tildeu,  of  the  State  of  New  York. 
Whole  number  of  votes,  four,  (4.) 

List  of  all  persons  voted  for  as  Vice-President,  with  the  number  of  votes  for  each  : 

For  Vice-President  of  the  United  States,  Thomas  A.  Hendricks,  of  the  State  of  Indiana. 
Whole  number  of  votes,  four,  (4.) 

In  witness  whereof  we  have  hereunto  set  our  hands.  Done  at  the  capitol,  in  the  city 
of  Tallahassee  and  State  of  Florida,  the  sixth  day  of  December,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  seventy-six,  and  of  the  Independence  of  the 
United  States  of  America  the  one  hundred  and  first,  at  the  seat  of  government  of  the 
said  State  of  Florida. 

WILKINSON  CALL,  Elector. 
ROBERT  BULLOCK,  Elector. 
ROBERT  B.  HILTON,  Elector. 
J.  E.  YONGE,  Ekctor. 

And  we  further  certify  that,  having  met  and  convened  as  such  electors,  at  the  time 
and  place  designated  by  law,  we  did  notify  the  governor  of  the  State  of  Florida,  the 
executive  of  said  State,  of  our  appointment  as  such  electors,  and  did  apply  to  and 
demand  of  him  to  cause  to  be  delivered  to  us  three  lists  of  the  names  of  the  electors 
of  the  said  State,  according  to  law,  and  the  said  governor  did  refuse  to  deliver  the 
same  to  us. 

WILKINSON  CALL,  Elector. 

ROBERT  BULLOCK,  Elector. 

ROBERT  B.  HILTON,  Elector. 

J.  E.  YONGE,  Elector. 

The  PEE  SID  ING  OFFICER,  Still  another  certificate  from  the  State 
of  Florida  has  beeii  received  by  messenger,  January  21,  and  it  is  now 
handed  to  the  tellers,  with  the  corresponding  one  received  by  mail, 
January  30. 

Mr.  Senator  ALLISON  (one  of  the  tellers)  read  the  certificate,  and 
Mr.  Senator  INGALLS  (another  of  the  tellers)  the  papers  accompany 
ing  the  certificate,  as  follows  : 

CERTIFICATE  No.  3. 

EXECUTIVE  OFFICE,  Tallahassee,  Fla. 

Whereas,  in  pursuance  of  an  act  of  the  legislature  of  this  State  entitled  "An  act  to 
procure  a  legal  canvass  of  the  electoral  vote  of  the  State  of  Florida,  as  cast  at  the 
election  held  on  the  7th  day  of  November,  A.  D.  1876,"  approved  January  17th,  1877, 
a  cauvass  of  the  returns  of  said  votes  on  file  in  the  office  of  the  secretary  of  state  was, 
on  the  19th  day  of  January,  A.  D.  1877,  made,  according  to  the  laws  of  the  State  and 
the  interpretation  thereof  by  the  supreme  court,  and  Robert  Bullock,  Robert  B.  Hilton, 
Wilkinson  Call,  and  James  E.  Yonge  were  duly  determined,  declared,  and  certified  to 
have  been  elected  electors  of  President  and  Vice-President  of  the  United  States  for  the 
State  of  Florida,  at  said  election  held  on  the  7th  day  of  November,  A.  D.  1876,  as  shown 
by  said  returns  ;  and  whereas,  in  a  proceeding  on  the  part  of  the  State  of  Florida,  by 
information  in  the  nature  of  a  quo  warranto,  wherein  the  said  Robert  Bullock,  Robert 
B.  Hilton,  Wilkinson  Call,  and  James  E.  Yonge  were  relators,  and  Charles  H.  Pearce, 
Frederick  C.  Humphries,  William  H.  Holden,  and  Thomas  W.  Long  were  respondents, 
the  circuit  court  of  this  State  for  the  second  judicial  circuit,  after  full  consideration 
of  the  law  and  the  proofs  produced  on  behalf  of  the  parties  respectively,  by  its  judg 
ment  determined  that  said  relators  were,  at  said  election,  in  fact  and  law,  elected  such 
electors  as  against  the  said  respondents  and  all  other  persons  : 

Now,  therefore,  and  also  in  pursuance  of  an  act  of  the  legislature  entitled  "An  act 
to  declare  and  establish  the  appointment  by  the  State  of  Florida  of  electors  of  Presi 
dent  and  Vice-Presideut  of  the  United  States,"  approved  January  2(5,  A.  D.  1877,  I, 
George  F.  Drew,  governor  of  the  State  of  Florida,  do  hereby  make  and  certify  the  fol- 


14  ELECTORAL    COUNT    OF    1877. 

lotving  list  of  the  names  of  the  said  electors  chosen,  appointed,  and  declared  as  afore 
said,  to  wit:  Robert  Bullock,  Robert  B.  Hilton,  Wilkinson  Call,  James  E.  Yonge. 

In  testimony  whereof  I  have  hereunto  set  my  hand  and  caused  the  great  seal  of  the 
State  to  be  affixed,  at  the  capitol,  at  Tallahassee,  this  the  26th  day  of  January, 
A.  D.  1877. 

[SEAL.]  GEO.  F.  DREW, 

Attest :  Governor. 

W.  D.  BLOXHAM, 

Secretary  of  State. 

STATE  OF  FLORIDA,  Leon  County,  ss : 

The  executive  of  the  State  of  Florida  having  caused  three  lists  of  the  electors  of  this 
State  for  President  and  Vice-President  of  the  United  States  to  be  made  and  certified 
and  delivered  to  us — one  of  which  said  lists  is  hereto  annexed — from  which  lists  it  ap 
pears  that  we,  the  undersigned,  were  duly  appointed  on  the  seventh  day  of  November, 
A.  D.  eighteen  hundred  and  seventy-six,  electors  of  President  and  Vice-President  for 
and  in  behalf  of  the  said  State  of  Florida : 

Now,  therefore,  be  it  remembered,  and  we  do  hereby  certify  and  make  known,  that 
we,  the  undersigned,  Robert  Bullock,  Robert  B.  Hilton,  Wilkinson  Call,  and  James  E. 
Yonge,  electors  as  aforesaid,  did,  on  the  first  Wednesday  of  December,  A.  D.  eighteen 
hundred  and  seventy-six,  being  the  sixth  day  of  said  December,  at  12  o'clock  m.,  meet 
as  such  electors,  in  the  capitol,  at  Tallahassee,  to  give  our  votes  as  such  electors  for 
President  and  Vice-President  of  the  United  States ;  and  did  then  and  there  give  and 
cast  our  votes,  as  such  electors,  by  ballot,  for  President  of  the  United  States ;  and  did 
then  and  there  give  and  cast  our  votes,  as  such  electors,  by  distinct  ballots,  for  Vice- 
President  of  the  United  States ;  and  the  said  ballots  having  been  opened,  inspected, 
and  counted,  it  did  there  and  then  appear  that  on  four  of  said  ballots  was  the  name 
of  Samuel  J.  Tilden,  of  the  State  of  New  York,  for  President  of  the  United  States,  and 
that  upon  four  other  of  said  ballots  was  the  name  of  Thomas  A.  Hendricks,  of  the  State 
of  Indiana,  for  Vice-President  of  the  United  States.  We,  the  undersigned,  do  there 
fore  and  hereby  certify  and  make  known  as  follows: 

1.  That,  at  the  said  election  and  voting  by  us  as  aforesaid,  the  number  of  electoral 
votes  cast  for  Samuel  J.  Tilden,  of  the  State  of  New  York,  for  President  of  the  United 
States,  was  four  votes. 

2.  That,  at  the  said  election  and  voting  by  us  as  aforesaid,  the  number  of  elelectoral 
votes  cast  for  Thomas  A.  Heudricks,  of  the  State  of  Indiana,  for  Vice-President  of  the 
United  States,  was  four  votes. 

.     Done  at  Tallahassee,  on  this  the  26th  day  of  January,  A.  D.  1877. 

In  testimony  whereof  we  have  hereto  set  our  hands  and  affixed  our  seals. 

WILKINSON  CALL,  [SEAL.] 

JAMES  E.  YONGE,  [SEAL.] 

ROBT.  BULLOCK,  [SEAL.] 

ROBERT  B.  HILTON,  [SEAL.] 
Electors  of  President  and  Vice-President  of  the  United  States. 

AN  ACT  to  procure  a  legal  canvass  of  the  electoral  vote  of  the  State  of  Florida  as  cast  at  the  election 
held  on  the  seventh  day  of  November,  A.  D.  1876. 

The  people  of  the  State  of  Florida,  represented  in  senate  and  assembly,  do  enact  as 
follows : 

SECTION  1.  The  secretary  of  state,  attorney-general,  and  the  comptroller  of  public 
accounts,  or  any  two  of  them,  together  with  any  other  member  of  the  cabinet  who 
may  be  designated  by  them,  shall  meet  forthwith  at  the  office  of  the  secretary  of  state, 
pursuant  to  notice  to  be  given  by  the  secretary  of  state,  and  form  a  board  of  State 
canvassers,  and  proceed  to  canvass  the  returns  of  the  election  of  electors  of  President 
and  Vice- President,  held  on  the  7th  day  of  November,  A.  D.  1876,  and  determine  and 
declare  who  were  elected  and  appointed  electors  at  said  election,  as  shown  by  such  re 
turns  on  file  in  the  office  of  the  secretary  of  state. 

SECTION  2.  The  said  board  of  State  canvassers  shall  canvass  the  said  returns  accord 
ing  to  the  fourth  section  of  the  statute  approved  February  27,  1872,  entitled  "An  act 
to  amend  an  act  to  provide  for  the  registration  of  electors  and  the  holding  of  elections," 
approved  August  6,  1868,  according  to  the  construction  declared,  and  the  rules  defining 
the  powers  and  duties  of  the  board  of  State  canvassers  under  said  law,  prescribed  in 
and  by  the  supreme  court  of  this  State  in  the  case  of  The  State  of  Florida  on  the  rela 
tion  of  Bloxham  vs.  Jonathan  C.  Gibbs,  secretary  of  state,  et  aZ.,  decided  in  January, 
A.  D.  1871,  and  in  the  case  of  The  State  of  Florida  on  the  relation  of  George  F.  Drew 
«*.  Samuel  B.  McLin,  secretary  of  state,  William  Archer  Cocke,  attorney-general,  and 
Clayton  A.  Cowgill,  comptroller  of  public  accounts  of  the  State  of  Florida,  decided  De 
cember  23,  A.  D.  1876. 

SECTION  3.  The  said  board  shall  make  and  sign  a  certificate,  containing,  in  words 


ELECTOEAL    COUNT    OF    1877.  15 

written  at  full  length,  the  whole  number  of  votes  given  at  said  election  for  each  office 
of  elector,  the  number  of  votes  given  for  each  person  for  such  office,  and  therein  declare 
the  result,  which  certificate  shall  be  recorded  in  the  office  of  the  secretary  of  state,  in 
a  book  to  be  kept  for  that  purpose,  and  the  secretary  of  state  shall  cause  a  certified 
copy  of  such  certificate  to  be  published  once  in  one  or  more  newspapers  printed  at  the 
seat  of  government,  and  shall  transmit  two  certified  copies  of  such  certificate,  one  to 
the  presiding  officer  of  the  senate  and  one  to  the  presiding  officer  of  the  assembly 
of  the  State  of  Florida. 

SECTION  4.  This  act  shall  take  effect  from  and  after  its  passage. 

Approved  January  17,  1877. 

I,  W.  D.  Bloxham,  secretary  of  state  of  State  of  Florida,  do  hereby  certify  that  the 
foregoing  is  a  true  and  correct  copy  of  the  original  on  file  in  my  office. 

In  testimony  whereof  I  have  hereunto  set  my  hand  and  affixed  the  great  seal  of  the 
State. 

Done  at  Tallahassee,  the  capital,  this  26th  day  of  January,  A.  D.  1877. 

[SEAL.]  W.  D.  BLOXHAM, 

Secretary  of  State. 

[Official.] 

STATE  OF  FLORIDA. 
Certificate  of  State  canvassers  of  the  election  held  November  7,  1876. 

We,  W.  D.  Bloxham,  secretary  of  state  of  the  State  of  Florida,  Columbus  Drew,  comp 
troller  of  public  accounts  of  said  State,  and  Walter  Gwynn,  treasurer  of  said  State, 
constituting  the  board  of  canvassers  of  the  State  of  Florida,  do  hereby  certify  that  we 
met  at  the  office  of  the  secretary  of  state,  at  the  capitol,  in  the  city  of  Tallahassee,  on 
the  19th  day  of  January,  1877,  and  proceeded  to  canvass  the  returns  of  a  general  elec 
tion  held  in  said  State  on  the  7th  day  of  November,  A.  D.  1876,  for  presidential  electors, 
in  accordance  with  the  provisions  of  an  act  entitled  "An  act  to  procure  a  legal  canvass 
of  the  electoral  vote  of  the  State  of  Florida,  as  cast  at  the  election  held  on  the  7th  day 
of  November,  A.  D.  1876."  From  said  canvass  we  arrived  at  the  following  result,  which 
we  do  hereby  certify  : 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Alachua 
was  as  follows,  viz  : 

TILDEN   ELECTORS. 

Wilkinson  Call  received  twelve  hundred  and  sixty-seven,  (1,267.) 
James  E.  Yonge  received  twelve  hundred  and  sixty -seven,  (1,267.) 
Robert  B.  Hilton  received  twelve  hundred  and  sixty-seven,  (1,267.) 
Robert  Bullock  received  twelve  hundred  and  sixty-seven,  (1,267.) 

HAYES  ELECTORS. 

F.  C.  Humphries  received  nineteen  hundred  and  eighty-four,  (1,984.) 

C.  H.  Pearce  received  nineteen  hundred  and  eighty-four,  (1,984.) 

W.  H.  Holden  received  nineteen  hundred  and  eighty -four,  (1,984.) 

T.  W.  Long  received  nineteen  hundred  and  eighty-four,  (1,984.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Baker 
was  as  follows,  viz  : 

Wilkinson  Call  received  two  hundred  and  thirty-eight,  (238.) 

James  E.  Yonge  received  two  hundred  and  thirty-eight,  (238.) 

Robert  B.  Hilton  received  two  hundred  and  thirty-eight,  (238.) 

Robert  Bullock  received  two  hundred  and  thirty-eight,  (238.) 

F.  C.  Humphries  received  one  hundred  and  forty-three,  (143.) 

C.  H.  Pearce  received  one  hundred  and  forty-three,  (143.) 

W.  H.  Holden  received  one  hundred  and  forty-three,  (143.) 

T.  W.  Long  received  one  hundred  and  forty-three,  (143.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Brevard 
was  as  follows,  viz  : 

Wilkinson  Call  received  one  hundred  and  eleven,  (111.) 

James  E.  Yonge  received  one  hundred  and  eleven,  (111.) 

Robert  B.  Hilton  received  one  hundred  and  eleven,  (111.) 

Robert  Bullock  received  one  hundred  and  eleven,  (111.) 

F.  C.  Humphries  received  fifty-eight,  (58.) 

C.  H.  Pearce  received  fifty-eight,  (58.) 


16  ELECTORAL    COUNT    OF    1377. 

W.  H.  Holden  received  fifty-eight,  (58.) 

T.  W.  Long  received  fifty-eight,  (58.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Bradford 
was  as  follows,  viz  : 

Wilkinson  Call  received  seven  hundred  and  three,  (703.) 

James  E.  Yonge  received  seven  hundred  and  three,  (703.) 

Robert  B.  Hilton  received  seven  hundred  and  three,  (703.) 

Robert  Bullock  received  seven  hundred  and  three,  (703.) 

F.  C.  Humphries  received  two  hundred  and  two,  (202.) 

C.  H.  Pearce  received  two  hundred  and  two,  (202.) 

W.  H.  Holdeu  received  two  hundred  and  two,  (202.) 

T.  W.  Long  received  two  hundred  and  two,  (202.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Calhoun 
was  as  follows,  viz  : 

Wilkinson  Call  received  two  hundred  and  fifteen,  (215.) 

James  E.  Yonge  received  two  hundred  and  fifteen,  (215.) 

Robert  B.  Hilton  received  two  hundred  and  fifteen,  (215.) 

Robert  Bullock  received  two  hundred  and  fifteen,  (215.) 

F.  C.  Humphries  received  sixty-three,  (63.) 

C.  H.  Pearce  received  sixty-two,  (62.) 

W.  H.  Holden  received  sixty-three,  (63.) 

T.  W.  Long  received  sixty- three,  (63.) 

C.  H.  Humphries  received  one,  (1.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Columbia 
was  as  follows,  viz : 

Wilkinson  Call  received  nine  hundred  and  three,  (903.) 

James  E.  Yonge  received  nine  hundred  and  three,  (903.) 

Robert  B.  Hilton  received  nine  hundred  and  three,  (903.) 

Robert  Bullock  received  nine  hundred  and  three,  (903.) 

F.  C.  Humphries  received  seven  hundred  and  eighteen,  (718.) 

C.  H.  Pearce  received  seven  hundred  and  eighteen,  (718.) 

W.  H.  Holdeu  received  seven  hundred  and  eighteen,  (718.) 

T.  W.  Long  received  seven  hundred  and  eighteen,  (718.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Clay  was 
as  follows,  viz : 

Wilkinson  Call  received  two  hundred  and  eighty-six,  (286.) 

James  E.  Yonge  received  two  hundred  and  eighty-seven,  (287.) 

Robert  B.  Hilton  received  two  hundred  and  eighty-seven,  (287.) 

Robert  Bullock  received  two  hundred  and  eighty-seven,  (287.) 

F.  C.  Humphries  received  one  hundred  and  twenty-two,  (122.) 

C.  H.  Pearce  received  one  hundred  and  twenty-one,  (121.) 

W.  H.  Holdeu  received  one  hundred  and  twenty-two,  (122.) 

T.  W.  Long  received  one  hundred  and  twenty-two,  (122.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Duval  was 
as  follows,  viz : 

Wilkinson  Call  received  fourteen  hundred  and  thirty-six,  (1,436.) 

James  E.  Yonge  received  fourteen  hundred  and  thirty-seven,  (1,437.) 

Robert  B.  Hilton  received  fourteen  hundred  and  thirty -seven,  (1,437.) 

Robert  Bullock  received  fourteen  hundred  and  thirty-seven,  (1,437.) 

F.  C.  Humphries  received  twenty-three  hundred  and  sixty-seven,  (2,367.) 

C.  H.  Pearce  received  twenty-three  hundred  and  sixty-six,  (2,366.) 

W.  H.  Holden  received  twenty-three  hundred  and  eixty-seveu,  (2,367.) 

T.  W.  Long  received  twenty-three  hundred  and  sixty  six,  (2,366.) 

Marcellus  L.  Stearns  received  one,  (1.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Dace  was 
as  follows,  viz.: 

Wilkinson  Call  received  five,  (5.) 

James  E.  Yonge  received  five,  (5.) 

Robert  B.  Hilton  received  five,  (5.) 

Robert  Bullock  received  five,  (5.) 

F.  C.  Humphries  received  nine,  (9.) 

C.  H.  Pearce  received  nine,  (9.) 

W.  H.  Holden  received  nine,  (9.) 

T.  W.  Long  received  nine,  (9.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  cor-nty  of  Escambia 
was  as  follows,  viz: 

Wilkinson  Call  received  fourteen  hundred  and  twenty-six,  (1,426.) 

James  E.  Yonge  received  fourteen  hundred  and  twenty-six,  (1,426.) 

Robert  B.  Hilton  received  fourteen  hundred  and  twenty-six,  (1,426.) 

Robert  Bullock  received  fourteen  hundred  and  twenty-six,  (1,426.) 


ELECTORAL    COUNT    OF    1877.  17 

F.  C.  Humphries  received  sixteen  hundred  and  two,  (1,602.) 

C.  H.  Pearee  received  sixteen  hundred  and  two,  (1,602.) 

W.  H.  Holden  received  sixteen  hundred  and  two,  (1,602.) 
r.  W.  Long  received  sixteen  hundred  and  two,  (1,602.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Franklin 
was  as  follows : 

Wilkinson  Call  received  one  hundred  and  sixty-seven,  (167.) 

James  E.  Yonge  received  one  hundred  and  sixty-seven,  (167.) 

Robert  B.  Hilton  received  one  hundred  and  sixty -seven,  (167.) 

Robert  Bullock  received  one  hundred  and  sixty -seven,  (167.)' 

F.  C.  Humphries  received  ninety-one,  (91.) 

C.  H.  Pearee  received  ninety-one,  (91.) 

W.  H.  Holden  received  ninety-one,  (91.) 

T.  W.  Long  received  ninety-one,  (91.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Gadsden 
was  as  follows,  viz  : 

Wilkinson  Call  received  eight  hundred  and  thirty-five,  (835.) 

James  E.  Yonge  received  eight  hundred  and  thirty-five,  (835.) 

Robert  B.  Hilton  received  eight  hundred  and  thirty-five,  (835.) 

Robert  Bullock  received  eight  hundred  and  thirty-five,  (835.) 

F.  C.  Humphries  received  thirteen  hundred,  (1,300.) 

C.  H.  Pearee  received  thirteen  hundred,  (1,300.) 

W.  H.  Holdeu  received  thirteen  hundred,  (1,300.) 

C1.  W.  Long  received  thirteen  hundred,  (1,300.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Hamilton 
was  as  follows,  viz  : 

Wilkinson  Call  received  six  hundred  and  seventeen,  (617.) 
James  E.  Yonge  received  six  hundred  and  seventeen,  (617.) 
Robert  B.  Hilton  received  six  hundred  and  seventeen,  (617.) 
Robert  Bullock  received  six  hundred  and  seventeen,  (617.) 
F.  C.  Humphries  received  three  hundred  and  thirty,  (330.) 
C.  H.  Pearee  received  three  hundred  and  thirty,  (330.) 
W.  H.  Holden  received  three  hundred  and  thirty,  (330.) 
T.  W.  Long  received  three  hundred  and  thirty,  (330.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Hemando 
was  as  follows,  viz  : 

Wilkinson  Call  received  five  hundred  and  seventy-nine,  (579.) 
James  E.  Yonge  received  five  hundred  and  seventy-nine,  (579.) 
Robert  B.  Hilton  received  five  hundred  and  seventy  eight,  (578.) 
Robert  Bullock  received  five  hundred  and  seventy-nine,  (579.) 
F.  C.  Humphries  received  one  hundred  and  forty-four,  (144.) 
C.  H.  Pearee  received  one  hundred  and  forty-four,  (144.) 
W.  H.  Holden  received  one  hundred  and  forty -four,  (144.) 
T.  W.  Long  received  one  hundred  and  fortj-four,  (144.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Hillsborough 
was  as  follows,  viz : 

Wilkinson  Call  received  seven  hundred  and  ninety,  (790.) 
James  E.  Yonge  received  seven  hundred  and  ninety,  (790.) 
Robert  B.  Hilton  received  seven  hundred  and  ninety,  (790.) 
Rober  Bullock  received  seven  hundred  and  eighty-nine,  (789.) 
F.  C.  Humphries  received  one  hundred  and  eighty-six,  (186.) 
C.  H.  Pearee  received  one  hundred  and  eighty-six,  (186.) 
W.  H.  Holden  received  one  hundred  and  eighty-six,  (186.) 
T.  W.  Long  received  one  hundred  and  eighty-six,  (186.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Holmes  was 
as  follows,  viz: 

Wilkinson  Call  received  three  hundred,  (300.) 
James  E.  Youge  received  three  hundred,  (300.) 
Robert  B.  Hilton  received  three  hundred,  (300.) 
Robert  Bullock  received  three  hundred,  (300.) 
F.  C.  Humphries  received  sixteen,  (16.) 
C.  H.  Pearee  received  sixteen,  (16.) 
W.  H.  Holden  received  sixteen,  (16.) 
T.  W.  Long  received  sixteen,  (16.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Jackson  was 
as  follows,  viz : 

Wilkinson  Call  received  thirteen  hundred  and  ninety-seven,  (1,397.) 
James  E.  Yonge  received  thirteen  hundred  and  ninety-seven,  (1,397.) 
Robert  B.  Hilton  received  thirteen  hundred  and  ninety-seven,  (1,397.) 
Robert  Bullock  received  thirteen  hundred  and  ninety-seven  (1,397.) 

2  E   O 


18  ELECTOKAL    COUNT    OF    1877. 

F.  C.  Humphries  received  twelve  hundred  and  ninety-nine,  (1,299.) 
C.  H.  Pearce  received  twelve  hundred  and  ninety-nine,  (1,299.) 
W.  H.  Holden  received  twelve  hundred  and  ninety-nine,  (1,299.) 
T.  W.  Long  received  twelve  hundred  and  ninety-nine,  (1,299.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Jefferson 
was  as  follows,  viz  : 

Wilkinson  Call  received  seven  hundred  and  thirty-seven,  (737.) 
James  E.  Youge  received  seven  hundred  and  thirty-seven,  (737.) 
Robert  B.  Hilton  received  seven  hundred  and  thirty-seven,  (737.) 
Robert  Bullock  received  seven  hundred  and  thirty-seven,  (737.) 
F.  C.  Humphries  received  twenty-six  hundred  and  sixty,  (2,660.) 
C.  H.  Pearce  received  twenty-six  hundred  and  sixty,  (2,660.) 
W.  H.  Holden  received  twenty-six  hundred  and  sixty,  (2,660. 
T.  W.  Long  received  twenty-six  hundred  and  sixty,  (2,660.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  La  Fay- 
ette  was  as  follows,  viz  : 

Wilkinson  Call  received  three  hundred  and  nine,  (309.) 
James  E.  Yonge  received  three  hundred  and  nine,  (309.) 
Robert  B.  Hilton  received  three  hundred  and  nine,  (309.) 
Robert  Bullock  received  three  hundred  and  nine,  (309.) 
F.  C.  Humphries  received  sixty-two,  (62.) 
C.  H.  Pearce  received  sixty-two,  (62.) 
W.  H.  Holden  received  sixty-two,  (62.) 
T.  W.  Long  received  sixty-two,  (62.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Leon  was 
as  follows,  viz  : 

Wilkinson  Call  received  one  thousand  and  three,  (1,003.) 
James  E.  Yonge  received  one  thousand  and  three,(  1,003.) 
Robert  B.  Hilton  received  one  thousand  and  three,  (1,003.) 
Robert  Bullock  received  one  thousand  and  three,  (1,003.) 
F.  C.  Humphries  received  three  thousand  and  thirty-five,  (3,035.) 
C.  H.  Pearce  received  three  thousand  and  thirty-five,  (3,035.) 
W.  H.  Holden  received  three  thousand  and  thirty-five,  (3,035.) 
T.  W.  Long  received  three  thousand  and  thirty-five,  (3,035.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  co  unty  of  Levy  was 
as  follows,  viz : 

Wilkinson  Call  received  four  hundred  and  eighty-seven,  (487.) 
James  E.  Yonge  received  four  hundred  and  eighty-eight,  (488.) 
Robert  B.  Hilton  received  four  hundred  and  eighty-seven,  (487.) 

Robert  Bullock  received  four  hundred  and  eighty-seven,  (487.) 

F.  C.  Humphries  received  two  hundred  and  seven,  (207.) 

C.  H.  Pearce  received  two  hundred  and  seven,  (207.) 

W.  H.  Holden  received  two  hundred  and  seven,  (207.) 

T.  W.  Long  received  two  hundred  and  six,  (206.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Liberty 
•was  as  follows,  viz : 

Wilkinson  Call  received  one  hundred  and  forty-seven,  (147.) 

James  E.  Yonge  received  one  hundred  and  forty-seven,  (147.) 

Robert  B.  Hilton  received  one  hundred  and  forty-seven,  (147.) 

Robert  Bullock  received  one  hundred  and  forty-seven,  (147.) 

F.  C.  Humphries  received  eighty-three,  (83.) 

C.  H.  Pearce  received  eighty-three,  (83.) 

W.  H.  Holden  received  eighty-three,  (83.) 

T.  W.  Long  received  eighty-three,  (83.) 

The  whole  number  of  vote*  cast  for  presidential  electors  in  the  county  of  Madison 
was  as  follows,  viz : 

Wilkinson  Call  received  one  thousand  and  seventy-eight,  (1,078.) 

James  E.  Yonge  received  one  thousand  and  seventy-eight,  (1,078.) 

Robert  B.Hilton  received  one  thousand  and  seventy-eight,  (1,078.) 

Robert  Bullock  received  one  thousand  and  seventy-eight,  (1,078.) 

F.  C.  Humphries  received  one  thousand  five  hundred  and  twenty-four,  (1,524.) 

C.  H.  Pearce  received  one  thousand  five  hundred  and  twenty-four,  (1,524.) 

W.  H.  Holden  received  one  thousand  five  hundred  and  twenty-four,  (1,524.) 

T.  W.  Long  received  one  thousand 'five  hundred  and  twenty-four,  (1,524.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Manatee 
was  as  follows,  viz : 

Wilkinson  Call  received  two  hundred  and  sixty-two,  (262.) 

James  E.  Yonge  received  two  hundred  and  sixty-two,  (262.) 

Robert  B.  Hilton  received  two  hundred  and  sixty-two,  (262.) 

Robert  Bullock  received  two  hundred  and  sixty- two,  (2(>2.) 


ELECTORAL    COUNT    OF    1877.  19 

F.  C.  Humphries  received  twenty-six,  (26.) 

C.  H.  Pearce  received  twenty-six,  (26.) 

W.  H.  Holden  received  twenty-six,  (26.) 

T.  W.  Long  received  twenty-six,  (26.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Marion 
was  as  follows,  viz  : 

Wilkinson  Call  received  nine  hundred  and  fifty-eight,  (958.) 

James  E.  Yonge  received  nine  hundred  and  fifty-eight,  (958.) 

Robert  B.  Hilton  received  nine  hundred  and  fifty-eight,  (958.) 

Robert  Bullock  received  nine  hundred  and  fifty-eight,  (958.) 

F.  C.  Humphries  received  fifteen  hundred  and  fifty-two,  (1,552.) 

C.  H.  Pearce  received  fifteen  hundred  and  fifty-two,  (1,552.) 

W.  H.  Holden  received  fifteen  hundred  and  fifty-two,  (1,552.) 

T.  W.  Long  received  fifteen  hundred  and  fifty-two,  (1,552.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Monroe 
was  as  follows,  viz  : 

Wilkinson  Call  received  ten  hundred  and  forty-seven,  (1,047.) 

James  E.  Yonge  received  ten  hundred  and  forty-seven,  (1,047.) 

Robert  B.  Hilton  received  ten  hundred  and  forty-seven,  (1,047.) 

Robert  Bullock  received  ten  hundred  and  forty-seven,  (1,047.) 

F.  C.  Humphries  received  nine  hundred  and  eighty,  (980.) 

C.  H.  Pearce  received  nine  hundred  and  eighty,  (980.) 

W.  H.  Holden  received  nine  hundred  and  eighty,  (980.) 

T.  W.  Long  received  nine  hundred  and  eighty,  (980.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Nassau 
was  as  follows,  viz  : 

Wilkinson  Call  received  six  hundred  and  sixty-seven,  (667.) 

James  E.  Youge  received  six  hundred  and  sixty-seven,  (667.) 

Robert  B.  Hilton  received  six  hundred  and  sixty-six,  (666.) 

Robert  Bullock  received  six  hundred  and  sixty-seven,  (667.) 

F.  C.  Humphries  received  eight  hundred  and  two,  (802.) 

C.  H.  Pearce  received  eight  hundred  and  two,  (802.) 
W.  H.  Holdeu  received  eight  hundred  and  two,  (802.) 

T.  W.  Long  received  eight  hundred  and  two,  (802.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Orange 
was  as  follows,  viz  : 

Wilkinson  Call  received  nine  hundred  and  eight,  (908.) 
James  E.  Yonge  received  nine  hundred  and  eight,  (908.) 
Robert  B.  Hilton  received  nine  hundred  and  eight,  (908.) 
Robert  Bullock  received  nine  hundred  and  seven,  (907.) 
F.  C.  Humphries  received  two  hundred  and  eight,  (208.) 
C.  H.  Pearce  received  two  hundred  and  seven,  (207.) 
W.  H.  Holden  received  two  hundred  and  eight,  (208.) 
T.  W.  Long  received  two  hundred  and  six,  (206.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Putnam 
was  as  follows,  viz  : 

Wilkinson  Call  received  sir  hundred  and  five,  (605.) 
James  E.  Yonge  received  six  hundred  and  five,  (605.) 
Robert  B.  Hilton  received  six  hundred  and  five,  (605.) 
Robert  Bullock  received  six  hundred  and  five,  (605.) 
F.  C.  Humphries  received  five  hundred  and  eighty-six,  (586.) 
C.  H.  Pearce  received  five  hundred  and  eighty-six,  (586.) 
W.  H.  Holden  received  five  hundred  and  eighty-six,  (586.) 
T.  W.  Long  received  five  hundred  and  eighty-five,  (585.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Polk  was 
as  follows,  viz  : 

Wilkinson  Call  received  four  hundred  and  fifty-sir,  (456.) 
James  E.  Youge  received  four  hundred  and  fifty-six,  (456.) 
Robert  B.  Hilton  received  four  hundred  and  fifty-six,  (456.) 
Robert  Bullock  received  four  hundred  and  fifty-six,  (456.) 
F.  C.  Humphries  received  six,  (6.) 
C.  H.  Pearce  received  six,  (6.) 
W.  H.  Holden  received  six,  (6.) 
T.  W.  Long  received  six,  (6.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  banta 
Rosa  was  as  follows,  viz  : 

Wilkinson  Call  received  seven  hundred  and  sixty-eight,  (768.) 
James  E.  Yonge  received  seven  hundred  and  sixty-eight,  (768.) 
Robert  B.  Hilton  received  seven  hundred  and  sixty-eight,  (768.) 
Robert  Bullock  received  seven  hundred  and  sixty-eight,  (768.) 


20  ELECTORAL    COUNT    OF    1877. 

F.  C.  Humphries  received  four  hundred  and  nine,  (409.) 

C.  H.  Pearce  received  four  hundred  and  nine,  (409.) 

W.  H.  Holden  received  four  hundred  and  nine,  (409.) 

T.  W.  Long  received  four  hundred  and  nine,  (409.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Su inter 
was  as  follows,  viz : 

Wilkinson  Call  received  five  hundred  and  six,  (506.) 

James  E.  Yonge  received  five  hundred  and  six,  (506.) 

Robert  B.  Hilton  received  five  hundred  and  six,  (506.) 

Robert  Bullock  received  five  hundred  and  five,  (505.) 

F.  C.  Humphries  received  one  hundred  and  seventy -three,  (173.) 

C.  H.  Pearce  received  one  hundred  and  seventy-three,  (173.) 

W.  H.  Holdeu  received  one  hundred  and  seventy-three,  (173.) 

T.  W.  Long  received  one  hundred  and  seventy-three,  (173.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Saint 
John's  was  as  follows,  viz  : 

Wilkinson  Call  received  five  hundred  and  one,  (501.) 

James  E.  Yonge  received  five  hundred  and  one,  (50L.) 

Robert  B.  Hilton  received  five  hundred  and  one,  (501.) 

Robert  Bullock  received  five  hundred  and  one,  (501.) 

F.  C.  Humphries  received  three  hundred  and  thirty-eight,  (338.) 

C.  H.  Pearce  received  three  hundred  and  thirty-eight,  (338.) 

W.  H.  Holden  received  three  hundred  and  thirty-eight,  (338.) 

T.  W.  Long  received  three  hundred  and  thirty-eight,  (338.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Suwannee 
was  as  follows,  viz : 

Wilkinson  Call  received  six  hundred  and  twenty-six,  (626.) 

James  E.  Yonge  received  six  hundred  and  twenty-six,  (626.) 

Robert  B.  Hilton  received  six  hundred  and  twenty-six,  (626.) 

Robert  Bullock  received  six  hundred  and  twenty-six,  (626.) 

F.  C.  Humphries  received  four  hundred  and  fifty-eight,  (458.) 

C.  H.  Pearce  received  four  hundred  and  fifty-eight,  (458.) 

W.  H.  Holden  received  four  hundred  and  fifty-eight,  (458.) 

T.  W.  Long  received  four  hundred  and  fifty-eight,  (458.) 

The  whole  vote  cast  for  presidential  electors  in  the  county  of  Taylor  was  as  fol 
lows,  viz : 

Wilkinson  Call  received  two  hundred  and  forty-two,  (242.) 

James  E.  Yonge  received  two  hundred  and  forty-two,  (242.) 

Robert  B.  Hilton  received  two  hundred  and  forty-two,  (242.) 

Robert  Bullock  received  two  hundred  and  forty-two,  (242.) 

F.  C.  Humphries  received  seventy-three,  (73.) 

C.  H.  Pearce  received  seventy-three,  (73.) 

W.  H.  Holdeu  received  seventy-three,  (73.) 

T.  W.  Long  received  seventy-three,  (73.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Volusia  was 
as  follows,  viz : 

Wilkinson  Call  received  four  hundred  and  sixty,  (460.) 

James  E.  Yonge  received  four  hundred  and  fifty-nine,  (459.) 

Robert  B.  Hilton  received  four  hundred  and  fifty-nine,  (459.) 

Robert  Bullock  received  four  hundred  and  sixty,  (460.) 

F.  C.  Humphries  received  one  hundred  and  eighty-six,  (186.) 

C.  H.  Pearce  received  one  hundred  and  eighty-six,  (186.) 

W.  H.  Holden  received  one  hundred  and  eighty-six,  (186.) 

T.  W.  Long  received  one  hundred  and  eighty -six,  (186.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Wakulla 
was  as  follows,  viz : 

Wilkinson  Call  received  three  hundred  and  sixty-one,  (361.) 

James  E.  Youge  received  three  hundred  and  sixty-one,  (361.) 

Robert  B.  Hilton  received  three  hundred  and  sixty -one,  (361.) 

Robert  Bullock  received  three  hundred  and  sixty-one,  (361.) 

F.  C.  Humphries  received  one  hundred  and  eighty-two,  (182.) 

C.  H.  Pearce  received  one  hundred  and  eighty-two,  (182.) 

W.  H.  Holden  received  one  hundred  and  eighty-two,  (1«2.) 

T.  W.  Long  received  one  hundred  and  eighty-two,  (182.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  .of  Walton  was 
as  follows : 

Wilkinson  Call  received  six  hundred  and  twenty-six,  (626.) 

James  E.  Yonge  received  six  hundred  and  twenty-eight,  (628.) 

Robert  B.  Hilton  received  six  hundred  arid  twenty-eight,  (628.) 

Robert  Bullock  received  six  hundred  and  twenty-eight,  (628.) 


ELECTORAL    COUNT    OF    1877.  21 

F.  C.  Humphries  received  forty-six,  (46.) 

C.  H.  Pearce  received  forty-six,  (46.) 

W.  H.  Holden  received  forty-seven,  (47.) 

T.  W.  Long  received  forty-six,  (46.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Washington 
was  as  follows,  viz  : 

Wilkinson  Call  received  four  hundred  and  seven,  (407.) 

James  E.  Yonge  received  four  hundred  and  seven,  (407.) 

Robert  B.  Hilton  received  four  hundred  and  seven,  (407.) 

Robert  Bullock  received  four  hundred  and  seven,  (407.) 

F.  C.  Humphries  received  one  hundred  and  nineteen,  (119.) 

C.  H.  Pearce  received  one  hundred  and  nineteen,  (119.) 

W.  H.  Holden  received  one  hundred  and  nineteen,  (119.) 

T.  W.  Long  received  one  hundred  and  nineteen,  (119.) 

Now,  therefore,  we,  the  said  W.  D.  Bloxham,  secretary  of  state,  Columbus  Drew, 
comptroller,  and  Walter  Gwynn,  treasurer,  constituting  the  board  of  canvassers  as 
aforesaid,  do  hereby  certify  that,  having  completed  said  canvass  in  conformity  to  law, 
have  ascertained  and  determined,  and  do  declare  and  proclaim,  as  follows,  viz : 

The  whole  number  of  votes  cast  for  presidential  electors  was  as  follows,  viz : 

Wilkinson  Call  received  twenty-four  thousand  four  hundred  and  thirty-seven,  (24,437.) 

James  E.  Yonge  received  twenty-four  thousand  four  hundred  and  forty,  (24,440.) 

Robert  B.  Hilton  received  twenty-four  thousand  four  hundred  and  thirty-seven, 
(24,437.) 

Robert  Bullock  received  twenty-four  thousand  four  hundred  and  thirty-seven. 
(24,437.) 

F.  C.  Humphries  received  twenty-four  thousand  three  hundred  and  forty-nine. 
(24,349.) 

C.  H.  Pearce  received  twenty-four  thousand  three  hundred  and  forty-five,  (24,345.) 

W.  H.  Holden  received  twenty-four  thousand  three  hundred  and  fifty,  (24,350.) 

T.  W.  Long  received  twenty-four  thousand  three  hundred  and  forty-four,  (24,344.) 

Now,  therefore,  we,  the  said  William  D.  Bloxham,  secretary  of  state,  Columbus 
Drew,  comptroller  of  public  accounts,  and  Walter  Gwynn,  treasurer,  constituting  the 
State  board  of  canvassers  as  aforesaid,  do  hereby  certify  that,  having  completed  said 
canvass  in  conformity  with  the  provisions  of  said  act  entitled  "An  act  to  procure  a 
legal  canvass  of  the  electoral  vote  of  the  State  of  Florida,  as  cast  at  the  election  held 
on  the  7th  day  of  November,  A.  D.  1876,"  we  have  ascertained  and  determined,  and  do 
hereby  declare  and  proclaim,  that,  from  said  canvass,  Wilkinson  Call,  James  E.  Yonge, 
Robert  B.  Hilton,  and  Robert  Bullock  are  duly  elected,  chosen,  and  appointed  electors 
of  President  and  Vice-President  of  the  United  States  for  the  State  of  Florida. 

In  testimony  whereof  we  do  hereunto  affix  our  official  signatures,  at  Tallahassee,  this 
the  19th  day  of  January,  1877. 

W.  D.  BLOXHAM, 
Secretary  of  State  and  Chairman  Canvassing- Board. 

C.  DREW, 

Comptroller  Public  Accounts,  State  of  Florida. 
WALTER  GWYNN, 
Treasurer,  State  of  Florida. 


22 


ELECTORAL    COUNT    OF    1877. 

Tabulation. 


Counties. 

Democratic  electors. 

Republican  electors. 

C.  H.  Humphries. 

Marcellus  L.  Stearns. 

Wilkinson  Call. 

James  E.  Tonge. 

Robert  B.  Hilton. 

Robert  Bullock. 

F.  C.  Humphries. 

ft 

w 

d 

d 

i 

1 

w 

* 

A 

Et 

H 

1,267 
238 
111 
703 
215 
903 
286 
1,436 
5 
1,426 
167 
835 
617 
579 
790 
300 
1,397 
737 
309 
1,003 
487 
147 
1,078 
262 
958 
1,047 
667 
908 
605 
456 
768 
506 
501 
626 
242 
460 
361 
626 
407 

1,267 

238 
111 
703 
215 
903 
287 
1,437 
5 
1,426 
167 
835 
617 
597 
790 
300 
1,397 
737 
309 
1,003 
488 
147 
1,078 
262 
958 
1,047 
667 
908 
605 
456 
768 
506 
501 
626 
242 
459 
361 
628 
407 

1,267 
218 
111 
703 
215 
903 
287 
1,437 
5 
1,426 
167 
835 
617 
578 
790 
300 
1,397 
737 
3Q9 
1,003 
487 
147 
1,078 
262 
958 
1,047 
666 
908 
605 
456 
768 
506 
501 
626 
242 
459 
361 
628 
407 

1,267 
238 
111 
703 
215 
903 
287 
1,437 
5 
1,426 
167 
835 
617 
579 
789 
300 
1,397 
737 
309 
1,003 
487 
147 
1,078 
262 
958 
1,047 
667 
907 
605 
456 
768 
505 
501 
626 
242 
460 
361 
628 
407 

1,984 
143 
58 
202 
63 
718 
122 
2,367 
9 
1,602 
91 
1,300 
330 
144 
186 
16 
1,229 
2,660 
62 
3,  035 
207 
83 
1,524 
26 
1,552 
980 
802 
208 
586 
6 
409 
173 
338 
458 
73 
186 
182 
46 
119 

1,984 
143 
58 
202 
62 
718 
121 
2,366 
9 
1,602 
91 
1,300 
330 
144 
186 
16 
1,299 
2,660 
62 
3,035 
207 
83 
1,  524 
26 
1,552 
980 
802 
207 
586 
6 
409 
173 
338 
458 
73 
186 
182 
46 
119 

1,984 
143 

58 
202 
63 
718 
122 
2,367 
9 
1,  602 
91 
1,300 
330 
144 
186 
16 
1,299 
2,660 
62 
3,035 
207 
83 
1,524 
26 
1,562 
980 
802 
208 
58P 
6 
409 
173 
338 
458 
73 
186 
182 
47 
119 

1,984 
143 

58 
202 
63 
718 
122 
2,366 
9 
1,  602 
91 
1,300 
330 
144 
186 
16 
1,299 
2,  660 
62 
3,035 
206 
83 
1,524 
26 
1,552 
980 
802 
206 
585 
6 
409 
173 
338 
458 
73 
186 
182 
46 
119 

Baker 

Bradford 

1 

Clay        

Duval 



1 

Dade       

Franklin 

Hamilton 

Holmes    .  *I  .  . 

Jefferson         

Leon 





Liberty 

Maiiatee 

Marion    ...         

Nassau    . 

Putnam 

Polk 

Santa  Rosa 

Suwannee 

Taylor 

Volusia   .  . 

Wakulla 

Walton 

TOTAL  RESULT. 


Wilkinson  Call 24,437 

J.  E.  Tonge 24,440 

R.B.  Hilton 24,437 

Robert  Bullock 24,437 


F.C.Humphries 24,349 

C.H.Pearce 24,345 

W.  H.  Holden 24,350 

T.  W.Long 24,344 


OFFICE  OP  THE  SECRETARY  OF  STATE, 

Taliahassee,  Florida : 

I,  W.  D.  Bloxham,  secretary  of  state  of  the  State  of  Florida,  do  hereby  certify  that  the 
foregoing  is  a  true  and  correct  copy  of  the  certificate  of  the  board  of  State  canvassers, 
at  a  canvass  of  the  votes  cast  at  the  election  held  on  the  7th  day  of  November,  A.  D. 
1876,  for  electors  of  President  and  Vice-President  of  the  United  States,  for  and  on  be 
half  of  the  State  of  Florida,  and  of  the  result  thereof,  as  the  same  appears  of  record  in 
my  office. 

In  attestation  whereof  I  hereunto  set  my  hand  and  affix  the  seal  of  my  office,  at  Tal 
lahassee,  the  capitol,  this  twenty-sixth  day  of  January,  A.  D.  1877. 

W.  D.  BLOXHAM, 

Secretary  of  State. 
EXECUTIVE  OFFICE, 

Tallahassee,  Florida  : 

I,  George  F.  Drew,  governor  of  the  State  of  Florida,  do  hereby  certify  that  the  above 
attestation  of  W.  D.  Bloxham,  secretary  of  state  of  the  State  of  Florida,  is  in  due  form, 
and  that  it  is  made  by  the  proper  officer,  to  whose  act  as  such  full  faith  and  credit  are 
due. 


ELECTORAL    COUNT    OF    1877.  23 

In  testimony  whereof  I  have  hereunto  set  my  hand  and  caused  the  great  seal  of  the 
State  to  be  affixed,  at  the  capitol,  at  Tallahassee,  this  26th  day  of  January,  A.  D.  1877 
[SEAL.]  GEO.  F.  DREW, 

Governor. 


An  act  to  declare  and  establish  the  appointment  by  the  State  of  Florida  of  electors  of  President  and 

Vice-President. 

Whereas  at  the  general  election  held  in  this  State  on  the  7th  of  November,  1876,  ac 
cording  to  the  returns  from  the  several  counties  on  file  in  the  office  of  the  secretary  of 
state,  and  according  to  a  canvass  and  a  statement  and  a  certification  thereof,  made  by 
the  secretary  of  state,  treasurer,  and  comptroller  of  public  accounts,  under  an  act  of  this 
legislature,  entitled  uAn  act  to  procure  a  legal  canvass  of  the  electoral  vote  of  the  State 
of  Florida,  as  cast  at  the  election  held  on  the  7th  day  of  November,  A.  D.  1876," 

Robert  Bullock  received  twenty-four  thousand  four  hundred  and  thirty-seven  votes 
for  the  office  of  elector  of  President  and  Vice-President  of  the  United  States, 

Robert  B.  Hilton  received  twenty  four  thousand  four  hundred  and  thirty-seven  votes 
for  the  said  office, 

Wilkinson  Call  received  twenty-four  thousand  four  hundred  and  thirty-seven  votes 
for  the  said  office, 

James  E.  Yonge  received  twenty-four  thousand  four  hundred  and  forty  votes  for  the 
said  office, 

Charles  H.  Pearce  received  twenty-four  thousand  three  hundred  and  forty-five  votes 
for  the  said  office, 

Frederick  C.  Humphries  received  twenty-four  thousand  three  hundred  and  forty-nine 
votes  for  the  said  office, 

William  H.  Holden  received  twenty-four  thousand  three  hundred  and  fifty  votes  for 
the  said  office, 

Thomas  W.  Long  received  twenty-four  thousand  three  hundred  and  forty-four  votes 
for  the  said  office  ; 

And  whereas,  as  shown  by  the  said  returns,  the  said  Robert  Bullock,  Robert  B.  Hil 
ton,  Wilkinson  Call,  and  James  E.  Yonge  were  duly  chosen  and  appointed  electors  of 
President  and  Vice-President  of  the  United  States  by  the  State  of  Florida,  in  such  man 
ner  as  the  legislature  of  the  said  State  had  directed  ; 

And  whereas  the  board  of  State  canvassers  constituted  under  the  act  approved  Feb 
ruary  27, 1872,  did  interpret  the  laws  of  this  State  defining  the  powers  and  duties  of  the 
said  board  in  such  manner  as  to  give  them  power  to  exclude  certain  regular  returns, 
and  did,  in  fact,  under  such  interpretation,  exclude  certain  of  such  regular  returns, 
which  said  interpretation  has  been  adjudged  by  the  supreme  court  to  be  erroneous  and 
illegal ; 

And  whereas  the  late  governor,  Marcellus  L.  Stearns,  by  reason  of  said  illegal  action 
and  erroneous  and  illegal  canvass  of  the  said  board  of  State  canvassers,  did  erroneously 
cause  to  be  made  and  certified  lists  of  the  names  of  the  electors  of  this  State  contain 
ing  the  names  of  the  said  Charles  H.  Pearce,  Frederick  C.  Humphries,  William  H. 
Holden,  and  Thomas  W.  Long,  and  did  deliver  such  lists  to  said  persons,  when  in  fact 
the  said  persons  had  not  received  the  highest  number  of  votes,  and  on  a  canvass  con 
ducted  according  to  the  rules  prescribed  and  adjudged  as  legal  by  the  supreme  court, 
were  not  appointed  as  electors  or  entitled  to  receive  such  lists  from  the  governor,  but 
Robert  Bullock,  Robert  B.  Hilton,  Wilkinson  Call,  and  James  E.  Yonge  were  duly 
appointed  electors,  and  were  entitled  to  have  their  names  compose  the  lists  made  and 
certified  by  the  governor,  and  to  have  such  lists  delivered  to  them  : 

Now,  therefore,  the  people  of  the  State  of  Florida,  represented  in  senate  and  assembly, 
do  enact  as  follows: 

SECTION  1.  That  Robert  Bullock,  Robert  B.  Hilton,  Wilkinson  Call,  and  James  E. 
Yonge  were,  on  the  7th  day  of  November,  1876,  duly  chosen  and  appointed  by  and  on 
behalf  of  the  State  of  Florida,  in  such  manner  as  the  legislature  thereof  has  directed. 
electors  of  President  and  Vice-President  of  the  United  States,  and  were,  from  the  auitt 
7th  day  of  November,  1876,  and  are,  authorized  and  entitled  to  exercise  all  the  powers 
and  duties  of  the  office  of  electors  as  aforesaid,  and  h;id  full  power  and  authority,  ou 
the  6th  day  of  December,  1876,  to  vote  as  such  electors  for  President  and  Vice-Pres 
of  the  United  States,  and  to  certify  and  transmit  their  votes  as  provided  by  law  and 
their  acts  as  such  electors  are  hereby  ratified,  confirmed,  and  declared  to  be  valid  to  all 
intents  and  purposes;  and  the  said  Robert  Bullock,  Robert  B.  Hilton,  Wilkinson  Call, 
and  James  E.  Yonge  are  hereby  appointed  such  electors  as  ou  and  from  and  alter  tl 
said  7th  day  of  November,  1876.  , 

SEC.  2.  The  governor  of  this  State  is  hereby  authorized  and  directed  to  make  ami 
certify  in  due  form,  under  the  great  seal  of  this  State,  three  lists  of  the  names  , 
said  electors,  to  wit,  Robert  Bullock,  Robert  B.  Hilton,  Wilkinson  Call,  and  James  b. 


24  ELECTORAL    COUNT    OF    1877. 

Yonge,  and  to  transmit  the  same,  with  an  authenticated  copy  of  this  act,  to  the  Presi 
dent  of  the  Senate  of  the  United  States  ;  and  said  lists  and  certificates  shall  be  as  valid 
and  effectual  to  authenticate  in  behalf  of  this  State  the  appointment  of  such  electors 
by  this  State  as  if  they  had  been  made  and  delivered  on  or  before  the  6th  day  of  De 
cember,  1876,  and  had  been  transmitted  immediately  thereafter,  and  the  lists  and  cer 
tificates  containing  the  names  of  Charles  H.  Pearce,  Frederick  C.  Humphries,  William 
H.  Holden,  and  Thomas  W.  Long  are  hereby  declared  to  be  illegal  and  void. 

SEC.  3.  The  governor  of  this  State  is  further  authorized  and  required  to  cause  three 
other  lists  of  the  names  of  said  electors,  to  wit,  Robert  Bullock,  Robert  B.  Hilton, 
Wilkinson  Call,  and  James  E.  Yonge,  to  be  made  and  certified,  and  forthwith  delivered 
to  the  said  electors;  and  the  said  electors  shall  thereupon  meet  at  the  capitol  in  Talla- 
hasse,  and  make  and  sign  three  additional  certificates  of  all  the  votes  given  by  them 
on  the  said  sixth  day  of  December,  each  of  which  certificates  shall  contain  two  dis 
tinct  lists,  one  of  the  votes  for  President  and  the  other  of  the  votes  for  Vice-President, 
and  annex  to  each  of  the  certificates  one  of  the  lists  of  the  electors  which  shall  have 
been  furnished  to  them  by  the  governor  pursuant  to  this  section,  and  the  certificates  so 
made  shall  be  sealed  up,  certified,  and  one  of  them  transmitted  by  messenger  and  the 
other  by  mail  to  the  President  of  the  Senate,  and  the  third  delivered  to  the  judge  of 
the  district,  as  required  by  law. 

SEC.  4.  An  authenticated  copy  of  this  act  shall  be  transmitted  by  the  secretary  of 
state  to  the  President  of  the  Senate  of  the  United  States,  and  another  copy  to  the 
Speaker  of  the  House  of  Representatives  of  the  United  States. 

SEC.  5.  This  act  shall  take  effect  from  and  after  its  passage. 

Approved  January  26,  1877. 

OFFICE  OF  THE  SECRETARY  OF  STATE, 

Tallahassee,  Florida : 

I,  W.  D.  Bloxham,  secretary  of  state  of  the  State  of  Florida,  do  hereby  certify  that 
the  foregoing  is  a  true  and  correct  copy  of  the  original  on  file  in  my  office. 

In  testimony  whereof  I  have  hereunto  set  my  hand  and  affixed  the  great  seal  of  the 
State.    Done  at  Tallahassee,  the  capital,  this  26th  day  of  January,  A.  D.  1877. 
[SEAL.]  W.  D.  BLOXHAM, 

Secretary  of  State. 

The  PRESIDING  OFFICER.  Are  there  objections  to  the  certificates 
from  the  State  of  Florida  I 

Mr.  Representative  FIELD.  The  following  is  an  objection  to  the  votes, 
certificates,  and  lists  mentioned  in  the  return  first  read.  I  send  it  to 
the  desk. 

The  PRESIDING  OFFICER,  (having  examined  the  paper  sent  up.) 
The  objection  complies  with  the  law,  having  attached  the  signatures  of 
Senators  and  Representatives.  The  Clerk  of  the  House  will  read  the 
objection. 

The  Clerk  of  the  House  read  as  follows : 

OBJECTION  TO  No.  1. 

The  undersigned,  Charles  W.  Jones.  Senator  of  the  United  States  from  the  State  of 
Florida;  Henry  Cooper,  Senator  of  the  United  States  from  the  State  of  Tennessee;  J. 
E.  McDonald,  Senator  of  the  United  States  from  the  State  of  Indiana ;  David  Dudley 
Field,  Representative  from  the  State  of  New  York  ;  J.  Randolph  Tucker,  Representa 
tive  from  the  State  of  Virginia ;  G.  A.  Jenks,  Representative  from  the  State  of  Penn 
sylvania,  and  William  M.  Springer,  Representative  from  the  State  of  Illinois,  object  to 
the  counting  of  the  votes  of  Charles  H.  Pearce,  Frederick  C.  Humphries,  William  H. 
Holden,  and  Thomas  W.  Long  as  electors  of  President  and  Vice-President  of  the 
United  States  in,  for,  or  on  behalf  of  the  State  of  Florida  ;  and  to  the  paper  purport 
ing  to  be  a  certificate  of  M.  L.  Stearns,  as  governor  of  the  said  State,  that  the  said 
Charles  H.  Pearce,  Frederick  C.  Humphries,  William  H.  Holden,  and  Thomas  W.  Long 
were  appointed  electors  in,  for,  or  on  behalf  of  the  said  State ;  and  to  the  papers  pur 
porting  to  be  the  lists  of  votes  cast  by  the  said  Charles  H.  Pearce,  Frederick  C.  Hum 
phries,  William  H.  Holden,  and  Thomas  W.  Long  for  President  and  Vice-President  of 
the  United  States;  and  to  the  votes  themselves,  in  the  reasons  and  upon  the  grounds 
following,  among  others,  that  is  to  say  : 

1.  For  that  the  said  Charles  H.  Pearce,  Frederick  C.  Humphries,  William  H.  Holden, 
and  Thomas  W.  Long  were  not  appointed  by  the  said  State  of  Florida  in  such  maun  er 


ELECTORAL    COUNT    OF    1877.  25 

as  its  legislature  had  directed,  or  in  any  manner  whatever,  electors  of  President  and 
Vice-President  of  the  United  States. 

2.  For  that  Wilkinson  Call,  James  E.  Yonge,  Robert  B.  Hilton,  and  Robert  Bullock 
were  appointed  by  the  said  State  in  such  manner  as  its  legislature  had  directed  elect 
ors  of  President  and  Vice-President  of  the  United  States. 

3.  The  manner  of  appointing  electors  of  President  and  Vice-President  of  the  United 
States  in,  for,  or  on  behalf  of  the  State  of  Florida  was  by  the  votes  of  the  qualified 
electors  at  a  general  election  held  in  said  State  on  the  7th  day  of  November,  1876  ;  and 
the  qualified  electors  of  the  said  State  did,  on  the  said  7th  day  of  November,  1876,  exe 
cute  the  power  by  appointing  Wilkinson  Call,  James  E.  Yonge,  Robert  B.  Hilton,  and 
Robert  Bullock  to  be  such  electors,  which  appointment  gave  to  the  appointees  an  irre 
vocable  title  that  could  not  be  changed,  or  set  aside,  or  conferred  on  any  other  person. 

4.  For  that  the  pretended  certificate,  or  paper  purporting  to  be  a  certificate,  signed 
by  M.  L.  Stearns,  as  governor  of  said  State,  of  the  appointment  of  Charles  H.  Pearce, 
Frederick  C.  Humphries,  William  H.  Holden,  and  Thomas  W.  Long  to  be  electors,  was 
and  is  in  all  respects  untrue,  and  was  corruptly  procured  and  made  in  pursuance  of  a 
conspiracy  between  the  said  M.  L.  Stearns,  the  said  Charles  H.  Pearce,  Frederick  C. 
Humphries,  William  H.  Holden,  and  Thomas  W.  Long,  and  other  persons  to  these  ob 
jectors  unknown,  with  intent  to  deprive  the  people  of  the  said  State  of  their  right  to 
appoint  electors,  and  to  deprive  Wilkinson  Call,  James  E.  Yonge,  Robert  B.  Hilton, 
and  Robert  Bullock  of  their  title  to  said  office,  and  to  assert  and  set  up  fictitious  and 
unreal  votes  for  President  and  Vice-President,  and  thereby  to  deceive  the  proper  au 
thorities  of  this  Union. 

5.  For  that  the  said  papers,  falsely  purporting  to  be  the  votes  for  President  and 
Vice  President  of  the  State  of  Florida,  which  are  now  here   objected  to,  are   ficti 
tious  and   unreal,  and  do  not  truly  represent  any  votes  or  lawful  acts,  and  were 
made  out  and  executed  in  pursuance-of  the  same  fraudulent  conspiracy  by  the  said 
persons  purporting  to  have  cast  said  votes. 

6.  For  that  the  said  pretended  certificate,  and  the  pretended  lists  of  electors  connected 
therewith,  so  made  by  the  said  M.  L.  Stearns,  if  the  said  certificates  and  lists  ever  had  any 
validity,  which  these  objectors  deny,  have  been  annulled  and  declared  void  by  a  subse 
quent  lawful  certificate  of  the  executive  of  the  State  of  Florida,  duly  and  lawfully 
made,  in  which  the  said  Wilkinson  Call,  Robert  Bullock,  James  E.  Yonge,  and  Robert 
B.  Hilton  are  truly  and  in  due  form  declared  to  have  been  duly  appointed  by  the  said 
State  in  the  manner  directed  by  its  constitution,  and  also  by  an  act  of  the  legislature 
of  the  said  State,  in  which  the  title  of  the  said  Wilkinson  Call,  James  E.  Yonge,  Robert 
B.  Hilton,  and  Robert  Bullock  as  such  electors  is  declared  to  be  good  and  valid,  and, 
further,  by  the  judgment  of  the  circuit  court  of  the  said  State  of  Florida  for  the  second 
judicial  circuit,  that  being  a  court  of  competent  jurisdiction,  upon  an  information  in  the 
nature  of  quo  tvarranto  brought  on  the  6th  day  of  December,  1876,  before  said  pre 
tended  electors  in  any  form  voted  for  President  or  Vice-President,  as  aforesaid,  by  the 
State  of  Florida  on  the  relation  of  the  said  Wilkinson  Call,  Robert  Bullock,  James  E. 
Yonge,  and  Robert  E.  Hilton  against  the  said  Charles  H.  Pearce,  Frederick  C.  Humph 
ries,  William   H.  Holden,  and  Thomas  W.  Long,  whereby  the  defendants,  after  having 
appeared,  pleaded,  and  put  in  issue  the  question  of  their  own  right  and  title,  and  that 
of  the  relators,  to  act  as  such  electors,  and  after  full  hearing,  it  was  duly  and  lawfully 
adjudged  by  said  court  that  the  said  Charles  H.  Pearce,  Frederick  C.  Humphries, 
William  H.  Holdeu,  and  Thomas  W.  Long  were  not,  nor  was  any  one  of  them,  elected, 
chosen,  or  appointed,  or  entitled  to  be  declared  elected,  chosen,  or  appointed,  as  such 
electors  or  elector,  or  to  receive  certificates  or  certificate  of  election,  or  appointment, 
as  such  electors  or  elector  ;   and  that  the  said  respondents  were  not,  upon  the  said  6th 
day  of  December,  or  at  any  other  time,  entitled  to  assume  or  exercise  any  of  the  powers 
and  functions  of  such  electors  or  elector,  but  that  they  were,  upon  the  said  day  and 
date,  mere  usurpers,  and  that  all  and  singular  their  acts  and  doings  as  such  were  and 
are  illegal,  null,  and  void. 

And  it  was  further  considered  and  adjudged  that  the  said  relators,  Robert  Bullock, 
Robert  B.  Hilton,  Wilkinson  Call,  and  James  E.  Yonge,  all  and  singular,  were,  at  said 
election,  duly  elected,  chosen,  and  appointed  electors  of  President  and  Vice-President 
of  the  United  States;  and  were,  on  the  said  6th  day  of  December,  1876,  entitled  to  be 
declared  elected,  chosen,  and  appointed  said  electors,  and  to  have  and  receive  certifi 
cates  thereof,  and  upon  the  said  day  and  date,  and  at  all  times  since,  to  exercise  and 
perform  all  and  singular  the  powers  and  duties  of  such  electors,  and  to  have  and  enjoy 
the  pay  and  emoluments  thereof. 

For  that  the  four  persons  last  named  did,  as  such  electors,  on  December  6,  1876,  cast 
the  four  votes  of  Florida  for  Mr.  Tilden  as  President  and  Mr.  Hendricks  as  Vice-Presi 
dent;  and,  as  well  in  that  respect  as  in  all  others,  acting  in  entire  and  perfect  con 
formity  with  the  Constitution  of  the  United  States,  they  certified  the  same  votes  to  the 
President  of  the  Senate. 

They  did  everything  toward  the  authentication  of  such  votes  required  by  the  Con 
stitution  of  the  United  States  or  by  any  act  of  Congress,  except  the  section  I3l>  of  the 
Revised  Statutes.  And,  in  conformity  with  the  aforesaid  judgment  of  the  Florida 


26  ELECTORAL    COUNT    CF    1877. 

court,  a  governor  of  Florida  who  had  been  duly  inducted  into  office  subsequently  to 
December  6,  1876,  did,  on  the  26th  day  of  January,  1877,  give  to  the  last-named  four 
electors  the  triplicate  lists  prescribed  by  said  act  of  Congress,  (R.  S.  of  U.  S.,  §  136,) 
which  they  forwarded,  as  prescribed  by  the  acts  of  Congress,  as  a  supplement  to  their 
former  certification  in  that  behalf. 

And  in  support  of  the  said  objections  and  claims,  the  undersigned  beg  leave  to  refer 
to  the  reasons  and  documents  submitted  herewith,  and  to  such  petitions,  depositions, 
papers,  and  evidence  as  may  be  hereafter  produced,  and  as  may  be  competent  and 
pertinent  in  considering  the  said  objections  and  claims. 

Among  the  papers  herewith  submitted  are  the  following  : 

1st.  So  much  of  the  official  Congressional  Record  of  February  1, 1877,  as  contains  the 
report  of  the  House  committee  on  the  recent  election  in  Florida. 

2d.  The  original  report  of  said  committee. 

3d.  The  certified  copy  of  the  act  of  the  legislature  of  Florida,  approved  January  17, 
1877,  entitled  "An  act  to  procure  a  legal  canvass  of  the  electoral  vote  of  the  State  of 
Florida  as  cast  at  the  election  held  on  the  seventh  (7th)  day  of  November,  1876." 

4th.  The  certificate  of  the  State  canvassers  of  the  election  held  November  7,  1876, 
dated  January  19,  1877. 

5th.  The  certified  copy  of  the  act  of  the  legislature  of  Florida,  approved  January  26, 
1877,  entitled  "An  act  to  declare  and  establish  the  appointment  by  the  State  of  Flor 
ida  of  electors  of  President  and  Vice-President." 

6th.  The  certificate  of  George  F.  Drew,  governor  of  the  State  of  Florida,  of  the  names 
of  the  electors  chosen  on  the  7th  day  of  November,  1876,  bearing  date  January  26, 
1877. 

7th.  The  certificate  of  Wilkinson  Call,  James  E.  Yonge,  Robert  Bullock,  and  Robert 
B.  Hilton,  electors  appointed  by  the  State  of  Florida,  of  the  votes  cast  for  President 
and  Vice-President  by  them,  bearing  date  January  26,  1877. 

8th.  The  record  of  the  proceedings  and  judgment  of  the  circuit  court  of  Leon  County, 
second  judicial  circuit,  State  of  Florida,  on  the  information  in  the  nature  of  quo  war- 
ranto  in  the  name  of  the  State  of  Florida  ex  rel.  Wilkinson  Call,  Robert  Bullock,  Robert 
B.  Hilton,  and  James  E.  Yonge  vs.  Charles  H.  Pearce,  F.  C.  Humphries,  W.  H.  Holden, 
and  T.  W.  Long. 

Also,  the  certified  copy  of  the  act  of  the  legislature  of  Florida,  approved  January 
26,  1877,  aforesaid,  and  the  certificate  of  State  canvassers,  aforesaid,  and  the  proceed 
ings  and  judgment  on  the  information  aforesaid,  transmitted  to  and  received  by  the 
House  of  Representatives  on  the  31st  day  of  January,  1877. 

CHAS.  W.  JONES. 
HENRY  COOPER. 

j.  E.  MCDONALD. 

DAVID  DUDLEY  FIELD. 
J.  R.  TUCKER. 
G.  A.  JENKS. 
WILLIAM  M.  SPRINGER. 
WASHINGTON,  February  1,  1877. 

The  PRESIDING  OFFICER.  Are  there  further  objections  to  the 
certificates  from  the  State  of  Florida J? 

Mr.  Senator  SARGENT.  In  behalf  of  certain  Senators  and  members 
of  the  House  of  Representatives  who  have  signed  the  same,  I  present 
three  papers  containing  objections,  the  first  one  of  which  I  send  to  the 
Clerk's  desk  and  ask  to  have  now  read. 

The  Secretary  of  the  Senate  read  as  follows  : 

OBJECTION  TO  No.  2. 

An  objection  is  interposed  to  the  certificates,  or  papers  purporting  to  be  certificates, 
of  the  electoral  votes  of  the  State  of  Florida,  as  having  been  cast  by  James  E.  Yonge, 
Wilkinson  Call,  Robert  B.  Hilton,  and  Robert  Bullock,  upon  the  ground  that  the  said 
certificates  or  papers  are  not  authenticated  according  to  the  requirements  of  the  Con 
stitution  and  laws  of  the  United  States,  so  as  to  entitle  them  to  be  received  or  read,  or 
votes  stated  therein,  or  any  of  them,  to  be  counted,  in  the  election  of  President  of 
the  United  States  or  of  Vice-President  of  the  United  States. 

S.  B.  CONOVER, 
A.  A.  SARGENT, 
JOHN  SHERMAN, 
H.  M.  TELLER, 

Senators. 

WILLIAM  WOODBURN, 
MARK  H.  DUNNELL, 
JOHN  A.  KASSON, 
GEO.  W.  McCRARY, 
Members  House  of  Representatives. 


ELECTORAL    COUNT    OP    1877.  27 

The  other  papers  presented  by  Senator  SARGENT  as  objections  were 
read  by  the  Secretary  of  the  Senate,  as  follows  : 

OBJECTION  TO  No.  2. 

An  objection  is  interposed  to  the  certificates,  or  papers  purporting  to  be  certificates, 
of  the  electoral  vote  of  the  State  of  Florida,  as  having  been  cast  by  James  E.  Yonge, 
Wilkinson  Call,  Robert  B.  Hilton,  and  Robert  Bullock,  upon  the  ground  that  said  cer 
tificates  or  papers  do  not  include,  and  are  not  accompanied  by,  in  the  package  or  in- 
closure  in  which  they  are  produced  and  opened  by  the  President  of  the  Senate  in  the 
presence  of  the  two  Houses  of  Congress,  any  certificate  of  the  executive  authority 
of  the  State  of  Florida  of  the  list  of  the  names  of  said  electors,  James  E.  Yonge, 
Wilkinson  Call,  Robert  B.  Hilton,  and  Robert  Bullock,  or  of  any  of  them,  as  being  said 
electors.  Nor  are  said  certificates  or  papers  objected  to  accompanied  by  any  valid  or 
lawful  certification  or  authentication  of  said  electors,  James  E.  Yonge,  Wilkinson  Call, 
Robert  B.  Hilton,  and  Robert  Bullock,  or  any  of  them,  as  having  been  appointed,  or 
as  being  electors  to  cast  the  electoral  vote  of  the  State  of  Florida,  or  entitling  the 
votes  of  said  James  E.  Yonge,  Wilkinson  Call,  Robert  B.  Hilton,  and  Robert  Bullock, 
or  of  either  of  them,  to  be  counted  in  the  election  of  President  of  the  United  States  or 
of  Vice-President  of  the  United  States. 

S.  B.  CONOVER, 
A.  A.  SARGENT, 
JOHN  SHERMAN. 
H.  M.  TELLER, 

Senators. 

WILLIAM  WOODBURN, 
MARK  H.  DUNNELL, 
GEO.  W.  McCRARY, 
JOHN  A.  KASSON, 
Members  House  of  Eepresentatives. 


OBJECTION  TO  Nos.  2  AND  3. 

An  objection  is  interposed  to  the  certificates,  or  papers  purporting  to  be  certificates, 
of  the  electoral  votes  of  the  State  of  Florida,  as  having  been  cast  by  James  E.  Yonge, 
Wilkinson  Call,  Robert  B.  Hilton,  and  Robert  Bullock,  upon  the  ground  that,  by  a 
certificate  of  the  electoral  vote  of  the  State  of  Florida,  in  all  respects  regular  and  valid 
and  sufficient  under  the  Constitution  and  laws  of  the  United  States,  and  duly  authen 
ticated  as  such  and  duly  transmitted  to  and  received  by  and  opened  by  the  President 
of  the  Senate  in  the  presence  of  the  two  Houses  of  Congress,  it  appears  that  Frederick 
C.  Humphreys,  Charles  H.  Pearce,  Thomas  W.  Long,  and  William  H.  Holden,  and  each 
of  them,  and  no  other  person  or  persons,  were  duly  appointed  electors  to  cast  the 
electoral  vote  of  the  State  of  Florida,  and  that  said  above-named  electors  did  duly  cast 
the  electoral  vote  of  the  State  of  Florida  and  did  duly  certify  and  did  transmit  the  said 
electoral  vote  of  the  State  of  Florida  to  the  President  of  the  Senate,  by  reason  whereof 
the  said  certificates  or  papers  purporting  to  be  certificates  objected  to  are  not  entitled 
to  be  received  or  read,  nor  are  the  votes  therein  stated,  or  any  of  them,  entitled  to  be 
counted,  in  the  election  of  President  of  the  United  States  or  of  Vice-President  of  the 

UnUedStateS-  S.B.CONOVEE, 

A.  A.  SARGENT, 
JOHN  SHERMAN, 
H.  M.  TELLER, 

Senators. 

WILLIAM  WOODBURN, 
MARK  H.  DUNNELL, 
GEO.  W.  McCRARY, 
JOHN  A.  KASSON, 
Members  House  of  Eepreaentatives. 

The  PRESIDING  OFFICER.  Are  there  farther  objections  to  the  cer 
tificates  from  the  State  of  Florida  ? 

Mr.  Representative  KASSON.  I  present  a  further  objection,  duly 
signed  by  members  of  the  Senate  and  House  of  Representatives,  to 
the  last  paper  purporting  to  be  a  certificate  read  at  the  Clerk's  desk. 


28  ELECTORAL    COUNT    OF    1877. 

The  Clerk  of  the  House  read  as  follows  : 

OBJECTION  TO  No.  3. 

The  undersigned  object  to  the  last  paper  read,  purporting  to  be  a  certificate  of  elect 
ors  and  of  electoral  votes  of  the  State  of  Florida,  and  to  the  counting  of  the  votes 
named  therein : 

1st.  Because  the  same  is  not  certified  as  required  by  the  Constitution  and  laws  of  the 
United  States — the  certificate  being  by  an  officer  not  holding  the  office  of  governor  or 
any  other  office  in  said  State  with  authority  in  the  premises  at  the  time  when  the 
electors  were  appointed,  nor  at  the  time  when  the  functions  of  the  electors  were  exer 
cised,  nor  until  the  duties  of  electors  had  been  fully  discharged  by  the  lawful  college 
of  electors  having  the  certificates  of  the  governor  of  Florida  at  the  time,  and  the  action 
of  said  lawful  college  duly  transmitted  to  the  President  of  the  Senate  as  required  by 
law. 

Od.  Because  the  proceedings  as  recited  therein  as  certifying  the  qualifications  of  the 
persons  therein  claiming  to  be  electors  are  ex  post  facto,  and  are  not  competent  under 
the  law  as  certifying  any  right  in  the  said  Call,  Yonge,  Hilton,  and  Bullock,  to  cast  the 
electoral  vote  of  the  said  State  of  Florida. 

3d.  Because  the  said  proceedings  and  certificates  are  null  and  void  of  effect  as  retro 
active  proceedings. 

A.  A.  SARGENT, 
JOHN  SHERMAN, 

Senators. 

JOHN  A.  KASSON,  M.  C. 
S.  A.  HURL  BUT,  H.  R. 

The  PRESIDING  OFFICER.  Are  there  any  further  objections  to  the 
certificates  from  the  State  of  Florida! 

Mr.  Senator  JONES,  of  Florida.  I  send  up  to  be  read  a  further  objec 
tion. 

The  Secretary  of  the  Senate  read  as  follows : 

OBJECTION  TO  ELECTOR  HUMPHREYS. 

The  undersigned  object  to  the  counting  of  the  vote  of  F.  C.  Humphreys  as  an  elector 
from  the  State  of  Florida,  upon  the  ground  that  the  said  Humphreys  was  appointed  a 
shipping-commissioner  under  the  Government  of  the  United  States  at  Pensacola, 
Florida,  heretofore,  set.,  on  the  3d  day  of  December,  1872,  and  qualified  as  such  there 
after,  set.,  on  the  9th  day  of  December,  1872,  and  continued  to  hold  the  said  office  con 
tinuously  from  the  said  last-named  day  until  and  upon  the  7th  day  of  November,  1876, 
and  thereafter  until  and  upon  the  6th  day  of  December,  1876.  Wherefore,  and  by 
reason  of  the  premises,  the  said  F.  C.  Humphreys  held,  at  the  time  of  his  alleged  ap 
pointment  as  an  elector  for  the  said  State,  and  at  the  time  of  casting  his  vote  as  elector 
therefor,  an  office  of  trust  and  profit  under  the  United  States,  and  could  not  be  con 
stitutionally  appointed  an  elector  as  aforesaid. 

CHAS.  W.  JONES, 

Of  the  Senate. 
CHARLES  P.  THOMPSON, 

Of  the  House. 

The  PRESIDING  OFFICER.  Are  there  further  objections  to  the  cer 
tificates  from  the  State  of  Florida  f  [A  pause.]  If  there  are  none,  the 
certificates  and  papers,  together  with  other  papers  accompanying  the 
same,  as  well  as  the  objections  presented,  will  now  be  transmitted  to 
the  electoral  commission  for  judgment  and  decision.  And  the  Senate 
will  now  withdraw  to  its  chamber. 

Accordingly  (at  three  o'clock  and  five  minutes  p.  m.)  the  Senate  with 
drew. 


ELECTORAL  COMMISSION. 
THE  FLORIDA  CASE. 

THURSDAY,  February  1,  1877. 

The  Commission  met  at  3  o'clock  p.  m.,  pursuant  to  adjournment. 

Present,  the  President  and  Commissioners  Miller,  Field,  Strong,  Brad 
ley,  Edmunds,  Morton,  Frelinghuysen,  Thurman,  Bayard,  Payne,  Hun- 
ton,  Abbott,  Hoar,  and  Garfield. 


ELECTORAL    COUNT    OF    1877.  29 

The  journal  of  the  preceding  sessions  was  read,  corrected,  and  ap 
proved. 

Mr.  GEORGE  0.  GORHAM,  Secretary  of  the  Senate,  appeared  (at  3 
o'clock  and  15  minutes  p.  m.)  and  submitted  a  communication  from  the 
President  of  the  Senate  presiding  over  the  two  Houses  of  Congress  in 
joint  meeting. 

The  communication  was  received  and  handed  to  the  Secretary  of  the 
Commission,  who  read  it  as  follows : 

HALL  OF  THE  HOUSE  OF  REPRESENTATIVES, 
To  the  President  of  the  Commission  :  **riiflf*  l'  187?' 

More  than  one  return  or  paper  purporting  to  be  a  return  or  certificate  of  electoral 
votes  of  the  State  of  Florida  having  been  received  and  this  day  opened  in  the  pres 
ence  of  the  two  Houses  of  Congress,  and  objections  thereto  having  been  made,  the  said 
returns,  with  all  accompanying  papers,  and  also  the  objections  thereto,  are  herewith 
submitted  to  the  judgment  and  decision  of  the  Commission,  as  provided  by  law. 

T.  W.  FERRY, 
President  of  the  Senate. 

Mr.  Commissioner  BEADLEY.  Mr.  President,  I  understand  there  are 
three  certificates  from  the  State  of  Florida  that  have  been  sent  to  us.  I 
should  think  that  the  proper  course  would  be  to  have  those  three  certi 
ficates  read,  and  then  as  each  is  read  let  the  parties  be  called  upon  to 
state  whether  it  is  objected  to  and  who  are  the  objectors.  Until  we  read 
those  certificates,  or  hear  them  read,  we  do  not  know  what  we  have  before 
us.  After  that  it  will  be  time  to  take  such  other  order  in  regard  to  pro 
ceeding  as  may  be  necessary. 

The  PRESIDENT.     I  will  adopt  that  suggestion  without  a  vote. 

Mr.  Commissioner  MILLER.  I  had  the  pleasure,  sir,  if  it  was  a  pleas 
ure,  of  listening  to  the  reading  of  those  documents  in  the  House  of  Rep 
resentatives.  If  the  papers  about  the  State  of  Florida  are  read,  it  will 
take  an  hour  to  read  them.  The  objectors'  names  are  to  the  papers 
making  the  objections.  I  presume  they  will  be  printed  ;  they  certainly 
ought  to  be  printed  j  and  then  everybody  can  read  them  without  our 
consuming  an  hour  of  time  in  doing  that  which  every  man  will  want  to 
do  for  himself  more  carefully.  I  think  if  Brother  Bradley  had  known 
as  I  do  the  length  of  these  papers,  he  would  perhaps  withdraw  his  mo 
tion. 

The  PRESIDENT.     Does  Justice  Bradley  withdraw  his  motion  ? 

Mr.  Commissioner  BRADLEY.  I  did  not  make  a  motion;  I  merely 
made  a  suggestion. 

Mr.  Commissioner  PAYNE.  Now  I  move  that  the  certificates,  with 
the  papers,  be  printed  at  as  early  an  hour  as  possible. 

The  PRESIDENT.  The  motion  before  the  Commission  is  that  the 
three  certificates  in  the  case  of  Florida  be  printed,  and  the  objections 
thereto.  If  that  is  your  pleasure  you  will  say  ay,  [putting  the  question.] 
It  is  a  vote. 

Mr.  Commissioner  FIELD.  Should  we  not  have  copies  of  the  papers 
presented  fl 

The  PRESIDENT.  I  suppose  the  certificates  and  objections  may  be 
printed  in  a  very  short  time.  The  Secretary  will  understand  that  the 
motion  is  intended  to  include  the  certificates  and  the  objections  and  the 
papers  that  accompany  the  certificates,  and  nothing  else.  It  is  desirable 
that  they  should  be  printed  with  as  little  delay  as  possible. 

That  matter  being  disposed  of,  I  am  requested  to  inquire  if  there  are 
counsel  present  who  will  take  part  after  the  managers  or  objectors  have 
stated  the  case  on  the  one  side  and  the  other. 


30  ELECTORAL    COUNT    OF    1877. 

Mr.  EVAKTS.  Mr.  President,  Mr.  Senator  Sargent  has  come  in  and 
will  state  what  he  has  to  say  in  that  regard. 

The  PRESIDENT.  I  will  withdraw  the  inquiry  as  put,  and  say  to 
Mr.  Sargent  that  inquiries  have  been  made  as  to  the  objectors. 

Mr.  Senator  SARGENT.  The  objectors  on  our  side,  the  persons  whose 
names  are  signed  to  the  papers,  are  Senators  Couover,  Sargent,  Sherman, 
and  Teller,  and  Mr.  McCrary,  Mr.  Kasson,  Mr.  Woodburu,  and  Mr.  Dun- 
nell,  Members  of  the  House.  There  has  been  no  opportunity  up  to  this 
moment  of  consulting  with  these  gentlemen  to  ascertain  which  of  them 
will  state  their  objections  to  the  Commission. 

The  PRESIDENT.  Two  objectors  may  represent  the  case  in  this  tri 
bunal. 

•Mr.  Senator  SARGENT.     So  we  understand  by  the  rules. 

The  PRESIDENT.     Who  are  the  two  ? 

Mr.  Senator  SARGENT.  There  has  been  no  opportunity  to  consult  to 
ascertain  which  of  the  objectors  will  present  the  matter  to  the  court. 

The  PRESIDENT.  Please  make  it  known  to  the  Commission  as  soon 
as  convenient. 

Mr.  Senator  SARGENT.     We  will. 

The  PRESIDENT.  Will  Mr.  Field  state  the  names  of  the  objectors 
on  the  other  side? 

Mr.  Representative  FIELD.  The  objectors  to  the  first  return  are- 
Senators  Jones  of  Florida,  McDonald,  and  Cooper,  and  Representatives 
Thompson,  Jeuks.  Tucker,  Springer,  and  myself. 

Mr.  Commissioner  ABBOTT.  Mr.  President,  I  desire  to  inquire 
whether  the  motion  made  in  reference  to  printing  covers  the  printing  of 
all  papers  that  are  sent  here  with  the  objections,  because  it  seems  to  me 
that  we  are  to  consider  all  papers  sent  with  the  objections,  audit  is  just 
as  material  for  us  to  have  those  papers  printed,  so  that  we  can  con 
sider  them,  as  it  is  to  have  the  objections  themselves. 

The  PRESIDENT.  I  do  not 'understand  the  vote  in  that  way  at 
present.  It  is  that  the  certificates,  with  the  objections  and  the  papers 
which  accompany  the  certificates,  shall  be  printed;  not  all  the  papers 
that  may  have  been  sent. 

Mr.  Commissioner  ABBOTT.  I  suggest,  then,  that  at  some  point  of 
time,  if  we  are  to  consider  the  papers  accompanying  the  objections,  they 
may  be  so  made  part  of  the  cause.  The  objections  themselves  would 
hardly  be  understood  without  the  papers;  and  we  should  have  those 
papers  printed,  or  put  in  some  form  that  we  can  act  on  them. 

The  PRESIDENT.    There  is  no  motion  on  that  subject. 

Mr.  Commissioner  ABBOTT.  I  move,  then,  that  the  papers  accom 
panying  the  objections  be  also  printed. 

Mr.  Commissioner  EDMUNDS.  Mr.  President,  I  submit  that  it  is 
possible  under  the  statute  under  which  we  are  acting  that  there  may 
be  no  papers,  lawfully  and  within  the  statute,  accompanying  an  objec 
tion.  The  statute  provides  for  papers  that  accompany  certificates ; 
but,  as  I  remember  at  this  moment — I  speak  subject  of  course  to  cor 
rection — it  does  not  provide  for  papers  accompanying  the  objections; 
so  that  I  think  it  will  be  a  matter  for  the  consideration  of  the  Commis 
sion  in  consultation  how  far  in  printing  the  testimony  that  may  be 
offered,  whether  by  objectors  or  anybody  else,  we  ought  to  go.  It  may 
be  a  question  for  consideration  whether  time  would  warrant  us  in  receiv 
ing  and  printing  everything  that  may  be  proposed  on  either  side. 

Mr.  Commissioner  THURMAN.  Mr.  President,  it  is  true  that  the 
statute  requires  the  papers  accompanying  certificates  to  be  laid  before 
the  Commission ;  but  it  also  authorizes  the  Commission  to  take  into 


ELECTORAL    COUNT    OF    1877.  31 

view  all  documents,  depositions,  and  other  papers  that  may  be  com 
petent  and  pertinent  in  this  inquiry;  and,  if  we  have  received  papers 
irom  either  of  the  Houses  which  in  the  estimation  of  the  Houses  it  is 
proper  to  send  to  us,  it  seems  to  me  we  must  look  at  them  and  see 
whether  they  are  competent  and  pertinent.  I  think,  therefore,  that 
the  motion  to  print  ought  to  be  adopted.  That  will  not  delay  us  in 
having  by  to-morrow  morning,  as  early  as  we  see  fit  to  meet,  a  print  of 
the  certificates  and  the  objections.  We  can  give  directions  that  they 
shall  be  sent  to  us  immediately  j  and  the  printing  of  these  other  papers 
could  go  on;  and,  knowing  the  great  rapidity  with  which  work  is  done 
at  the  Government  Printing-Office,  I  do  not  think  we  should  have  to 
wait  very  long  to  get  them  all. 

Mr.  Commissioner  ABBOTT.  Mr.  President,  I  think  on  looking  at 
the  law  that  objections  only  are  to  be  sent  here ;  and  I  fancy  that  those 
papers,  if  they  are  sent  here  at  all,  must  come  as  part  of  the  objections, 
so  that  perhaps  the  motion  to  print  the  objections  would  carry  with  it, 
necessarily,  the  printing  of  those  papers.  I  do  not  see  how  they  get 
here  except  as  papers  accompanying  the  certificates  or  as  part  of  the 
objections.  Of  course,  I  have  no  desire  to  impede  the  printing  of  the 
objections  and  certificates,  but  I  wish  to  get  them  as  soon  as  possible. 

Mr.  Commissioner  EDMUNDS.  Mr.  President,  in  order  that  we  may 
consider  that  topic,  I 'move  that  the  motion  of  Judge  Abbott  be  for 
the  time  being  laid  upon  the  table,  so  that  we  may  consider  about  it  a 
little  afterward. 

The  PRESIDENT.  The  motion  is  to  lay  the  motion  of  Judge  Ab 
bott  upon  the  table. 

Mr.  Commissioner  ABBOTT.  I  withdraw  the  motion  for  the  time, 
to  be  renewed  at  a  subsequent  time. 

The  PRESIDENT.  The  motion  is  withdrawn.  [A  pause.]  I  am  re 
quested  now  to  call  for  the  names  of  counsel  who  appear  in  the  case  on 
each  side. 

Mr.  Representative  FIELD.  We  have  several  counsel  on  our  side. 
We  have  Mr.  O'Conor  of  New  York,  Judge  Black  of  Pennsylvania, 
Judge  Trumbull  of  Illinois,  Mr.  Merrick  of  Washington,  and  Mr.  Green 
of  New  Jersey. 

The  PRESIDENT.  Counsel  not  exceeding  two  in  number  on  each 
side  are  allowed  to  participate  in  argument. 

Mr.  Representative  FIELD.  We  have  not  selected  those  two.  I 
only  mention  to  you  in  answer  to  the  question  how  many  there  are  who 
are  concerned  in  the  case.  We  shall  arrange  that  matter  in  the  course 
of  the  evening. 

The  PRESIDENT.  That  will  answer.  Who  are  counsel  on  the  other 
side? 

Mr.  EVARTS.  As  representing  objectors  to  other  certificates  than 
those  that  have  been  represented  in  the  enumeration  by  Mr.  Field,  I 
will  state  that  Mr.  Stoughtou,  Mr.  Stanley  Matthews,  Mr.  Shellabarger, 
and  myself  are  expected  to  represent  objectors  in  some  of  the  cases 
which  will  appear,  and  I  would  ask  the  instruction  of  the  court — it  is 
pertinent  now  to  make  the  inquiry— as  to  what  is  included  in  the  phrase 
"on  the  merits  of  any  case  presented  to  it;"  whether  that  means  any 
issue  joined  on  objections  to  any  particular  certificate  or  whether  it  in 
cludes  all  that  arises  in  the  case  of  a  particular  State. 

The  PRESIDENT.  I  think  the  counsel  will  have  to  judge  of  tint 
matter  for  themselves.  Unless  they  have  some  question  to  submit  to 
the  Commission,  it  is  hardly  within  the  province  oi  the  Presiding  Justice 
to  determine  that. 


32  ELECTORAL    COUNT    OF    1877. 

Mr.  EVARTS.  We  understand,  then,  if  the  Commission  please,  that 
the  designation  of  two  counsel  will  be  sufficiently  early  enough  made 
when  the  ease  is  up  f 

Mr.  Commissioner  EDMUNDS.  That  is  merely  for  the  final  argu 
ment. 

The  PRESIDENT.    After  the  objectors  have  opened  the  case. 
Mr.  EVARTS.     So  we  understand. 

Mr.  Commissioner  BRADLEY.  I  suggest  to  Mr.  Evarts  that  prob 
ably  the  construction  of  that  would  be  ^the  case  on  its  merits;"  the 
principal  question  would  be  included  in  that  term  ;  and  all  interlocutory 
or  other  motions  would  not  be  included  in  that  phrase. 

Mr.  Commissioner  EDMUNDS.  It  covers  the  whole  subject  of  a  par 
ticular  State. 

Mr.  Senator  SARGENT.  In  reply  to  the  question  of  the  Commission 
as  to  which  of  the  objectors  would  present  the  case  on  behalf  of  the 
objectors  to  certificates  Nos.  2  and  3,  aside  from  counsel,  on  conference 
it  is  determined  that  Mr.  McCrary  and  Mr.  Kasson  will  so  appear. 

Mr.  Commissioner  EDMUNDS.  I  move  that  the  public  sitting  of  the 
Commission  be  now  adjourned  until  half  past  ten  in  the  morning  unless 
counsel  or  objectors  have  something  further  to  say  at  this  present  time. 
Mr.  Commissioner  GARFIELD.  1  think  there  was  one  objection  filed 
that  no  action  has  been  taken  in  regard  to — an  objection,  I  believe  from 
Senator  Jones  ;  and  as  I  have  heard  the  President  of  the  Commission 
make  no  allusion  to  it,  I  inquire  whether  there  is  any  special  hearing  on 
that  objection.  I  think  it  was  different  from  the  other  objections  which 
have  been  filed.  I  refer  to  it  because  it  makes  a  distinct  case,  being  a 
different  objection  in  its  character  from  either  of  the  other  two  that 
have  been  referred  to. 

The  PRESIDENT.  My  impression  is — although  I  do  not  make  that 
decision  in  behalf  of  the  Commission — that  the  several  objections  to 
the  returns  from  a  State  constitute  one  case,  and  two  objectors  will  be 
heard  upon  one  side  and  two  on  the  other;  and  after  they  shall  have  been 
heard,  two  counsel  will  be  heard  upon  one  side  and  two  upon  the  other. 
Unless  otherwise  advised  by  the  Commission,  that  will  be  the  ruling. 

Mr.  Representative  FIELD.    Will  you  allow  me  to  say  that  perhaps 
there  may  be  some  misunderstanding  in  regard  to  that  rule  unless  I 
state  to  you  precisely  the  facts  ? 
The  PRESIDENT.     Proceed,  sir. 

Mr.  Representative  FIELD.  There  are  objections  to  the  4  votes  of 
Florida  on  each  side ;  that  is  to  say,  we  object  to  the  4  votes  mentioned 

in  the  first  return 

Mr.  Commissioner  EDMUNDS.    Which  are  they  I 
Mr.  Representative  FIELD.    They  are,  if  I  may  use  the  names  of 
the  candidates,  the  Hayes  electors.     We  object  on  our  part  to  those 
votes,  certificates,  and  lists. 

Mr.  Com niissiouer  EDMUNDS.  And  the  other  gentlemen  object  to 
the  others  f 

Mr.  Representative  FIELD.  Mr.  Sargent,  Mr.  Kasson,  and  the  gen 
tlemen  on  the  other  side  specifically  object  to  ours.  Then  there  is  the 
additional  objection  ma<le  by  Senator  Jones,  of  Florida,  and  others,  to 
one  of  the  Hayes  electors  as  ineligible  under  the  Constitution.  That  is 
a  distinct  matter,  and  we  supposed  it  would  be  taken  up  quite  distinctly. 
It  is  a  minor  affair  and  should  not  encumber  the  principal  one.  And  if 
the  Commission  will  allow  us,  we  will  designate  Mr.  Thompson  and  Mr. 
Jenks.  I  suppose  the  discussion  of  that  will  not  take  up  much  of  the 
time  of  the  Commission  ;  but  at  all  events,  as  a  matter  of  form,  if  you 


ELECTORAL    COUNT    OF    1877.  33 

will  allow  ns,  we  will  suggest  that  Mr.  Thompson  and  Mr.  Jenks  be  the 
objectors  in  those,  and  then  as  to  counsel  we  will  advise  to-night  and 
inform  the  Commission  to-morrow  what  counsel  represent  us. 

The  PRESIDENT.  When  you  are  advised  what  you  desire,  you  will 
submit  a  motion  to  the  Commission  and  I  will  have  it  determined.  At 
present  I  am  not  prepared  to  rule  otherwise  than  I  have.  If  there  be 
no  further  suggestion  to  be  presented,  I  will  put  the  question  to  the 
Commission  on  the  motion  that  when  this  Commission  adjourns  it  ad 
journ  to  meet  at  halt' past  ten  o'clock  tomorrow  morning. 

Mr.  Commissioner  EDMUNDS.  I  will  move — so  that  we  shall  not 
keep  here  gentlemen  who  wish  to  prepare  their  matters— that  the  public 
sittings  of  the  Commission  be  now  adjourned  until  halt'  past  ten  o'clock 
to-morrow. 

Mr.  Commissioner  THURMAN.  But  the  Commission  to  continue  in 
session  ? 

Mr.  Commissioner  EDMUNDS.     Yes,  for  consultation. 

The  PRESIDENT.  Under  the  circumstances  I  will  put  the  motion, 
with  the  consent  of  the  mover,  that  when  the  Commission  adjourns  it 
adjourn  until  to-morrow  at  half  past  ten  o'clock. 

The  motion  was  agreed  to. 

The  PRESIDENT.  I  will  notify  all  who  are  present  that  there  will 
be  no  more  public  business  transacted  by  the  Commission  to-day. 

Mr.  Commissioner  FRELINGHUYSEN.  I  was  about  to  suggest  that 
it  would  be  well  to  understand  from  the  objectors  and  counsel  whether 
they  will  be  prepared  to  go  on  to-morrow  morning. 

Mr.  Representative  FIELD.  On  our  part  we  are  prepared  to  go  on 
at  any  moment — to  go  on  now  if  you  wish. 

The  PRESIDENT.  The  gentlemen  present  may  understand  that  there 
will  be  no  further  public  business  transacted  by  the  Commission  to-day. 
The  Commission  will  remain  for  private  consultation. 

The  room  having  been  cleared,  the  Commission  remained  for  consul 
tation. 

On  motion  of  Mr.  Commissioner  EDMUNDS,  it  was — 

Ordered,  That  Mr.  Abbott  and  Mr.  Hoar  be  a  committee  to  consider  and  report 
whether  certain  papers  referred  to  in  the  objections  of  C.  W.  Jones  and  others  ought 
to  be  printed  for  the  use  of  the  Commission. 

On  motion  of  Mr.  Commissioner  HOAR,  it  was 

Ordered,  That  no  action  be  taken  by  the  committee  referred  to  in  the  resolution  of 
Mr.  Commissioner  Edmunds  until  the  next  meeting  of  the  Commission  for  consultation. 

Mr.  Commissioner  MILLER  moved  that  the  objections  to  certificates 
in  the  Florida  case  be  heard  as  one  objection  to  each  set  of  electors,  and 
be  argued  together  5  which,  was  adopted. 

The  Secretary  of  the  Commission,  on  motion  of  Mr.  Commissioner 
EDMUNDS,  was  directed  to  prepare  and  have  printed  on  slips  the 
names  of  the  members  of  the  Commission  in  alphabetical  order  for  the 
purpose  of  being  used  in  taking  the  votes. 

Mr.  Commissioner  HOAR  moved  that  the  Secretary  have  printed  for 
the  use  of  the  Commission  such  laws  as  may  be  directed  by  the  Presi 
dent  of  the  Commission. 

Mr.  Commissioner  MORTON  moved  an  amendment  to  include  the 
election-laws  of  the  States  of  Florida,  Louisiana,  Oregon,  and  South 
,Carolina. 

The  amendment  was  agreed  to. 

The  motion,  as  amended,  was  agreed  to. 

On  motion  of  Mr.  Commissioner  STRONG,  (at  four  o'clock  and  forty- 
five  minutes  p.  m.,)  the  Commission  adjourned. 
SEC 


34  ELECTORAL    COUNT    OF    1877. 

FRIDAY,  February  2,  1877. 

The  Commission  met  at  half  past  ten  o'clock  a.  m.,  pursuant  to  ad 
journment,  all  the  members  being  present. 

The  journal  of  yesterday  was  read  and  approved. 

The  PRESIDENT.  The  case  before  the  Commission  is  that  of  Flor 
ida.  Inquiries  were  made  yesterday  "what  is  the  casef''  to  which  I  beg 
leave  to  respond  that  it  consists  of  three  certificates  with  the  accom 
panying  papers,  and  the  objections  to  the  same.  Two  of  the  objectors 
on  each  side  will  be  allowed  to  speak  in  the  opening  of  the  case.  Those 
representing  the  objections  to  certificate  No.  1  will  speak  first,  and  I 
would  remind  them  that  the  fourth  rule  allows  them  two  hours  in  which 
they  will  state  the  case  in  the  opening  arguments  in  support  of  their 
objections,  and  also  in  support  of  any  other  certificate  which  they  claim 
to  be  valid.  When  they  have  concluded,  two  objectors  on  the  other 
side  will  speak  under  the  same  rules  and  limitations.  I  will  not  give 
any  direction  now  as  to  counsel;  that  will  come  afterward. 

Mr.  Representative  FIELD.  Allow  me  to  ask  whether  after  the  two 
objectors  have  spoken  on  the  other  side,  we  shall  not  be  allowed  the 
opportunity  of  a  reply  within  our  two  hours  ? 

The  PRESIDENT.  The  rules  make  no  provision  for  any  reply  on  the 
part  of  the  objectors.  Applications  for  further  time  or  further  counsel 
must  be  made  to  the  Commission,  the  Presiding  Justice  having  no  dis 
cretion  in  the  matter  whatever.  When  counsel  speak,  it  will  be  under 
different  regulations ;  perhaps  they  need  not  be  stated  now  $  but  as 
it  seems  that  I  am  rather  expected  to  state  it,  I  will  say  that  my  view 
is  that  one  of  the  counsel  in  favor  of  the  objections  to  certificate  No.  1 
should  open  ;  two  counsel  in  favor  of  the  certificate  No.  1  and  against 
the  objections  should  reply;  and  then  the  other  counsel  in  favor  of  the 
objections  to  certificate  No.  1  should  have  the  close. 

Mr.  Representative  TUCKER.  May  I  ask  whether  the  two  hours  of 
the  objectors  to  the  first-named  certificate  must  be  consumed  in  the 
opening1? 

The  PRESIDENT.  If  at  all.  There  is  no  provision  made  for  a  reply. 
One  of  the  objectors  to  certificate  No.  1  may  proceed.  I  am  told  that 
some  time  would  be  spent  in  reading  the  certificates  and  accompanying 
papers  and  the  objections,  if  they  were  read  ;  but  they  will  soon  be 
printed  and  laid  on  our  tables,  and  it  is  suggested  that  unless  it  produces 
inconvenience  the  statement  or  opening  should  proceed  without  read 
ing  the  papers.  If  it  is  desired  I  will  direct  that  they  shall  be  read, 
though  I  understand  the  reading  will  consume  some  time.  If  that  is 
not  desired,  the  statement  of  the  case  will  proceed. 

Mr.  Representative  KASSON.  If  the  Commission  please,  I  ought  to 
state  on  behalf  of  the  objectors  on  this  side  that,  while  we  have  no 
objection  to  the  proceeding  this  morning  as  far  as  the  objectors  to  the 
first  certificate  are  concerned,  my  associate  and  myself  find  that  so 
many  more  questions  are  involved  in  the  objections  to  that  certificate 
than  it  was  supposed  would  be  found — we  not  having  had  the  oppor 
tunity  to  examine  them  until  this  morning — that  it  is  probable  we 
shall  be  obliged  to  ask  the  court  for  some  time  before  proceeding  on- 
our  behalf. 

I  make  that  statement  now,  not  desiring  to  object  to  gentlemen 
going  on  this  morning  who  are  ready,  but  simply  to  save  our  right  to 
make  that  suggestion  to  the  tribunal  at  the  completion  of  the  argument 
on  that  side  on  behalf  of  the  objectors. 

The  PRESIDENT.    The  suggestion  calls  for  no  ruling  on  the  part  of 


ELECTORAL    COUNT    OF    1877.  35 

the  presiding  officer.  You  will  proceed,  gentlemen  on  the  side  of  the 
objectors  to  certificate  No.  1 ;  I  shall  designate  them  as  Nos.  1,  2,  and  3, 
for  convenience. 

Mr.  Representative  FIELD.  Before  proceeding,  if  you  will  allow  me, 
I  beg  to  speak  to  a  preliminary  matter.  I  observe  that  Eule  5  speaks 
of  evidence.  Now,  I  am  in  some  doubt  about  the  course  of  proceeding. 
If  evidence  is  admissible  it  should  be  stated,  we  suppose,  before  begin 
ning  the  argument.  We  are  prepared  with  witnesses  from  Florida  to 
show  at  the  bar  or  in  any  manner  that  the  court  may  indicate,  by 
deposition  or  otherwise,  all  that  is  necessary  to  prove  the" allegations  of 
our  objection.  We  suppose  that  the  papers  which  have  been  presented 
here  contain  sufficient  evidence  and  are  receivable  5  but  I  ought  to  state 
in  Umine  that  I  do  not  wish  to  proceed  with  the  argument  under  the 
impression  that  we  have  not  other  evidence.  Of  course,  saving  the 
question  whether  the  evidence  is  competent,  I  wish  to  say  that  we  have 
the  evidence  and  we  can  produce  it  here  or  anywhere  that  the  Commis 
sion  may  direct,  and  offer  to  do  it  now  or  at  any  other  time  or  in  any 
other  manner. 

I  thought  I  ought  not  to  proceed  with  my  statement  without  making 
that  preliminary  suggestion. 

Mr.  Commissioner  STRONG.  Mr.  President,  it  seems  to  me  that  the 
rules  which  we  have  adopted  place  the  objectors  in  precisely  the  same 
position  that  counsel  are  placed  in  who  open  a  case  before  it  is  submitted 
to  a  jury.  W7e  propose — such  is  my  understanding  of  the  rule — that 
the  objectors  shall  occupy  exactly  that  position  in  their  statement  of 
their  objections — state  what  the  objections  are,  and  how  they  propose 
to  support  them.  The  other  questions  will  come  up  afterward  in  regard 
to  the  admissibility  of  evidence. 

Mr.  Representative  FIELD.    That  is  quite  satisfactory. 

Mr.  Commissioner  STRONG-.     That  is  my  understanding  at  this  time. 

The  PRESIDENT.  You  can  proceed,  Mr.  Field,  with  the  case  at  a 
quarter  before  eleven.  Your  side  will  have  two  hours. 

Mr.  Representative  FIELD.  Mr.  President  and  gentlemen  of  the 
Electoral  Commission :  It  will  be  my  endeavor,  in  the  statement  which 
I  shall  make,  to  set  forth  with  as  much  conciseness  as  I  may  the  facts 
that  we  expect  to  prove  and  the  propositions  of  law  which  we  hope  to 
establish. 

The  power  devolved  by  the  Federal  Constitution  upon  the  States  of 
this  Union  was,  in  the  State  of  Florida,  exercised  by  the  legislature  of 
the  State  directing  the  appointment  of  presidential  electors  to  be  made 
by  the  qualified  voters  of  the  State  at  a  general  election.  That  election 
was  held  on  the  7th  of  November,  1876.  It  was  quiet  and  orderly,  so 
far  as  we  are  informed,  throughout  the  State,  and  it  remained  only  to 
gather  the  result  of  the  voting.  That  result  was  a  majority  in  favor  of 
the  electors  who,  for  convenience  sake,  I  will  designate  as  the  Tilden 
electors.  Nevertheless,  a  certificate  comes  here  signed  by  the  then  gov^ 
ernor  of  the  State  certifying  that  the  Hayes  electors  had  a  majority  ot 
the  votes.  By  what  sort  of  jugglery  that  result  was  accomplished  I 
now  take  it  upon  me  to  explain. 

By  the  laws  of  the  State  the  counties  are  divided  into  polling-pre 
cincts  and  the  votes  of  the  polling-precincts  are  returned  to  the  county 
clerk  at  the  county-seat,  where  they  are  canvassed,  and  the  county  can 
vassers  certify  to  the  State  canvassers.  I  have  occasion  to  mention 
canvassers  only  in  one  county.  That  county  was  decisive  of  the  result ; 
but  if  it  were  not,  ex  uno  disce  omnes.  The  county  to  which  I  refer  is 
Baker  County.  The  canvassers  were  by  law  to  be  the  county  judge,  the 


36  ELECTORAL    COUNT    OF    1877. 

county  clerk,  (or  rather  I  think  he  is  called  the  clerk  of  the  circuit  court 
for  the  county,  but  I  call  him  for  convenience  the  county  clerk,)  and  a 
justice  of  the  peace  to  be  by  them  called  in  for  their  assistance.  In 
case  either  the  judge  or  the  clerk  is  absent  or  cannot  attend,  the  sheriff 
of  the  county  is  to  be  called  in  his  place.  The  law  provides  that  the 
canvass  by  the  county  canvassers  shall  be  on  the  sixth  day  after  the 
election,  or  sooner  if  the  returns  are  all  received. 

In  this  county  there  were  but  four  precincts,  and  the  returns  from 
them  were  all  received  in  three  days.  On  the  10th  of  November  the 
county  clerk,  considering  that  the  returns  being  in,  further  delay  in  the 
canvass  might  be  embarrassing — for  what  reasons  it  does  not  devolve 
on  me  to  say — requested  the  county  judge  to  join  him  in  the  canvass. 
The  county  judge  refused.  The  clerk  then  asked  the  sheriff  to  join  him, 
but  he  declined.  The  clerk  thereupon  called  to  his  assistance  a  justice 
of  tbe  peace  and  made  the  canvass,  and  a  true  canvass  it  was,  as  all 
parties  agree,  I  think.  I  have  never  heard  anywhere  the  suggestion 
that  the  votes  as  certified  by  them  were  not  the  true  votes.  But  it  so 
happened  that  the  county  judge,  on  the  same  day,  the  10th,  issued  a 
notice  to  the  county  clerk  and  to  a  justice  of  the  peace  to  attend  him  at 
the  county  seat  on  the  13th,  which,  as  you  will  remember,  vt  as  just  six 
days  after  the  election,  at  noon,  for  the  purpose  of  making  the  count. 
On  that  day  and  hour  the  county  clerk  and  the  justice  thus  requested 
attended.  The  county  judge,  however,  absented  himself,  though  be  had 
given  the  notice.  He  was  invited  and  urged  to  go  on  with  the  canvass 
ing.  The  record  shows  that  he  laughed,  and  said  he  thought  that  what 
had  been  already  done  was  enough.  The  sheriff  was  then  applied  to 
and  he  refused.  Thereupon  the  county  clerk  and  a  justice  of  the  peace — 
another  justice  called  in — recauvassed  the  votes,  giving  the  same  result 
precisely,  and  certified  them  to  the  State  canvassers,  stating  in  the  cer 
tificate  the  reasons  why  neither  the  county  judge  nor  the  sheriff  was 
present.  The  office  of  the  clerk  was  then  closed  tor  the  day. 

In  the  evening  of  that  day  the  same  county  judge  and  the  same  sheriff, 
taking  to  their  assistance  a  justice  of  the  peace  who  had  been  commis 
sioned  by  Stearns  only  on  the  10th,  and  who  had  never  acted  before, 
entered  the  office  surreptitiously,  opened  a  drawer,  and  took  out  the 
returns,  threw  aside  two  precincts,  certified  the  two  remaining,  and  sent 
that  certificate  to  the  State  canvassers.  You  are  now  to  say  whether 
this  certificate  of  these  men,  under  these  circumstances,  in  the  darkness 
of  the  night,  throwing  out  two  precincts,  and  certified  to  the  State  can 
vassers  without  any  reason  why  the  county  clerk  was  not  present,  shall 
be  taken  as  the  voice  of  that  county  of  Florida.  That  I  do  not  misrep 
resent  the  exact  state  of  facts  let  me  read  you  the  testimony  as  it  will 
appear  upon  the  record  to  be  laid  before  you.  Here  is  the  testimony  in 
respect  to  this  third  canvass,  this  false  and  fraudulent  canvass,  which  I 
will  read  as  given  by  the  sheriff. 

He  testified  that  he  first  received  notice  from  Judge  Drieggers  to  as 
sist  him  in  making  the  canvass  of  Baker  County  probably  between  four 
and  five  o'clock  in  the  afternoon  of  the  13th  •  that  they  went  to  the 
clerk's  office ;  that  the  clerk's  office  was  closed  when  they  got  there.  He 
thinks  this  was  about  six  o'clock,  "  it  might  have  been  seven  o'clock." 
That  they  lit  up  the  office ;  that  they  knew  that  the  clerk  had  made  the 
canvass  on  that  afternoon  ;  that  there  was  no  one  then  in  the  office. 

The  law  providing  that  the  canvass  should  be  public,  the  record  thus 
proceeds,  as  follows,  and  I  give  it  verbatim : 

Question.  What  did  you  do  then  ?— Answer.  We  just  made  tbe  return,  throwing 
away  two  precincts  in  the  county. 


ELECTORAL    COUNT    OF    1877.  37 

Q.  What  two  precincts  in  the  county  did  you  throw  away  ?— A.  One  was  Darbvville 
precinct  and  the  other  was  Johnsville  precinct. 

Q.  Which  did  you  throw  away  first  ?— A.  The  Johnsville  precinct. 

Q.  And  then  you  threw  away  the  Darbyville  precinct  ?  — A.  Yes,  sir. 

Q.  Did  you  have  any  witnesses  at  all  before  you  ? — A.  None  at  all. 

Q.  Did  you  have  anything  before  you  except  the  returns?— A.  No,  sir. 

Q.  Why  did  you  throw  away  Johnsville  precinct  ?— A.  We  believed  that  there  was 
some  intimidation  there :  that  there  was  one  party  prevented  from  voting 

Q.  Did  you  have  any  evidence  before  you  to  that  effect?— A.  No,  sir  ;  tliere  was  onlv 
liis  statement. 

Q.  Did  you  not  have  a  particle  of  evidence  before  you  ?—  A.  No,  sir. 

Q.  You  believed  that  one  party  had  been  intimidated  and  prevented  from  votino-  ?— 
A.  Yes,  sir. 

Q.  And  therefore  you  threw  out  the  Johnsville  precinct  ? — A.  Yes,  sir. 

Q.  Was  there  any  reason  for  throwing  it  out  ? — A.  No,  sir. 

Q.  None  whatever  ? — A.  No,  sir. 

Q.  No  other  reason  suggested  but  that,  was  there  ?— A.  No,  sir. 


Q.  You  next  threw  out  Darbyville  precinct  ? — A.  Yes,  sir. 
Q.  For  what  reason  did  you  do  so  ? — A.  We  beli< 


believed  that  there  was  some  illegal 
votes  cast  there. 

Q.  Did  you  have  any  evidence  before  you  at  all  ?— A.  No,  sir. 

Q.  Not  a  particle  ? — A.  No,  sir. 

Q.  But  you  had  an  impression  that  some  illegal  votes  were  cast  there  ?— A.  Yes  sir 

Q.  You  had  no  proof  of  it  at  all  ?— A.  No,  sir. 

Q.  How  many  illegal  votes  did  you  have  an  impression  were  cast  there?— A.  About 
7,  I  think,  as  well  as  I  can  recollect. 

Q.  Therefore  you  threw  out  the  precinct  without  any  evidence  at  all  ?— A.  Yes.  sir. 

Q.  Then  you  made  up  your  returns  ?— A.  Yes,  sir. 

Q.  Who  wrote  those  returns  ? — A.  I  did. 

Q.  You  wrote  them  yourself? — A.  Yes,  sir. 

Q.  And  the  judge  signed  them?— A.  Yes,  sir. 

Q.  Mr.  Green  signed  them  ? — A.  Yes,  sir. 

Q.  You  made  return  to  the  secretary  of  state  that  you  had  canvassed  the  vote  ?— A. 
Yes,  sir. 

Q.  And  also  sent  one  to  the  governor  that  you  had  canvassed  the  vote  ?— A.  Yes,  sir. 

Q.  The  returns,  so  far  as  you  knew,  appeared  to  be  regular  from  the  different  pre 
cincts,  did  they  ? — A.  Yes,  sir. 

Q.  Who  was  the  chairman  of  the  board  of  canvassers?— A.  The  judge. 

Q.  Who  made  the  suggestion  to  throw  out  Johnsville?— A.  He  did  himself. 

Q.  Who  made  the  suggestion  to  throw  out  the  Darbyville  precincts? — A.  He  did. 

Q.  And  you  sustained  him  in  it? — A.  Yes,  sir. 

Q.  Mr.  Green  sustained  him  in  it  also  ?— A.  Yes,  sir. 

Mr.  Green  was  the  justice  appointed  by  Stearns  on  tbe  10th. 

Q.  How  did  you  know  that  one  man  was  intimidated  at  Johnsville  precinct  ? — A. 
Well,  we  just  heard  it  rumored  around  at  the  time. 

Q.  Was  there  any  other  cause  operating  in  your  mind  in  rejecting  the  Johnsville 
return  but  the  fact  that  you  had  heard  that  one  party  was  intimidated  ? — A.  No,  sir ; 
that  was  all. 

Q.  Where  did  you  and  the  judge  and  the  justice  of  the  peace,  Green,  find  the  returns 
when  you  went  to  the  clerk's  office  to  make  the  canvass? — A.  After  we  got  the  light, 
when  I  saw  them  first,  the  judge  had  them  in  his  hands. 

Q.  Do  you  know  where  he  got  them  ? — A.  I  do  not ;  I  think  he  got  them  out  of  a 
desk. 

Q.  Out  of  what  desk  ?— A.  In  the  clerk's  desk,  in  the  clerk's  office. 

Q.  Was  the  desk  unlocked  that  contained  these  papers  ? — A.  Yes,  sir. 

Q.  And  nobody  was  in  the  clerk's  office  ? — A.  No,  sir. 

Now  let  ine  go  from  this  county  canvass  to  the  State  canvass.  When 
the  State  canvassers  were  at  work  there  were  certain  significant  tele 
grams  passed  between  Florida  and  Washington;  I  omit  the  names  of 
the  correspondents  except  that  of  the  governor,  Stearns,  the  same  whose 
certificate  is  before  you  certifying  to  the  election  of  the  ITayes  electors. 
The  examination  is  thus  reported  : 

Q.  Do  you  recollect  any  telegram  at  Lake  City  about  the  25th  of  December,  asking — 

(I  will  say  the  chairman  of  the  national  republican  committee)— 

any  questions  about  attacking  the  returns? — A.  I  remember  one  dispatch  (I  cannot 


38  ELECTORAL    COUNT    OF    1877. 

give  the  date)  asking  on  what  grounds  they  should  assail  these  counties,  or  words  to 
that  effect. 

Q.  What  was  the  answer? — A.  There  was  a  dispatch  subsequently  received,  (whether 
or  not  it  was  the  answer  to  it,  you  must  draw  your  own  conclusion.)  The  words  in  it 
were  "fraud,  intimidation."  There  was  another  word  which  may  have  been 
"violence;"  but  I  am  not  sure  that  it  was  tf  violence." 

Thereupon  the  State  canvassers  did  what  9  They  took  the  third  can 
vass  from  Baker  County  and  amended  it,  as  appears  in  the  CONGRES- 
SIONAL  EEOORD  of  February  1,  page  65,  and  added  "  amended  by  can 
vassing-  all  the  precinct  returns,"  and  that  statement  in  the  full  canvass 
is  the  true  one  as  to  Baker  County ;  that  is,  they  got  at  a  true  result  in 
respect  to  that  county  by  taking  the  false  certificate  and  amending  it  so 
as  to  take  in  all  the  returns.  But  what  did  they  then  do  ?  Stearns  w:as 
a  candidate  for  the  office  of  governor.  He  was  then  governor  and  he 
was  a  candidate  for  the  succession.  His  opponent  was  Mr.  Drew. 
The  canvassers  were  Stearns's  appointees,  to  go  out  of  office  with  him 
and  to  remain  in  office  if  he  was  counted  in.  They  took  the  returns  from 
the  other  counties  and  threw  out  enough  to  give  the  State  to  the  Hayes 
electors  and  to  Stearns  as  governor. 

Thus  the  matter  stood  upon  the  State  canvass  thus  made.  You  will 
observe  that  it  gave  the  true  vote  of  Baker  County,  but  eliminated 
from  the  votes  of  other  counties  certain  precincts  enough  to  elect  their 
patron  Stearns.  But  it  did  not  remain  so,  as  I  will  show  in  a  moment; 
for  this  elimination  being  declared  by  the  supreme  court  illegal,  the  can 
vassers  thereupon,  in  order  to  prevent  a  majority  appearing  for  the 
Tilden  electors,  recalled  their  amendment  of  the  Baker  County  false 
return,  and  used  it  in  all  its  falsehood. 

These  are  all  facts,  which  we  offer  to  make  good  by  evidence  as  the 
Commission  may  prescribe,  by  a  cloud  of  witnesses  and  by  a  host  of 
documents. 

This  monstrous  fraud  being  thus  far  accomplished,  the  people  of  the 
State  took  it  upon  themselves  to  see  if  they  could  right  the  wrong,  and 
they  did  it  with  a  spirit  and  a  success  which  does  th^.m  all  honor.  Not 
even  your  own  native  State  of  New  Hampshire,  Mr.  President,  could 
have  more  manfully  stood  up  for  its  rights.  If  such  a  fraud  had  been  per 
petrated  there,  you  would  have  heard  a  voice  from  her  people  that  would 
have  shaken  the  everlasting  foundations  of  her  granite  hills.  From 
peak  to  peak,  and  from  the  easternmost  peak  to  the  shining  sea,  you 
would  have  heard  a  roar  of  dissent  and  of  indignation.  So  their  breth 
ren  of  Florida  raised  their  voices  through  all  the  flowery  peninsula,  and 
they  accomplished  the  result  which  I  will  now  give.  First,  l)re\v,  the 
candidate  for  governor  on  the  other  side,  went  into  the  courts  of  law  as 
a  law-abiding  citizen  should  do  and  will  ever  do  so  long  as  he  can  get 
justice  in  the  courts,  but  when  he  finds  that  he  cannot  get  it  there  he 
will  get  it  elsewhere.  He  went  into  the  supreme  court  of  the  State  and 
applied  for  a  mandamus  to  compel  this  canvassing-board  to  restore  to 
their  canvass  the  eliminated  precincts,  and  the  supreme  court  decided 
that  the  State  canvassers  had  no  power  under  the  laws  of  Florida  to 
eliminate  votes,  but  they  were  bound  to  count  every  lawful  vote  put 
into  the  ballot-box;  that  they  were  neither  electors  nor  judges  otherwise 
than  of  what  votes  were  put  in  ;  and  in  obedience  to  that  they  restored 
to  the  canvass  the  rejected  precincts  and  certified  a  majority  for  Drew, 
and  Drew  took  his  place  and  is  now  the  lawful  and  accepted  governor  of 
the  State. 

What  did  the  Tilden  electors  do  T  They  commenced  in  a  circuit  court 
of  Florida,  which  had  competent  jurisdiction,  an  information  in  the  na 
ture  of  quo  icarranto  against  the  Hayes  electors.  They  charged  in  the 


ELECTORAL    COUNT    OF    1377.  39 

information  that  they,  the  relators,  were  the  lawful  claimants  of  the 
office,  and  that  the  others  were  usurpers.  That  information  was  com- 
ineuced  before  the  Hayes  electors  voted  on  the  6th  of  December.  The 
case  proceeded  in  the  regular  course  of  legal  proceedings  until  it  came 
to  trial  and  judgment,  first  upon  a  demurrer,  and  then,  the  demurrer 
being  overruled  and  an  answer  interposed,  upon  the  issues  and  proofs ; 

and  here  is  the  judgment  of  the  court.    Alter  the  recitals 

It  is,  therefore,  considered  and  adjudged  that  said  respondents— 
Who  were  the  Hayes  electors,  Humphreys  and  so  on 

were  not,  nor  was  any  one  of  them,  elected,  chosen,  or  appointed  as  such  electors  or 
elector,  or  to  receive  certificates  or  certificate  of  election  or  appointment  as  such  electors 
or  elector,  and  that  the  said  respondents  were  not,  upon  the  said  6th  day  of  December, 
or  at  any  other  time,  entitled  to  assume  or  exercise  any  .of  the  powers  and  functions 
of  such  electors  or  elector;  but  that  they  were,  upon  the  said  day  and  date,  mere 
usurpers. 

Mr.  Eepresentative  K  ASSORT.  Will  the  objector  allow  me  to  state  to 
the  court  that  I  presume  we  are  not  considered  as  agreeing  to  the  pre 
sentation  of  those  as  being  in  the  case  at  all  ? 

Mr.  Commissioner  EDMUNDS.  They  are  merely  referred  to  for  in 
formation. 

The  PRESIDENT.     We  are  hearing  the  statement  of  one  side  now. 

Mr.  Eepresentative  FIELD.  The  whole  record  is  certified  and  exem 
plified  in  due  form. 

I  will  go  on  with  the  reading  : 

And  it  is  further  considered  and  adjudged  that  the  said  relators.  Eobert  Bullock, 
Robert  B.  Hilton,  Wilkinson  Call,  and  James  E.  Yonge — 

These  are  the  Tilden  electors- 
all  and  singular,  were  at  said  election  duly  elected,  chosen,  and  appointed  electors  of 
President  and  Vice-President  of  the  United  States,  and  were,  on  the  said  6th  day  of 
December,  1876,  entitled  to  be  declared  elected,  chosen,  and  appointed  as  such  electors, 
and  to  have  and  receive  certificates  thereof,  and  upon  the  said  day  and  date,  and  at  all 
times  since,  to  exercise  and  perform  all  and  singular  the  powers  and  duties  of  such 
electors,  and  to  have  and  enjoy  the  pay  and  emoluments  thereof.  It  is  further  ad 
judged  that  respondents  pay  to  relators  the  costs  of  the  action. 

So  much  for  the  action  of  the  judicial  department  of  Florida.  Every 
thing  was  done,  I  take  it  upon  me  to  say,  which  it  was  possible  to  do ; 
so  that  I  am  warranted  in  asserting  that  if  there  be  any  way  known  to 
the  law  by  which  in  such  a  case  a  defrauded  State  can  right  itself 
through  the  courts  of  the  State,  that  way  has  been  taken. 

In  the  mean  time  the  Hayes  electors  had  voted  and  sent  their  lists  of 
votes  to  the  President  of  the  Senate,  with  the  certificate  of  Stearns  to 
their  appointment. 

There  was  no  canvass  or  certificate  of  the  State  canvassers  to  their 
appointment,  other  than  that  first  made*  which  the  supreme  court  had 
ordered  to  be  rectified  on  the  application  of  Mr.  Drew,  and  the  recti 
fication  of  which,  therefore,  could  go  no  further  than  the  canvass  of  the 
governor's  vote.  The  same  rectification,  applied  to  the  electoral  votes, 
would  of  course  give  the  majority  to  the  Tilden  electors,  but  to  avoid 
the  appearance  of  this  the  canvasssers  pretended  to  alter  the  vote  first 
given  by  them  to  Baker  County, -and  reduce  it  to  the  two  precincts 
mentioned  in  the  third  and  false  return  of  the  county  canvassers.  This 
attempt  was  rebuked  by  the  supreme  court,  in  an  order  directing  the 
State  canvassers  to  confine  their  action  under  the  mandamus  to  the 
votes  for  governor  ;  so  that  there  really  appears  upon  the  records  of  the 
State  canvassers  no  semblance  of  any  authority  for  Stearns's  certificate 


40  ELECTORAL    COUNT    OF    1877. 

other  than  the  first  canvass,  which  the  supreme  court  branded  as  illegal 
and  false. 

Now  look  at  what  the  legislature  of  Florida  has  done.  The  legisla 
ture  is  the  department  of  the  Florida  government  which  could  alone 
direct  how  the  power  devolved  by  the  Federal  Constitution  could  be 
performed.  This  legislature  has  passed  two  acts  to  which  I  call  your 
attention.  In  viewof  the  fact  that  the  supreme  court  had  made  the  de 
cision  which  I  have  mentioned,  the  legislature  passed — 

An  act  to  provide  for  a  canvass  according  to  the  laws  of  the  State  of  Florida,  as  in 
terpreted  by  the  supreme  court,  of  the  votes  for  electors  of  President  and  Vice  Presi 
dent  cast  at  the  election  held  November  7,  1876. 

The  law  was  approved  January  17.  It  provides  that  the  secretary  of 
state,  attorney-general,  and  the  comptroller  of  public  accounts,  or  any 
two  of  them,  together  with  any  other  member  of  the  cabinet  who  may  be 
designated  by  them,  shall  meet  forthwith  at  the  office  of  the  secretary 
of  state,  pursuant  to  a  notice  to  be  given  by  the  secretary  of  state,  and 
proceed  to  recanvass  the  votes.  They  did  meet  and  recanvass  pursuant 
to  that  law,  and  they  certified  the  result  according  to  the  fact,  giving 
the  majority  to  the  Tilden  electors.  The  second  law  declared  that  the 
Tilden  electors,  na?ning  them,  were  elected  on  the  7th  day  of  November, 
and  that  they  had  voted;  and  directed  that  the  same  electors  should 
meet,  that  the  governor  should  give  them  a  certificate  of  their  election, 
pursuant  to  the  recanvass,  and  that  they  should  make  out  duplicate 
lists  of  the  votes,  and  transmit  them -to  the  President  of  the  Senate  at 
Washington  ;  and  the  proceedings  under  that  law  make  up  the  third  re 
turn  which  has  been  read. 

Mr.  Commissioner  BRADLEY.     What  was  the  second  return? 

Mr.  Representative  FIELD.  The  second  return  to  the  President  of 
the  Senate  was  the  return  of  the  Tilden  electors. 

The  return  No.  1  was  made  by  the  Hayes  electors  and  sent  with  the 
certificate  of  Stearns  as  governor.  Return  No.  2  contains  the  certifi 
cates  of  the  Tilden  electors  without  the  certificate  of  the  governor,  but 
with  a  certificate  of  the  attorney-general,  the  only  dissenting  member 
of  the  board  of  State  canvassers,  certifying  that  they  were  elected. 
Then  return  No.  3  contains  the  action  of  the  State  authorities  subse 
quently  to  the  two  first,  for  the  purpose  of  ratifying  and  confirming,  so 
tar  as  it  was  possible  for  the  State  authorities  to  do  it,  the  second  return ; 
and  they  therefore  not  only  passed  a  law  for  the  recanvass  of  the  votes, 
which  recanvass  took  place  and  resulted  in  a  certificate  of  the  election 
of  the  Tilden  electors,  but  they  passed  another  act,  reciting  that  the 
election  had  been  in  favor  of  the  Tilden  electors,  and  that  the  Tilden 
electors  had  met  and  voted  on  the  Gth  of  December,  but  without  a  cer 
tificate  of  the  governor,  and  directing  the  governor  of  the  State  to 
forward  a  supplementary  certificate  for  its  confirmation;  and  directing, 
moreover,  for  abundant  caution,  that  there  should  be  new  lists  made 
out  and  a  new  certificate  by  these  electors  who  were  to  be  re-assembled 
for  the  purpose,  the  certificates  all  to  be  forwarded  to  the  President  of 
the  Senate,  as  they  would  have  been,  but  for  the  conspiracy,  in  November. 
Those  papers  make  the  third  return.  I  will  read  the  recital  in  this  act 
of  the  legislature  of  Florida : 

And  whereas  the  board  of  State  canvassers  constituted  under  the  act  approved  Feb 
ruary  27,  187iJ,  did  interpret  the  laws  of  this  State  defining  the  powers  and  duties  of 
the  said  board  in  such  manner  as  to  give  them  power  to  exclude  certain  regular 
returns,  and  did  in  fact  under  such  interpretation  exclude  certain  of  such  regular 
returns,  which  said  interpretation  has  been  adjudged  by  tlie  supreme  court  to  be  erro 
neous  and  illegal ; 

And  whereas  the  late  governor,  Marcellus  L.  Stearns,  by  reason  of  said  illegal  action 


ELECTORAL    COUNT    OF    1877.  41 

and  erroneous  and  illegal  canvass  of  the  said  board  of  State  canvassers,  did  erroneously 
cause  to  be  made  and  certiliod  lists  of  the  names  of  the  electors  of  this  State,  contain 
ing  the  nanitts  of  tho  said  Charles  H.  Poaroa,  Frederick  C.  Humphreys,  William  H. 
Holden,  and  Thomas  Long — 

Being  the  Hayes  electors — 

and  did  deliver  such  lists  to  said  persons,  when  in  fact  the  said  persons  had  not  received 
the  highest  number  of  votes,  and,  on  a  canvass  conducted  according  to  the  rules  pre 
scribed  and  adjudged  as  legal  by  the  supreme  court,  were  not  appointed  as  electors  or 
entitled  to  receive  such  lists  from  the  governor,  but  Robert  Bullock,  Robert  B.  Hilton, 
Wilkinson  Call,  and  James  E.  Yonge— 

Those  are  the  Tilden  electors — 

were  duly  appointed  electors,  and  were  entitled  to  have  their  names  compose  the  lists 
made  and  certified  by  the  governor,  and  to  have  such  lists  delivered  to  them : 

Now,  therefore,  the  people  of  the  State  of  Florida,  represented  in  senate  and  assembly,  do 
enact,  j~c. 

The  certificate  is  in  effect  that  the  electors  who  met  and  voted  on  the 
6th  of  December  were  the  true  choice  of  the  people  of  Florida;  and 
the  same  electors  re-assembled  and  made  new  lists  ;  they  did  not  vote 
anew  because  they  were  to  vote  on  the  6th  of  December,  bat  they  did 
certify  anew  that  they  had  thus  voted  on  the  6th  of  December,  and 
that  certificate,  with  the  other  certificate,  was  forwarded  in  due  form,  as 
I  have  stated,  to  the  President  of  the  Senate  at  this  Capitol. 

Now,  if  the  Commission  please,  we  are  told  that  the  certificate  of  the 
governor,  Stearns,  which  h;is  been  forwarded  to  Washington  annexed 
to  the  lists  of  votes  of  the  Hayes  electors,  countervails  all  this  evidence, 
and  that  no  matter  what  amount  of  testimony  we  may  offer,  documen 
tary  or  oral,  we  can  never  invalidate  the  signature  of  Marcellus  L. 
Stearns  ;  and  it  is  to  that  question  that  I  shall  devote  what  remains  of 
my  address.  It  is  putting  the  question  in  an  erroneous  form  to  put 
it  thus,  "You  cannot  go  behind  the  certificate."  The  form  should  be 
reversed,  Can  the  certificate  go  before  the  truth  and  conceal  it  ?  I  prove 
these  facts  or  offer  to  prove  them.  On  the  other  side — if  I  have  rightly 
understood  the  objections  made  yesterday  in  the  joint  convention — on 
the  other  side  there  is  no  suggestion  that  we  are  not  right  in  the  facts; 
there  is  no  averment  that  the  true  and  lawful  vote  of  the  State  of  Flor 
ida  was  not  given  for  the  Tilden  electors ;  but  the  claim  is  that  "  there 
is  the  certificate  of  M.  L.  Stearns,  and  that  stands  as  a  barrier  against 
all  these  witnesses,  arid  the  truth  cannot  be  proven.  The  truth  is  buried 
under  this  certificate.  Neither  you  exercising  for  this  occasion  the  pow 
ers  of  the  two  Houses  of  Congress,  nor  the  two  Houses  themselves,  acting 
separately  or  together,  can  consider  any  fact  whatever  to  the  contrary 
of  which  Stearns  has  certified." 

Let  me  ask  in  the  first  place  upon  what  foundation  that  doctrine 
rests  ?  Who  tells  you  that  you  are  to  take  that  certificate  as  conclusive 
evidence  against  anything  that  can  be  proved  on  the  other  side?  By 
what  rule  of  evidence,  by  what  precept  of  law,  are  you  deprived  of  the 
right  to  investigate  the  truth  ?  Is  it  not  a  universal  rule  that  every 
judge  is  invested  ex  necessitate  with  the  power  to  take  into  consideration 
all  pertinent  evidence  in  respect  to  the  facts  upon  which  his  judgment 
is  to  be  pronounced,  unless  there  is  some  positive  law  declaring  that  cer 
tain  certificates  or  other  documentary  evidence  shall  be  conclusive  ? 
venture  to  say  that  that  is  the  universal  rule,  and  that  there  is  no  court 
of  general  jurisdiction  known  to'American  or  Anglo-Saxon  law  in  which 
nt  is  not  a  fundamental  principle  that  whenever  a  court  can  inquire  into 
facts  necessary  to  its  judgment,  it  may  take  all  the  pertinent  evidence, 
that  is  to  say  all  evidence  that  tends  to  prove  the  fact,  unless  it  is 
restricted  by  some  positive  law.  Now,  then,  show  me  a  positive  law 
that  makes  the  certificate  of  Stearns  evidence  against  the  truth  ?  Where 


42  ELECTORAL    COUNT    OP    1877. 

is  it?  In  what  book?  It  is  not  in  the  Constitution.  It  is  not  in  the 
laws  of  Florida.  Is  it  in  any  law  of  Congress?  The  only  act  of  Con 
gress  applicable  is  that  which  provides  that  the  executive  of  the  State 
shall  deliver  to  the  electors  a  certificate  that  they  are  such  electors,  but 
that  act  does  not  declare  that  his  certificate  shall  be  conclusive — nei 
ther  declares  it,  nor  implies  it.  Suppose  I  offer  to  prove  that  the 
certificate  is  wholly  false,  fabricated  for  the  purpose  of  cheating  the 
State  out  of  its  vote  and  the  other  States  out  of  their  rights.  Take 
the  State,  one  of  the  oldest  and  proudest  in  this  Union  of  States — the 
State  of  Massachusetts,  of  which  my  friend  Mr.  Commissioner  Abbott 
is  so  worthy  a  representative,  and  suppose  that  the  honored  governor  of 
that  State  were  so  debased  as  to  certify  that  the  Tildeu  electors  had 
received  the  votes  of  a  majority  of  the  good  and  true  voters  of  Massa 
chusetts;  will  any  man  tell  me  that  it  must  be  taken  as  absolutely  true, 
that  you  cannot  prove  it  to  be  false  ?  Where  is  the  law  for  that?  Nay, 
more,  I  venture  to  affirm  that  if  an  act  of  Congress  had  declared  that 
that  certificate  should  be  conclusive,  the  act  would  have  been  unconsti 
tutional.  For  what  reason  ?  For  this  reason  :  The  Constitution,  as  if 
the  foresight  of  the  fathers  grasped  the  conflicts  of  future  years,  declares 
that  the  person  having  the  highest  number  of  votes  shall  be  the  Presi 
dent,  not  that  the  person  declared  to  have  the  highest  number  of  votes, 
but  "the  person  having  the  highest  number."  No  certificate  can  be 
manufactured  to  take  that  away.  If  you  had  declared  by  act  of  Con 
gress  in  the  most  express  and  positive  terms  that  the  certificate  of  the 
governor  delivered  to  the  electors  should  be  conclusive  against  all  proof, 
you  would  have  transcended  the  limits  of  the  organic  law.  You  cannot 
say  that  the  certificate  of  the  governor  of  Massachusetts  shall  override 
the  votes  of  the  electors  of  Massachusetts  in  their  choice  of  President. 
Therefore  it  is  I  say  not  only  that  you  have  not  done  it,  but  you  could 
not  do  it ;  you  could  not  do  it  if  you  would,  as  I  am  sure  you  would  not 
if  you  could. 

The  language  of  the  act  of  Congress  is  not  as  strong  as  the  language 
of  the  State  laws  generally  respecting  the  canvass  of  votes.  Take  the 
case  in  AYiscousiu,  which  arose  in  the  courts,  of  the  contest  for  the 
office  of  governor.  There  a  law  of  the  State  had  declared  that  the  State 
canvassers  should  determine — I  think  that  is  the  language  — should 
determine,  certify,  and  declare  who  was  governor.  A  person  came  into 
the  office  of  governor  upon  such  a  certificate  declaring  that  he  was 
elected,  and  a  rival  claimant  went  into  the  courts  with  a  writ  of  quo 
warranto,  and  was  met  there  by  the  ablest  counsel  in  the  State  with  the 
argument,  "You  cannot  inquire,  because  the  certificate  of  the  State 
canvassers  is  conclusive."  "No,"  said  the  court,  in  an  opinion  which 
does  them  great  honor  and  will  stand  as  a  record  of  their  learning,  their 
patriotism,  and  their  inflexible  firmness  ;  "  the  title  of  governor  depends 
upon  the  votes  of  the  people,  upon  those  little  ballots  that  declare  their 
supreme  will ;  the  question  is  not  who  have  certified  but  who  have 
voted  ;"  and  the  court  declared  the  claimant  entitled  and  threw  out  the 
usurping  governor. 

Is  not  your  right  to  inquire  into  the  very  truth  implied  by  the  law 
under  which  you  act?  What  are  you  to  do?  You  are  to  declare 
whether  any  and  what  votes  are  the  votes  provided  by  the  Constitution, 
not  to  declare  what  are  the  votes  certified  by  Governor  Stearns.  That 
was  known  well  enough  beforehand.  You  are  to  certify  what  are  the 
lawful  votes  upon  which  a  President  of  forty-five  millions  of  people  is 
to  be  inducted  into  office. 

Is  not  the  same  right  implied  in  the  notion  which  I  find  to  prevail 
everywhere,  that  Congress  might  authorize  a  writ  of  quo  warranto  to  try 


ELECTORAL    COUNT    OF    1877.  43 

the  title  of  President  within  the  purview  of  the  Constitution  ?  Can  that 
be  doubted  f  The  Constitution  has  declared  that  the  person  having  the 
highest  number  of  votes  shall  be  the  President;  not  the  one  certified. 
Congress  has  not  as  yet  invested  any  tribunal  with  the  power  to  try  the 
title  to  the  Presidency  by  quo  warranto.  No  such  law  exists,  I  am  sorry 
to  say.  Such  a  law,  if  I  might  be  permitted  to  say  so,  ought  to  be 
made.  It  is  no  small  reproach  to  our  statesmanship  that  for  a  hundred 
years  no  law  has  been  provided  for  this  great  exigency.  I  know  that 
one  eminent  member  of  this  Commission  has  labored  assiduously  to  pro 
cure  the  passage  of  such  a  law,  and  of  all  his  titles  to  respect  I  am  sure 
that  will  be  especially  remembered  hereafter. 

Mr.  Commissioner  BRADLEY.  Does  not  the  law  of  the  District 
apply  to  the  case  ? 

Mr.  Representative  FIELD.  I  think  not,  sir.  I  should  be  very  glad 
to  learn  that  it  does.  The  j  udiciary  act  of  1789,  as  if  ex  industria,  omitted 
to  mention  writs  of  quo  warranto.  It  gave  the  several  courts  power  to 
issue  writs  of  mandamus  and  certain  other  writs,  but  not  that  of  quo 
warranto.  I  know  that  the  statutes  lately  passed  give  a  right  to  a  quo 
icarranto  in  respect  to  certain  offices,  enumerating  them,  arising  out  of 
the  amendments  to  the  Constitution  providing  for  the  emancipated 
slaves  ;  but  I  do  not  find  any  provision  whatever  for  a  writ  of  quo  war 
ranto  to  try  the  title  to  any  such  office  as  that  of  President  or  presiden 
tial  elector. 

Mr.  Commissioner  BRADLEY.  You  are  aware,  of  course,  that  the 
whole  body  of  the  Maryland  law  as  existing  in  1801  is  the  municipal 
law  of  this  District,  so  far  as  not  modified. 

Mr.  Representative  FIELD.     I  am. 

Mr.  Commissioner  BRADLEY.  I  do  not  know  whether  there  is  any 
such  provision  in  those  laws  or  not. 

Mr.  Representative  FIELD.  Of  course  I  speak  entirely  under  sub 
mission  to  the  better  knowledge  of  the  court.  I  have  not  been  able  to 
satisfy  myself  that  there  is  any  provision  for  a  writ  of  quo  warranto  in 
the  case  of  President.  But  my  argument  is  that,  whether  there  be  a 
law  now  existing  or  not,  it  is  competent  to  Congress  to  pass  such  a  law, 
and  if  a  law  to  provide  for  a  writ  of  quo  icarranto  would  be  constitu 
tional,  then  it  is  constitutional  to  impose  a  like  duty  on  any  other 
tribunal  to  investigate  the  title.  That  is  to  say,  if  you  could  devolve 
that  duty  upon  any  tribunal  by  means  of  a  writ  of  quo  warranto,  you  can 
devolve  it  by  other  means.  If  the  governor's  certificate  would  not  be 
conclusive  there,  it-is  not  conclusive  here.  The  right  to  inquire  into  the 
fact  exists  somewhere,  and,  if  nowhere  else,  it  must  be  here. 

Thus  thinking  that  Congress  could  devolve  upon  some  tribunal  the 
authority  to  inquire  into  the  title  of  the  President,  and  that  such 
authority  would  necessarily  give  to  the  tribunal  investigating  the  right 
to  go  into  the  truth  notwithstanding  any  certificate  to  the  falsehood,  I 
argue  that  here  before  this  Electoral  Commission,  invested  with  all  the 
functions  of  the  two  Houses,  you  can  inquire  into  the  truth,  no  matter 
what  may  have  been  certified  to  the  contrary. 

Furthermore,  I  submit  to  the  Commission  that  there  is  another  rule 
of  law  which  necessarily  leads  us  to  answer  affirmatively  the  question 
whether  the  truth  can  be  given  in  evidence  notwithstanding  the 
certificate;  and  that  is  that  fraud  vitiates  all  transactions  and  can 
always  be  inquired  into  in  every  case  except  possibly  two.  I  will  not 
argue  now  that  the  judgment  of  a  court  of  record  of  competent 
jurisdiction  can  be  impeached  collaterally  for  fraud  in  the  judge. 
Opinions  differ.  If  it  cannot  be  impeached,  it  must  be  because  such  aii 


44  ELECTORAL    COUNT    OF    1777. 

impeachment  would  lead  to  an  inquiry  that  would  be  against  public 
policy.  It  would  be  a  scandal  to  inquire  into  the  bribery  or  corruption 
of  a  judge  while  the  judge  is  sitting  to  administer  justice;  and,  there 
fore,  from  motives  of  public  policy,  it  may  be  the  rule  that  until  the 
judge  is  impeached  and  removed  you  cannot  inquire  into  the  corruption 
of  his  acts.  And  it  may  also  be  true  that  you  cannot  inquire  into  the 
validity  of  an  act  of  a  legislature  upon  the  ground  of  fraud  or  bribery. 
But,  with  those  two  exceptions,  I  venture  to  claim  that  there  is  no  act 
and  no  document  anywhere  that  you  cannot  impeach  for  fraud.  Now, 
this  cauvassing-board  and  this  governor  were  not  invested  with  any 
such  sanctity  as  are  judges  of  courts  of  record.  They  were  not  dis 
pensing  justice  between  litigating  parties,  and  it  would  not  be  against 
public  policy  to  inquire  into  the  corruption  or  invalidity  of  their  acts. 
Not  a  single  consideration  that  I  have  ever  heard  of  or  which  I  can 
imagine  would  lead  us  to  the  conclusion  that  you  cannot  inquire  into 
the  truth  of  their  certificates;  and  I,  put  it  to  the  Commission  that  if 
they  corruptly  acted,  if  they  were  bribed  or  led  astray  by  hunger  for 
office,  or  the  thirst  for  power,  or  the  thirst  for  gold,  you  can  impeach 
their  acts.  Who  is  it  whose  acts  we  are  now  seeking  to  impeach  ?  It 
is  the  then  governor  of  Florida,  Stearns ;  Stearns,  the  man  who  sent 
the  telegram  asking  on  what  grounds  the  votes  of  counties  could  be 
thrown  out,  and  who  received  for  answer,  fraud,  intimidation,  or  some 
thing  else;  Stearns,  the  man  who  controlled  the  canvassing-board 
sitting  to  certify  whether  he  and  they  were  to  continue  in  office. 

Is  it  a  true  proposition  of  law  that  you  cannot  inquire  whether  he  has 
acted  fraudulently?  If  it  be  true  that  the  certificate  of  the  governor 
is  conclusive  evidence  that  these  persons  were  elected,  then  it  follows 
that  the  certificate  would  be  sufficient  if  there  were  no  election  at  all. 
Yes;  suppose  I  prove  or  offer  to  prove  that  in  point  of  fact  on  the  7th 
day  of  November  there  was  no  election  at  all  in  the  State  of  Florida, 
that  no  man  cast  a  vote,  no  polls  were  opened,  no  man  thought  of 
voting,  would  this  certificate,  signed  "  M.  L.  Stearns,"  prove  that  the 
four  Hayes  electors  were  duly  chosen  ? 

To  tbat  complexion  must  it  come  at  last. 

There  is  no  middle  ground.  If  you  can  inquire  into  the  truth  of  that 
certificate,  you  can  inquire  into  every  certificate  of  fact  and  show 
whether  it  be  true  or  false. 

Such,  Mr.  President  and  gentlemen  of  the  Commission,  is  as  brief  a 
statement  as  I  could  make  of  the  facts  and  the  law  as  we  understand 
them  to  be.  The  greatness  of  the  question  in  respect  to  the  dignity  of 
the  presidential  office  and  the  vast  interests  depending  upon  it,  is  as 
nothing  compared  with  the  moral  elements  involved;  for  true  as  it  is 
that  the  person  upon  whom  your  decision  will  confer  the  office  for  four 
years  will  be  the  Chief  Magistrate  of  forty-five  millions  of  people, 
Commander-in-Chief  of  your  Army  and  Navy,  the  organ  between  you 
and  all  foreign  states,  the  bestower  of  all  offices,  the  fountain  of  honor 
and  the  distributer  of  pawer,  the  executor  of  your  laws,  that  is  as 
nothing  compared  with  the  greater  question  whether  or  not  the  Amer 
ican  people  stand  powerless  before  a  gigantic  fraud.  Here  is  the  cer 
tificate  ;  one  feels  reluctant  to  touch  it.  Hold  it  up  to  the  light.  It  is 
black  with  crime.  Pass  it  round;  let  every  eye  see  it;  and  then  tell 
me  whether  it  is  fit  to  bestow  power  and  create  dignity  against  the  will 
of  the  people.  One  of  the  greatest  poets  of  the  palmy  days  of  English 
literature,  writing  of  the  coming  of  our  Saviour,  has  said: 

And  ancient  Fraud  shall  fail, 

Returning  Justice  lift  aloft  her  scale. 


ELECTORAL    COUNT    OF    1877.  45 

Ancient  fraud !  Was  there  ever  fraud  like  this?  In  previous  ages 
fraud  has  succeeded  only  because  it  has  been  supported  by  the  swold 
and  protesting  peoples  have  been  powerless  before  armed  battalions' 
Never  yet  in  the  history  of  the  world  has  a  fraud  succeeded  against  the 
conscience  and  the  will  of  a  self-governing  people.  If  it  succeeds  now, 
let  us  hang  our  heads  for  shame  5  let  us  take  down  from  the  dome  of 
this  Capitol  the  statue  which  every  morning  faces  the  corning  light  •  let 
us  clothe  ourselves  with  sackcloth  and  sit  in  ashes  forever. 

Mr.  Representative  TUCKER.  With  submission  to  the  Commission, 
the  objections  which  are  made  by  members  of  the  two  houses  of  Con 
gress  to  the  counting  of  the  votes  of  the  electors  who  voted  for  Messrs. 
Hayes  and  Wheeler  are  to  be  found  printed  this  morning  in  a  form  to 
which  I  call  the  attention  of  the  Commission  for  a  moment.  The  first 
objection  is : 

That  the  said  Charles  H.  Pearce— 
And  others — 

were  not  appointed  by  the  said  State  of  Florida  in  such  manner  as  its  legislature  had 
directed. 

The  second  is: 

That  Wilkinson  Call— 

And  others,  the  Tilden  electors — 
were  appointed  by  the  said  State  in  such  manner  as  its  legislature  directed. 

The  third  states  that  the  qualified  electors  of  the  said  State,  in  man 
ner  as  provided  by  the  law  of  Florida,  did  elect  Wilkinson  Call  and 
others,  the  Tilden  electors. 

The  fourth  is: 

That  the  pretended  certificate,  or  paper  purporting  to  be  a  certificate,  signed  by 
M.  L.  Stearns  as  governor  of  said  State,  of  the  appointment  of  the  said  Charles  H. 
Pearce  •  was  and  is  in  all  respects  untrue,  and  was  corruptly  procured  and 

made  in  pursuance  of  a  conspiracy  between  the  said  M.  L.  Stearns — 

And  the  said  Pearce  and  others,  and  so  on — 

to  assert  and  set  up  fictitious  and  unreal  votes  for  President  and  Vice-President. 
The  fifth  is : 

That  the  said  papers  falsely  purporting  to  be  the  votes  for  President  and  Vice- 
President  of  the  State  of  Florida,  which  are  fictitious  acd  unreal  and  do  not  truly 
represent  any  votes  or  lawful  acts,  *  *  *  were  made  out  and  executed  in  pursu 
ance  of  the  same  fraudulent  conspiracy. 

The  sixth  states  at  length  what  I  will  state  succinctly,  that  by  a 
quo-ivarranto  proceeding  initiated  prior  to  the  vote  given  for  Hayes  and 
Wheeler  by  these  pretended  electors  on  the  Cth  of  December,  and  which 
resulted  in  a  judgment  on  the  25th  or  26th  of  January,  their  election 
their  title  to  the  office  of  electors  for  the  State  of  Florida,  was  declared, 
utterly  null  and  void,  and  that  they  were  usurpers  and  pretenders  to 
the  said  office. 

Mr.  Commissioner  MORTON.  May  I  inquire  of  the  counsel,  who  were 
made  parties  to  that  proceeding  1? 

Mr.  Representative  TUCKER.  The  State  of  Florida  ex  rclatione 
Wilkinson  Call  and  others,  the  Tildeu  electors,  as  plaintiffs,  against 
Pearce  and  others,  the  Hayes  electors. 

Mr.  Commissioner  MORTON.  Was  the  governor  a  party  to  the  pro 
ceeding  ? 

Mr.  Representative  TUCKER.  No ;  he  was  not  a  party.  Now,  sirs, 
these  are  succinctly  the  objections  made,  and  they  may  be  summarized 


46  ELECTORAL    COUNT    OF    1877. 

thus :  We  object  to  these  votes  being  counted,  because  we  say  that 
these  men  were  not  elected  according  to  the  law  of  Florida,  and  not 
being  so  elected  can  have  no  title  to  the  office;  secondly,  we  hold  that, 
even  if  they  had  been  elected  according  to  the  forms  of  the  law  of 
Florida,  their  election  was  tainted  with  fraud  and  is  void ;  and  the 
whole  question  presented  to  this  tribunal,  the  question  presented  to  the 
two  Houses  of  Congress,  and  which  they  have  substituted  this  tribunal 
in  their  stead  to  decide,  is  simply  this :  Is  there  any  power  in  the  Con 
stitution  under  which  we  live  by  which  a  fraudulent  and  illegal  title  to 
the  office  of  President  can  be  prevented  I  Must  a  man  that  everybody 
knows  to  be  a  usurper  be  pronounced  by  the  two  Houses  of  Congress,  or 
by  this  tribunal  in  their  stead,  to  have  a  valid  title  to  the  office  when 
ail  the  world  knows  he  has  not?  I  will  not  ask  whether  the  decision  of 
a  returning-board  is  to  screen  the  illegality  and  fraud  from  your  vision, 
but  whether  the  return  ing- boards  can  run  their  fingers  into  the  eyes  of 
this  tribunal  and  prevent  their  seeing  what  all  the  world  sees?  Shall 
the  two  Houses  of  Congress,  the  sentinel-guards  appointed  by  the  Con 
stitution  against  the  usurpation  of  this  high  office,  shall  this  tribunal  as 
the  substitute  for  those  sentinel-guards,  permit  fraud  to  crawl  with  slimy 
trail  into  the  executive  seat,  whence  it  may  spring  from  its  coil  and 
sting  with  fatal  fang  the  life-blood  of  the  grandest  republic  in  the 
world?  Is  the  power  of  a  returning-board,  tainted  with  fraud,  based 
upon  lawlessness,  to  conclude  the  judgment  of  the  American  people 
and  put  a  usurper  in  the  seat  of  Washington  ?  That  is  the  question. 

Now,  sirs,  whatever  may  be  the  decision  of  this  tribunal,  I  shall  die 
in  the  faith  of  my  fathers,  that  the  fathers  of  the  Constitution  never 
framed  an  instrument  of  that  kind  and  said  that  their  posterity  were  to 
live  under  it. 

What  is  the  power  of  these  two  Houses  ?  I  have  discussed  that  ques 
tion  elsewhere.  If  your  honors  will  save  me  the  labor  of  repeating  it 
here,  I  will,  as  soon  as  I  can  get  advance  sheets  of  it,  lay  before  your 
honors  a  copy  of  the  speech  delivered  by  me  in  the  House  of  liepresent- 
atives  on  that  point;  but  I  take  it,  summarizing  the  proposition,  that 
when  the  Constitution  declared  that  these  votes  were  to  be  counted  in 
the  presence  of  the  two  Houses  of  Congress,  when  it  declared  that  they 
were  to  be  counted,  they  were  the  votes  of  electors  to  be  counted,  they 
were  the  votes  of  electors,  real  electors,  not  pretended  electors,  to  be 
counted ;  it  was  intended  that  the  two  Houses  of  Congress,  and  there 
fore  that  this  tribunal  in  their  place,  should  see  that  there  was  no  fraud 
ulent  counting  of  pretended  votes  for  President  of  the  United  States. 

Now,  taking  up  the  line  of  argument  which  was  presented  by  my  able 
and  distinguished  friend  on  my  left,  [Mr.  Field,]  I  apprehend  that  the 
powers  of  the  two  Houses  of  Congress  and  of  this  tribunal  as  their  sub 
stitute  are  not  less  in  this  inquiry  than  the  powers  of  a  court  upon  a 
quo  icarranto  proceeding.  We  are  now  standing  as  the  guards  to  the 
entrance  of  the  executive  department,  and  we  are  to  let  no  man  pass 
that  has  not  the  pass-word  of  the  people  of  the  United  States.  We 
have  a  right  to  question  his  title,  and  if  he  has  no  title  never  to  permit 
him  to  enter. 

What  says  a  distinguished  authority  upon  this  subject,  which  I  found 
this  morning  on  the  table?  I  must  beg  the  pardon  of  the  Commission 
that  what  1  shall  say  shall  not  be  overloaded  with  learning,  for  I  have 
had  no  opportunity  of  looking  into  this  question.  In  High  on  Extraor 
dinary  Legal  Remedies,  section  7GO,  it  is  stated  : 

Jmlgmenti  of  ouster  may  be  given  against  one  who  was  not  duly  elected  to  the 
office  claimed,  notwithstanding  the  return  or  certificate  of  a  board  of  canvassers  of 


ELECTORAL    COUNT    OP    1877.  47 

the  election  in  his  favor,  since  such  return  is  by  no  means  conclusive  and  the  courts 
may  go  behind  it  and  examine  the  facts  as  to  the  legality  of  the  election.  Nor  will 
the  holding  of  a  commission  for  the  office  prevent  the  court  from  giving  judgment  of 
ouster  if  the  incumbent  was  not  legally  elected,  since  the  title  to  the  office  is  derived 
from  the  election  and  not  from  the  commission.  Even  though  the  incumbent  were 
properly  elected  in  the  first  instance,  yet  if  he  was  never  sworn  into  the  office  iiul«'- 
meut  of  ouster  may  be  given. 

That  is  the  key-note  of  the  remarks  that  I  shall  make  to  your  honors. 
Who  appoint  electors  ?  The  Constitution  declares  that  each  State  shall 
appoint  so  many  electors  as  it  is  entitled  to  Senators  and  Representatives 
in  Congress.  "  Each  State  shall  appoint,"  What  is  the  meaning  of  that? 
I  apprehend  that  the  word  "State"  in  the  Constitution  has  three  or 
four  meanings,  one  indicating  the  territory  in  which  the  popula 
tion  lives;  another  the  people  themselves  as  an  organic  body-politic, 
a  sovereign  power — I  trust  I  trench  upon  no  proprieties  in  saying  that 
a  State  is  a  sovereign  power  and  a  body-politic — and  another  is'the  State 
government.  In  this  particular  case,  I  apprehend  it  means  the  State  as 
a  body-politic,  as  an  organic  society,  not  its  government,  because  the 
next  sentence  says  that  each  State  shall  appoint  u  in  such  manner"  as 
its  "legislature  may  direct."  There  you  have  the  functional  power  of 
election  in  the  State  as  a  body-politic;  the  manner  of  the  election  to  be 
prescribed  and  directed  by  its  legislature.  The  law-making  power  of  the 
State  directs  the  manner;  the  substantial  power  is  in  the  State. 

Now,  let  us  look  at  this  for  a  moment,  and  I  beg  the  Commission  to 
bear  with  me  in  making  a  distinction  which  I  have  not  seen  made  as 
clearly  as  it  appears  to  my  mind  ;  and  if  there  is  any  value  in  it,  I  hope 
I  may  be  permitted  to  make  it  clear.  It  is  this :  In  every  appointment 
or  election  two  elements  enter:  first,  the  exercise  of  the  elective  func 
tion  ;  second,  the  exercise  of  the  determining  function.  The  elective 
function  is  in  the  State;  is,  in  Florida,  in  the  body  of  the  sovereign. 
The  determining  function  is  in  a  returning-board.  *Now,  wherever  the 
determinant  power  usurps  the  elective  function,  then  it  must  be  set 
aside  and  adjudged  void;  that  is  to  say,  wherever,  under  the  name  of 
determining  and  deciding  who  is  elected,  the  board  or  the  body  which 
so  decides  really  elects,  then  it  is  a  usurping  power  and  it  has  tran 
scended  its  authority;  it  has  acted  ultra  vires;  and  its  act  must  be 
declared  void  by  any  tribunal  before  whom  its  action  comes  for  adjudica 
tion.  I  therefore  say  that  in  Florida  the  elective  function  was  in  the 
body  of  the  people  of  the  State;  whoever  the  body  of  the  people  of  the 
State  elected  to  be  its  electors  were  its  electors  and  had  title  to  the  office, 
according  to  the  language  of  the  authority  I  have  read.  The  question 
of  whet  her  they  should  be  determined  to  have  been  elected  by  the  board 
of  canvassers  is  an  entirely  different  question.  If  the  board  of  canvass 
ers,  either  contrary  to  law,  or  transcending  their  legal  authority,  or  under 
their  legal  authority,  fraudulently  counted  in  as  elected  those  who  were 
not  elected  by  the  people,  their  act  was  void. 

I  will  go  no  further  in  this  controversy  than  just  to  say  that  if  it  can 
be  shown  that  the  returning-board  or  the  executive  of  the  State  of 
Florida  transcended  their  legal  authority  in  giving  the  return  to  these 
electors,  then  their  action  is  simply  iiUra  vires  and  a  nullity;  or  if,  act 
ing  within  the  limits  of  their  authority,  they  used  their  legal  po\\vr 
fraudulently  and  falsely,  then  that  also  is  a  usurpation  of  the  elective 
function  and  is  void,  because  I  apprehend  .that  if  I  can  show,  as  it  has 
been  shown  or  seems  to  have  been  shown  in  some  part  of  this  Capitol 
very  recently,  that  if  a  returning-board  tells  its  clerk  to  take  ITS  votes 
bodily  from  one  side,  for  Tilden,  and  put  them  over  to  Hayes,  that  is 
riot  a  determining  power;  that  is  the  elective  function;  and  if  this 


48  ELECTORAL    COUNT    OF    1877. 

tribunal  permitted  such  a  thin  g  as  that  to  stand,  it  would  permit  an  oli- 
garchic  board  in  Louisiana  or  Florida  to  elect  the  electors  against  the 
law  of  the  State  and  against  the  will  of  the  people.  The  power  of 
determination  can  never  be  valid  where  it  usurps  the  elective  function 
which  is  vested  by  the  law  in  any  other  body. 

I  go  a  step  further.  I  apprehend  that  if  the  primary  determinant,  if 
I  may  invent  a  term,  should  decide  in  favor  of  certain  electors  and 
there  should  be  provided  by  the  proper  authority  an  ultimate  determinant 
authority,  or,  to  come  down  to  the  concrete  proposition,  if  the  primary 
determinant  authority  in  Florida  was  the  returning-board  and  there  was 
provided  by  the  laws  of  the  State  an  ultimate  determinant  authority  in 
the  form  of  a  judicial  tribunal,  then  your  honors  are  not  going  behind 
State  authority  to  pick  a  flaw  in  the  election  of  their  electors  if  you 
give  foice  and  validity  to  the  action  of  the  returning-board  as  reviewed 
by  the  judicial  authority  and  as  adjudged  by  the  judicial  authority.  In 
other  words,  the  judicial  procedure  in  that  case  becomes  a  part  of  the 
determinant  authority  in  the  election  provided  by  the  State,  and  there 
fore  you  say  that  a  man  is  elected  in  the  manner  prescribed  by  the  State 
law,  when  he  is  determined  to  be  elected  by  the  State  law,  and  that  de 
termination  is  revised  and  adjudged  upon  by  the  State  judiciary. 

I  apprehend,  therefore,  that  unless  the  primary  determinant  authority, 
that  is,  the  board  under  State  law,  is  conclusive,  not  only  in  its  action, 
but  conclusive  as  to  the  extent  of  its  own  powers,  then  we  must  regard 
the  judicial  proceedings  in  Florida  upon  the  action  of  these  electors  as 
a  part  of  that  determinant  power  which  the  State  has  provided  against 
fraud  and  illegality  in  the  exercise  of  the  elective  function ;  and  there 
fore  I  apprehend  that,  if  there  was  nothing  in  the  law  of  Florida  which 
gave  a  judicial  power  of  supervision  to  the  action  of  the  board,  the  two 
Houses  of  Congress,  and  this  Commission  as  substituted  for  the  two 
Houses  of  Congress  with  all  the  powers  vested  in  both  or  either  of  them, 
have  a  right  to  plunge  down  into  this  mass  of  corruption  and  unkennel 
fraud  5  and  that  this  tribunal  has  not  only  the  power,  but  it  is  its  solemn 
duty  under  God  and  before  this  people  to  see  whether  these  pretended 
electors  are  mere  pretenders  or  the  real  representatives  of  the  voice  of 
Florida. 

There  can  be  no  plainer  proposition,  in  my  judgment,  than  that  all 
action  in  court  even,  particularly  a  court  of  inferior  and  limited  juris 
diction,  which  is  ultra  vires,  is  void,  and  that  every  act  done  by  an  infe 
rior  tribunal,  even  within  the  forms  of  law,  if  it  be  fraudulent,  is  void. 
To  say  that  the  two  Houses  of  Congress — I  will  not  use  the  illustration 
in  reference  to  this  honorable  Commission — that  the  two  Houses  of  Con 
gress,  in  the  presence  of  whom  these  votes  are  counted,  are  to  sit  with 
their  fingers  in  their  mouths  and  see  a  fraud  which  they  cannot  prevent, 
and  witness  an  illegality  the  triumph  and  victory  of  which  they  have 
only  to  countenance,  is  to  say  that  our  fathers  meant  that  their  posterity 
should  be  handed  over  to  the  power  of  those  who  would  practice  a  fraud 
and  an  illegality  upon  their  rights. 

I  need  not  refer  your  honors  to  any  authority  upon  these  points.  The 
great  leading  authority  of  the  Duchess  of  Kingston's  case  as  to  the 
validity  or  invalidity  of  a  fraudulent  judgment,  of  course  is  familiar  to 
you  all.  Your  honors  will  find  that  case  elaborately  discussed  in 
Smith's  Leading  Cases. 

J  state  these  propositions  as  clear  law: 

First,  that  where  a  determinant  power  in  these  elections  transcends 
its  authority,  it  usurps  the  elective  function  and  is  void.  It  elects 
instead  of  determining. 


ELECTORAL   COUNT   OF    1877.  49 

Second,  where  the  determinant  power  fraudulently  decides,  it  assumes 
to  elect  and  its  act  is  void. 

I  beg  this  Commission  to  keep  distinctly  in  their  minds,  as  I  have  no 
doubt  they  will,  what  to  my  mind  is  perfectly  clear  and  lies  at  the  very 
root  of  this  whole  controversy,  the  distinction  between  the  power  of 
election  and  the  power  of  determining  on  the  election.  The  power  of 
election  is  in  the  suffragans  of  Florida  and  the  power  of  determining  on 
the  election  was  in  this  board  of  three.  Now,  if  the  board  of  three 
transcend  their  merely  determining  power  and  under  color  of  determin 
ing  really  exercise  the  elective  power,  it  is  an  usurpation  that  must  be 
trampled  upon  not  only  by  this  tribunal  but  by  the  two  Houses  of  Con 
gress. 

I  hold  that  every  illegal  or  fraudulent  act  of  a  returning-board  or  of 
any  determining  board  in  an  election  is  open  to  inquiry.  We  may 
inquire  into  their  jurisdiction.  If  they  have  not  transcended  their  juris 
diction,  then  the  question  is  have  they  executed  it  bonafide  or  mala  fide  ? 
If  they  have  not  transcended  their  jurisdiction  and  have  exercised  it  in 
•bad  faith,  it  is  void.  Fraud  taints  the  whole  act.  I  beg  your  honors 
and  the  other  gentlemen  of  the  Commission  to  refer  to  what  is  very 
familiar  to  your  honors,  that  class  of  cases  that  began  in  a  decision  of 
the  case  of  Pearce  vs.  Eailroad  Company,  21  Howard,  p.  442,*  where 
the  court  take  the  distinction  between  the  exercise  of  a  corporate  power 
ultra  vires  and  the  exercise  of  a  corporate  power  infra  vires,  and  against 
the  internal  order  of  the  board.  In  every  case  where  a  corporate  act  is 
ultra  vires,  no  matter  whether  with  the  whole  sanction  and  faith  of  all 
the  corporators,  it  is  void,  as  the  corporation  can  only  act  under  the 
powers  of  its  charter.  So  I  hold  here.  Here  is  a  petty  corporation, 
this  trio  of  oligarchs,  who  are  set  there  to  determine  upon  an  election, 
and  if  they  trench  upon  the  elective  function  and  transcend  their  author 
ity,  their  act  is  void. 

This  being  so,  I  advance  another  proposition.  If  the  election  is  deter 
mined  by  a  board,  and  a  State  court  of  competent  jurisdiction  decides 
its  action  to  be  illegal  or  fraudulent,  decides  that  it  was  an  usurped 
authority,  or  an  authority  infra  vires,  but  exercised  fraudulently,  I  say 
that  that  judgment  is  conclusive  upon  these  two  Houses  and  upon  this 
tribunal,  unless  the  court  so  deciding  was  itself  without  jurisdiction  or 
acted  mala  fide.  Therefore  I  say  to  gentlemen  here,  if  they  want  to  stand 
upon  the  ground  of  not  being  permitted  to  go  behind  State  authority  in 
these  matters,  they  must  take  the  whole  of  the  State  authority ;  and 
the  trio  of  oligarchs,  with  Governor  Stearns  at  their  head,  making  a 
quartette,  are  not  the  only  authority  of  the  State  of  Florida,  but  the 
authority  of  its  judiciary  pronouncing  upon  the  title  of  this  trio,  and 
the  authority  of  its  supreme  court  must  be  taken  into  consideration  as 
a  part  of  that  State  authority  which  we  are  called  upon  so  to  respect. 

Now  I  say  that  this  quo  warranto  by  the  supreme  court  in  the  case  of 
the  State  of  Florida  ex  relatione  Drew  against  Stearns  and  others 

Mr.  Commissioner  HOAE.  Mr.  Tucker,  do  your  papers  contain  the 
petition  for  the  writ  of  quo  warranto  or  the  writ  itself  ?  I  see  here  the 
judgment. 

Mr.  Eepresentative  TUCKEE.  The  original  papers  are  here.  They 
are  not  printed;  only  the  judgment  was  printed. 

Mr.  Commissioner  HOAE.  I  was  looking  to  see  whether  the  applica 
tion  was  for  a  writ  of  quo  warranto  to  determine  a  title  to  an  office  which 

*  See,  also,  Knox  County  vs.  Aspinwall,  21  Howard,  p.  539 ;  Zabriskie  vs.  Railroad 
Company,  23  Howard,  381. 

4  E  C 


50  ELECTORAL    COUNT  .OF    1677. 

the  respondent  formerly  held,  or  one  which  he  held  at  the  time  of  issuing 
the  writ. 

Mr.  Representative  TUCKER.  I  cannot  go  into  that  just  now,  if  you 
please.  My  time  has  nearly  run  out.  It  was  served  on  the  Gth,  before 
the  parties  had  perfected  their  act,  while  they  were  performing  their 
function,  and  therefore  before  they  had  cast  their  vote.  It  was  served 
upon  them  then;  and  my  idea,  my  belief  is  in  the  doctrine  of  law  that 
by  relation  the  judgment  rendered  in  January  goes  back  to  the  first 
stage  in  the  proceeding  and  avoids  the  whole.  I  beg  Judge  HOAR  to 
understand  me.  This  writ  of  quo  warranto  was  served  upon  Pearce  and 
others,  the  Hayes  electors,  five  minutes  after  twelve  o'clock  on  the  Gth 
of  December,  before  they  had  performed  the  function  of  voting  for  Presi 
dent  and  Vice-President,  and  therefore  by  relation  now  the  judgment 
sweeps  away  the  whole  of  the  action  of  those  electors  under  their  pre 
tended  right  and  title.  But  the  judgment  of  the  supreme  court  in  the 
case  of  Drew  vs.  Stearns  settles  the  question  of  the  power  of  this  board, 
that  their  duty  was  merely  ministerial ;  that  they  had  no  right  to  throw 
out  votes ;  that  they  had  a  right  merely  to  enumerate  the  votes  as  they 
were  sent  up  from  the  counties,  but  that  they  had  no  right  to  reject  on 
the  idea  that  there  was  fraud  or  intimidation,  or  on  such  loose  evidence 
as  my  friend  read  this  morning,  that  they  had  heard  somewhere  the  air 
was  full  of  rumors  of  bull-dozing  "and  intimidation,  and  therefore  we 
threw  out  any  amount  of  votes." 

Then  I  say  that  the  proceeding  in  the  quo  warranto  of  Call  vs.  Pearce 
settles  the  question  of  the  title  of  Pearce  and  others,^the  Hayes  electors ; 
utterly  avoids  it ;  declares  that  they  are  usurpers  and  that  all  their  acts 
are  void.  That  decision  is  unre versed,  is  the  decision  of  a  court  of  com 
petent  jurisdiction,  and  is  conclusive  as  we  maintain,  and  has  stamped 
as  the  stamp  of  the  State  "  usurpation77  upon  the  power  of  these  men, 
who  claim  to  have  voted  for  President. 

But  we  are  told  that  the  executive  of  the  State  has  certified,  M.  L. 
Stearns  has  certified,  and  that  is  conclusive.  Who  made  him  a  ruler  or 
a  judge  over  us J?  The  act  of  Congress,  it  is  said,  says  that  the  execu 
tive  shall  send  on  three  certificates.  Can  the  act  of  Congress  make  his 
certificate  conclusive  against  the  voice  of  the  State?  Then  if  it  can.  I 
beg  gentlemen  to  follow  to  its  legitimate  conclusion  their  proposition. 
If  the  act  of  Congress  has  the  effect  (I  think  not  by  a  fair  interpretation 
of  the  statute)  of  giving  conclusiveness  to  the  return  by  the  executive 
of  the  election  in  the  State,  then  Congress  has  usurped  the  function  of 
determining  the  manner  of  the  election  and  determining  the  elective 
function  of  the  State.  "  Each  State  shall  appoint,  in  such  manner  as 
the  legislature  thereof  may  direct  f  and  the  manner  of  election  must 
include  the  manner  of  determining  the  election.  There  can  be  no  such 
power  in  the  executive  of  a  State. 

Xow  I  apprehend  that  the  thing  just  comes  down  to  this :  that  whether 
this  be  a  Federal  or  State  office  (and  I  believe  it  to  be  a  State  office)  the 
elector  must  be  appointed  by  the  State  in  such  manner  as  the  legisla 
ture  directs,  and  that  we  must  refuse — I  speak  now  of  the  two  Houses 
and  of  this  Commission  as  a  substitute  for  them — we  must  refuse  effect 
to  any  certificate  which  belies  the  fact  5  and  to  assert  that  we  have  no 
right  to  say  a  thing  is  a  lie  when  we  see  it  is  a  lie  is  to  say  you  might 
as  well  disband  and  go  to  your  respective  functions  prior  to  the  organi 
zation  of  the  Commission. 

As  I  have  but  a  few  moments  left,  I  will,  as  preachers  say  sometimes, 
give  practical  application  to  this  discourse.  The  question  is,  are  the 
Hayes  electors  appointed,  not  are  they  returned  by  the  trio  or  by  Mr. 


ELECTORAL   COUNT   OF    1877.  5 1 

Stearns,  but  are  they  appointed  by  the  people  of  Florida ;  not  who  gave 
them  commission,  but  who  gave  them  title  to  speak  for  Florida?  The 
title  comes  from  the  body  of  the  people.  The  commission  may  come 
from  the  trio  of  oligarchs.  Do  I  hear  "yes"?  Who  say  so?  The  board 
and  governor.  Have  they  the  legal  right  to  say  it?  The  judgment  of 
the  court  answers  no.  Did  they  fraudulently  make  the  return  ?  The 
court  answers  they  did.  Now  shall  this  tribunal,  in  the  teeth  of  this 
ultimate  State  determinant  power,  give  title  to  any  such  commission 
or  give  title  under  the  voice  of  the  people  !  Shall  you  hold  the  commis 
sion  which  the  State  court  of  Florida  has  declared  to  be  invalid,  to  be 
valid,  in  order  to  stifle  the  elective  power  of  the  people  and  give  power 
to  the  determinant  functions  of  the  oligarchy  ?  That  is  the  question. 

May  it  please  the  Commission,  there  is  only  one  other  question  that  I 
desire  to  speak  to,  and  that  is  one  which  it  is  proper  I  should  mention 
before  I  sit  down.  I  will  not  go  into  the  facts  of  this  case  any  further. 
Baker  County  was  never  thrown  out  for  any  informality  until  the  exi 
gency  of  the  second  count  required.  Upon  the  first  count  there  was  no 
informality  or  irregularity  in  Baker  County,  and  its  return  was  counted ; 
but  when  the  court  ordered  them  to  count  those  counties  that  they  had 
thrown  out,  they  found  that  the  only  way  to  procure  the  election  to 
the  Hayes  electors  was  then  to  throw  out  Baker  County  instead  of 
those  that  they  had  already  thrown  out  and  were  now  ordered  to  count. 

Now  I  come  to  this  point  only  about  Mr.  Humphreys,  who  was  an 
officer  of  the  Government.  On  page  70  of  the  document  as  to  the 
recent  election  in  Florida,  the  testimony  taken  before  the  select  com 
mittee  of  the  House  of  Eepresentatives,  the  Commission  will  find  the 
evidence  is : 
United  States  circuit  court,  northern  district  of  Florida. 

And  that  evidence  is  here  printed  from  the  original  certificate  of  frhe 
clerk  of  the  court. 

Ordered,  By  the  court,  that  Frederick  C.  Humphries,  of  Pensacola,  be,  and  he  is  hereby, 
appointed  shipping-commissioner  for  the  port  of  Peusacola. 

That  is  with  the  objection  made  by  two  gentlemen. 

Mr.  Commissioner  EDMUNDS.  Is  that  the  objection  of  Mr.  Jones 
and  Mr.  McDonald? 

Mr.  Eepresentative  TUCKER.  Yes,  sir,  that  Frederick  C.  Humphreys 
was  appointed,  and  then  there  is  a  certificate  that  he  took  the  oath  to 
discharge  the  duties  of  shipping-commissioner  to  the  best  of  his  ability, 
sworn  to  and  subscribed,  &c.,  and  then  here  is  the  certificate  of  the 
clerk : 

I,  M.  P.  De  Rioboo,  clerk,  &c.,  do  hereby  certify  the  foregoing  to  be  a  true  copy  as 
the  same  remains  on  file  in  my  office.  I  further  certify  that  no  resignation  of  said 
office  of  shipping-commissioner  has  been  filed  in  my  office  by  the  said  Frederick  C. 
Humphries. 

So  that  here  is  a  man  who  was  appointed  in  1872  shipping-commis 
sioner,-  continued  to  hold  the  office  on  the  day  of  election ;  continued 
to  hold  the  office  on  the  day  he  voted,  contrary  to  the  Constitution  of 
the  United  States,  and  continues  to  hold  it  now,  as  far  as  I  know ;  and 
upon  that  point,  I  refer  to  page  425  of  the  testimony  taken  by  the  House 
committee : 

He  has  been  United  States  shipping-commissioner. 

So  that  a  man  who  was  an  elector  was  United  States  shipping-com 
missioner.  Let  me  refer  you  to  one  single  fact.  The  question  is  whether 
he  was  an  officer  of  the  United  States.  In  the  Eevised  Statutes,  page 
876,  you  will  find  the  section  providing  for  the  appointment  of  such 
shipping- commissioner  by  the  court. 


52  ELECTORAL    COUNT    OF    1677. 

Thanking  the  Commission  for  their  kind  attention  and  having 
exhausted  nay  time,  I  have  only  to  say  that  we  are  prepared,  as  soon  as 
the  court  shall  advise  us  of  the  mode  in  which  we  shall  unkennel  this 
fraud,  to  go  into  the  evidence  in  any  shape  or  form  that  either  the 
tribunal  will  indicate  or  that  the  gentlemen  on  the  other  side  may  de 
sire.  We  have  the  evidence  that  has  been  taken  by  the  committees  of 
both  Houses.  We  apprehend  that,  as  both  Houses  would  have  been 
entitled  to  use  this  upon  the  determination  of  the  question,  this  Com 
mission  has  the  same  power.  There  may  be  evidence  in  reference  to 
these  other  counties,  but  riot  knowing  what  would  be  the  rules  estab 
lished  by  this  tribunal — of  course,  it  was  impossible  to  know — we  have 
not  submitted  it.  I  only  mean  to  say  that  of  course  all  the  evidence 
taken  before  either  House  and  now  in  the  hands  of  either  House,  which 
they  could  have  used  in  the  determination  of  this  question,  is  before 
this  tribunal,  and  we  apprehend  that  this  tribunal  is  competent  to  go 
into  any  further  evidence  that  may  be  necessary  to  elucidate  the  subject 
for  decision,  and  to  unearth  the  fraud  and  illegality  which  affects  the 
title  of  either  of  these  parties  to  the  election.  It  relates  to  Duval 
County  and  Clay  County,  as  well  as  Baker. 

Mr.  Commissioner  ABBOTT.  I  want  to  ask  you  if  your  last  refer 
ence — I  have  not  the  book  before  me — tended  to  show  that  this  person 
who  was  an  elector  was  the  person  appointed  shipping-commissioner? 

Mr.  .Representative  TUCKER.  No,  sir  ;  it  only  showed  what  was  the 
nature  of  his  office  under  the  Revised  Statutes. 

Mr.  Commissioner  ABBOTT.  I  alluded  to  the  reference  in  the  evi 
dence. 

Mr.  Eepresentative  TUCKEE.  The  last  reference  to  the  evidence  was 
to  show  that  he  was  the  very  man  and  performed  the  duties. 

Mr.  Eepresentative  FIELD.     He  has  been  acting  as  such. 

The  PRESIDENT.  One  of  the  objectors  on  the  other  side  will  now 
be  heard. 

Mr.  Eepresentative  KASSON.  On  consultation,  Mr.  President,  as  I 
intimated  before  the  opening  of  the  argument  on  the  other  side,  my 
associate  [Mr.  McCraryJ  and  myself  have  thought  it  due  to  the  inter 
ests  represented  that  we  should  ask  further  time  to  examine  the  certifi 
cates  which  are  all  involved  in  these  objections,  asking  it  specially  upon 
this  ground,  that  instead  of  the  certificates  and  papers  to  which  the 
objections  apply  appearing  in  print  in  the  EECORD  this  morning  as  we 
expected  them  to  do,  so  that  they  might  be  directly  considered  by  us, 
they  have  not  yet  been  in  print ;  the  certificates  are  not  before  us  ;  we 
have  had  no  access  to  them  until  counsel  in  this  printed  document  just 
this  moment  laid  them  upon  the  table  before  us. 

In  addition  to  that  I  have  only  to  say  that  the  magnitude  of  the 
questions  presented  by  the  argument  here,  also,  is  a  reason  why  we 
should  attempt  to  aid  the  Commission  more  than  we  can  do  by  hastily 
proceeding  now  to  the  consideration  of  these  great  constitutional  ques 
tions.  My  colleague  and  myself  only  saw  the  objections  yesterday  and 
were  only  notified  after  the  meeting  of  this  Commission  that  we  were  to 
present  them  on  our  part. 

The  PRESIDENT.  How  much  delay  do  you  ask  ?  I  have  no  au 
thority  to  grant  it;  I  must  have  something  definite  to  submit  to  the 
Commission. 

Mr.  Representative  KASSON.  I  think  it  will  be  sufficient,  inasmuch 
as  we  can  have  access  to  the  original  papers  now,  they  being  in  pos 
session  of  the  Commission,  to  ask  to  be  allowed  to  go  on  to-morrow 
morning. 


ELECTORAL    COUNT    OF    1877.  53 

The  PRESIDENT,  (to  the  members  of  the  Commission.)  The  ob 
jectors  to  the  second  certificate,  and  who  support  the  first  one,  ask  for 
a  postponement  of  their  reply  to  the  two  objectors  who  have  already 
spoken  this  morning,  until  to-morrow  morning.  The  question  before 
the  Commission  is  whether  the  delay  shall  be  granted.  Are  you  ready 
for  the  question  ? 

Mr.  Commissioner  STRONG.  I  should  like  to  inquire  whether  it 
would  not  be  possible  for  one  of  the  objectors  to  go  on  this  afternoon, 
and  then  the  Commission  might  possibly  assent  to  a  postponement  of 
the  hearing  of  the  other  one  until  morning. 

Mr.  Representative  KASSON.  That  would  be  practicable,  except  for 
the  fact  that  we  are  both  in  the  same  situation,  and  we  have  not  been 
able  to  distribute  the  two  branches  of  the  subject  between  us. 

Mr.  Commissioner  EDMUNDS.    Can  you  not  go  on  at  three  o'clock  ? 

Mr.  Representative  KASSON.  That  would  exhaust  the  time  of  the 
objectors  with  ten  minutes  additional. 

Mr.  Commissioner  MILLER.  Mr.  Kasson,  much  as  I  would  like  to 
oblige  you,  for  myself  I  must  say  that  looking  to  the  emergency  and 
the  necessity  of  getting  along  and  the  number  of  persons  to  be  heard 
in  all  these  cases,  if  we  set  this  example  the  Commission  probably  would 
never  get  through.  I  must  for  myself  vote  against  any  delay  unless  it 
be  till  three  o'clock,  so  as  to  allow  an  opportunity  to  take  lunch  in  the 
mean  time. 

Mr.  Representative  KASSON.  If  that  be  the  disposition  of  the  Com 
mission  I  certainly  interpose  no  objection,  and  we  shall  avail  ourselves 
of  the  time. 

The  PRESIDENT.     You  only  ask  now  for  delay  until  three  o'clock  ? 

Mr.  Commissioner  MILLEE.  Mr.  President,  I  move  that  these  ob 
jectors  have  till  three  o'clock  to  present  their  statement. 

The  PRESIDENT.  The  question  before  the  Commission  is  whether 
a  delay  until  three  o'clock  shall  be  granted  to  the  objectors  on  the 
other  side. 

The  motion  was  agreed  to. 

Mr.  Commissioner  MILLEE.  Now  I  move  that  the  Commission  take 
a  recess  until  three  o'clock. 

Mr.  Representative  KASSON.  Before  that  vote  is  put  may  I  inquire 
whether  the  Commission  has  in  its  possession  the  certificates  and  the 
objections  ? 

The  PRESIDENT.  It  has.  It  is  moved  that  the  Commission  take  a 
recess  until  three  o'clock. 

The  motion  was  agreed  to  ;  and  (at  twelve  o'clock  and  fifty-two  min 
utes  p.  m.)  the  Commission  took  a  recess  until  three  o'clock. 


The  Commission  re-assembled  at  3  o'clock  p.  m. 

The  PRESIDENT.  One  of  the  objectors  to  the  second  certificate  will 
now  be  heard  on  the  same  rules  and  conditions  prescribed  in  respect  to 
objectors  to  the  first. 

Mr.  SHELLABARGER.  Mr.  President  and  gentlemen,  I  am  re 
quested  to  lay  before  the  Commission  the  Senate  report  upon  Florida 
containing  the  laws  of  Florida  and  other  matters  pertinent  to  this  dis 
cussion. 

Mr.  Commissioner  EDMUNDS.  We  take  it  as  part  of  the  state 
ment,  not  as  evidence. 

The  PRESIDENT.  We  will  take  it  as  part  of  the  statement  on  that 
side. 


54  ELECTORAL    COUNT    OF    1377. 

Mr.  Kepreseutative  KASSON.  Mr.  President  and  gentlemen  of  the 
Commission,  in  what  I  have  to  say  I  shall  be  mindful  of  one  of  the  tra 
ditions  of  that  very  honorable  court  which  usually  occupies  the  bench 
now  filled  by  this  Commission.  It  is  said  of  Chief-Justice  Marshall 
that,  after  listening  for  a  day  and  far  into  the  second  day  to  a  young 
counselor  who  had  by  that  time  only  passed  Littleton,  and  Coke,  and 
Blackstone,  and  got  down  to  Kent's  Commentaries,  the  Chief-Justice 
ventured  to  remind  him  that  it  must  be  presumed  that  the  Supreme 
Court  of  the  United  States  itself  was  partially  cognizant  of  the  law, 
and  he  might  be  able  to  abbreviate  his  argument.  In  that  spirit  I  shall 
to-day  endeavor  as  early  as  possible  to  free  our  part  of  the  case  from 
the  charges,  allegations,  and  arguments  which  have  been  presented 
and  which  do  not  seem  to  us  pertinent  to  the  question  to  be  considered 
by  the  Commission. 

What  is  the  case  before  the  Commission  ?  First,  a  certificate,  as  re 
quired  by  the  Constitution  and  laws  of  the  United  States  and  in  con 
formity  with  the  statutes  of  the  State  of  Florida,  certifying  the  electoral 
votes  of  one  of  these  States  which  my  honorable  friend  who  last  spoke 
before  the  recess  [Mr. Tucker]  was  pleased  to  call  "sovereign  States" 
of  this  Union.  That  certificate  is  the  one  which  was  first  opened  and 
read  in  the  joint  session.  There  is  a  second  so-called  certificate  opened 
in  the  joint  meeting  of  the  two  Houses  of  Congress  in  which  the  per 
sons  signing  the  same  preface  their  own  certificate  by  one  signed  by  an 
officer  not  recognized  by  the  laws  of  the  United  States  nor  by  the 
statutes  of  Florida  as  a  certifying  officer,  being  the  attorney-general  of 
the  State  of  Florida.  He  certifies  that  there  is  no  provision  of  the  law 
of  Florida  "  whereby  the  result  of  said  returns  can  be  certified  to  the 
executive  of  said  State/'  admitting  by  that  certificate,  if  it  has  any 
force  at  all,  that  his  action  is  without  the  law  and  without  any  sanction 
of  the  statutes  of  the  State.  Next,  the  self-styled  electors  certify  to 
their  own  election  and  their  own  qualifications,  and  that  they  them 
selves  notified  the  governor  of  their  own  election.  That  is  the  certificate 
No.  2,  a  certificate  of  unauthorized  persons  and  uncertified  persons  in 
the  view  of  the  laws,  State  and  national,  and  that  was  presented  and 
opened  in  pursuance  of  the  recent  act  of  Congress  for  what  it  is  worth. 

There  is  a  third  certificate  still  more  extraordinary,  still  more  wanting 
in  all  the  legal  elements  of  electoral  verification,  and  which  asks  for 
itself  consideration.  It  is  a  certificate  which  is  thoroughly  ex  post  facto. 
certified  by  an  officer  not  in  existence  until  the  functions  of  the  office 
had  been  exhausted ;  a  certificate  which  recites  or  refers  to  posterior 
proceedings  in  a  subordinate  court  and  in  a  superior  State  court,  the 
latter  expressly  excluding  the  electoral  question  j  a  certificate  which  is 
accompanied  by  that  sort  of  a  return  which  a  canvassing  board  might 
under  some  circumstances  report  to  the  State  officers,  but  which  has 
never  been  sent  to  the  Congress  of  the  United  States  or  to  the  President 
of  the  Senate  for  their  consideration  in  the  one  hundred  years  in  which 
we  have  been  a  Republic.  Every  date  of  the  judicial  orders  and  of  the 
laws  authorizing  the  executive  acts  certified,  the  official  existence  of  the 
very  officers  who  certify  them,  the  proceedings  in  the  court  as  recited 
in  them,  are  all  subsequent  to  that  time  which  by  the  Constitution  and 
laws  of  the  United  States  is  the  date  fixed  for  the  final  performance  of 
electoral  functions. 

These  two  certificates,  therefore,  are  wanting  in  all  the  elements  of 
constitutional  and  legal  validity  which  should  exist  to  give  them  audi 
ence  before  this  Commission.  They  conform  in  no  respect  to  the  laws 
of  the  country  as  they  now  are,  or  to  the  laws  of  the  State  as  they  were 


ELECTORAL    COUNT    OF    1&77.  55 

on  the  6th  clay  of  December,  when  the  functions  of  the  electors  were 
ended.  More  than  that,  if  the  first  certificate,  designated  as  certificate 
No.  1,  is  a  constitutional  and  legally  certified  expression  of  the  vote  of 
the  State  of  Florida,  that  question  being  settled  in  favor  of  this  certifi 
cate  obviates  the  necessity  for  considering  the  certificates  numbered  2 
and  3.  I  ought,  perhaps,  to  say  to  the  honorable  Commission  that  it  is 
fortunate  they  did  not  grant  the  request  of  our  objectors  for  an  adjourn 
ment  till  to-morrow.  The  next  mail  might  have  brought  to  you  certifi 
cate  No.  4  or  5,  reciting  to  you  new  proceedings,  a  new  action  before  the 
courts,  and  no  end  would  come  to  the  papers  that  might  be  presented  in 
party  or  personal  interest  as  establishing  a  retroactive  right  to  exercise 
an  electoral  function  in  the  State  of  Florida. 

I  shall,  therefore,  cheerfully  confine  the  argument  to  certificate  No.  1, 
because  if  the  objections  to  that  certificate  are  invalid,  and  the  certifi 
cate  itself  is  valid,  of  course  that  dismisses  all  need  of  consideration  of 
the  other  certificates,  and  we  shall  have  ascertained  what  is  the  consti 
tutional  and  legal  electoral  vote  of  the  State  of  Florida. 

The  objections  to  this  certificate  are  substantially  one,  namely,  that 
there  was  fraud,  or  conspiracy,  or  both  somewhere  behind  it,  and  be 
hind  the  college,  not  by  reason  of  anything  which  appears  in  connection 
with  the  electoral  college  or  its  proceedings  or  on  the  face  of  the  certifi 
cate,  but  because  of  action  on  the  part  of  local  or  State  canvassing  offi 
cers,  or  of  the  people,  and  away  behind  all  action  of  the  presidential 
electors  themselves.  Hence  it  is  that  we  have  heard  this  morning, 
chiefly,  instead  of  a  constitutional  and  legal  presentation  of  the  question 
within  your  jurisdiction,  a  speech  before  this  Commission  as  if  it  were 
a  jury  in  a  court  having  original  jurisdiction  to  determine  law,  to  de 
termine  fact,  to  establish  titles  to  office,  to  oust  and  to  install  officers, 
to  decide  rights  between  parties,  to  decide  State  rights,  to  decide  na 
tional  rights,  an  assertion  that  State  or  county  officials,  wholly  outside 
of  national  control,  have  somehow  acted  fraudulently  under  S*tate  law, 
and  that  this  electoral  return  has  been  vitiated  thereby. 

Now,  it  is  not  within  the  scope  of  my  purpose  to  answer  otherwise 
than  generally  that  argument  which  took  up  most  of  the  time  of  the 
objectors  who  opened  this  discussion.  I  must  affirm,  however,  to  this 
Commission  that  the  first  objector  was  in  error  in  saying  that  we  on 
this  side  had  nothing  to  say  contradicting  his  assertions  of  fraud. 
We  say  everything  in  denial  of  fraud  in  the  State  officers.  We  affirm 
fraud  in  directly  the  reverse  sense,  and  frauds  which  you  would  ascer 
tain  in  the  very  steps  to  which  he  calls  your  attention,  in  the  action  of 
certain  county  canvassers  certifying  results  for  Tilden  electors.  For 
example,  when  he  refers  to  Baker  County,  I  entirely  dissent  from  his 
view  of  the  facts  as  existing  of  record  in  that  case ;  but  if  you  go  into 
that  question  in  Baker  County  to  verify  his  assertions,  we  should  inevit 
ably  ask  that  you  go  into  Jackson  County,  where,  under  other  political 
domination,  they  rejected  271  votes  actually  cast  for  the  Hayes  electors. 
We  should  ask  you  to  go  into  Alachua  County  and  find  at  one  precinct 
a  railroad  train  of  non-resident  passengers  getting  off  ou  their  passage 
through  and  voting  the  ticket  which  was  supported  by  the  objector 
[Mr.  Field]  who  made  the  allegation  against  Baker  County.  We  should 
invoke  your  attention  to  Waldo  precinct  of  the  same  county  to  find 
that  they  had  vitiated  that  poll  also  by  what  is  called  stuffing  the  ballot- 
box.  And  so  on  with  other  counties  passed  upon  by  the  State  board. 

We  answer,  then,  the  allegation  that  their  charges  of  fraud  have  not 
been  denied  by  us,  by  stating  that  if  they  are  ever  reached  in  the  exer 
cise  of  your  jurisdiction,  we  propose  to  show,  and  shall  show  in  that 


56  ELECTORAL    COUNT    OF    1877. 

contingency,  that  there  was  such  a  case  of  fraud  in  the  iucipiency  of 
that  vote  which  they  claim  should  elect  their  candidate  as  would  aston 
ish  not  only  this  Commission,  but  the  whole  country  by  its  presenta 
tion.  I  unite  with  my  friends  in  condemning  fraud  wherever  it  exists. 
It  should  not  only  vitiate  the  result  which  it  produced  when  it  is  ascer 
tained  by  the  proper  tribunals,  but  it  should  also  condemn  every  man, 
public  or  private,  who  participated  in  it.  We  are  not  here  to  defend 
fraud.  We  are  here,  however,  to  say  not  only  that  the  allegation  of  it 
as  made  on  the  other  side  is  not  correct,  but  that  the  very  next  step 
behind  the  county  canvassers  confronts  you  with  some  of  the  grossest 
cases  of  the  violation  of  the  popular  right  to  freely  cast  the  vote,  and 
to  have  that  vote  counted,  which  have  ever  been  found  in  the  history 
of  this  country. 

If  we  go  for  fraud,  let  us  go  to  the  bottom  of  it;  let  us  go  where  that 
fraud  is  found  in  such  a  degree  and  with  such  force,  in  more  than  one 
State,  North  and  South,  as  to  penetrate  the  very  foundation  of  the  popu 
lar  sovereignty  of  this  country,  and  to  lead  every  patriot  to  consider 
whether  the  highest  duty  of  legislators  is  not  first  to  put  their  guards 
where  alone  fraud  is  essentially  to  be  feared,  namely,  at  the  ballot-box, 
because  it  is  further  removed  from  the  sight  of  the  general  public  and 
from  the  control  of  supervising  authority. 

I  leave  that  question  now.  I  do  not  believe  that  this  Commission  by 
the  Constitution  or  laws  was  ever  intended,  or  has  the  power,  to  go  to 
the  extent  that  would  be  required  if  it  attempted  to  probe  these  mutual 
allegations  of  fraudulent  voting  and  fraudulent  canvassing  to  the  bot 
tom  by  judicial  investigation  and  judicial  decision. 

It  seems  to  me  that  our  honorable  friends  on  the  other  side  have  been 
misled  by  the  judicial  atmosphere  of  this  hall,  consecrated  usually  to 
the  jurisdiction  of  a  constitutional  court  of  justice.  Under  the  influ 
ence  of  these  columns  as  pillars  of  a  supreme  court,-  and  with  the  judi 
cial  associations  of  this  chamber,  they  have  addressed  yon,  honorable 
gentlemen  of  the  Commission,  as  if  you  were  a  constitutional  court, 
vested  with  the  power  to  try  causes  without  a  jury,  vested  both  with 
the  powers  of  a  subordinate  and  an  appellate  court  in  a  proceeding  by 
quo  warrantOj  and  vested  with  unlimited  discretion  in  the  determination 
of  rights  to  hold  the  electoral  office.  They  have  presented  to  you  the 
following  questions  upon  which  it  is  absolutely  necessary  to  come  to  a 
decision,  upon  their  theory  of  your  jurisdiction  : 

First.  Is  this  Commission  a  general  canvassing-board  with  power  to 
recanvass  the  popular  vote  of  the  State  of  Florida  ? 

Second.  Is  this  Commission  a  national  court  of  appeal  from  the  State 
canvassiug-boards  1 

Third.  Is  this  Commission  a  judicial  court  of  appeal  from  the  State 
circuit  court  of  Florida  in  proceedings  by  writ  of  quo  warranto  ? 

The  gentlemen  on  the  other  side  affirmed  that  your  jurisdiction  was 
co-extensive  with  that  of  a  court  in  a  proceeding  by  quo  warranto ;  and 
I  add  in  response  to  the  alleged  decision  of  this  subordinate  court, 
Judge  White's  court  in  Florida,  that  it  is  not  a  final  determination  of 
that  proceeding  by  quo  warranto.  We  are  informed,  and  so  claim  the 
fact  to  be,  that  it  is  now  pending  on  appeal  in  the  supreme  court  of  the 
State  of  Florida.  Hence  I  ask  the  question  whether  this  Commission 
can  take  jurisdiction  from  the  supreme  court  of  Florida,  after  regular 
appeal  from  the  circuit  court,  of  the  proceedings  in  quo  warranto. 

The  affirmative  of  all  these  propositions  is  taken  by  our  opponents. 
They  do  affirm  that  you  are  a  canvassing-board  with  power  to  recan 
vass  the  vote  of  Florida  cast  by  the  people ;  they  do  affirm  that  you 


ELECTORAL    COUNT    OF    1877.  57 

are  not  merely  a  canvassing-board,  but  a  national  court  of  appeal  from 
the  action  of  the  canvassing-board  of  Florida;  they  do  affirm  that  you 
are  a  court  so  judicial  that  from  the  action  of  the  State  circuit  court  of 
Florida  you  can  take  jurisdiction  by  reviewing  that  action;  and  they  do 
affirm  that  there  is  no  limit  to  your  power  to  investigate  into  the 
honesty  and  integrity  of  the  action  of  the  returning-board  of  Florida, 
and  to  determine  originally,  with  the  powers  of  a  court,  to  whom  the 
certificate  of  election  should  have  been  awarded. 

This  represents  the  legal  position  of  our  opponents.  I  ask,  therefore, 
what  are  the  powers  of  this  Commission  ?  I  need  not  remind  the  hon 
orable  gentlemen  composing  it  that  the  assumption  of  these  powers  im 
plies  that  we  are  to  have  no  election  of  a  President  and  Vice-President 
of  the  United  States  by  the  time  limited  for  the  commencement  of  the 
functions  of  their  offices.  You  cannot  say  to  those  gentlemen,  "We 
will  go  behind  the  regular  certificates  provided  by  the  Constitution  and 
the  law  just  so  far  as  will  accommodate  you  to  find  whether  it  is  true  or 
not  that  what  you  allege  to  be  fraud  was  done  against  your  interest  in 
one  or  two  counties.  We  must,  if  we  go  behind  the  electoral  college, 
go  where  all  the  allegations  of  fraud  on  both  sides  assert  its  existence." 
It  is  the  popular  vote  that  those  gentlemen  say  you  are  to  review,  to 
recanvass,  and  to  ascertain.  Where  does  this  Commission  get  its  power 
for  that  ?  By  the  act  organizing  the  Commission  you  are  vested  with 
the  right  to  consider  just  so  much  of  this  alleged  case  as  Congress  might 
consider ;  and  when  I  say  u  Congress,"  I  include,  of  course,  the  two 
Houses.  Let  me  ask  then  what  is  that  limit  ?  We  must  clear  our  minds 
from  what  has  grown  within  the  later  years  to  be  most  dangerous  to  the 
reserved  rights  of  the  States  and  to  the  rights  of  the  people,  namely, 
the  assertion  of  unlimited  universal  power  of  each  House,  or  of  both 
Houses,  to  assume  jurisdiction  over  all  things  or  questions  having  a 
national  aspect  or  relation.  No  such  undefined  grasp  was  intended  by 
the  Constitution.  Suppose  this  act — and  I  beg  the  attention  of  gentle 
men  to  it — suppose  this  act  had  provided  that,  instead  of  surrounding 
the  President  of  this  Commission  with  these  gentlemen  and  conferring 
these  indefinite  powers,  Congress  had  chosen  to  surround  the  President 
of  the  Senate  with  only  the  representatives  of  the  Senate  and  of  the 
House,  would  you  have  thought  of  attributing  judicial  power  to  them  ? 
The  same  power  that  justifies  Congress  under  the  Constitution  of  the 
United  States  in  providing  that  the  counting  should  be  done  by  this 
Commission  would  have  justified  them  in  providing  that  the  counting 
should  be  done  by  the  President  of  the  Senate  alone.  Admitting  that 
Congress  has  power  to  that  extent  to  regulate  the  counting,  you  must 
guide  yourselves  by  the  same  principles  in  determining  your  jurisdiction 
that  you  yourselves  would  decide  limited  the  jurisdiction  of  the  Presi 
dent  of  the  Senate  as  sole  counting  agent  were  he  designated  by  this 
act  to  count  the  votes  alone. 

Now  suppose  that  act  in  existence,  and  you  have  it  by  law  that  the 
Yice-President  shall  not  only  open,  but  shall  himself  count  the  votes. 
If  the  Constitution  had  said  "  and  the  votes  shall  then  be  counted  by 
Mm,"  the  same  result  would  have  been  attained.  If  instead  of  "  by 
him  "  you  add  the  two  words  "  by  Congress,"  you  do  not  vary  the  power 
at  all.  Whatever  counting  is  to  be  done  is  to  be  done  either  by  the 
President  of  the  Senate  or  by  the  two  Houses  of  Congress.  In  either 
case  it  is  only  to  u  count."  That  is  the  substance.  The  rest  is  agency. 
Would  you  maintain  for  one  moment,  if  that  were  the  provision,  either 
of  Constitution  or  law,  that  the  President  of  the  Senate  should  count 
the  votes,  that  he  had  the  right  to  send  out  commissioners  to  take  dep- 


58  ELECTORAL    COUNT    OF    1877. 

ositions,  "  to  take  into  view  "  all  other  papers,  to  reach  evidence  at  will, 
to  recanvass  the  popular  vote  of  the  State  of  Florida,  to  organize  the 
whole  machinery  alike  of  executive  canvassing-boards  of  a  State  and  of 
all  the  judicial  courts  of  the  State  ?  Is  there  a  gentleman  on  this  Com 
mission  from  either  House  of  Congress  or  from  the  Supreme  Bench  who 
would  tolerate  for  a  moment  the  exercise  of  such  power  under  the  simple 
language  "  shall  count  the  votes  f  "  If  not,  then  the  act  has  given  no 
additional  power  to  fifteen  men  beyond  that  power  which  by  the  like 
terms  would  have  been  conferred  upon  one  man ;  and  hence  I  affirm 
that  there  is  in  this  law  no  power  whatever  to  do  more  than  is  necessa 
rily  implied  in  the  words  "  and  the  votes  shall  then  be  counted." 

If  that  be  so,  then  we  come  to  the  next  question,  What  does  the  word 
"  count7'  mean?  and  is  the  power  of  that  sort  that  implies  something 
not  ministerial,  or  within  the  narrow  circuit  of  discretion  that  belongs 
to  the  ministerial  power  I  Does  it  imply,  as  gentlemen  on  the  other  side 
claim,  the  unlimited  circuit  of  the  judicial  power !  If  it  does,  your  Con 
stitution  in  its  very  frame- work  and  organization  is  violated. 

The  first  three  articles  of  the  Constitution  divide  the  functions  of  this 
Government  into  legislative,  executive,  and  judicial.  The  third  article 
affirms  positively  that  the  judicial  power  is  vested  in  one  Supreme  Court 
and  in  inferior  courts  to  be  established.  So  the  first  article  says  that 
all  legislative  power  granted  is  vested  in  the  Congress  of  the  United 
States.  So  the  second  article  says  that  the  executive  power  is  vested 
in  the  President.  Your  limits  are  drawn  by  the  Constitution  of  your 
country,  which  tells  you  that  the  several  powers  of  this  Government, 
the  three  great  powers,  shall  not  by  any  contrivance  be  merged  or 
mingled  in  any  tribunal,  whether  constituted  of  the  three  divisions,  or 
of  any  or  either  of  the  three.  The  safety  of  our  people  hangs  on  it  ; 
the  safety  of  our  States  hangs  upon  it ;  all  the  elements  of  national 
safety  hang  upon  the  observance  of  that  division  of  the  functions  of 
government.  It  is  the  greatest  act  in  the  progress  of  modern  civiliza 
tion  as  contrasted  with  the  ancient  and  the  Eastern,  which  combined  all 
functions  in  one  supreme  head.  It  withholds  each  department  of  power 
from  assuming  either  of  the  other  essential  powers  of  the  Government, 
that  the  people  may  be  saved  from  the  tyranny  of  irresponsible  authority. 

The  claim  made  on  the  other  side  confases  and  merges  them  in  so  far 
as  you  are  asked  to  exercise  judicial  functions  in  the  determination  of 
rights.  The  very  language  used  this  morning  was  that  your  powers 
were  co-extensive  in  this  matter  with  those  of  a  court  trying  a  proceed 
ing  by  quo  warranto.  Are  you,  then,  a  court  under  the  third  article  of 
the  Constitution  ? 

I  therefore  think  it  may  be  assumed  that  the  indefinite  language  of 
this  act  of  Congress  confers  no  such  powers  as  claimed  upon  this  dele 
gated  Commission,  organized  to  tide  over  a  difficulty,  and  to  do  the 
ministerial  act  of  counting  the  votes  in  the  stead  of  the  President  of  the 
Senate, 

I  have  spoken  of  the  narrow  circuit  of  discretion  that  surrounded  the 
ministerial  act  of  counting.  I  beg  to  renew  the  distinction  that  there 
is  no  difference  made  by  adding,  as  this  act  implies,  the  words  "  by  Con 
gress"  at  the  end  of  the  constitutional  clause,  so  that  it  would  read 
"  shall  then  be  counted  by  Congress."  It  is  the  same  as  if  the  words 
were  added  "  shall  then  be  counted  by  him,"  meaning  the  President  of 
the  Senate.  The  essential  factor  of  the  phrase  is  the  "  count." 

Now  what  is  that  narrow  circuit  of  discretion?  It  is  broad  enough  to 
ascertain  whether  the  papers  before  you  as  certificates  are  genuine  and 
not  counterfeit,  and  are  duly  and  truly  verified  by  State  authority,  as 


ELECTORAL    COUNT    OF    1877.  59 

required  under  the  Constitution  and  laws.  It  is  broad  enough  to  ascer 
tain  whether  the  electoral  college  has  complied  with  the  law.  This  is  a 
ministerial  examination.  Do  tbe  papers  upon  their  face  contain  evidence 
of  fraud,  of  doubt,  of  irregularity,  of  error  ?  Is  certificate  number  two 
on  its  face  more  regular,  more  free  from  apparent  fraud,  more  worthy  of 
being  received  in  evidence  than  certificate  number  one?  Is  certificate 
number  three  a  truer  certificate,  more  in  compliance  with  law,  and  bear 
ing  upon  its  face  greater  evidences  of  its  authenticity  ?  Which  is  the 
authentic  certificate  and  the  authenticated  vote?  These  are  the  ques 
tions  to  be  ministerially  settled.  Neither  Congress  nor  any  officers 
created  by  it  have  the  right  to  recount  popular  votes ;  for  the  Constitu 
tion  says  expressly,  it  is  the  electoral  votes  that  are  to  be  counted,  not 
the  popular  vote.  Over  this  Congress  has  no  power  under  the  presi 
dential  clauses  of  the  Constitution. 

Every  phase  of  the  discussion  confronts  us  in  a  narrower  or  broader 
circle  of  reasoning  with  this  one  question:  Are  you  to  revise  and  adju 
dicate  all  the  proceedings  of  State  elections  for  electors  of  President  and 
of  all  State  tribunals  relating  thereto  appointed  by  State  laws?  We 
always  come  around  to  that.  Or  are  you  to  count  what  is  properly  cer 
tified  and  presented  to  you  ?  If  you  affirm  the  first  proposition,  you 
must  declare  the  Constitution  amended  by  this  tribunal,  ipso  facto 
amended,  so  that  it  shall  read  :  "  Each  State  shall  appoint,  in  such  man 
ner  as  the  legislature  thereof  may  direct,  a  number  of  electors  equal," 
&c.,  subject,  however,  to  revision  by  the  Congress  of  tJie  United  States,  who 
shall  have  power  to  overrule  the  State  authorities  in  determining  the  college 
of  electors.  Would  the  Constitution  ever  have  been  adopted  with  that 
construction  ? 

We  are  brought  inevitably  to  such  an  amendment  by  construction. 
Yet  the  Constitution  sought  to  preserve  absolutely  the  right  of  the  State 
to  appoint  its  electors  without  Federal  dictation.  It  required  every 
ballot  to  be  cast  on  the  same  day  throughout  the  Union,  that  it  might 
be  free  from  every  centralized  influence.  Every  member  of  the  Com 
mission  knows  what  the  history  of  the  adoption  of  this  clause  is,  and 
yet  we  are  brought  perpetually  by  the  claims  of  the  other  side  to  this 
one  question :  Shall  we  now  go  on  and  complete  the  absorption  of  this 
most  absolute,  independent,  and  unquestioned  right  of  the  States  to 
appoint  their  electors  in  their  own  way,  and  hold  that  it  is  subject  to 
revision  and  change  by  the  two  Houses  of  Congress? 

The  objectors  ask  are  we,  then,  to  take  the  certificate  of  the  proper 
State  officers  against  the  truth  ?  Is  there  any  reason  why,  on  the  other 
hand,  it  should  not  be  asked,  are  we  to  take  the  certificate  of  these 
fifteen  gentlemen  against  the  truth  ?  There  is  a  necessity  in  public 
affairs  and,  in  the  very  organization  of  society  and  of  political  commu 
nities,  an  absolute  necessity  to  have  some  final  jurisdiction.  There  must 
be  somewhere  an  authority  by  which  we  stand,  even  if  it  be  impeached 
by  charges  of  fraud.  Where  is  that  authority  ?  Is  it  here  ?  Is  it  in 
the  governor?  Is  it  in  the  canvassing-board  ?  Is  it  in  the  State  legis 
lature  ?  Is  it  in  the  State  judiciary  ?  Where  is  it  ?  I  submit  that  for 
the  purposes  of  this  case,  and  under  the  Constitution  and  laws,  it  is 
found  where  the  State  authority  concludes,  and  that  if  the  Constitution 
and  laws  of  the  United  States  in  manner,  in  time,  in  substance,  so  far  as 
shown  by  the  duly-certified  results,  are  conformed  to,  there  is  the  deter 
mination  of  the  case. 

I  regret  to  pause,  may  it  please  the  Commissioners,  to  repel  the  sug 
gestions  made  against  this  returning-board.  It  was  said  that  the  court 
had  found  their  return  fraudulent.  There  is  no  evidence  in  the  records 


60  ELECTORAL    COUNT    OF    1677. 

of  the  court  that  that  allegation  is  true.  I  have  read  the  decisioD,  and 
in  answering  their  argument  I  must  say  there  is  not  an  allusion  to  the 
fact  that  that  canvassing-board  acted  fraudulently.  It  was  alleged  that 
their  action,  which  had  conformed  to  the  action  two  years  before,  was  a 
misinterpretation  of  their  rights  under  the  law  ;  and  in  the  document 
submitted  a  few  moments  ago  to  the  commissioners,  I  think,  on  the  sec 
ond  page,  there  is  a  copy  of  the  essential  section  of  the  law.  The  im 
portant  language  of  the  act  to  which  I  wish  to  call  the  attention  of  the 
Commissioners  in  the  statutes  of  Florida  regulating  the  powers  of  this 
board  is  this : 

If  any  such  returns  shall  be  shown  or  shall  appear  to  be  so  irregular,  false,  or  fraud 
ulent  that  the  board  shall  be  unable  to  determine  the  true  vote  for  any  such  officer  or 
member,  they  shall  so  certify,  and  shall  not  include  such  return  in  their  determination 
and  declaration. 

Mr.  Commissioner  EDMUNDS.  Can  you  give  us  the  date  of  that 
statute? 

Mr.  [Representative  KASSON.  That  is  the  old  statute,  under  which 
the  election  was  held,  passed  February  27, 1872,  and  was  the  law  in  force 
at  the  time  of  the  canvass,  at  the  time  of  the  certificate  of  the  electors, 
at  the  time  of  the  voting  of  the  electors,  and  until  the  17th  of  January, 
1877. 

Mr.  Commissioner  GARFIELD.     Has  the  paper  been  filed? 

Mr.  Commissioner  EDMUNDS.     Not  as  evidence. 

Mr.  Representative  KASSON.  I  simply  use  it  for  reference,  because 
in  it  is  found  this  statute  of  Florida.  I  refer  to  it  here  and  for  that  pur 
pose.  This  document  was  handed  to  the  Commissioners  for  the  law-ref 
erences  in  it. 

Thus  it  will  be  seen  that  the  canvassing-board  of  Florida  were  to  in 
quire  if  these  returns  appeared  to  be  so  irregular,  false,  or  fraudulent 
that  the  board  was  unable  to  ascertain  the  true  vote.  That  was  their 
function.  In  exercising  that  function  they  not  merely  passed  upon  the 
returns  of  the  county  canvassers  but  upon  the  certified  results  in  pre 
cincts. 

The  court  said  they  had  overstepped  the  law.  And  here  I  must  re 
mind  the  gentlemen  composing  the  Commission  that,  when  they  made 
the  recanvass  which  I  have  styled  canvass  number  two  under  order  of 
the  supreme  court  of  Florida,  it  will  appear  they  then  reported  not  only 
the  result  in  respect  to  governor,  but  they  also  reported  the  result  in 
respect  to  electors.  That  result  of  the  second  canvass  showed  the  elec 
tion  of  the  Hayes  electors,  but  by  a  reduced  majority.  These  electors 
appear  to  have  run  two  or  three  hundred  votes  ahead  of  the  State 
ticket,  and  the  recanvass  left  them  still  some  two  hundred  majority. 
That  appeared  on  the  record.  It  does  not  appear  on  the  printed  docu 
ment  which  has  been  submitted  on  the  other  side  here,  I  suppose  be 
cause  the  court  ruled  that  they  intended  their  order  to  only  apply  to 
State  officers ;  and  therefore  they  struck  out,  after  it  had  once  gone  in 
the  record,  the  result  as  to  the  electors ;  but  it  was  originally  a  part  of 
the  proceedings  under  order  of  the  court,  which,  if  gone  into,  will  dis 
close  the  fact  that  not  only  canvass  number  one  showed  the  election  of 
the  Hayes  electors,  but  canvass  number  two  "  had  under  the  order  and  in 
accordance  with  the  ruling  of  the  supreme  court"  showed  both  the  elec 
tion  of  the  democratic  State  ticket  and  the  election  of  the  Hayes  electors. 

Mr.  Commissioner  ABBOTT.  Was  that  called  in  question  at  all  in 
that  case  of  Drew  against  the  other  party  ? 

Mr.  Representative  KASSON.  It  was  said  not  to  be  raised  by  the 
pleadings  or  by  the  order,  but  was  in  the  return  of  the  canvass  as  to  the 


ELECTORAL    COUNT    OF    1877.  Ql 

election  of  governor.  The  canvass  had  under  the  order  of  the  court  in 
that  case  showed  both  classes  of  elections,  that  of  the  electoral  college 
and  that  of  the  State  officers.  The  result  of  that  count,  when  made 
under  that  ruling,  was  what  I  have  stated,  and  then  objection  was  taken 
to  its  record,  and  the  court  said  they  were  not  considering  the  electoral 
count,  and  struck  it  out. 

Mr.  Commissioner  ABBOTT.  My  only  desire  was  to  learn  whether 
that  was  ruled  at  all  in  the  case. 

Mr.  Eepresentative  FIELD.  Please  to  state  that  in  the  recanvass  this 
canvassing-board  put  back  Baker  County  so  as  to  include  only  two 
precincts. 

Mr.  Eepresentative  KASSON.  That  is  only  to  say  that  the  gentlemen 
on  the  other  side  want  to  take  just  so  much  of  that  action  under  order 
of  the  court  as  suits  their  case,  and  reject  all  the  rest.  They  applied  the 
rule  and  determined  the  result,  and  they  made  changes  in  several  coun 
ties  both  ways  ;  they  put  back  some  democratic  votes,  they  put  back 
some  republican  votes.  I  only  allude  to  it  in  answer  to  the  statement 
here,  because  the  printed  proceedings  do  not  contain  all  the  proceedings 
in  that  case.  This  is  left  out.  But  if  the  case  is  gone  into  those  facts 
must  also  appear. 

Then  we  come  to  canvass  No.  3,  made  after  the  college  was  functus 
officio,  and  here  you  find  that,  not  satisfied  at  all,  they  appointed  a  new 
board  of  State  canvassers.  From  that  new  board  they  left  out  the 
attorney-general  of  the  State.  This  I  suppose  was  owing  to  the  fact 
that  his  opinion  had  been,  as  to  the  law  of  the  case  in  many  points  of 
the  canvass,  with  the  republican  members  of  the  board.  These  papers 
which  have  been  laid  on  your  desk  show  that,  instead  of  the  attorney- 
general  being  a  member  of  the  new  State  canvassing-board,  the  treas 
urer  of  the  State  was  substituted. 

Now,  I  ask,  if  you  are  to  recognize  canvass  after  canvass  and  the 
changing  results  of  partisan  affiliations,  the  changing  desires  of  individ 
uals,  the  changing  influences  surrounding  the  canvassing-board  and  the 
whole  political  aspect  of  the  State  ?  Are  you  to  change  your  rules  of 
law,  and  to  say  that  canvass  after  canvass  may  be  made  after  the  elect 
oral  function  was  exhausted,  and  that  the  last  canvass  made  under  the 
circumstances  should  prevail,  ex  post  facto  entirely,  ex  post  facto  by  law 
authorizing  it,  ex  post  facto  by  executive  authority,  ex  post  facto  by  the 
constitution  of  the  board,  ex  post  facto  by  the  exhaustion  of  the  func 
tions  of  the  officers  themselves  elected,  ex  post  facto  because  the  very 
terms  of  the  officers  elected  had  expired  ? 

This  ex  post  facto  certificate  No.  3  is  dated  January  26,  1877,  and 
when  opened  in  the  joint  meeting  of  the  two  houses  was  stated  by  the 
President  of  the  Senate  to  have  been  received  only  the  day  before  the 
joint  meeting.  This  certificate  recites  a  law  of  January  17,  1877,  and 
also  a  law  of  January  26,  1877,  as  the  authority  for  the  certificate.  It 
recites  the  third  canvass  of  which  I  have  already  spoken,  and  which 
was  made  on  the  19th  of  January,  1877,  and  the  copy  of  that  canvass  is 
certified  under  date  of  January  26,  1877.  Then  this  canvass  ISTo,  3  was 
legislated  to  be  the  canvass  by  act  dated  January  26,  1877.  These  are 
the  essential  points  of  certificate  No.  3. 

The  objector  next  me  [Mr.  Field]  proposed  at  the  opening  to  explain 
in  his  argument  what  he  styled  the  "jugglery"  by  which  the  Hayes 
electors  got  their  certificates.  I  ask  this  Commission,  if  there  be  a 
prima  facie  presumption  of  fraud,  whether  it  exists  against  those  officers 
elected  before  fraud  could  have  been  contemplated,  against  a  board  that 
acted  at  the  time  required  by  the  State  law,  against  a  board  that  acted 


62  ELECTORAL    COUNT    OF    1877. 

at  the  time  provided  by  congressional  law,  against  a  board  that  acted  in 
ignorance  of  the  electoral  vote  in  other  States,  as  it  was  contemplated 
by  our  fathers  they  should  do ;  or  does  that  presumption  of  fraud  exist 
against  the  men  who  knew  the  importance  of  a  change  of  the  result 
in  Florida,  against  men  who  acted  in  full  knowledge  of  the  necessity  of 
the  action  they  took  to  accomplish  their  result,  against  men  who 
organized  a  new  tribunal  and  enacted  a  new  law  to  accomplish  that 
result  ? 

If  there  be  fraud,  if  there  be  conspiracy  as  alleged,  where  does  the 
presumption  of  law  under  these  circumstances  place  it?  Inevitably  it 
places  it  where  the  motive  of  the  act,  the  knowledge  requisite  to  give 
the  motive  effect,  and  the  purpose  to  be  accomplished,  were  all  before 
the  eyes  of  the  persons  participant  in  it.  Fraud  cannot  be  so  presumed 
against  the  parties  who  acted  in  conformity  with  law  and  in  discharge 
of  duty  at  the  time  required  by  law,  and  in  the  mode  required  by  law, 
and  in  the  presence  of  a  political  opponent,  as  that  presumption  would 
exist  against  those  who  do  it  at  irregular  times,  outside  the  provisions 
of  the  law,  and  with  the  full  knowledge  of  the  effect  which  would  be 
produced  upon  the  general  result.  The  conspiracy  is  not  with  the  first, 
but  with  the  last  canvass. 

A  few  words  more  before  I  close.  I  believe  I  have  expressed  already 
my  great  regret  that  we  have  not  been  able  on  both  sides  to  argue  these 
questions  exclusively  on  points  where  we  all  see  and  all  know  are  to  be 
found  the  hinges  on  which  this  decision  is  hung.  But  my  honorable 
friend  from  Virginia  [Mr.  Tucker]  in  his  argument  not  only  spoke  of  the 
fact,  which  was  unsupported  by  any  evidence,  but  which  he  said  he 
could  support  by  some  evidence,  that  there  was  bad  motive  and  fraudu 
lent  conduct  on  the  part  of  the  canvassing-board,  of  which  I  have  seen 
no  evidence  whatever ;  but  he  went  further  and  asked,  are  we  to  submit 
this  great  question  of  the  supreme  Magistrate  of  the  United  States  to 
the  determination  of  a  trio  of  oligarchs  in  Florida  ?  Trio  of  oligarchs  ! 
What  shall  I  say  of  the  quartette  of  oligarchs  in  my  State  who  exercise 
corresponding  functions  ?  What  shall  I  say  of  the  quartette  or  the  quin 
tette  of  oligarchs  that  exist  in  every  State  of  this  Union,  save  perhaps 
two  or  three,  who  are  empowered  in  the  same  manner  to  preserve  the 
rights  of  their  respective  States  as  canvassing-boards  9  Kay,  more,  I 
should  like  to  ask  my  honorable  friend,  what  shall  I  say  of  the  solo  of 
oligarchy  in  Oregon  and  his  ri^ht  to  determine  the  election  of  Chief 
Magistrate  I  Is  there  any  significance  in  giving  a  name  of  this  sort  to 
a  tribunal  which  is  acting  under  and  because  of  the  provisions  of  the 
Constitution  and  laws  of  the  United  States  or  of  the  State  ?  I  answer 
to  all  that,  that  the  question  is,  where  does  the  law  put  the  power  to  ar 
rive  at  that  determination  on  which  action  is  based  ?  Whether  that  be 
one  man  or  five  men,  or  three  men,  that  determination  is  prima  facie 
valid,  and  can  be  vitiated  only  in  the  modes  provided  by  the  laws  of  the 
local  or  general  jurisdiction,  as  the  case  may  be. 

The  case  is  made  when  it  is  found  to  be  in  accordance  with  Constitu 
tion  and  law  in  time,  manner,  and  due  certification  of  authenticity.  Can 
it  be  upset  ?  Yes,  if  legal  provision  is  made  therefor.  Where  !  asks  the 
gentleman.  I  answer,  within  the  jurisdiction  where  the  laws  provide 
for  the  appellate  or  original  determination  of  rights.  But,  says  the 
gentleman,  suppose  no  such  provision  of  law  is  made  ?  Then,  I  answer 
that  a  casm  omissus  of  proper  authority  is  no  reason  for  the  usurpation 
of  that  authority  where  not  a  scintilla  "of  constitutional  law  has  placed 
it.  If  the  allegation  were  true,  it  simply  shows  the  necessity  of  further 


ELECTORAL    COUNT    OF    1877.  63 

legislation  where  that  legislation  ought  to  exist.    If  it  be  untrue,  the 
whole  ground  and  fabric  of  the  argument  here  falls  to  the  ground. 

The  Constitution  says  that  we  have  very  little  to  do  with  this  matter 
of  elections  by  States.  The  history  of  it  shows  that  it  was  intended 
that  we  should  have  very,  very  little  to  do  with  the  determination 
of  the  result.  It  gave  us  no  authority  to  overrule  State  action  ;  and  the 
alleged  right  to  change  a  duly  certified  result  contains  within  itself  a 
claim  of  right,  and  without  appeal,  to  deny  to  the  States  that  exclusive 
right  which  the  Constitution  took  such  extraordinary  pains  to  confirm 
to  them. 

If  you  have  the  right  to  say  that  another  set  of  votes  must  be  counted 
in  Florida,  you  have  the  right  to  say  that  another  set  of  votes  must  be 
counted  in  New  York  ;  and  if  you  take  jurisdiction  to  allow  the  mere 
ninety  votes  which  constitute  the  alleged  majorities  in  Florida,  and 
which  would  change  the  electoral  college  of  that  State,  a  partisan  Con 
gress  may  assert  that  the  sixty  thousand  majority  of  my  State  shall  be 
overthrown,  and  we  cannot  question  it  nor  take  appeal. 

I  speak  to  you  as  if  you  were  Congress,  because  the  act  says  that 
whatever  Congress  might  do  in  the  consideration  of  certain  questions 
you  may  do.  I  say  that  Congress  itself  in  no  element  of  its  character 
contains  a  justification  for  such  a  construction  of  its  power  as  it  is  pro 
posed  now  to  give  to  it.  It  is  the  legislative  body  of  the  country,  and 
may  inquire  into  all  these  facts,  which  they  have  perhaps  in  both 
branches  inquired  into,  because  they  may  be  needed  to  amend  the  Con 
stitution  or  amend  the  law. 

But  the  act  which  creates  the  board  of  fifteen  says,  not  that  you  have 
the  same  powers  which  Congress  has,  bat  you  have  the  same  powers 
which  Congress  has  "/or  this  purpose."  What  purpose  ?  For  counting 
the  votes,  as  the  President  of  the  Senate  would  do  it  if  Congress  had 
chosen  to  give  him  that  power.  There  stand  the  great  bulwarks  of  the 
Constitution,  where  they  divide  the  three  powers  of  the  Government, 
and  they  cannot  be  overthrown. 

You  cannot  be  judges  of  this  or  any  other  question  for  judicial  action. 
If  both  Houses  were  unanimous,  it  would  be  usurpation  for  them  to  de 
termine  judicially  who  was  entitled  to  the  vote  of  the  State  of  Florida 
as  constituting  its  electoral  college  $  and  without  that  power  this  Com 
mission  is  limited  to  the  determination  of  t|ie  relative  validity  and  au 
thentication  of  these  three  certificates,  which  is  the  certificate  that  is 
duly  certified  to  be  counted.  Go  behind  this  certificate,  unless  simply 
to  determine  the  verity  of  the  several  authentications  and  their  con 
formity  to  law,  and  you  launch  yourselves  into  a  tumultuous  sea  of 
allegations  of  fraud,  irregularity,  and  bad  motive,  and,  as  my  honorable 
friend  on  the  other  side  says,  greed  of  office  or  undue  ambition  to  secure 
the  honors  of  the  State.  There  is  no  limit  unless  we  draw  the  consti 
tutional  line  narrowly.  You  cannot  expand  it  without  launching  this 
vessel  of  our  Constitution  upon  a  sea  full  of  rocks  and  dangers,  where 
there  is  every  prospect  that  it  will  be  shattered,  and  the  very  struct 
ure  preserving  the  rights  of  the  States  and  the  nation  will  go  to  pieces. 

Mr.  Commissioner  THTJRMAN.  Will  'it  interrupt  your  argument,  Mr. 
Kasson,  if  I  make  an  inquiry?  Do  I  understand  your  argument  to  go 
to  this  length,  that  if  the  State  of  Florida  had  elected  four  members  of 
Congress  or  four  persons  under  the  disability  of  the  fourteenth  amend 
ment,  and  they  had  cast  their  votes  for  President,  we  should  be  bound 
to  count  them  ? 

Mr.  Representative  KASSON.  I  have  borne  in  mind  that  a  question 
would  arise  as  to  Tennessee  and  some  other  States  touching  individual 


64  ELECTORAL    COUNT    OF    1877. 

electors,  as  it  is  also  presented  in  one  of  the  objections  that  have  been 
submitted  in  the  House.  I  have  not  had  time  since  last  evening  to  do 
more  than  to  become  possessed  in  my  own  mind  of  the  general  arguments 
and  the  results  of  those  arguments  applicable  to  the  general  principles 
of  this  case. 

I  have  no  doubt  that  the  provision  of  the  Constitution  touching  offices 
of  trust,  profit,  and  emolument,  and  that  also  relating  to  persons  dis 
qualified  by  participation  in  the  rebellion,  are  imperative  upon  the  sev 
eral  States,  and  it  is  expected  that  they  will  conform  to  them.  Whether 
we  can  go  behind,  whether  it  was  intended  that  we  should  go  behind, 
the  action  of  the  States  upon  the  assumption  that  they  had  violated 
that  constitutional  duty,  or  to  prove  that  they  had  violated  it,  is  a  ques 
tion  that  I  leave  to  the  consideration  of  those  who  shall  follow  me. 

Of  course  I  understand  that  one  of  the  objections  in  Florida,  if  you 
do  permit  yourselves  to  go  behind  and  examine  it,  does  involve  that 
point ;  but  as  my  time  has  now  nearly  expired,  I  have  not  the  oppor 
tunity  to  go  into  it  and  will  leave  it  to  counsel. 

The  PEESIDENT.     You  have  five  minutes  of  your  hour. 

Mr.  Representative  KASSON.  May  it  please  the  Commission,  I  have 
said  all  that  I  regard  essential  in  that  part  of  the  case  which  has  fallen 
to  me,  and  I  trust  my  honorable  friend  who  is  associated  with  me  will 
address  himself  still  more  effectually  to  points  which  I  have  alluded  to 
and  to  the  remaining  points  of  the  case. 

My  great  anxiety  and  my  belief  in  the  great  importance  of  this  case 
all  rest  upon  the  fact  that  it  is  proposed  that  Congress  shall,  through 
you,  usurp  judicial  powers  for  the  first  time  in  the  history  of  this  coun 
try.  It  is  a  usurpation  which  loses  sight  of  the  great  divisions  of 
authority  in  the  Constitution  of  the  United  States  and  of  the  original 
reserved  rights  of  the  States. 

I  wish,  in  addition,  to  simply  call  the  attention  of  the  Commission  to 
the  recent  decision  in  Florida,  which  has  been  published,  and  in  which 
that  court  bases  its  decision  against  a  judicial  quality  in  the  returning- 
board  of  Florida  upon  the  constitution  of  Florida,  which  has  the  same 
division  of  powers  to  which  I  have  referred  as  existing  in  the  Constitu 
tion  of  the  United  States.  The  court  therefore  says  that  this  canvass- 
in  g-board  cannot  do  anything  except  the  ministerial  act  of  determining 
upon  the  face  of  the  returns  irregularity,  fraud,  &c.;  and  by  a  strange 
inconsistency  of  argument,  the  gentlemen  on  the  other  side,  coming  to 
Washington  in  the  case  of  Florida,  ask  this  Commission  to  take  the 
other  ground,  which  has  been  overruled  as  law  in  Florida,  and  say  that 
we,  who  have  not  the  powers  conferred  by  statute  upon  the  Florida 
board,  have  immensely  larger  powers,  which  have  not  been  hinted  at  in 
the  Constitution  and  laws  of  the  United  States,  and  do  have  the  right 
to  exercise  judicial  functions. 

I  commend  to  the  consideration  of  the  Commission  that  decision,  to 
which  I  refer,  in  the  case  of  Drew  vs.  Stearns.  And  with  that  I  submit 
this  part  of  the  case  to  the  consideration  of  the  Commission. 

The  PRESIDENT.  The  second  objector  will  be  heard  on  the  same 
conditions  and  limitations. 

Mr.  Representative  McCEAEY.  Mr.  President  and  gentlemen  of  the 
Commission,  I  think  I  ought  to  say  in  justice  to  myself  that  perhaps 
no  counsel  ever  appeared  in  so  important  a  case  upon  so  short  a  notice 
and  with  such  inadequate  opportunity  for  preparation.  It  was  not  until 
about  four  o'clock  yesterday  that  I  was  made  aware  of  the  rule  which 
the  Commission  had  promulgated  during  the  day,  providing  that  gen 
tlemen  of  either  House  uniting  in  objections  to  these  votes  should  be 


ELECTORAL    COUNT    OF    1877.  65 

heard  before  the  tribunal;  but  appreciating  the  great  importance  of  dis 
patch  in  the  conduct  of  this  case,  1  have  not  felt  at  liberty  to  ask  for 
any  greater  indulgence  than  that  which  the  tribunal  has  already 
awarded. 

The  question  which  this  Commission  is  to  decide  is  tersely  and  clearly 
set  forth  in  the  act  of  Congress  under  which  it  has  been  organized, 
and  it  is  "  by  a  majority  of  votes"  to  "  decide  whether  any,  and  what, 
votes  from  such  State,  are  the  votes  provided  for  by  the  Constitution  of 
the  United  States." 

How  broad  is  the  jurisdiction  given  by  this  act?  How  far  can  the 
Commission  go  in  this  inquiry  $  It  has  been  asserted  by  counsel  who 
addressed  the  tribunal  this  morning  that  you  sit  here  as  a  court  pos 
sessing  all  the  functions  and  powers  of  a  judicial  tribunal  clothed  with 
authority  to  hear,  try,  and  determine  a  case  of  quo  warranto,  in  order 
to  settle  the  title  to  an  office.  The  announcement  of  the  learned  coun 
sel  of  this  proposition,  I  must  confess,  was  a  startling  one  to  me.  If  it 
be  true,  what  are  to  be  the  consequences  ?  If  this  tribunal  shall  so  con 
strue  the  Constitution,  and  shall  hold  that  it  sits  here  as  a  court  with 
these  judicial  powers  to  try  the  title  of  every  one  of  the  three  hundred 
and  sixty-nine  presidential  electors  chosen  at  the  recent  election  or  at 
any  election,  it  will  follow  that  the  two  Houses  of  Congress  sit  as  a 
court  clothed  with  this  great  power  to  review  and  revise  and  set  aside 
and  hold  for  naught  the  action  of  all  the  States  of  this  Union.  If 
one  case  can  be  made  against  one  elector  in  the  United  States,  re 
quiring  Congress  or  this  tribunal  to  go  down  among  the  forty-five  mill 
ions  of  people  and  decide  how  many  votes  were  legally  cast  for  this 
candidate  or  that,  a  case  can  be  made  against  every  one  of  the  members 
of  the  electoral  college  of  the  United  States,  and  the  result  is — I  say  i-t 
with  deliberation — that,  unless  the  two  Houses  of  Congress  shall  con 
sent,  the  people  of  the  United  States  can  never  again  be  allowed  to 
choose  a  President  and  Vice-President.  It  is  not  necessary  for  me  to 
say  to  this  tribunal  that  it  is  utterly  impossible  for  the  two  Houses  of 
Congress  to  exercisesuch  a  jurisdiction  as  this.  It  is  utterly  impossible 
for  this  tribunal  to  exercise  it  with  any  degree  of  discretion  or  delibera 
tion  even  in  the  few  cases  that  will  be  brought  to  your  attention  and 
adjudication.  If  the  Constitution  clothes  the  two  Houses  with  the 
power  now  asserted  to  try  the  title  of  all  the  electors,  not  upon  the  cre 
dentials  that  come  here  under  the  seal  of  the  States  of  the  Union,  not 
upon  the  evidence  which  the  laws  of  the  laud  prescribe  as  evidence  of 
title  to  this  office,  but  by  an  inquiry  into  the  question  how  many  peo 
ple  have  voted  for  this  candidate  and  that,  and  in  all  the  States  of  the 
Union,  I  say  it  is  utterly  impossible  for  either  the  two  Houses  of  Con 
gress  or  this  tribunal  to  exercise  a  jurisdiction  like  that. 

How  are  we  to  determine  what  are  the  votes  of  a  State  provided  for 
by  the  Constitution  ?  The  Constitution  has  provided  the  extent  of  this 
inquiry,  has  limited  and  defined  it: 

Each  State  shall  appoint,  in  such  manner  as  the  legislature  thereof  may  direct,  a 
number  of  electors,  equal  to  the  whole  number  of  Senators  and  Representatives  to 
which  the  State  may  be  entitled  in  the  Congress. 

The  election  of  President  of  the  United  States  is  by  the  States,  and 
the  States  appoint  the  electors.  Gentlemen  have  argued,  and  their 
whole  case  rests  upon  the  argument,  that  the  appointment  of  electors 
is  by  the  votes  of  the  people  at  the  polls ;  that  that  constitutes  the  ap 
pointment;  and  that,  therefore,  the  Commission  must  inquire  how  the 
people  have  voted  at  the  polls  in  order  that  Congress  may  decide  who 
have  been  appointed  electors.  But,  may  it  please  the  Commission,  the 
SEC 


66  ELECTORAL    COUNT    OP    1877. 

appointment  of  the  electors  is  not  by  the  votes  of  the  people  at  the  polls. 
That  may  possibly  be  one  of  the  steps  required  by  the  laws  of  the  State, 
but  the  appointment  of  the  electors  is  by  the  vote  of  the  people  cast  at 
the  polls,  by  the  action  of  such  tribunals  as  the  State  laws  have  created, 
canvassing,  determining,  and  ascertaining  the  result  of  that  vote,  and 
by  the  issuing  in  pursuance  of  that  canvass  of  the  evidence  showing 
the  election  of  the  electors.  The  State  acts  through  its  officials,  through 
its  constituted  authorities,  and  the  State  declares  who  has  been  ap 
pointed.  Therefore  when  the  Constitution  says  that  we  shall  inquire 
who  have  been  appointed  electors  by  the  State  in  accordance  with  the 
laws  of  the  State  or  as  directed  by  the  legislature  of  the  State,  we  are 
simply  to  inquire  what  persons  have  been  declared  to  be  electors  by  the 
tribunal  and  the  authority  which  the  State  law  has  created  for  that  pur 
pose.  Now,  the  law  of  Florida,  which  has  already  been  called  to  the 
attention  of  the  Commission,  provides : 

On  the  thirty-fifth  day  after  the  holding  of  any  general  or  special  election  for  any 
State  officer,  member  of  the  legislature,  or  Representative  in  Congress,  or  sooner,  if 
the  returns  shall  have  been  received  from  the  several  counties  wherein  elections  shall 
have  been  held,  the  secretary  of  state,  attorney-general,  and  the  comptroller  of  public 
accounts,  or  any  two  of  them,  together  with  any  other  member  of  the  cabinet  who 
may  be  designated  by  them,  shall  meet  at  the  office  of  the  secretary  of  state,  pursuant 
to  notice  to  be  given  by  the  secretary  of  state,  and  form  a  board  of  State  canvassers, 
and  proceed  to  canvass  the  returns  of  said  election,  and  determine  and  declare  who 
shall  have  been  elected  to  any  such  office  or  as  such  member,  as  shown  by  such  returns. 
If  any  such  returns  shall  be  showrn  or  shall  appear  to  be  so  irregular,  false,  or  fraudu 
lent  that  the  board  shall  be  unable  to  determine  the  true  vote  for  auy  such  officer  or 
member,  they  shall  so  certify,  and  shall  not  include  such  return  in  their  determination 
and  declaration. 

By  that  statute  this  tribunal  was  created  with  the  power  to  canvass 
the  votes  and  declare  the  result.  The  tribunal  did  canvass  the  votes 
and  the  canvass  will  be  found  on  the  third  page  of  the  same  document, 
which  I  will  not  take  the  time  now  to  read;  but  acting  under  the  au 
thority  given  them  by  that  statute,  they  ascertained  the  result.  How 
far  they  went  in  the  exercise  of  the  discretionary  power  which  is  given 
them  by  the  statute,  may  not  be  material;  but  it  is  a  fact,  which  will 
appear  if  this  Commission  shall  go  into  the  inquiry,  that  on  three  sep 
arate  occasions,  the  first  and  regular  canvass,  the  second  canvass  made 
under  the  mandamus  proceedings  and  in  relation  to  the  office  of  gover 
nor,  and  on  a  third  canvass  made  subsequently,  this  board  constituted 
by  the  laws  of  the  State  of  Florida  ascertained  and  declared  that  the 
gentlemen  known  as  the  Hayes  electors  had  a  majority  of  all  the  votes 
cast. 

Now,  Mr.  President  and  gentlemen,  what  law  of  Florida  is  to  be  looked 
at  in  order  to  determine  the  mode  prescribed  by  the  legislature  of  that 
State  for  appointing  these  electors  ?  Are  we  to  look  at  the  law  as  it 
existed  at  the  time  of  their  appointment,  or  may  we  consider  statutes 
that  have  been  passed  since  ?  One  of  the  papers  which  is  presented  is 
based  entirely  upon  an  adjudication  of  one  of  the  inferior  courts  of  that 
State  and  upon  an  act  of  the  legislature  of  that  State  made  long  after 
the  appointment  of  these  electors,  and  long  after  they  had  discharged 
the  functions  of  their  office.  It  appears  that  a  proceeding  in  quo  war- 
ranto  was  commenced  by  the  filing  of  a  petition  on  the  6th  day  of  De 
cember,  the  day  upon  which  the  electors  met  to  cast  their  votes ;  that 
a  summons  was  served  upon  that  day  at  an  hour  in  the  day  which  is 
named  in  the  papers;  and  that  the  electors  were  cited  to  appear  and 
answer  on  the  18th  day  of  the  same  month.  The  suit  thus  commenced 
continued  and  passed  through  various  stages  until  the  latter  part  of 
January,  when  a  judgment  was  finally  rendered  in  favor  of  the  gentle- 


ELECTORAL    COUNT    OF    1877.  (37 

men  known  as  the  Tilden  electors;  but  in  the  mean  time— whether 
before  or  after  the  commencement  of  the  original  suit  does  not  appear- 
1  have  seen  nothing  in  the  record  that  shows  at  what  time  in  the  day 
the  votes  were  canvassed,  but  it  is  entirely  immaterial— the  electors 
appointed  according  to  the  laws  of  Florida  proceeded  to  discharge  their 
duties;  they  cast  their  votes;  they  adjourned  sine  die. 

It  is  claimed  by  counsel  that  this  quo  warranto  proceeding,  which 
went  into  judgment  nearly  two  months  after  the  casting  of  the  vote  of 
Florida  for  President  and  Vice-President  by  the  electors,  relates  back 
toft  he  date  of  the  filing  of  the  petition  and  vacates  and  vitiates  everv- 
thing  that  was  done  in  the  mean  time.  That  I  think  is  not  the  law. 
The  writ  of  quo  warranto  is  a  proceeding  to  test  the  right  of  an  incum 
bent  of  an  office.  It  does  not  restrain  him  from  acting  from  the  time 
that  the  original  summons  may  be  served.  It  does  not  oust  him  from 
the  office  until  there  is  a  final  judgment  of  ouster;  and  there  is  no 
authority  for  the  declaration  of  counsel,  I  undertake  to  say,  that  the 
judgment  in  quo  warranto  relates  back  to  the  time  of  the  filing  of  the 
original  petition  and  vitiates  the  acts  of  the  officer  in  the  mean  time. 
The  authorities  are  the  other  way,  and  I  beg  to  cite  a  few  cases  upon 
that  point. 

I  refer  to  section  756  of  High  on  Extraordinary  Legal  Remedies : 

The  effect  of  judgment  of  ouster  upon  the  officer  himself,  where  the  information  is 
brought  to  test  the  right  of  one  usurping  an  office,  is  to  constitute  a  full  and  complete 
amotion  from  the  office  and  to  render  null  aud  void  all  pretended  official  acts  of  the 
officer  after  such  judgment,  and  the  party  thus  amoved  is  entirely  divested  of  all  offi 
cial  authority  and  excluded  from  the  office  as  long  as  the  judgment  remains  in  force. 

Iii  55  Illinois  Reports,  page  173,  will  be  found  the  case  of  The  People 
vs.  Whitcomb,  aud  there  the  court  say: 

The  question  sought  to  be  raised  by  the  information  in  this  case  is,  whether  the  city 
officers  can  extend  the  city  government  beyond  the  original  limits  of  the  town,  and 
canflevy  taxes  and  enforce  ordinances  in  the  portion  of  territory  annexed  by  the  act 
of  February  23,  1869,  and  which  is  used  exclusively  for  agricultural  purposes,  and 
whether  that  act  is  not  unconstitutional  and  void.  The  demurrer  to  the  answer  of 
respondents  brought  the  whole  record,  as  well  the  information  as  the  answer,  before 
the  court  to  determine  its  sufficiency.  The  first  question  presented  by  the  demurrer 
is,  whether  the  remedy,  if  any  exists,  has  not  been  misconceived  ;  whether  the  ques 
tion  of  power  to  extend  the  city  government  over  this  territory  thus  annexed  can  be 
raised  by  quo  warranto. 

This  writ  is  generally  employed  to  try  the  right  a  person  claims  to  an  office,  and  not 
test  the  legality  of  his  acts.  If  an  officer  threatens  to  exercise  power  not  conferred  upon 
the  office,  or  to  exercise  the  powers  of  his  office  in  a  territory  or  jurisdiction  within 
which  he  is  not  authorized  to  act,  persons  feeling  themselves  aggrieved  may  usually 
restrain  the  act  by  injunction. 

I  next  refer  to  2d  Johnson's  Reports,  page  184.  The  whole  opinion 
is  very  brief,  and  I  will  read  it : 

This  court  has  a  discretion  to  grant  motions  of  this  kind  or  to  refuse  them,  if  no 
sufficient  reasons  appear  for  allowing  this  mode  of  proceeding.  The  office  of  Sweeting, 
the  acting  supervisor,  will  expire  in  April,  and  before  the  remedy  now  prayed  for  can 
have  any  effect.  There  feiust  be  an  issue  joined,  and  a  trial,  which  could  not  take* 
place  before  the  next  election,  so  that  it  would  be  impossible  to  restore  Teel  to  his 
office.  It  would,  therefore,  be  idle  and  useless  to  grant  the  motion. 

That  was  an  application  for  the  writ  of  quo  warranto  to  try  a  title  to 
this  office. 

If  the  justices  have  been  guilty  of  any  misdemeanor,  the  party  aggrieved  must  seek 
a  different  remedy. 

Here,  if  the  Commission  please,  is  a  case  in  Florida,  where  at  the  time 
of  the  judgment  every  function  of  the  office  of  presidential  elector  had 
been  exercised.  The  office  had  ceased  to  be.  The  officer  had  ceased  to 


68  ELECTORAL    COUNT    OF    1877. 

be  and  wasfunctus  officio.  What  is  the  extent  of  the  term  of  office  of  a 
presidential  elector  f  There  is  no  period  of  time  given  in  the  statute 
during  which  he  shall  act ;  but  he  is  an  officer  chosen  for  the  discharge 
of  a  particular  public  duty.  When  that  duty  has  been  performed  the 
term  of  his  office  has  expired. 

I  call  attention  also  to  a  case  in  Massachusetts  decided  as  early  as 
1807,  the  case  of  Commonwealth  vs.  Athearn,  3  Massachusetts  Reports, 
page  285 : 

At  the  last  July  adjournment  in  Suffolk,  B.  "Whitman  filed  a  motion  for  a  rule  of 
court  against  the  respondent  to  show  cause  why  an  information  in  the  nature  of  a  quo 
warranto  should  not  be  awarded  against  him  for  claiming  to  hold  the  office  of  town 
clerk  of  Tisbury,  in  Dukes  County.  The  court  granted  a  rule,  de  bene  me,  returnable 
at  this  term. 

And  now  the  chief-justice  suggested  to  Whitman  that  since  granting  the  rule  to  show 
cause  the  court  had  considered  the  subject  more  fully  and  doubted  whether,  from  the 
impracticability  of  giving  a  remedy  in  the  case/ an  information  ought  to  be  awarded 
against  an  officer  holding  by  election  for  a  year  only.  Whatever  may  be  the  authority 
of  the  court  to  issue  process  of  this  kind,  from  the  present  organization  of  the  terms  of 
the  court,  it  will  in  no  case  be  possible  to  come  to  a  decision  of  the  question  until  a 
year  has  expired.  In  the  mean  time  another  election  will  pass,  and  the  respondent 
•will  be  either  out  of  office  or  lawfully  in  by  virtue  of  a  new  choice.  * 

PARKER,  J.  I  should  not  be  for  granting  an  information  in  any  case  where  the  judg 
ment  of  the  court  upon  the  information  can  have  no  effect.  The  officer  may  be  liable 
to  a  fine  in  case  judgment  of  amotion  be  rendered,  but  not  otherwise,  as  I  now  recol 
lect.  When  the  information  comes  to  a  hearing,  this  man's  tenure  in  the  office  he  claims 
will  have  expired. 

And  therefore  they  refused  to  grant  the  writ,  because  the  functions 
of  the  officer  would  have  ceased  before  there  could  be  a  judgment  of 
ouster,  and  because  a  judgment  of  that  character,  if  the  man  had  ceased 
to  act  in  his  official  capacity,  would  be  null  and  void. 

I  refer  also  to  the  case  of  the  State  upon  the  relation  of  Kewman  vs. 
Jacobs,  17  Ohio  Reports,  and  I  read  a  sentence  from  page  153: 

But  further,  there  is  an  objection  to  the  proceeding  in  this  case,  even  as  to  the  ap 
pointment  of  February  the  28th,  because  the  term  of  office  has  at  this  time  expired. 
In  England  it  seems  not  to  be  considered  necessary  that  the  person  should  con 
tinue  to  hold  the  office  at  the  time  of  applying  for  the  information.  In  New  York, 
however,  and  Massachusetts,  the  information  has  been  refused  when  the  time  must 
expire  before  the  inquiry  would  have  any  effect,  leaving  the  parties  to  their  common 
remedies. 

I  next  cite  a  case  decided  by  the  supreme  court  of  Georgia,  and  read 
from  19  Georgia  Reports,  page  563,  the  case  of  Morris  et  al.  vs.  Under 
wood  et  al.  : 

In  England,  notwithstanding  the  term  of  office  has  expired  for  which  the  incumbent 
has  been  elected  who  is  sought  to  be  removed,  still  the  courts  of  that  country  will 
grant  leave  to  file  the  information  for  the  purpose  of  inflicting  a  fine  for  the  usurpa 
tion  ;  and  that,  too,  perhaps,  where  no  judgment  of  ouster  can  be  awarded.  It  will  be 
found,  however,  that  even  this  is  only  done  in  those  cases  where  the  office  illegally 
held  is  one  of  a  public  nature,  such  as  mayor,  &c.  But  the  American  courts, 
from  the  peculiarity  of  their  constitutions,  laws,  and  forms  of  government,  or  for 
some  other  cause,  have,  with  great  unanimity,  repudiated  this  doctrine  of  imposing 
a  penalty.  It  has  never  been  enforced  in  this  State,  even  where  the  proceeding 
was  directly  at  the  instance  of  the  State.  Much  less  would  it  be  in  a  case  like  this, 
where  the  effort  making  is  not  to  forfeit  the  charter  of  the  bank,  but  to  redress  the 
wrongs  of  the  relators  within  the  corporation.  In  such  a  case  it  is  strictly  a  civil  pro 
ceeding. 

In  this  case,  the  term  for  which  these  directors  were  elected  had  expired  by  efflux 
of  time  six  mouths  before  the  rule  was  made  absolute.  There  could,  therefore,  be  no 
judgment  of  amotiou  rendered. 

There  was  an  attempt  in  this  quo  warranto  proceeding  in  Florida  to 
render  a  judgment  of  amotiou  or  of  ouster  nearly  two  months  after  the 
expiration  of  the  term  of  office  by  the  discharge  of  every  duty  and  every 
function  which  belongs  to  an  elector  under  the  laws  of  the  land. 


ELECTORAL   COUNT   OF    1877.  69 

And  if  no  fine  could  be  inflicted,  why  order  the  information  to  be  filed?  Why 
trouble  the  country  with  a  trial  which  could  result  in  nothing  beneficial  to  the  appli 
cants  or  prejudicial  to  their  opponents?  In  New  York  and  Massachusetts,  the 
information  has  been  refused  when  the  time  must  expire  before  the  inquiry  would  have 
any  eftect,  leaving  the  parties  tojtheir  common  remedies.  (Angell  and  Ames  on  Corpo 
rations,  436-7.)  Much  less,  then,  will  the  suit  be  entertained  where  the  term  of  office 
has  already  expired. 

The  case  of  The  People  on  the  relation  of  Koerner  et  al  vs.  Ridgley  et 
al,  in  the  supreme  court  of  Illinois,  is  to  the  same  purport,  but  I  will 
not  detain  the  Commission  by  reading  it.  It  is  in  volume  21  of  Illinois 
Reports,  page  65.  That  goes  to  the  point  that  the  proceeding  in  quo 
warranto  must  be  against  a  person  who  holds  and  executes  the  func 
tions  of  an  office.  It  is  not  against  the  man,  not  against  the  individual, 
it  is  against  the  officer;  and  when  he  ceases  to  be  the  officer  the  action 
falls  to  the  ground  as  much  as  a  personal  suit  against  an  individual 
falls  when  the  individual  dies. 

Mr.  Commissioner  THURMAN.  Do  I  understand  Mr.  McCrary  to 
say  that  the  case  cited  decides  that  an  action  of  quo  warranto  properly 
commenced  against  the  incumbent  of  an  office  abates  by  reason  of  the 
expiration  of  his  term  ! 

Mr.  Representative  McCRARY.  That  is  not  the  point  in  the  case 
precisely.  It  is  stated  in  the  syllabus  thus : 

The  information  should  allege  that  the  party  against  whom  it  is  filed  holds  and 
executes  some  office  or  franchise,  describing  it,  so  that  it  may  be  seen  whether  the 
case  is  within  the  statute  or  not. 

Mr.  Commissioner  THURMAN.    At  the  time  of  the  commencement  1 

Mr.  Representative  McORABY.  At  the  time  of  the  commencement; 
but  these  other  cases  do  hold  that  no  judgment  can  be  rendered  in  a 
quo  warranto  proceeding  against  a  party  out  of  office,  and  there  is  no 
authority  to  the  contrary  so  far  as  I  can  find,  after  a  somewhat  diligent 
search  through  the  Library,  to  be  discovered  in  this  country,  although 
a  different  rule  has  sometimes  been  followed  in  England. 

Mr.  Commissioner  EDMUNDS.  Is  there  any  English  case  in  which  a 
judgment  of  amotion  has  been  rendered  after  the  expiration  of  the 
term  ! 

Mr.  Representative  McCRARY.  I  have  not  consulted  the  English 
authorities;  I  only  judge  of  their  character  from  what  I  see  in  the 
American  cases. 

Mr.  Commissioner  EDMUNDS.  The  cases  of  fine  are  reasonable 
enough ;  but  my  inquiry  is  whether  there  is  one  of  amotion. 

Mr.  Representative  McCRARY.  I  think  perhaps  there  is  no  case  of 
that  kind  even  in  England.  They  retain  jurisdiction  for  the  purpose  of 
assessing  the  Jine,  and  for  no  other  purpose  whatever,  after  the  expira 
tion  of  the  term  of  office. 

Mr.  Commissioner  THURMAN.    How  about  the  judgemnt  for  costs  1 

Mr.  Representative  McCRARY.  The  judgment  for  costs  would  go 
against  the  party  perhaps,  though  I  have  not  gone  into  that  question. 

Now,  in  the  very  nature  of  things,  this  whole  proceeding  in  the  courts 
of  Florida  must  have  been  after  the  functions  of  the  electors  had  been 
fully  discharged.  The  Constitution  of  the  United  States  does  not  pre 
scribe  the  time  when  the  electors  in  the  States  shall  cast  their  votes ; 
it  does  prescribe  that  Congress  may  fix  the  time,  and  that  it  shall  be 
upon  the  same  day  in  all  the  States  of  the  Union.  In  pursuance  of 
this  power,  Congress  has  fixed  the  time  by  an  act  passed  in  1792  fixing 
the  first  Wednesday  in  December  as  the  time  for  the  casting  of  the 
votes. 

The  record  which  has  been  filed  in  the  quo  warranto  case  shows  that 
the  petition  was  filed  on  the  6th  of  December;  that  the  appearance  was 


70  ELECTORAL    COUNT    OF    1877. 

ordered  for  the  18th  of  December  ;  tbat  the  order  was  that  the  respond 
ents  should  demur  or  answer  by  the  28th  of  December.  Those  were  in 
the  original  orders,  and  it  was  at  a  much  later  period  when  the  case 
finally  came  to  judgment,  late  in  January. 

Now,  I  wish  to  call  the  attention  of  the  Commission  to  the  acts  of 
Congress  passed  in  pursuance  of  the  power  conferred  upon  Congress  by 
the  Constitution,  to  show  how  impossible  it  is  that  such  proceedings  as 
these  can  have  any  force  or  validity  whatever.  I  refer  to  sections  135 
and  136  of  the  Revised  Statutes.  The  first  declares : 

The  electors  for  each  State  shall  meet  and  give  their  votes  upon  the  first  Wednesday 
in  December  iu  the  year  in  which  they  are  appointed,  at  such  place,  in  each  State,  as 
the  legislature  of  such  State  shall  direct. 

Section  136  provides  that — 

It  shall  be  the  duty  of  the  executive  of  each  State  to  cause  three  lists  of  the  names 
of  the  electors  of  such  State  to  be  made  and  certified,  and  to  be  delivered  to  the  electors 
on  or  before  the  day  on  which  they  are  required,  by  the  preceding  section,  to  meet. 

The  electors,  then,  are  to  be  appointed  ;  they  are  to  receive  from  the 
executive  authority  of  the  State  the  evidence  of  their  appointment  on 
or  before  the  first  Wednesday  in  December.  How  can  it  be  possible 
that  any  court  in  Florida  could  have  jurisdiction  in  the  last  days  of 
January  to  decide  a  question  who  were  the  electors  in  that  State? 
The  gentlemen  who  exercised  these  functions  on  the  6th  of  December 
under  the  credentials  given  to  them  by  the  regular  State  authorities  of 
Florida  met  on  that  (lay,  in  accordance  with  the  Constitution  and  the 
laws.  They  cast  their  votes.  They  made  their  return.  They  certified 
their  proceedings.  They  transmitted  them  to  the  President  of  the  Sen 
ate.  They  discharged  every  function  that  belonged  to  them  under  the 
Constitution  and  the  laws  on  the  6th  day  of  December;  and  it  was  im 
possible  for  them  to  have  discharged  it  after  that  date,  unless  in  a  cer 
tain  contingency  which  is  provided  for  in  another  section,  and  which  it 
is  not  pretended  arose  in  this  case.  Section  140  provides,  among  other 
things : 

The  electors  shall  dispose  of  the  certificates  thus  made  by  them  in  the  following 
manner : 

One.  They  shall,  by  writing  under  their  hands,  or  under  the  bands  of  a  majority  of 
them,  appoint  a  person  to  take  charge  of  and  deliver  to  the  President  of  the  Senate, 
at  the  seat  of  Government,  before  the  first  Wednesday  in  January  then  next  ensuing, 
one  of  the  certificates. 

Two.  They  shall  forthwith  forward  by  the  post-office  to  the  President  of  the  Senate, 
at  the  seat  of  Government,  one  other  of  the  certificates. 

Three.  They  shall  forthwith  cause  the  other  of  the  certificates  to  be  delivered  to  the 
judge  of  that  district  in  which  the  electors  shall  assemble. 

That  is  a  statute  passed  in  pursuance  of  the  provision*of  the  Consti 
tution  which  requires,  for  the  greatest  and  most  important  of  public 
reasons,  that  the  electors  in  all  the  States  shall  assemble  and  discharge 
their  duties  upon  the  same  day.  Now,  if  it  be  true  that  after  the  col 
lege  in  any  State  has  in  accordance  with  the  law  assembled  upon  that 
day  and  discharged  its  duties,  it  remains  to  any  court  in  the  State  to 
review  its  decision  after  its  action  has  been  transmitted  to  the  seat  of 
Government,  then  I  say  the  Constitution  in  one  of  its  most  vital  provis 
ions  has  been  trampled  upon  and  violated,  for  in  that  case,  alter  the 
time  fixed  by  the  law,  after  the  result  of  the  election  in  the  whole  [Juioii 
has  been  ascertained,  after  it  has  been  discovered  that  by  changing  the 
vote  of  a  single  State  the  result  of  the  election  in  the  whole  nation  may 
be  changed,  parties  may  institute  their  proceedings,  may  bring  their 
action  of  quo  icarranto,  may  proceed  to  try  the  case,  and  may  determine 


ELECTORAL    COUNT    OF    1877.  71 

that  the  electors  who  have  discharged  this  duty  on  the  day  fixed  by  the 
Constitution  and  the  laws  were  not  the  legal  electors.  In'one  State  an 
inferior  court  having  power  to  issue  the  writ  of  quo  ivarranto,  being 
attached  to  one  side  of  the  question,  will  entertain  a  petition  of  this 
character  and  will  decide  in  favor  of  one  set  of  electors,  and  send  up  to 
the  President  of  the  Senate  the  record  of  its  proceedings  declaring  that 
the  men  who  had  voted  on  the  day  fixed  by  the  law  were  not  the  elect 
ors.  In  another  State  another  judge  will  perhaps  render  a  judgment  in 
favor  of  a  set  belonging  to  the  other  side.  And  so  we  shall  be  called 
upon,  instead  of  counting  the  votes  provided  for  by  the  Constitution  of 
the  United  States  and  the  laws  of  the  laud,  to  investigate  the  decisions 
of  all  these  courts  in  ail  the  States. 

I  come  back  then  to  the  position  with  which  I  started,  and  I  repeat 
what  my  associate  has  said,  in  substance,  that  the  Constitution  devolves 
upon  the  two  Houses,  or  upon  the  President  of  the  Senate,  or  upon  the 
person  who  counts  the  votes,  whoever  that  may  be,  the  narrowest  pos 
sible  ministerial  duty.  The  framers  of  the  Constitution  chose  that  word 
which  better  than  any  other  word  in  the  English  language  expresses 
the  idea  of  ministerial  duty,  contradistinguished  from  judicial  power 
and  authority:  "the  votes  shall  then  be  counted."  What  do  we  mean 
by  the  word  "counted"!  To  count  is  to  enumerate  one  by  one.  It  is  a 
narrower  term  than  the  word  "canvass,"  which  we  find  used  in  laws 
that  regulate  proceedings  of  this  character,  for  to  canvass  implies  the 
right  to  examine  into;  but  the  word  "count"  expresses  the  idea  of  a 
ministerial  duty  far  more  strongly  than  any  other  word  in  our  language, 
or  as  strongly  certainly  as  any  other  word. 

I  will  add  one  other  word  with  reference  to  this  quo  warrant®  pro 
ceeding.  I  feel  confident  that  this  Commission  will  determine  that  the 
whole  proceeding  is  wholly  null  and  void  in  so  far  as  the  duties  of  this 
Commission  are  concerned.  But  if  that  question  is  to  be  gone  into,  we 
propose  to  present  to  this  Commission  the  record  of  the  fact  that  an 
appeal  has  been  regularly  taken  in  that  case  and  that  it  is  now  pending 
in  the  supreme  court  of  the  State  of  Florida ;  and  whatever  may  have 
been  the  value  or  the  force  of  the  original  judgment  of  the  circuit  court, 
it  is  vacated  by  that  appeal  5  and  I  presume  to  say  that  this  Commis 
sion  will  not  undertake  to  decide  a  case  that  is  now  pending  before  the 
supreme  court  of  Florida.  I  will  not  presume  to  anticipate  what  might 
be  the  result  if  this  tribunal,  entertaining  jurisdiction  of  that  case, 
should  decide  it  one  way,  and  the  supreme  court  of  Florida  when  they 
reach  it  in  order  should  decide  it  the  other  way.  Whether  it  would 
form  a  ground  for  that  proceeding  in  quo  warranto  under  which  one  of 
my  learned  friends  proposes  to  contest  or  thinks  he  might  contest  the 
right  of  the  President  of  the  United  States  to  hold  his  office,  is  a  matter 
that  I  need  not  discuss. 

I  come  to  the  objection  that  one  of  the  electors  of  Florida  was  a 
shipping-commissioner  at  the  time  he  cast  his  vote.  I  am  advised  that 
such  is  not  the  fact,  and  that  if  the  Commission  will  go  into  an  inquiry 
as  to  the  facts,  it  will  appear  that  the  gentleman  referred  to  had  re 
signed  his  office  at  the  time  of  the  election.  Of  that  I  have  no  per 
sonal  knowledge,  but  I  have  no  doubt  from  the  information  I  have 
received  that  such  is  the  fact.  But  how  does  that  question  come  before 
this  tribunal  ?  The  objection  states  that  it  has  been  proven  by  some 
testimony  taken  before  a  committee.  The  act  under  which  this  tribunal 
is  organized  and  acting  prescribes  what  papers  shall  come  before  it : 

When  all  sncli  objections  so  made  to  any  certificate,  vote,  or  paper  from  a  State 
shall  have  been  received  and  read,  all  such  certificates,  votes  and  papers  so  objected 


72  ELECTORAL    COUNT    OF    1877. 

to,  and  all  papers  accompanying  the  same,  together  with  such  objections,  shall  be  forth 
with  submitted  to  said  commission. 

Now,  there  are  no  papers  accompanying  any  of  the  votes,  or  papers 
purporting  to  be  votes,  that  relate  at  all  to  this  matter  of  the  alleged 
ineligibility  of  one  of  the  electors.  I  apprehend  that  it  is  not  compe 
tent  under  this  act  for  any  member  of  either  House  to  make  any  objec 
tion  he  pleases  and  refer  to  any  papers  he  pleases.  He  must  base  his 
objection  upon  the  papers  accompanying  the  votes  or  the  certificates 
alleged  to  be  votes.  Upon  this  question  I  think  that  all  we  have  said 
\vith  regard  to  the  finality  of  the  action  of  State  tribunals  will  apply, 
perhaps  not  with  the  same  force  as  to  the  question  whether  we  can  in 
quire  as  to  the  individual  votes  of  the  citizens ;  but  still  the  State 
authorities  have  certified  that  these  parties  are  their  electors ;  they 
present  the  evidence  which  the  Constitution  and  the  laws  require  ;  they 
have  discharged  the  functions  of  that  office  ;  they  have  cast  their  votes'; 
the  State  through  them  has  voted  ;  it  is  not  the  vote  of  the  elector,  it  is 
the  vote  of  the  State  that  has  been  registered ;  and  I  hold  that  no  in 
quiry  can  now  be  made  even  upon  that  question.  The  vote  of  a  State 
when  deposited  in  the  hands  of  the  President  of  the  Senate,  certified 
and  evidenced  as  required  by  the  legislature  of  that  State,  u  shall,"  in 
the  language  of  the  Constitution,  "be  counted." 

I  desire,  if  the  Commission  please,  to  yield  the  residue  of  my  time, 
which  I  think  is  some  six  or  seven  minutes,  to  my  colleague,  who  has 
another  suggestion  to  make. 

Mr.  Representative  KASSON.  I  do  not,  Mr.  President,  desire  the 
time,  except  a  very  brief  portion  of  it,  to  answer  after  a  little  reflection 
the  question  put  to  me  by  the  honorable  Commissioner  from  Ohio,  and 
I  wish  to  say  that  I  answer  it  according  to  my  best  judgment,  sub 
mitting  it  very  deferentially  to  the  able  counsel  who  are  likely  perhaps 
to  consider  the  same  question,  for  I  understand  it  is  presented  by  an  ob 
jection,  though  not  in  any  proper  form  appearing  upon  any  of  the  certifi 
cates.  I  answer  the  question  in  accordance  with  the  spirit  of  the  divi 
sion  of  powers  of  the  different  branches  of  Government.  Congress, 
under  its  power  to  give  effect  by  legislation  to  constitutional  provisions, 
might  probably  provide  by  law  for  investigation  of  the  question  of  per 
sonal  and  constitutional  disqualification  by  judicial  adjudication,  be 
cause  it  is  a  judicial  proceeding  in  its  nature,  not  executive  or  legisla 
tive  5  but  without  such  legislation,  it  is  not,  in  my  judgment,  a  question 
to  be  considered  in  counting,  and  the  question  cannot  be  tried  as  an  in 
cident  of  count  by  either  an  executive  or  legislative  board. 

I  think  I  have  enabled  the  Commissioner  to  understand  the  principle 
onawhich  I  consider  the  question  as  decided,  that  it  is  in  its  nature  the 
determination  of  a  judicial  right,  and  cannot  be  taken  up  as  an  inci 
dent;  to  a  ministerial  function  of  counting,  nor  is  it  within  the  narrow 
range  of  discretion  associated  with  the  phrase  u  ministerial  count." 

The  PRESIDENT.  For  the  information  of  the  Commission  I  desire 
to  inquire  of  the  objectors  to  the  first  certificate  whether  they  propose 
before  the  argument  by  counsel  to  offer  evidence.  I  inquire  of  counsel 
for  the  information  merely  of  the  Commission,  that  we  may  know  how 
to  act  in  consultation,  do  you  propose  to  offer  evidence  before  proceed 
ing  to  the  argument  ? 

Mr.  Representative  KASSON.  While  the  other  side  are  considering 
that  question  I  desire  to  state  the  position  of  our  side  on  another 
matter  that  was  omitted.  We  regard  as  not  within  the  act  the  con 
cluding  part  of  the  objection  to  certificate  No.  1,  and  J  simply  want  to 
state  that  we  waive  no  right  to  exclude  that  objection  as  not  within  the 
jurisdiction  of  the  tribunal. 


ELECTORAL    COUNT    OF    1877.  73 

The  PRESIDENT.  I  think  the  Commission  prefer  that  the  answer  to 
my  inquiry  should  come  from  the  counsel  rather  than  from  the  objectors. 

Mr.  Representative  FIELD.  It  is  our  opinion,  if  the  Commission 
please,  that  we  should  offer  at  some  stage  of  the  proceedings  evidence, 
and  we  will  do  it  if  the  Commission  desire 

Mr.  Commissioner  EDMUNDS.  Are  you  speaking  now  as  an  objec 
tor,  Mr.  Field  ? 

Mr.  Representative  FIELD.     I  am  speaking  as  an  objector. 

Mr.  Commissioner  EDMUNDS.  I  submit,  as  one  member  of  the  Com 
mission,  that  the  objectors  have  exhausted  their  functions,  and  the  rest 
of  the  case  belongs  to  counsel. 

Mr.  Representative  FIELD.  I  was  simply  answering  the  question 
put  to  me. 

The  PRESIDENT.  In  the  first  place  I  addressed  it  to  the  objectors, 
but  I  changed  it  and  asked  counsel  whether  they  proposed  to  offer  evi 
dence  before  proceeding  with  the  argument. 

Mr.  MERR1CK.  Mr.  O'Conor  requests  me  to  answer  your  honor  that 
we  expect  to  offer  evidence,  which  is  now  here,  before  proceeding  with 
the  argument.  We  have  been  under  the  impression  that  the  evidence 
was  already  before  the  Commission,  without  any  necessity  for  a  further 
offer  on  our  part. 

The  PRESIDENT.  That  is  sufficient,  sir.  What  is  the  proposition 
of  counsel  on  the  other  side? 

Mr.  Commissioner  MILLER.  Before  proceeding  with  that,  I  wish  to 
say,  as  one  of  the  Commissioners,  that  I  do  not  understand  that  any 
evidence  has  yet  been  admitted  in  this  case;  and  I  suggest  to  the  coun 
sel  who  propose  to  offer  evidence  to-morrow  morning,  that  they  make  a 
brief  synopsis  or  a  brief  statement  of  what  it  is  they  propose  to  offer  alto 
gether,  instead  of  offering  it  in  detail  and  having  objections  raised  to 
every  particular  piece  of  testimony.  This  is  a  mere  suggestion  from 
myself. 

The  PRESIDENT.  Now  we  will  hear  the  reply  of  the  counsel  on  the 
other  side. 

Mr.  EVARTS.  We  have  no  evidence  to  offer,  unless  there  should  be 
a  determination  to  admit  evidence  inquiring  into  facts,  and  evidence 
should  be  produced  against  us  which  we  should  then  need  to  meet. 

The  PRESIDENT.  Should  the  Commission  decide  to  receive  evi 
dence,  you  expect  to  have  the  privilege  of  offering  it  afterward  ? 

Mr.  EVARTS.  We  do.  To  apply  it  to  this  particular  fact  of  Hum 
phreys,  whenever  it  is  made  to  appear  by  evidence  which  is  admitted 
by  this  Commission  that  Mr.  Humphreys  at  any  time  held  an  office,  we 
shall  need  to  give  evidence,  perhaps,  that  he  resigned  it  before  the  elec 
tion.  . 

The  PRESIDENT.  Of  course  no  such  question  would  arise  if  the 
Commission  should  decide  that  it  was  not  admissible. 

Mr.  EVARTS.  Undoubtedly ;  and  we  suppose  we  may  say  on  this 
point  that  if  there  is  to  be  an  inquiry  which  adduces  evidence,  that  evi 
dence  is  to  be  proved  according  to  the  rules  which  make  its  production 
evidence — by  the  system  of  the  common  law. 

The  PRESIDENT.  I  did  not  put  the  inquiry  by  direction  of  the  Com 
mission.  It  was  merely,  as  we  are  to  have  private  consultation,  that  we 
might  know  what  was  expected  on  one  side  or  the  other. 

Mr.  Commissioner  THURMAN.  I  beg  leave  to  make  a  suggestion.  I 
suppose  it  is  the  inclination  of  counsel  to  aid  the  Commission  and  facili 
tate  its  labors  as  much  as  possible.  There  are  a  number  of  facts,  I  sup 
pose,  about  which  there  is  really  no  controversy  $  I  mean  as  to  the  exist- 


74  ELECTORAL    COUNT    OP    1877. 

ence  of  the  facts  themselves.  Whether  proof  of  them  is  admissible  in 
this  proceeding  is  a  question  of  law,  and  wholly  different  from  the  ques 
tion  of  whether  the  facts  exist  or  not.  Now,  if  counsel  would  agree,  as 
far  as  they  can,  in  respect  to  those  facts  of  which  there  can  be  no  con 
troversy,  leaving  the  question  of  their  admissibility  as  a  question  of  law 
to  the  decision  of  the  tribunal,  it  would  very  much  tend  to  save  our 
time,  much  more  than  to  have  proof  of  the  facts  offered  piecemeal  and 
objections  argued  pro  and  con.  I  should  suppose  that  counsel  would  be 
inclined  to  aid  our  deliberations  and  facilitate  our  investigations  by 
agreeing,  as  far  as  they  possibly  can,  upon  what  are  the  facts  of  the 
case  without  at  all  prejudicing  themselves  upon  the  question  whether 
they  are  legally  applicable  to  this  investigation. 

Mr.  Commissioner  EDMUNDS.  Mr.  President,  I  move  that  the  Com 
mission  adjourn  until  half  past  ten  o'clock  to-morrow, 

The  motion  was  agreed  to  ;  and  (at  five  o'clock  and  three  minutes  p. 
in.)  the  Commission  adjourned. 


SATURDAY,  February  3,  1877. 

The  Commission  met  at  half  past  ten  o'clock  a.  in.  pursuant  to 
adjournment,  all  the  members  being  present.  There  were  also  present : 

Hon.  Charles  O'Conor,  of  New  York,  ~] 

Hon.  Jeremiah  S.  Black,  of  Pennsylvania, 
Hicham  T.  Merrick,  esq.,  of  Washington 
Ashbel  Green,  esq.,  of  New  Jersey, 
William  C.  WhitDey,  esq.,  of  New  York, 

Hon.  William  M.  Evarts,  of  New  York,  ~] 

Hon.  E.  W.  Stoughton,  of  New  York,  !  Of  counsel  in  opposition  to 

Hon.  Stanley  Matthews,  of  Ohio,  f    certificates  Nos.  2  and  3. 

Hon.  Samuel  Shellabarger,  of  Ohio,  J 

The  journal  of  yesterday's  proceedings  was  read  and  approved. 

The  PKESIDENT.  1  will  state  to  the  counsel  at  the  bar  that  the  pro 
ceedings  under  rule  4  are  concluded.  Proceedings  will  now  take  place 
under  rule  3,  two  counsel  on  a  side  being  allowed. 

Doubtless  some  question  will  arise  as  to  the  best  mode  of  proceeding. 
It  occurs  to  the  Chair,  without  speaking  for  the  Commission,  that  a  con 
venient  and  just  mode  may  be  that  counsel  representing  the  objectors  to 
certificate  No.  1  should  make  their  offers  of  proof  in  a  concise,  well- 
arranged,  classified  form,  and  then  that  the  counsel  representing  the 
objectors  to  the  second  certificate  should  make  their  offers  of  proof, 
based  of  course  upon  the  condition  that  proof  should  be  admitted,  it 
being  understood  by  the  Chair  that  they  probably  may  object  to  all 
proofs  on  the  part  of  the  counsel  representing  objections  to  certificate 
No.  1.  They  can  therefore  make  their  provisional  offers  of  proof  in 
case  there  shall  be  a  decision  that  proofs  are  admissible.  Then  the 
Commission  will  have  before  it  a  case,  and  so  will  the  bar.  The  case 
then  would  be,  if  that  course  should  be  adopted  and  pursued,  the  certi 
ficates  with  the  accompanying  papers,  the  objections,  and  the  offers  of 
proof,  upon  which  the  counsel  on  the  one  side  and  the  other  would  be 
heard.  Then  the  Commission  would  in  a  great  degree  have  before  it 
the  whole  case  and  all  the  questions  that  arise  under  it. 

Mr.  O'CONOK.    Mr.  President  and  gentlemen  of  the  Commission, 


ELECTORAL    COUNT    OF    1877.  75 

advised  of  the  position  which  this  controversy  stood  in  and  the  stage  of 
it  at  which  we  had  arrived,  by  the  question  somewhat  suddenly  pro 
pounded  last  evening  to  us  before  the  adjournment,  I  have  endeavored 
in  the  interim  to  adjust  a  statement  of  What  seemed  to  me  to  be  desira 
ble  matter  in  the  nature  of  evidence  to  be  laid  before  this  Commis 
sion — as  distinct,  and  as  succinct,  and  as  brief,  and  as  explanatory  and 
intelligible  a  statement  as,  by  the  utmost  efforts  I  could  possibly  make, 
having  in  view  the  act  of  Congress  under  which  this  Commission  is  act 
ing,  which  seems  to  contemplate  great  promptitude,  or  at  least  a  great 
effort  at  celerity  upon  the  part  of  all  concerned,  so  that  the  possibly 
numerous  matters  of  investigation  that  may  be  presented  may  be  gotten 
rid  of  within  the  limited  time  allowed  by  the  circumstances,  and  the 
many  observations  that  have  fallen  from  the  bench  evincing  on  the  part 
of  the  honorable  Commissioners  a  strong  desire  to  second  this  object  on 
the  part  of  Congress,  and  to  accelerate  as  much  as  possible  the  proceed 
ings. 

I  did  not  prepare  that  exactly  in  the  form  of  an  offer  of  evidence  ;  but, 
although  that  be  not  its  form,  that  is  the  substance  of  what  1  have 
written,  which  presently  I  will  read,  there  not  having  been  time  even  to 
make  a  fair  copy  of  it,  much  less  to  have  it  printed. 

Mr.  EVARTS.    Mr.  O'Conor,  will  you  allow  me  to  say  a  word  ? 

Mr.  O'CONOR.     Certainly. 

Mr.  EVARTS.  Mr.  President  and  gentlemen,  if  we  are  to  assume  that 
the  intimations  of  the  President  are  the  order  of  the  Commission  as  to 
the  manner  of  the  conduct  of  the  trial,  it  is  the  first  knowledge  we  have 
that  that  order  will  be  the  method  of  this  trial. 

The  PRESIDENT.  It  is  not  the  order  of  the  Commission  ;  it  was  a 
suggestion  from  the  presiding  officer, 

Mr.  EVARTS.  No  objection  was  made  by  any  of  your  associates  ;  and 
if  Mr.  O'Conor  was  to  proceed  I  supposed  it  was  upon  that  idea;  and  I 
do  not  question  that  fact ;  I  only  wish  to  say  that  if  that  is  the  order  of 
this  Commission  as  to  the  method  of  this  trial,  it  is  the  first  instruction 
which  we  as  counsel  have  received  that  that  would  be  the  method,  and 
we  have  not  prepared  and  are  not  ready  to  proceed  upon  that  method 
of  trial  so  far  as  affirmative  action  on  our  part  is  to  go. 

Mr.  Commissioner  EDMUNDS.  I  do  not  think  it  is  understood,  Mr. 
Evarts,  certainly  it  is  not  by  myself,  that  supposing  you  object  to  the 
proofs  ottered  by  Mr.  O'Conor  you  are  necessarily  called  upon  at  the 
same  time  to  state  what  you  expect  to  prove  in  reply  if  his  proofs  shall 
be  received.  That  comes  later. 

Mr.  EVARTS.  That  comes  later,  of  reply  to  their  proofs ;  but  the 
President  laid  down  a  proposition  that  we  were  to  propose 

The  PRESIDENT.     No  proposition. 

Mr.  EVARTS.  That  is  our  first  instruction  that  we  should  have  that 
right  or  authority. 

Mr.  Commissioner  EDMUNDS.  I  think  all  we  need  do  to-day,  Mr. 
Evarts,  is  to  hear  any  objections  you  may  make  to  the  proofs  offered  oil 
the  other  side. 

Mr.  EVARTS.  And  we  shall  not  be  called  upon  to  proceed  further 
to-day  ? 

Mr.  Commissioner  EDMUNDS.  You  will  not  be  called  upon  to  offer 
proofs  on  your  own  side,  so  far  as  I  understand,  because  it  may  not  be 
necessary. 

Mr.  O'CONOR.  With  great  respect,  I  hope  the  learned  Commission  is 
not  committed  to  any  of  the  propositions  which  have  been  casually 
mentioned  either  by  counsel  or  by  any  one  of  its  members. 


76  ELECTORAL    COUNT    OF    1877. 

The  PRESIDENT.     Or  by  the  presiding  officer. 
Mr.  O'CONOR.     Or  by  the  presiding  officer,  who  I  understood  rather 
hastil    to  rule  - 


PRESIDENT.  I  have  no  authority  to  make  any  ruling  until  the 
Commission  instruct  me,  and  they  have  not  instructed  me. 

Mr.  O'CONOR.  I  was  not  instructed,  nor  had  I  any  earlier  notice 
nor  had  any  of  us  any  earlier  notice  than  the  learned  counsel  upon  the 
other  side,  of  the  probable  course  of  things  this  morning,  save  what 
sort  of  instruction  we  might  conceive  we  had  in  drawing  our  own  infer 
ences  from  the  observations  that  fell  from  the  Chair  and  from  the 
learned  Commissioners  on  both  sides  of  the  Chair  yesterday.  And  my 
object  in  framing  what  I  propose  to  read  to  the  court  —  which  I  have  not 
myself  read  a  second  time  yet  —  was  not  to  conform  to  any  particular 
view  that  I  have  heard  exactly  from  any  quarter,  but  to  place  the  Com 
mission  in  possession  of  the  general  facts  of  the  case  in  this  brief  and 
condensed  form,  so  that  the  proper  course  of  proceeding  might  go  on 
and  that  proper  course  be  adjudged  of  and-  determined  in  a  fair  view  of 
the  matter  by  the  Commission. 

The  chief  consideration  which  induced  me  to  adopt  this  coarse  was 
this  :  One  of  your  rules  indicates  that  something  like  a  general  argument 
upon  this  whole  case  and  its  merits  was  to  be  presented  to  this  court  by 
opposing  counsel,  each  being  allowed  a  period  of  two  hours  on  the  main 
question  and,  say,  fifteen  minutes  to  present  their  views  on  any  inci 
dental  question  that  might  arise.  With  these  rules  before  me  and  the 
record  proper,  consisting  of  'the  certificates  opened  by  the  President  of 
the  Senate  and  the  objections  to  them,  and  I  may  add  as  part  of  the 
record  the  statements  made  to  this  honorable  Commission  by  the  man 
agers  on  both  sides,  I  was  led  to  believe  that  there  would  be  something 
possibly  quite  incongruous  and  unprofitable,  owing  to  the  special  condi 
tion  of  this  proceeding,  in  such  a  course  as  takes  place  ordinarily  in  the 
subordinate  courts  before  a  jury,  who  are  presumed  to  be  entirely  inca 
pable  of  discriminating  and  apt  to  be  led  astray  if  they  hear  anything 
which  is  not  to  be  taken  into  judgment  in  the  final  consideration  of 
the  case.  It  would  be  very  inconvenient  if  such  a  course  were  to  be 
taken  here,  because  the  issue  as  made  by  these  papers  to  which  I  have 
referred  —  the  certificates  and  the  objections  —  the  issue  as  made  at  least 
by  the  counsel  in  favor  of  the  Hayes  electors,  as  I  will  take  the  liberty 
of  calling  them,  makes  the  question  whether  any  evidence  outside  of 
that  record  shall  be  received  the  whole  question  in  controversy.  No 
other  can  arise  except  only  some  possible  infirmity  in  the  extrinsic  evi 
dence  or  some  possible  contradiction.  I  have  supposed,  from  a  careful 
though  very  recent  view  of  this  case,  that  there  was  neither  any  infirmity 
in  any  evidence  which  the  supporters  of  the  Tilden  electors  desire  to 
present,  nor  any  desire  to  offer  evidence  to  contradict  that  evidence,  so 
as  to  raise  a  question  ;  and  thus  I  am  led  to  conclude  that  the  admis- 
sibility  of  this  so-called  extrinsic  evidence,  its  effect,  and  the  final  merits 
of  the  point  which  you  have  to  decide  on  this  trial  between  two  sets  of 
electors  or  two  classes  of  certificates  —  that  is,  these  three  heads,  fairly 
resolve  themselves  into  one  and  the  same  question.  Whenever  a  piece 
of  evidence  of  this  extrinsic  character  shall  be  offered,  there  will  be 
literally  nothing  which  the  supporters  of  the  Hayes  electors  can  desire 
to  say  or  desire  to  present  to  this  Commission  in  any  branch  of  this 
controversy  that  will  not  then  be  relevant. 

Nor  can  I  perceive  that  a  decision  interlocutory  upon  one  of  these  in 
cidental  questions  would  not,  if  favorable  to  the  exceptant  or  the  ob 
jector,  be  conclusive  as  to  the  whole  case;  because  that  decision  would 


ELECTORAL    COUNT    OF    1877.  77 

almost  to  a  certainty  go  upon  an  affirmation  of  the  principal  point,  or 
the  so-called  merits  on  which  the  supporters  of  the  Hayes  electors  rely. 
Consequently,  in  this  debate  of  fifteen  minutes  about  the  admissibility 
of  particular  evidence,  we  should  have  to  argue  the  whole  Case.  There 
would  be  then  a  difficulty  which  from  the  flexibility  of  your  honors' 
rules  could  be  obviated  by  your  giving-  additional  time.  But  it  has  not 
appeared  to  me  that  that  was  the  true  course.  On  the  contrary,  with 
great  respect  to  the  better  judgment  of  my  learned  opponents,  if  they 
shall  differ  with  me,  or  to  any  honorable  member  of  this  Commission 
who  may  have  taken  a  different  view  of  it,  my  conception  of  the  matter 
is,  that  all  the  needful  evidence  should  come  in  subject  to  such  questions 
as  to  its  competency  and  its  effect  as  may  exist,  for  the  reason  that  they 
necessarily  incorporate  themselves  with  the  main  question  that  you 
have  finally  to  decide. 

And  I  would  just  take  leave  to  add  here,  before  reading  the  paper 
which  I  mean  to  present,  that  such  is  the  usual  course  of  all  tribunals 
where  the  matter  of  fact  is  judged  of  by  judicial  experts,  such  as 
your  honors  must  all  be  decided  ;  and  the  rule  of  snapping  promptly  an 
exception  to  some  bit  of  possibly  irrelevant  testimony  in  order  to  pre 
vent  an  ignorant  jury  being  misled  by  some  improper  considerations 
growing  out  of  it  has  no  application  to  a  proceeding  before  learned  ex 
perts,  learned  judges.  It  is  unusual,  according  to  the  practice  of  those 
courts  in  which  the  judges  determine  the  fact  as  well  as  the  law,  to  hear 
any  argument  in  relation  to  the  admission  of  a  particular  piece  of  evi 
dence  before  the  final  hearing,  unless  it  should  chance  to  be  found  quite 
convenient  to  take  some  very  simple  and  isolated  point  by  a  motion  to 
suppress  a  particular  deposition  ;  as,  for  instance,  if  counsel  had  been 
examined  whose  deposition  ought  not  be  read,  or  something  of  that 
kind. 

I  have  said  that  I  conceive  the  true  remedy  would  not  be  to  enlarge 
the  time  under  the  fifteen-minute  rule;  but  to  pursue  the  other  course, 
to  take  the  evidence  that  may  be  offered  subjectjto  the  exceptions,  to  be 
considered  with  the  whole  case,  and  for  the  reasons  which  I  have  already 
stated 

The  PRESIDENT.  Mr.  O'Couor,  I  am  obliged  to  ask  you  to  submit 
your  propositions. 

Mr.  O'CONOR.  I  will  submit  them  in  one  minute.  I  merely  wish  to 
state  one  single  proposition  :  you  would  have  to  listen  over  and  over 
again  to  the  same  precise,  identical  arguments  in  the  final  hearing  as  in 
this  fifteen-minute  hearing  enlarged.  Now  if  the 

Mr.  EVARTS.  Shall  we  be  heard  on  this  preliminary  inquiry  or 
await  the  submission  of  the  proposition  ? 

The  PRESIDENT.  I  think  you  had  better  wait  until  you  hear  the 
proposition. 

Mr.  O'CONOR.  The  learned  counsel  has  said  something  to  the  court 
under  his  view  of  what  was  convenient  to  be  said,  and  your  honors 
have  extended  the  privilege  to  me.  That  is  all  1  consider  that  I  am 
doing. 

The  PRESIDENT.    We  will  hear  your  proposition  first. 

Mr.  O'CONOR.  I  am  not  speaking  to  any  order  of  the  court,  but 
making  a  suggestion  which  your  honors  have  been  pleased  to  permit.  I 
will  speak  no  longer  than  may  be  agreeable.  I  now  proceed  to  read  the 
paper  on  which  I  have  written  our  propositions : 

"  First.  On  December  6,  1876,  being  the  regular  law  day,  both  the 
Tilden  and  the  Hayes  electors  respectively  met  and  cast  their  votes,  and 
transmitted  the  same  to  the  seat  of  Government.  Every  form  prescribed 


78  ELECTORAL    COUNT    OF    1877. 

by  the  Constitution,  or  by  any  law  bearing  on  the  subject,  was  equally 
complied  with  by  each  of  the  rival  electoral  colleges,  unless  there  be  a 
difference  between  them  in  this:  The  certified  lists  provided  for  in  sec 
tion  136  of  uie  Revised  Statutes  were,  as  to  the  Tilden  electors,  certified 
by  the  attorney-general ;  and  were,  as  to  the  Hayes  electors,  certified  by 
Mr.  Stearns,  then  governor.  All  this  appears  of  record,  and  no  addi 
tional  evidence  is  needed  in  respect  to  any  part  of  it.'7 

Perhaps  I  convey  no  new  light  by  saying  that,  but  it  is  for  the  sake 
of  presenting  as  distinct  matter  the  view  we  take. 

u  Secondly.  A  quo  warrants  was  commenced  against  the  Hayes  elect 
ors  in  the  proper  court  of  Florida  on  the  said  6th  day  of  December, 
1876,  before  they  had  cast  their  votes,  which  eventuated  in  a  judgment 
against  them  on  the  25th  of  January,  1877.  It  also  determined  that 
the  Tilden  electors  were  duly  appointed.  The  validity  and  effect  of 
this  judgment  is  determinable  by  the  record  ;  and  no  extrinsic  evidence 
seems  to  be  desirable  on  either  side,  unless  it  be  thought  (1)  that  the 
Tilden  electors  should  give  some  supplemental  proof  of  the  precise  fact 
that  the  writ  of  quo  warranto  was  served  before  the  Hayes  electors  cast 
their  votes,  or  (2)  unless  it  be  desired  on  the  other  side  to  show  the  entry 
and  pendency  of  an  appeal  from  the  judgment  in  the  quo  warranto." 

With  these  two  possible  and  very  slight  exceptions  the  whole  case  on 
this  branch  of  it  depends  upon  the  record. 

"  Thirdly.  To  show  what  is  the  common  law  of  Florida  and  also  the 
true  construction  of  the  Florida  statutes,  the  Tilden  electors  desire  to 
place  before  the  Commission  the  record  of  a  judgment  in  the  supreme 
court  of  that  State  on  a  mandamus  prosecuted  on  the  relation  of  Mr. 
Drew,  the  present  governor  of  that  State,  by  force  of  which  Mr.  Stearns 
was  ousted  and  Mr.  Drew  was  admitted  as  governor.  This  judgment, 
together  with  the  court's  opinion,  is  matter  of  record,  and  they  require 
no  other  proof;  nor  is  there  any  technical  rule  as  to  the  manner  in  which 
this  Commission  may  inform  itself  concering  the  laiv  of  Florida." 

If  I  may  be  permitted  to  interject,  it  will  be  seen  that  I  am  endeavor 
ing  to  show  how  very  little  there  is  in  the  shape  of  proof  to  delay  this 
Commission  in  proceeding  directly  to  an  argument  on  the  merits. 

"Fourthly.  The  legislation  of  Florida  subsequently  to  December  6, 
1876,  authorizing  a  new  canvass  of  the  electoral  vote,  and  the  fact  of 
such  new  canvass,  the  casting  anew  of  the  electoral  votes,  and  the  due 
formal  transmission  thereof  to  the  seat  of  Government,  in  perfect  con 
formity  to  the  Constitution  and  laws  except  that  they  were  subsequent 
in  point  of  time  to  December  6,  1876,  are  all  matters  of  record  and  al 
ready  regularly  before  the  Commission. 

"  Fifthly.  The  only  matters  which  the  Tilden  electors  desire  to  lay 
before  the  Commission  by  evidence  actually  extrinsic  will  now  be  stated. 

u  I.  The  board  of  State  canvassers,  acting  on  certain  erroneous  views 
when  making  their  canvass,  by  which  the  Hayes  electors  appeared  to 
be  chosen,  rejected  wholly  the  returns  from  the  county  of  Manatee  and 
parts  of  returns  from  each  of  the  following  counties,  to  wit:  Hamilton, 
Jackson,  and  Monroe." 

I  trust  1  have  omitted  none,  but  I  have  had  no  consultation. 

"  In  so  doing  the  said  State  board  acted  without  jurisdiction,  as  the 
circuit  and  supreme  courts  in  Florida  decided.  It  was  by  overruling 
and  setting  aside  as  not  warranted  by  law  these  rejections,  that  the 
courts  of  Florida  reached  their  respective  conclusions  that  Mr.  Drew 
was  elected  governor,  that  the  Hayes  electors  were  usurpers,  and  that 
the  Tilden  electors  were  duly  chosen.  No  evidence  that  in  any  view 
could  be  called  extrinsic  is  believed  to  be  needful  in  order  to  establish 


ELECTORAL    COUNT    OF    1877.  79 

the  conclusions  relied  upon  by  the  Tihlen  electors,  except  duly  authen 
ticated  copies  of  the  State  canvass,'7  [that  is  the  erroneous  canvass  as 
we  consider  it,]  "  and  of  the  returns  from  the  above-named  four  coun 
ties,  one  wholly  and  others  in  part  rejected  by  said  State  canvassers. 

"  II.  Evidence  that  Mr.  Humphreys,  a  Hayes  elector,  held  office  under 
the  United  States." 

What  is  next  stated  may  be  deemed  anticipatory  and  perhaps  not 
proper  to  come  from  me. 

"  Sixthly.  Judging  from  the  objections  taken  by  those  supporting  the 
Hayes  electors  and  the  opening  argument  offered  in  their  behalf,  the 
supporters  of  the  Tilden  electors  are  led  to  believe  that  no  evidence  is 
needed  or  intended  to  be  offered  by  the  supporters  of  the  Hayes  electors 
unless  it  be :  first,  that  the  above-mentioned  appeal  was  taken,  and,  sec 
ondly,  that  Mr.  Humphreys  had  resigned  before  the  election." 

If  I  may  be  permitted  to  say  a  word,  the  Commission  will  perceive 
that  I  have  acted  here  with  a  view  to  support  my  idea  that  the  facile 
method  is  to  take  these  proofs  subject  to  all  question  ;  that  there  is  not 
enough  of  matter  to  produce  delay  or  confusion  or  conflict  in  respect  of 
those  extrinsic  proofs  that  could  give  rise  to  a  judgment  in  discretion 
that  the  course  proposed  might  be  inconvenient.  On  the  contrary,  there 
is  so  little,  and  that  is  almost  all  matter  that  might  be  called  of  record, 
that  we  can  give  evidence  very  promptly  and  easily  and  beneficially  as 
to  time  and  as  to  results.  We  therefore  trust  that  the  Commission  will 
not  adopt  such  a  method  as  will  force  us,  on  the  first  little  scrap  of  tes 
timony  being  offered,  to  present  our  whole  case  on  both  sides  and  have 
the  whole  merits  decided  on  a  mere  preliminary  exception. 

I  will  cause  this  paper  to  be  printed,  and  will  deliver  it  up  as  quickly 
as  it  can  be  printed. 

Mr.  BLACK.  If  your  honors  please,  I  think  the  suggestions  that 
have  come  from  the  Commissioners  and  what  has  been  said  by  Mr. 
O'Conor,  as  well  as  what  has  fallen  from  the  gentlemen  on  the^other 
side,  relate  to  the  most  important  duty  that  you  have  to  perform ;  and, 
therefore,  I  shall  be  pardoned,  I  trust,  for  making  a  remark  or  two  at 
this  moment. 

The  PRESIDENT.    Do  you  desire  to  make  further  offers  of  proof? 

Mr.  BLACK.  No,  sir;  I  desire  to  suggest  the  course  of  proceeding 
which  I  think  this  tribunal  is  bound  by  its  legal  duties  to  take  for  the 
purpose  of  reaching  the  justice  of  this  cause. 

The  PRESIDENT.  Mr.  Black,  I  think  we  ought  to  give  Mr.  Evarts 
an  opportunity  to  explain  his  views  before  we  hear  you. 

Mr.  EVARTS.     I  waive  my  privilege  to  precede. 

Mr.  BLACK.     I  am  perfectly  willing  that  he  shall  be  heard. 

The  PRESIDENT.  Mr.  Evarts  waives  his  privilege.  I  have  indicated 
to  him  that  he  would  be  heard. 

Mr.  EVARTS.    I  waive  the  privilege  to  precedence. 

Mr.  BLACK.     If  your  honors  please 

The  PRESIDENT.     It  is  not  the  moment  for  argument  now. 

Mr.  BLACK.  It  is  the  moment  for  suggesting  the  course  of  proceed 
ing  and  our  rights  with  reference  to  the  evidence  which  is  to  be  given. 
I  insist  upon  it  that  the  evidence  is  in,  and  that  we  are  not  bound  to 
make  any  offer  at  all. 

Tbe  PRESIDENT.  That,  I  think,  is  part  of  your  argument  after  the 
cause  is  set  down  for  argument,  and  not  a  preliminary  statement. 

Mr.  BLACK.  Then  is  it  to  be  decided  that  this  evidence  is  out  or  in 
now  ? 

The  PRESIDENT.    Not  by  the  presiding  officer. 


80  ELECTORAL    COUNT    OF    1877. 

Mr.  Commissioner  MILLER.  Let  me  suggest  that  Mr.  O'Oonor  has 
made  a  proposition  to  submit  certain  evidence.  If  counsel  on  the  other 
aide  have  no  objection  to  it,  there  is  no  occasion  for  further  argument. 
If  counsel  on  the  other  side  submit  to  have  that  evidence  come  in,  it 
will  come  in,  and  we  can  go  on.  I  do  not  understand  precisely  what  it 
was  that  Mr.  Evarts  waived. 

Mr.  EVARTS.     I  waived  my  privilege  of  preceding  Judge  Black. 

Mr.  Commissioner  MILLER.  If  you  want  to  object  to  this  proposition 
for  evidence,  now  is  ther  time  to  object,  certainly. 

Mr.  EVARTS.     That  I  understand,  if  the  Commission  please. 

The  PRESIDENT.  I  think  Judge  Black  had  better  defer  until  we 
hear  from  Mr.  Evarts;  otherwise  there  may  be  misunderstanding.  We 
will  hear  Mr.  Evarts. 

Mr.  EVARTS.  The  question  whether  the  certificates  transmitted  from 
the  States,  that  fall  within  the  warrant  of  such  transmission  by  the  Con 
stitution  and  laws  of  the  United  States,  constitute  the  material  upon 
which  the  duty  of  counting  the  vote  of  the  State  is  to  proceed,  or  whether 
the  authority  vested  by  the  Constitution  with  the  power  to  count  can 
seek  or  receive  extrinsic  evidence  of  any  kind,  in  any  form,  to  be  added 
to  the  certificates  in  the  hands  of  the  President  of  the  Senate  under  the 
Constitution,  is  no  doubt  a  principal  inquiry  of  law  and  of  jurisdiction 
in  this  Commission,  which,  once  settled  upon  principle  and  by  your  de 
cision,  will  go  to  a  certain  extent  in  superseding  or  predetermining  your 
action  upon  the  merits. 

Mr.  Commissioner  STRONG.  Mr.  Evarts,  allow  me  to  suggest  that 
perhaps  I  do  not  understand  Mr.  O'Conor's  position.  I  have  not  under 
stood  Mr.  O'Conor  as  offering  evidence  at  all.  He  has  suggested  what 
he  supposes  to  be  in  evidence  and  suggested  what  he  might  offer;  but 
there  has  been  no  offer  made,  so  far  as  1  have  understood  him.  If  there 
has  been  an  otter  made,  your  province,  it  seems  to  me,  is  simply  to  with 
hold  objection  or  to  object  to  the  admission  of  the  evidence  so  offered. 

Mr.  EVARTS.  Am  1  to  understand  that  my  objection  cannot  be  ac 
companied  with  any  observation  ? 

Mr.  Commissioner  MILLER.  If  you  object  we  will  hear  argument. 
We  cannot  hear  argument  before  anything  is  offered. 

Mr.  Commissioner  BRADLEY.  I  understand  Mr.  O'Conor  to  suggest 
that  the  extrinsic  evidence  mentioned  by  him  be  received  provisionally 
for  the  purpose  of  the  argument,  and  not  to  be  decided  upon  by  the 
Commission  at  present.  If  that  is  his  position,  then  it  is  simply  a 
question  of  convenience  whether  that  would  be  the  better  course  or 
whether  we  had  better  have  an  argument  upon  the  question  of  the  ad- 
missibility  of  evidence  now  alone,  before  going  into  an  argument  on 
the  merits.  As  the  argument  on  the  admissibility  of  evidence  would 
necessarily  greatly  involve  the  merits,  it  seems  to  me,  unless  counsel  on 
the  other  side  have  forcible  objections  to  that  plan,  Mr.  O'Conor's  sug 
gestion  is  a  good  one,  because  it  would  then  unify  the  argument,  make 
one  argument  of  the  whole  case;  and  the  court  upon  the  close  of  it 
would  "decide  both  questions :  first,  whether  the  evidence  was  admis 
sible,  and  if  it  was,  then  as  to  its  effect. 

Mr,  Commissioner  HOAR.  Mr.  President,  suppose  Mr.  O'Conor's  offer 
of  testimony  be  objected  to  by  the  other  side,  and  then  the  Commission 
hear  the  argument  of  the  case  as  it  then  stands,  resembling,  more  nearly 
than  any  other  judicial  proceeding  that  I  think  of,  an  argument  made 
on  a  demurrer  to  the  plaintiff's  evidence,  the  evidence  not  being  con 
sidered  as  in,  but  as  offered  ? 

The  PRESIDENT.     That  was  the  view  of  the  Chair. 


ELECTORAL   COUNT   OF   1877.  81 

Mr.  Commissioner  HOAR.  Now  if  we  should  hear  the  counsel  on  both 
sides  on  the  case  presented  by  the  certificates  which  are  before  the  Com 
mission,  upon  the  offer  of  evidence  made  by  Mr.  O'Conor  and  objected 
to  by  the  other  side,  it  seems  to  me  that  that  would  present  (I  do  not 
know  what  other  questions  may  arise  in  the  case)  one  principal  ques 
tion  of  the  case  in  the  most  clear,  convenient,  and  quick  form. 

Mr.  Commissioner  THURMAN.  Mr.  President,  I  should  like  to  in 
quire  of  counsel  who  support  certificate  No.  1,  what  objection  they  have 
to  all  the  evidence  being  received  subject  to  all  exceptions,  not  preclud 
ing  any  objection  to  it  whatsoever  ?  It  appears  from  the  statement  of 
Mr.  O'Conor  that  the  testimony  to  be  produced  by  him  is  in  a  very 
small  compass.  How  great  may  be  the  volume  of  testimony,  if  any, 
produced  on  the  other  side,  I  do  not  know.  But  what  objection  is  there, 
as  this  is  a  trial  not  by  jury  but  by  a  court,  to  receiving  all  this  testi 
mony  subject  to  all  exceptions,  and  then  arguing  its  admissibility  with 
the  main  argument  in  the  cause,  allowing  counsel,  if  it  become  "neces 
sary  by  the  adoption  of  that  course,  more  time  than  the  third  rule  al 
lows,  such  further  time  as  may  be  necessary,  in  order  to  consider  the 
question  of  the  admissibility  of  the  evidence  as  well  as  the  main  ques 
tion  ?  What  objection  is  there  to  that?  I  should  like  Mr.  Evarts  to 
answer. 

The  PRESIDENT.  In  the  absence  of  oth^r  discussion  I  will  state  the 
view  of  the  Chair.  I  shall  regard  the  paper  read  by  Mr.  O'Couor  as  an 
offer  of  proof.  Nothing,  therefore,  remains  to  the  other  side  except  to 
object  or  waive  objections. 

Mr.  EVARTS.  Then  I  am  not  permitted  to  reply  to  Mr.  Commis 
sioner  THUHMAN  ? 

The  PRESIDENT.  It  is  hardly  necessary,  because  you  are  to  have 
full  argument  as  well  as  a  brief  explanation  of  the  objection. 

Mr.  EYARTS.     I  rose  to  speak  to  the  precise  point 

The  PRESIDENT.     Do  you  object  to  the  offer  of  proof  ? 

Mr.  Commissioner  THUliMAN.  I  suggest  that  Mr.  Evarts  ought  to 
answer  my  inquiry. 

Mr.  EYARTS.  I  rose  originally  to  speak  to  the  very  point  to  which 
Mr.  Commissioner  THURMAN  has  drawn  my  attention. 

The  PRESIDENT.  Yery  well,  sir ;  you  may  reply  to  that  inquiry. 
I  wished  to  get  at  the  case  as  soon  as  may  be.  That  was  my  purpose. 

Mr.  EYARTS.  I  will  be  as  brief  as  I  can,  and  certainly  fall  quite 
within  the  fifteen  minutes.  The  proposition  is  that  the  preparation  of 
the  case  as  ready  for  argument  upon  its  exhausted  and  completed 
merits  on  either  alternative  of  the  views  of  this  Commission  as  to  the 
exclusion  or  admission  of  evidence,  shall  be  made  up  by  provisional 
acceptance  of  the  mass  of  proof,  whatever  it  may  be,  to  be  discussed  as 
to  admissibility  and  pertinency  and  efficacy  in  the  conclusions  of  the 
tribunal  as  a  part  of  the  final  argument.  That  I  understand  to  be  the 
proposition. 

The  difficulty  with  that  is  it  requires  the  inclusion  of  all  the  counter 
vailing  proof  that  we,  opposing  their  certificate  or  supporting  ours,  have 
a  right  to  present  under  some  determination  of  this  court  as  to  that 
right ;  for  if  you  go  beyond  the  evidence  furnished  from  the  hands  of 
the  President  of  the  Senate  into  an  inspection  and  scrutiny  of  the  elec 
tion  in  the  State  as  upon  a  trial  of  right  to  the  office,  then  we  say  that 
the  tribunal  that  accepts  that  task  and  is  to  fulfill  that  duty  is  to  receive 
evidence  that  will  make  the  scrutiny  judicial  and  complete  from  the 
primary  deposit  of  the  votes  to  the  conclusion  of  the  election.  Now 
this  Commission,  as  I  suppose,  does  not  contemplate  a  provisional  iutro- 
0  E  c 


82  ELECTORAL   COUNT   OF    1877. 

duction  of  all  that  evidence,  oral,  documentary,  record,  and  otherwise, 
on  our  part,  which  comes  in  without  objection  and  subject  only  to  the 
sifting  of  a  final  argument.  That  is  my  suggestion  in  reference  to  this 
intimation  of  convenience  of  a  de  bene  esse  introduction  of  evidence. 
The  evidence  by  which  under  the  instruction  of  this  Commission  that 
we  have  the  right,  we  are  let  into  a  scrutiny  of  the  election  in  Florida 
is  a  scrutiny  which  can  only  be  exhausted  by  oral  testimony  and  by  the 
fundamental  original  transactions  of  the  election.  That  is  the  difficulty 
in  selecting  a  part  of  the  evidence  to  be  admitted  provisionally  as  fur 
nishing  the  ground  and  area  of  a  final  discussion,  because  it  does  not 
include  the  evidence  upon  both  sides  which  under  some  post  hac  deter 
mination  of  the  court  on  the  final  argument  may  be  properly  introduci- 
ble. 

I  object  to  the  evidence  now  offered. 

Mr.  BLACK.  Am  I  in  order  to  say  a  word  or  two  in  reply  to  Mr. 
Evarts  ? 

The  PRESIDENT.  A  brief  explanation.  I  wish  to  get  to  the  argu 
ment  as  soon  as  may  be. 

Mr.  BLACK.  We  insist  that  the  whole  of  the  evidence,  including  that 
mentioned  by  Mr.  O'Conor  in  this  paper  of  his,  has  been  given  already, 
and  is  a  part  of  the  record.  A  question  arose  before  the  two  Houses 
of  Congress  whether  certain  votes  offered  for  President  and  Yice-Presi- 
dent  ought  to  be  counted  or  not.  Whether  they  ought  or  not  depended 
upon  the  question  whether  they  were  votes  or  papers  falsely  fabricated. 
Not  with  any  purpose  of  going  behind  the  appointment  of  the  electors, 
but  for  the  purpose  of  ascertaining  what  electors  had  been  appointed, 
who  were  the  true  agents  of  the  State  in  casting  its  vote,  the  two  Houses 
proposed  to  use  their  verifying  power.  Their  purpose  was  not  to  enter 
tain  an  appeal  from  the  decision  of  the  State,  but  to  ascertain  what  that 
decision  was.  This  involved  a  question  of  fact.  It  was  absolutely 
necessary  that  the  conscience  of  the  two  Houses  should  be  informed 
concerning  the  truth  of  the  case  wrhich  they  were  to  decide,  and  accord 
ingly  they  took  a  perfectly  legitimate  and  proper  mode  of  ascertaining 
it.  They  sent  their  committees  and  had  evidence  taken.  These  com 
mittees  collected  the  documents,  put  the  whole  thing  into  a  proper  form, 
and  then  came  back  and  offered  it  to  the  two  Houses,  by  whom  it  was 
received  and  made  part  of  the  record  of  this  case.  And  when  you  were 
appointed  as  a  substitute  for  them  and  became  the  keepers  of  their  con 
science,  they  required  you  to  tell  them  what  they  ought  to  do  and  to 
make  the  decision  which  upon  the  evidence  that  was  before  them  they 
ought  to  make.  That  evidence  I  say  was  put  in,  and  the  portion  of  it 
which  was  taken  by  committees  of  the  House  of  Representatives  was 
laid  before  that  House  after  a  fierce  struggle  and  the  filibustering  of 
half  a  night  to  keep  it  out. 

The  President  of  the  Senate,  the  president  of  the  two  bodies,  handed 
this  evidence,  all  of  it,  over  in  bulk  to  be  used  here  by  this  Commission. 
You  have  seen  it.  I  cannot  conceive  of  anything  more  unjust  or  more 
wrong  than  to  talk  about  the  necessity  of  our  producing  this  evidence 
piecemeal,  here  a  little  and  there  a  little,  line  upon  line,  in  order  that  it 
may  be  submitted  to  the  scrutiny  of  counsel  who  will  apply  to  it  those 
snapperadoes  of  nisi  prius  practice  which  might  do  if  this  case,  instead  of 
concerning  the  rights  of  a  whole  nation,  related  to  the  price  of  a  sheep. 
If  your  honors  suppose  that  it  is  to  be  taken  up  de  novo  and  that  every 
thing  is  to  be  done,  then  of  course  you  are  to  proceed,  how  ?  According 
to  some  approved  rule  of  fair  play  and  natural  justice.  What  is  that? 
The  rule  that  prevails  in  courts  of  chancery,  and  not  the  artificial  rules 


ELECTORAL   COUNT    OF    1877.  83 

that  are  provided  for  by  the  common  law  of  England  in  cases  of  trial 
by  jury.  You  know  surely,  I  need  not  say,  that  when  a  party  files  his 
bill  in  chancery,  he  may  put  in  along  with  it  all  the  evidence  that  he 
has  in  his  possession.  There  can  be  no  objection  to  the  evidence  in  a 
court  of  equity.  There  is  no  such  thing  known  as  objecting  to  the  ad- 
missibility  of  evidence  there.  The  defendant  cannot  object  to  it  because 
he  is  not  in  court  at  the  time  the  bill  is  filed.  And  when  the  defendant 
puts  in  his  answer  he  may  accompany  it  with  all  the  evidence  he  has. 
If  either  of  the  parties  needs  any  more,  the  court  does  exactly  what  the 
two  Houses  have  done  in  this  case.  They  appointed  their  own  agents 
to  take  the  evidence  and  report  it.  An  examiner,  a  master  in  chancery, 
an  auditor,  or  other  assessor  of  the  court  who  takes  evidence  for  the 
court,  is  doing  precisely  the  office  for  the  court  that  these  committees 
have  done  for  the  two  Houses  of  Congress.  There  is  no  such  thing  when 
the  evidence  is  taken,  as  objecting  to  it  before  it  is  made  a  part  of  the 
record.  It  is  as  a  matter  of  course  filed  whenever  it  is  offered  by  the 
party  if  he  does  it  regularly  upon  a  rule  day.  He  need  not  even  come 
into  the  court  and  get  a  special  allocatur  of  the  chancellor  for  it. 

Now  the  rule  about  admitting  and  rejecting  evidence,  the  rule  of 
procedure  for  that  purpose  always  throws  the  burden  of  proving  that  it 
ought  to  go  out  upon  the  party  who  does  not  like  to  have  it  in.  The 
question  of  materiality  or  relevancy,  what  its  value  and  weight  are,  as 
well  as  what  probative  force  ought  to  be  given  to  it  by  the  court,  is  a 
question  which,  as  one  of  the  judges  said  a  moment  ago,  is  always  to  be 
discussed  upon  the  hearing,  and  determined  by  the  final  decree  of  the 
court.  Evidence  may  come  from  an  improper  source  or  it  may  come 
through  an  illegal  channel.  There  it  is  the  duty  of  the  party  who 
makes  any  objection  to  it  to  move  for  its  suppression,  but  it  is  never  in 
order  for  him  to  make  objection  to  it  when  it  is  filed  or  when  it  comes 
before  the  court  and  is  made  a  part  of  the  record. 

If  your  honors  please,  you  cannot  safely  adopt  an  artificial  rule  of 
the  common  law  which  prevails  in  a  trial  by  jury,  and  where  evidence 
is  offered  piece  by  piece  to  the  court,  and  is  there  sifted  and  scrutinized 
before  it  is  allowed  to  go  to  the  jury.  That  rule  is  made  necessary  by 
two  considerations :  First,  that  it  is  deemed  most  important  to  the 
interests  of  justice  that  the  jury,  so  far  as  possible,  should  be  kept  in 
utter  ignorance  of  everything  that  is  not  material,  lest  their  judgments 
might  be  misled.  The  court  looks  at  the  evidence  when  it  is  offered, 
and  refuses  to  let  anything  be  heard  which  is  not  a  necessary  and  proper 
element  of  a  just  verdict.  This  rule  prevails  nowhere,  even  in  the 
common-law  courts,  except  where  the  trial  is  before  a  jury.  In  all 
other  cases,  causes  in  chancery  as  well  as  in  all  equity  and  ecclesiastical 
cases,  and  in  all  admiralty  cases,  the  doctrine  is,  that  whenever  the  evi 
dence  is  offered  it  becomes  a  part  of  the  record  by  the  fact  that  it  is 
put  on  the  record.  I  do  not  say  that  you  are  bound  to  believe  whatever 
is  here ;  I  do  not  say  that  you  are  bound  to  give  to  it  more  force  or 
weight  than  it  is  entitled  to ;  not  more  force  and  weight  perhaps  than 
a  judge  at  a  court  of  nisi  prim  would  give  to  evidence  which  he  rejects; 
but  you  are  to  sift  it  and  scrutinize  it  and  to  separate  the  chaff  from 
the  wheat  upon  the  final  hearing  of  the  cause,  and  it  is  impossible  for 
you  to  proceed  otherwise  without  a  very  great  amount  of  trouble,  with 
out  an  expenditure  of  more  time  than  you  have  got  to  expend  upon  this 
subject. 

For  every  reason,  for  purposes  of  justice  as  well  as  the  purposes  of 
convenience,  it  is  necessary  that  you  should  pursue  the  course  of  courts 
of  equity  and  not  come  the  quarter-sessions  rule  over  us. 


84  ELECTORAL    COUNT    OF    1S77. 

The  PRESIDENT.  Judge  Black,  I  must  regard  this  as  au  interlocu 
tory  question.  The  third  rule  is  that — 

In  the  hearing  of  interlocutory  questions  but  one  counsel  sliall  be  heard  on  ach  side, 
aud  he  not  longer  than  fifteen  minutes. 

Your  time  has  expired. 

Mr.  BLACK.     Has  already  expired  ? 

The  PRESIDENT.     Yes,  sir. 

Mr.  Commissioner  MILLER.  Mr.  President,  I  move  that  counsel  on 
each  side  be  allowed  two  hours  to  discuss  the  question  raised  by  Mr. 
Evarts's  objection  to  testimony,  as  to  whether  any  other  testimony  will 
be  considered  by  this  Commission  than  that  which  was  laid  before  the 
two  houses  by  the  presiding  officer  of  the  Senate. 

Mr.  Commissioner  THURMAN.  Mr.  President,  suppose  then  that  the 
Commission  should  decide  that  further  evidence  should  be  considered, 
we  should  not  have  determined  one  thing  as  to  what  that  further  evi 
dence  should  be.  We  should  only  have  decided  that  evidence  beyond 
the  mere  faee  of  the  papers  presented  by  the  President  of  the  Senate  to 
the  two  Houses  should  be  received,  but  we  should  not  have  advanced 
one  single  step  toward  deciding  what  kind  of  evidence  should  be  re 
ceived.  Here  the  two  Houses  have  sent  this  inquiry  to  this  Commission 
with  all  the  powers  that  the  two  Houses  acting  separately  or  together 
possess,  and  obviously  on  that  bare  statement  the  question  arises  what 
powers  have  the  Houses ;  what  may  the  Houses,  riot  by  main  force,  but 
what  may  they  constitutionally  receive  as  testimony,  and  that  question 
is  for  us  to  decide  5  for  whatever  they  may  constitutionally  receive  as 
testimony  in  deciding  this  question,  it  will  be  certainly  admitted  that 
we,  having  their  powers,  may  receive.  And  that  brings  up  the  question 
suggested  by  the  counsel  who  last  spoke.  I  think,  therefore,  while  I 
am  perfectly  willing  that  this  question  shall  be  argued,  and  indeed  it 
ought  to  be  argued,  that  the  scope  of  the  argument  must  go  much  fur 
ther  than  that  suggested  by  Mr.  Justice  Miller,  and  it  must  embrace 
the  question  of  whether  or  not  we  are  to  take  into  consideration  the 
testimony  which  has  been  taken  by  either  of  the  Houses,  and  also  the 
question  what  further  testimony  may  be  offered  here.  Therefore,  I  think 
the  question  to  be  submitted  for  argument  ought  not  to  be  narrowed  to 
the  mere  question  of  whether  we  can  go  beyond  the  face  of  the  papers 
that  were  handed  in  and  opened  by  the  President  of  the  Senate,  for 
when  we  have  decided  that,  if  it  be  decided  one  way  that  we  can  go 
further,  we  have  not  advanced  one  single  step  toward  deciding  what  we 
can  receive,  and  we  should  have  to  have  another  argument. 

Mr.  Commissioner  MILLER.  I  have  no  objection  to  the  argument 
taking  the  scope  that  the  Senator  suggests.  My  only  object  was  to  give 
ample  time  for  the  argument  of  this  proposition,  whatever  it  may  be, 
which  is  of  very  great  importance,  as  to  whether  any  evidence  shall 
be  received,  and  what  evidence.  Let  there  be  one  argument  to  de 
termine  it. 

The  PRESIDENT.  First  I  will  state  the  motion  as  made.  Judge 
Miller  moves  that  counsel  be  allowed  two  hours  on  each  side  to  dis 
cuss  the  question  whether  any  evidence  will  be  considered  by  the  Com 
mission  that  was  not  submitted  by  the  President  of  the  Senate  to  the 
Houses  of  Congress. 

Mr.  Commissioner  MILLER.  I  am  willing  to  modify  the  motion  in  ac 
cordance  with  the  suggestion  of  the  Senator  from  Ohio. 

Mr.  Commissioner  GARFIELD.  I  suggest  that  in  the  modification  the 
Justice  so  enlarge  it  that  we  may  hear  from  the  counsel  on  the  scope  of 
our  powers  under  the  law.  It  seems  to  me  that  is  as  vital  as  the  ques- 


ELECTORAL    COUNT    OF    J877.  85 

tion  of  the  mere  rule  of  evidence  that  we  shall  adopt.     I  offer  that  sug 
gestion  to  tbe  Justice. 

The  PRESIDENT.  I  will  state  the  question  as  soon  as  the  motion  is 
modified  by  the  mover,  and  then  it  will  be  open  to  amendment. 

Mr.  Commissioner  HOAR.  I  desire,  if  it  be  a  proper  time,  to  suggest 
a  substitute  for  the  motion  of  Judge  Miller. 

The  PEESIDENT.  As  soon  as  the  modified  motion  is  presented  to 
the  Chair,  you  will  have  an  opportunity.  The  motion  as  modified  is  as 
follows : 

"  That  counsel  be  allowed  two  hours  on  each  side  to  discuss  the  ques 
tion  whether  any  evidence  will  be  considered  by  the  Commission  that 
was  not  submitted  to  the  two  Houses  by  the  President  of  the  Senate  ; 
and  if  so,  what  evidence  can  properly  be  considered,  and  also  the  ques 
tion  what  is  the  evidence  now  before  the  Commission." 

Mr.  Commissioner  HOAK.     I  will  read  what  I  had  drawn  up : 

"  That  counsel  be  now  heard  for  two  hours  on  each  side  upon  the 
effect  of  the  matters  laid  before  the  two  Houses  by  the  President  of  the 
Senate  and  of  the  offer  of  testimony  made  bj  Mr.  O'Couor  and  objected 
to  by  Mr.  Evarts." 

The  PRESIDENT.    Do  you  offer  that  as  a  substitute  ? 

Mr.  Commissioner  HOAK.  Yes,  sir.  The  result  of  that  will  be  that  if 
the  effect  of  these  two  matters  were  to  require  us  to  go  into  further  evi 
dence,  we  should  say  that,  If  the  effect  were  a  final  and  total  decision 
of  the  whole  case,  we  should  also  say  that. 

Mr.  Commissioner  EDMUNDS.  Mr.  President,  I  wish  to  suggest  that 
it  appears  to  me  the  proposition  of  Jud^e  Miller,  as  modified  at  the 
suggestion  of  Judge  Thurinan,  covers  the  whole  ground.  There  are 
two  points  for  consideration.  The  first  is  whether  anybody,  the  Houses 
or  this  tribunal,  has  the  power  to  go  behind  the  formal  certification  of 
the  State  authorities.  The  second  is,  if  so,  by  what  species  of  evidence 
and  inquiry  below  that  may  be  sustained  or  affected.  It  is  claimed  by 
Judge  Black  that  it  may  be  sustained  and  affected  by  evidence  in  the 
nature  of  testimony  taken  by  committees,  &c.,  and  reported  to  either  of 
the  Houses,  and  I  suppose  it  is  contended  on  the  other  side  that  it  can 
not  be.  Now  I  think  that  Judge  Miller's  suggestion  covers  all  these 
grounds,  and  I  suggest  to  my  learned  friend  that  he  had  better  with 
draw  his  amendment. 

Mr.  Commissioner  HOAR.  In  view  of  the  suggestions  made  by  the 
honorable  Senator,  I  will  withdraw  it.  I  do  not  think  there  is  much 
difference  practically  between  the  two. 

Mr.  Commissioner  FIELD.     I  renew  the  amendment. 

The  PRESIDENT.  Mr.  Justice  Field  renews  the  amendment  as  a 
substitute.  I  must  put  the  question  firs^t  on  the  substitute.  Are  you 
ready  for  the  question? 

Mr.  Commissioner  BAYARD.     Please  let  it  be  stated  again. 

The  PRESIDENT.  The  amendment  offered  as  a  substitute  reads  as 
follows : 

That  counsel  be  now  heard  for  two  hours  on  each  side  on  the  effect  of  the  matters 
laid  before  the  two  Houses  by  the  President  of  the  Senate  and  of  the  otfer  of  testimony 
made  by  Mr.  O'Conor  and  objected  to  by  Mr.  Evarts. 

The  question  is  on  adopting  the  substitute. 
The  question  being  put,  it  was  determined  in  the  negative. 
The  PRESIDENT.  "The  question  recurs  on  the  original  motion  of  Mr. 
Justice  Miller,  as  modified. 
The  motion  was  agreed  to. 


86  ELECTORAL    COUNT    OF    1677. 

Mr.  EVARTS.  We  must  ask  the  instruction  of  the  Commission  as  to 
whether  there  is  also  an  allowance  of  the  division  of  this  labor  between 
two  counsel,  if  this  is  to  be  treated  as  interlocutory  argument. 

The  PRESIDENT.  Of  course,  the  two  hours  can  be  divided  between 
counsel. 

Mr.  EVARTS.  Then  you  will  allow  us  to  suggest  that  the  two  hours 
that  Mr.  Justice  Miller's  proposition  allowed  for  one  discussion  are 
now  extended  over  what  is  undoubtedly  very  much  additional  in  area 
and  consideration — I  speak  of  that  in  respect  to  time — so  that  if  two 
hours  were  thought  by  the  proposer  of  this  first  resolution,  before  it  re 
ceived  Mr.  Commissioner  Thurman's  modification,  as  a  suitable  time  for 
the  single  question 

The  PRESIDENT.  A  single  word,  Mr.  Evarts.  Notwithstanding 
the  resolution  is  adopted,  I  think  it  is  quite  in  order  for  you  to  ask  for 
additional  time. 

Mr.  EVARTS.  So  I  understand.  I  do  not  think  it  requires  any 
modification  for  that  purpose. 

The  PRESIDENT,  How  much  do  you  ask  in  addition  ?  Another 
hour  ? 

Mr.  EYARTS.     I  think  we  should  desire  another  hour  on  our  side. 

The  PRESIDENT.  The  usual  course  in  the  Supreme  Court  is,  if  we 
allow  it  on  one  side  to  allow  it  to  both. 

Mr.  EVARTS.    Of  course. 

Mr.  Commissioner  EDMUNDS.  What  time  would  be  agreeable  to 
the  gentlemen  opposing  the  first  certificate  I 

Mr.  O'CONOR.  We  shall  be  obliged  to  conform  to  the  view  of  the 
court,  as  a  matter  of  course. 

The  PRESIDENT.  Is  one  hour  additional  on  a  side  enough  ?  [A 
pause.]  Shall  an  additional  hour  be  allowed  on  each  side  f  The  Chair 
will  snbmit  that  question  to  the  Commission. 

The  question,  being  put,  was  decided  affirmatively. 

The  PRESIDENT.  The  extension  of  time  is  allowed.  The  order  of 
speaking  will  be  that  indicated  yesterday,  unless  otherwise  instructed 
by  the  Commission.  One  of  the  counsel  supporting  the  objections  to 
certificate  No.  1  will  open.  Both  the  counsel  supporting  the  objections 
to  certificate  No.  2  will  follow.  Then  the  other  counsel  supporting  the 
objections  to  certificate  No.  1  will  close.  The  case  is  before  you  under 
the  motion  of  Mr.  Justice  Miller  already  adopted  by  the  Commission, 
and,  if  the  counsel  are  ready,  the  Commission  is  ready  to  hear  them. 

Mr.  O'CONOR.  As  this  view  has  been  presented  somewhat  suddenly, 
we  are  a  little  embarrassed  about  the  array,  as  to  who  shall  proceed 
first. 

Mr.  Commissioner  BRADLgY.  I  have  no  doubt  the  court  will  take 
a  recess  of  half  an  hour,  if  you  desire  it,  before  commencing. 

The  PRESIDENT.    I  think  fifteen  minutes  should  be  sufficient, 

Mr.  EVARTS.  On  our  part,  if  the  Commission  please,  we  will  say 
that  this  introduces  a  very  important  and  principal  inquiry,  no  doubt, 
and  under  the  previous  intimations  that  these  questions  of  an  interloc 
utory  nature  might  precede  what  would  be  called  an  argument  on  the 
substantive  merits  of  the  case,  we  should,  if  it  is  at  all  comformable  to 
your  sense  of  duty,  prefer  not  to  go  on  until  a  day  is  given  us  ;  but  we 
of  course  submit  that  simply  as  our  indication  of  what  we  regard  our 
duty. 

The  PRESIDENT.  Several  members  of  the  Commission  suggest  to 
me  that  we  take  a  recess  for  half  an  hour. 


ELECTORAL    COUNT    OF    1877.  87 

Mr.  EVAETS.  Allow  me  to  ask  whether  any  hour  has  been  fixed  as 
the  purpose  or  habit  of  the  Commission  at  which  to  adjourn  daily. 

The  PEESIDENT.  Not  regularly.  I  am  still  under  the  direction  of 
the  Commission. 

Mr.  Commissioner  MILLER.  Allow  me  to  say,  Mr.  Evarts,  that  we 
set  a  precedent  yesterday  by  refusing  to  the  objectors  themselves  half 
a  day  for  preparation.  This  Commission  is  of  opinion  that  it  cannot 
delay,  but  must  go  on  with  the  hearing  of  the  case.  It  is  willing,  how 
ever,  to  take  a  short  recess  now. 

The  PRESIDENT.  It  seems  to  be  the  view  of  the  Commission  that 
it  will  now  take  a  recess  until  half  past  twelve  o'clock.  I  now  declare 
a  recess  till  that  time. 

The  Commission  (at  twelve  o'clock  noon)  accordingly  took  a  recess 
till  half  past  twelve  o'clock,  at  which  time  it  re-assembled  and  was 
again  called  to  order. 

The  PEESIDENT.  The  counsel  will  be  allowed  three  hours  on  each 
side  to  discuss  the  question  whether  any  evidence  will  be  considered  by 
the  Commission  that  was  not  submitted  to  the  two  Houses  by  the  Presi 
dent  of  the  Senate,  and,  if  so,  what  evidence  can  properly  be  considered; 
and  also  the  question  what  is  the  evidence  now  before  the  Commission. 
Counsel  representing  the  objectors  to  the  first  certificate  will  now  be 
heard. 

Mr.  EVAETS.  Mr.  President,  it  has  been  a  subject  of  consideration 
among  the  counsel,  and  if  it  would  be  at  all  suitable  to  the  views  of  the 
Commission  that  one  counsel  on  each  side  should  be  heard  to-day,  and 
that  we  should  have  until  Monday  for  the  replies  on  each  side,  or  for 
the  further  reply  on  our  side  and  the  final  reply  on  the  other,  we  should 
feel  that  we  were  able  to  present  the  matter  in  better  form. 

Mr.  Commissioner  BEADLEY.  Mr.  President,  I  move  that  that  be 
the  course  to  be  pursued. 

The  PEESIDENT.  Will  that  be  agreeable  to  the  other  side,  that  one 
counsel  on  each  side  only  be  heard  to-day  f 

Mr.  Commissioner  HOAE.  What  is  the  understanding  as  to  the 
length  of  time  that  one  counsel  on  each  side  will  occupy  I 

The  PEESIDENT.  They  have  three  hours  on  a  side.  What  portion 
of  it  they  will  use  to-day,  I  do  not  know ;  and  two  will  have  the  right 
to  reply  afterward. 

Mr.  Commissioner  HUNTON.  Mr.  President,  would  not  that  allow 
the  counsel  who  address  the  Commission  to-day  to  address  them  for 
fifteen  minutes  each,  and  throw  the  whole  bulk  of  the  argument  into 
Monday  ? 

The  PEESIDENT.  They  are  to  occupy  half  the  time  to-day — make 
a  full  opening. 

Mr.  Commissioner  HUNTON.    It  is  satisfactory,  if  that  is  understood. 

Mr.  Commissioner  THUEM  AN.  Let  it  be  understood  that  three  hours 
shall  be  consumed  in  the  argument  to-day;  otherwise  there  might  be 
one  hour  or  half  an  hour  occupied  to-day  and  tthe  argument  practically 
put  off  until  Monday. 

The  PEESIDENT.  The  understanding  of  the  Chair  is  that  half  the 
time  is  to  be  occupied  to-day. 

Mr.  O'CONOE.  I  have  understood  from  the  beginning  of  this  case, 
and  it  has  repeatedly  fallen  from  the  Chair,  that  the  two  counsel  as 
signed  to  speak  might  divide  the  time  between  themselves  as  they 
pleased. 

The  PEESIDENT.  That  is  subject  always  to  this  condition,  that 
there  shall  be  a  full  opening. 


88  ELECTORAL    COUNT    OF    1887. 

Mr.  CTCONOR.  I  agree.  If  your  honors  please,  I  understand  that 
it  would  be  indecorous  and  unbecoming  and  unprofessional  not  to  pre 
sent  a  full  opening  in  the  commencing  argument ;  but  I  do  not  perceive 
that  it  would  be  expedient  to  lay  down  any  such  distinctive  rule  as  that 
the  counsel  speaking  must  speak  an  hour  and  a  half. 

The  PRESIDENT.  No  ;  that  is  not  it  ;  but  there  must  be  a  full 
opening. 

Mr.  O'CONOR.  It  is  as  fair  for  the  other  side  as  it  is  for  us.  I  pre 
sume  it  is  very  possible  that  they  might  have  an  hour  apiece,  about  as 
much  as  was  necessary  for  the  opening  for  the  purposes  of  the  argu 
ment;  but  I  do  not  know  anything  about  it. 

Mr.  EVARTS.  We  understand  ourselves  to  be  subject  to  that  pro 
fessional  obligation,  here  as  well  as  elsewhere,  to  make  a  proper  division 
of  the  matter  between  the  counsel;  but  beyond  that  we  can  hardly 
agree. 

Mr.  Commissioner  EDMUNDS.    That  is  satisfactory. 

The  PRESIDENT.  That  is  entirely  satisfactory.  The  motion  is  that 
there  be  two  arguments  to-day,  one  on  each  side.  [Putting  the  ques 
tion.]  The  motion  is  carried. 

Mr.  BLACK.  Is  it  understood  that  three  counsel  may  speak,  provided 
they  do  not  take  more  time  than  is  assigned  to  the  two? 

The  PRESIDENT.  There  has  been  no  request  of  that  sort,  and  con 
sequently  no  such  understanding.  Usually,  in  the  Supreme  Court,  such 
an  application  is  granted  on  the  condition  that  they  take  no  more  time; 
but  there  has  been  no  request  of  the  kind  offered. 

Mr.  EVARTS.    We  should  concur,  perhaps,  in  that  wish. 

Mr.  BLACK.  I  ask  the  court,  inasmuch  as  there  is  no  other  way  tin 
der  the  heavens  by  which  we  can  do  what  your  honors  seem  to  require, 
that  is,  make  a  full  opening  and  give  the  gentlemen  on  the  other  side 
full  notice  of  the  grounds  upon  which  we  sustain  our  side  of  the  case, 
to  permit  rne  to  make  some  general  remarks  which  it  is  desired  by  my 
colleagues  that  I  should  make,  and  then  allow  Mr.  Merrick  to  go  fully 
into  the  details  of  the  case  by  way  of  opening ;  that  is,  let  us  splice  the 
opening. 

Mr.  O'CONOR.  I  hope  I  may  be  allowed  to  say,  Mr.  President,  that 
your  direction  to  proceed  immediately  in  an  argument  which  appears  to 
us  to  involve  essentially  the  whole  merits,  has  rather  confused  our  order 
of  battle.  We  bow  to  it,  however,  most  respectfully ;  but  it  somewhat 
embarrasses  us;  and  it  has  not  been  thought  that  it  would  answer  any 
useful  purpose  to  make  the  counsel  who  is  expected  to  deliver  the  reply 
to  also  deliver  an  opening.  It  would  be  clumsy  and  inconvenient  in  a 
great  many  respects ;  and  we  have  had  some  difficulty  in  arranging  so 
as  to  present  a  fair  and  proper  argument  covering  the  whole  ground  to 
day,  without  consuming  too  much  of  our  three  hours.  It  appears  to  us 
that  Judge  Black  and  Mr.  Merrick  should  be  allowed  to  divide  the  time 
that  we  consider  it  proper  to  occupy  to-day,  if  that  is  agreeable  to  the 
Commission. 

The  PRESIDENT,  t  will  submit  the  question  to  the  Commission  on 
the  condition  that  two  counsel  shall  speak  in  the  opening,  and  that  only 
one  is  to  reply. 

Mr.  EVARTS.  We  shall  have  the  same  privilege  of  division,  I  pre 
sume? 

The  PRESIDENT.  Certainly.  [To  the  Commission.]  Shall  three 
counsel  be  allowed  to  speak  on  each  side  if  they  desire,  without  enlarg 
ing  the  time  ?  That  is  the  motion. 

The  motion  was  agreed  to. 


ELECTORAL    COUNT    OP    1677.  89 

Mr.  MERRICK.  Mr.  President  and  gentlemen  of  the  Commission,  the 
order  passed  by  the  honorable  Commission  this  morning,  as  remarked 
by  Mr.  O-Conor,  has  somewhat  changed  our  order  of  battle,  and  we 
are  compelled,  though  but  indifferently  prepared,  to  enter  upon  the  dis 
cussion  of  the  grave  and  important  questions  which  you  have  required 
us  to  argue.  VVe  came  into  court  expecting  to  proceed  regularly  with 
the  Florida  case ;  and  believing  that  the  testimony  taken  by  the  com 
mittees  of  the  Senate  and  House  of  Representatives  upon  this  subject 
was  regularly  before  the  Commission  as  testimony  in  the  case,  without 
being  liable  to  any  objection  on  account  of  its  formality,  supposed  that 
its  effect  and  ultimate  adrnissibility  would  be  considered  by  the  court 
when  it  came  finally  to  determine  the  main  questions  involved  in  the 
cause.  But  that  case  is  practically  suspended  for  the  present,  and  the 
counsel  are  required  to  argue  an  abstract  proposition  of  law  submitted 
by  the  Commission,  involving  an  inquiry  into  the  general  powers  of  this 
Commission  under  the  organic  act,  and  as  to  what  evidence  is  now  be 
fore  you,  and  what  further  evidence  it  may  be  competent  for  counsel  to 
offer  and  introduce.  . 

First,  then,  may  it  please  your  honors,  as  to  the  powers  of  the  Com 
mission. 

The  law  of  the  United  States  under  which  this  Commission  has  been 
established  and  organized,  provides  as  follows  in  regard  to  electoral 
certificates  from  States  which  have  sent  up  duplicate  or  triplicate  certifi 
cates,  and  to  any  of  which  objections  may  be  made  at  the  time  such 
certificates  are  opened  in  the  presence  of  the  two  Houses : 

When  all  such  objections  so  made  to  any  certificate,  vote,  or  paper  from  a  State  shall 
have  been  received  and  read,  all  such  certificates,  votes,  and  papers,  so  objected  to, 
and  all  papers  accompanying  the  same,  together  with  such  objections,  shall  be  forth 
with  submitted  to  said  Commission,  which  shall  proceed  to  consider  the  same,  with 
the  same  powers,  any,  now  possessed  for  that  purpose  by  the  two  Houses  acting  sep 
arately  or  together,  and,  by  a  majority  of  votes,  decide  whether  any  and  what  votes 
from  such  State  are  the  votes  provided  for  by  the  Constitution  of  the  United  States, 
and  how  many  and  what  persons  were  duly  appointed  electors  in  such  State,  and  may 
therein  take  into  view  such  petitions,  depositions,  and  other  papers,  if  any,  as  shall  by 
the  Constitution  and  now  existing  law  be  competent  and  pertinent  in  such  consider 
ation. 

The  language  that  I  have  read  from  the  law  embraces  a  succinct  and 
clear  declaration  of  the  powers  of  this  Commission,  and  is  the  only  part, 
I  believe,  that  has  direct  reference  to  the  testimony  which  we  regard  as  at 
present  before  the  Commission.  As  to  the  formal  regularity  of  the  evi 
dence  that  is  already  before  you,  I  presume  there  can  be  no  objection. 
A  question  was  raised  in  each  of  the  two  Houses  of  Congress  after  the 
late  presidential  election,  early  in  their  session,  as  to  what  votes,  if  any, 
should  be  counted  from  the  States  of  Florida,  Louisiana,  South  Caro 
lina,  and  Oregon.  Upon  that  question  committees  were  duly  appointed 
under  the  authority  of  the  respective  Houses  to  take  testimony.  In 
reference  to  the  case  of  Florida,  the  committees  from  the  two  Houses 
respectively  proceeded  to  that  State  and  took  testimony  in  accordance 
with  the  uniform  methods  and  custom  adopted  by  committees  repre 
senting  Congress  and  discharging  duties  similar  to  those  imposed  upon 
these  committees.  That  testimony  having  been  so  taken,  was  returned 
to  the  two  Houses  of  Congress,  and  when  objection  was  made  to  the 
counting  of  the  votes  from  that  State  at  the  time  the  certificates  were 
opened  by  the  President  of  the  Senate,  in  pursuance  of  the  mandate  of 
that  portion  of  the  law  to  which  I  have  referred,  the  certificates  from 
the  State  of  Florida,  being  three  in  number,  with  the  papers  accom 
panying  those  certificates  and  the  objections  and  the  evidence  that  had 
been  taken  bv  the  Committees  of  the  House  in  reference  to  the  regular- 


90  ELECTORAL    COUNT    OF    JS77. 

ity  and  the  legality  of  the  vote  contained  in  these  certificates,  were  all 
transmitted  to  this  Commission.  I  respectfully  submit  that  this  evi 
dence  so  transmitted  is  now  before  this  Commission  and  properly  in  the 
cause.  Wherever  either  House  of  Congress  has  assumed  to  exercise 
the  power  of  instituting  an  inquiry  into  a  disputed  fact,  it  has  uniformly 
appointed  special  committees  or  invested  standing  committees  with  au 
thority  to  summon  witnesses  and  take  testimony  in  regard  to  that  fact; 
and  in  this  case  each  of  the  two  Houses  appointed  its  committee  to  take 
testimony  upon  the  issue  raised  in  reference  to  the  electoral  vote  of 
Florida.  That  testimony  was  regularly  returned  to  the  two  Houses,  that 
were  to  act  upon  that  vote  under  the  Constitution  of  the  United  States, 
and  such  as  was  taken  by  the  committee  of  the  House  has  been  trans 
mitted  by  the  Houses  in  joint  session  to  this  Commission,  which  pos 
sesses  and  is  to  exercise  all  the  power  of  th-e  two  Houses,  or  either  of 
them,  in  the  premises. 

I  therefore  presume,  may  it  please  your  honors,  that  there  can  be  no 
question  in  reference  to  the  regularity  of  that  testimony,  whatever 
question  may  be  raised  in  reference  to  its  admissibility  under  the  issues 
you  are  to  try  and  in  reference  to  its  effect  upon  those  issues.  I  speak 
now  of  the  mass  of  testimony,  generally,  that  was  laid  upon  this  table, 
and  respectfully  submit  that  it  is  now  before  the  Commission,  and,  so 
far  as  I  am  advised,  there  is  no  other  evidence,  with  the  exception,  possi 
bly,  of  that  relating  to  the  particular  hour  of  the  day  at  which  the  writ 
of  quo  warranto  was  served  upon  the  persons  called  the  Hayes  electors ; 
and,  with  that  exception,  as  stated  in  the  paper  read  by  Mr.  O'Conor 
this  morning,  I  believe  there  is  no  question  upon  which  the  counsel  for 
the  objectors  propose  to  offer  any  extrinsic  evidence  whatever. 

This  evidence,  which  has  thus  been  sent  to  the  Commission  by  the  two 
Houses,  is  of  two  separate  and  distinct  characters.  First,  there  is  the 
evidence  that  was  inclosed  in  the  certificates  returned  from  the  State 
of  Florida.  There  were,  as  I  have  stated,  three  certificates;  the  first 
certificate  being  that  of  the  Hayes  electors,  accompanied  by  the  certifi 
cate  of  the  governor  of  Florida  given  to  those  electors.  The  second  cer 
tificate  was  accompanied  by  the  certificate  of  the  attorney-general  of 
Florida;  and  the  third  was  accompanied  by  certain  judicial  records, 
which,  under  the  express  language  of  the  organic  act,  were  referred  to 
this  body  for  its  consideration. 

The  other  testimony  to  which  1  have  already  referred  was  extrinsic 
evidence,  taken  by  the  committee  acting  under  the  authority  of,  and  in 
obedience  to  the  mandate  of,  the  House  of  Representatives. 

And  I  may  remark  that  when  the  House  committee  took  this  testi 
mony  there  was  full  opportunity  given  to  all  parties  interested  in  the 
result  of  the  inquiry  to  summon  whatever  witnesses  they  might  desire 
to  have  examined  and  to  cross-examine  all  that  were  brought  forward. 
The  examinatiou-in-chief  was  taken  subject  to  the  established  rules  of 
evidence,  and  cross-examination  was  permitted  with  the  broadest  lati 
tude  those  rules  allow.  And  if  we  were  required  to  repeat  the  experi 
ence  of  that  committee  under  the  authority  of  this  Commission  and  re 
take  that  evidence,  there  would  probably  be  no  witness  summoned  who 
was  not  before  the  committee,  possibly  no  question  propounded  that  was 
not  propounded  by  some  of  the  members  of  that  committee,  and  no  cross- 
interrogatory  propounded  that  was  not  propounded  and  the  answer  to 
which  is  not  now  before  this  honorable  tribunal. 

But  as  this  Commission  is  invested  with  all  the  powers  of  Congress, 
under  the  law,  the  question  recurs  upon  the  materiality  and  admissi 
bility  of  the  evidence  without  regard  to  its  form,  and  this  brings  me  to 
the  inquiry  as  to  what  are  its  powers.  I  owe  your  honors  an  apology 


ELECTORAL    COUNT    OF    1877.  91 

for  undertaking  to  argue  so  important  a  subject,  for  I  did  not  come  into 
court  prepared  to  perform  that  duty,  and  in  assuming  to  discharge  it 
now  I  am  submitting  myself  to  that  subordination  which  prevails  in  the 
profession  and  obey  the  orders  of  my  senior  counsel. 

It  was  said  in  the  opening  statement  made  by  the  objectors  upon  the 
other  side  that  this  Commission  possessed  no  other  than  simply  a  power 
to  perform  a  ministerial  duty ;  that  it  possessed  no  other  than  a  power 
to  enumerate  the  votes ;  that  the  certificate  of  the  governor  of  the  State 
was  final  and  conclusive ;  and  that  there  was  no  authority  in  this  Com 
mission,  whatever  might  be  the  proof,  to  correct  that  certificate  for  mis 
take  or  vacate  it  for  fraud.  They  told  you  that  it  imported  absolute 
verity  beyond  the  reach  of  any  evidence,  however  strong  and  however 
conclusive,  and  beyond  the  reach  of  the  power  of  the  State  itself  either 
to  correct,  modify,  or  annul  it;  and,  carrying  out  the  position  assumed 
by  the  objectors  on  the  other  side,  it  would  follow  that  if,  in  reference 
to  the  certificate  of  Governor  Stearns,  Governor  Stearns  himself  had, 
subsequent  to  the  date  of  that  certificate,  come  before  the  two  Houses 
of  Congress  in  sackcloth  and  ashes,  begging  on  behalf  of  his  State  to 
have  some  error  in  that  certificate  corrected,  it  could  not  be  done.  If 
he  had  come  with  penitential  sorrow,  confessing  himself  to  have  been 
guilty  of  any  fraud,  however  enormous — I  am  merely  snpposing  a  case — 
and  made  it  patent  that  that  certificate  was  the  representative  of  a 
falsehood  and  a  fraud,  and  not  of  truth,  yet  the  certificate  was  beyond 
reach  of  the  truth  and  that  it  was  necessary  to  canonize  Its  falsehood 
into  a  practical  fact. 

May  it  please  your  honors,  in  view  of  that  position  upon  the  other 
side,  as  well  as  in  taking  appropriate  positions  in  the  opening  of  this 
argument,  it  becomes  necessary  to  look  at  that  paper  and  see  what  it 
is,  and  whence  it  derives  this  extraordinary  sanctity;  infinitely  holy, 
beyond  any  judicial  record,  arid  beyond  any  record  that  can  be  made 
between  nations  in  their  most  solemn  compacts.  By  the  act  of  Con 
gress,  section  136  of  the  Eevised  Statutes,  it  is  provided  as  follows : 

It  shall  be  the  duty  of  the  executive  of  each  State  to  cause  three  lists  of  the  names 
of  the  electors  of  such  State  to  be  made  and  certified,  and  to  be  delivered  to  the  elect 
ors  on  or  before  the  day  on  which  they  are  required  by  the  preceding  section  to  meet. 

There  is  nothing  in  this  section  declaring  that  the  certificate  to  which 
it  refers  shall  be  conclusive  evidence  of  anything.  There  is  nothing  in 
this  section  declaring  in  words  as  to  what  particular  fact  that  certificate 
shall  be  directed.  There  is  nothing  in  this  section  making  it  mandatory 
upon  the  governor  to  issue  that  certificate;  and  if  there  had  been  it 
would  have  been  something  transcending  the  powers  of  Congress  under 
the  Constitution  to  put  there,  for  Congress  could  not  reach  the  execu 
tive  of  a  State  by  any  enactment  as  to  his  official  duty.  It  is  not  within 
the  power  of  Congress  to  make  it -mandatory  upon  the  governor  to 
issue  that  certificate ;  and  if  it  is  not  within  the  power  of  Congress 
to  make  it  mandatory  upon  the  executive  of  a  State  to  issue  that  cer 
tificate,  can  it  be  possible  that  it  is  within  the  power  of  Congress  to 
say  that  the  certificate,  if  issued,  should  be  conclusive,  or  that  the  cer 
tificate  should  be  necessary  evidence  in  the  absence  of  which  the  elect 
oral  vote  should  not  be  counted  ?  Congress  could  not  have  required 
the  executive  to  issue  the  certificate,  and  could  not  have  declared  that 
the  certificate  should  be  the  conclusive  and  only  evidence  of  the 
election  of  the  electors,  because,  in  addition  to  what  I  have  already 
submitted,  the  Constitution  of  the  United  States  itself  provides  for 
the  authentication  of  those  electors,  and  that  requirement  is  for  an 
authentication  from  themselves;  and  if  Congress  superadds  to  that 


92  ELECTORAL    COUNT    OF    1877. 

authentication  an  additional  authentication  which  it  makes  a  condi 
tion-precedent  to  counting  the  vote,  it  would  be  an  act  in  violation  of 
that  provision  of  the  Constitution,  as  well  as  in  contravention  of  the 
relations  of  the  Federal  to  the  State  government.  I  do  not  question 
the  power  of  Congress  to  require  authentication,  and  to  specify  what 
ever  manner  of  authentication  it  desires,  in  order  to  relieve  any  diffi 
culty  in  determining  who  are  the  agents  appointed  by  a  State  to  cast  its 
electoral  vote;  but  the  power  that  I  deny  to  exist  is  the  power  to  specify 
some  authentication  as  an  absolute  condition-precedent  to  counting  the 
vote,  and  to  declare  that,  in  the  absence  of  that  authentication  so  required 
by  Congress,  the  electoral  vote  shall  not  be  counted  at  all. 

Recurring  to  that  section  of  the  law  in  the  Eevised  Statutes  which  I 
have  read,  I  respectfully  submit,  as  a  proposition  of  law,  that  where 
certificates  are  required  as  matters  of  evidence,  or  where  the  law  speci 
fies  evidence  of  any  kind  going  to  a  particular  fact  with  which  the  law 
so  specifying  the  evidence  is  dealing,  such  evidence  is  never  regarded 
in  any  court  of  law  as  conclusive  beyond  the  power  of  rebuttal,  unless 
the  law  specially  provides  that  it  shall  be  conclusive.  Where  the  law 
says  that  such  and  such  a  paper  or  fact  shall  be  evidence  of  a  certain 
conclusion,  that  fact  and  that  paper  so  specified  as  evidence  of  that  con 
clusion  are  never  beyond  the. power  of  rebuttal,  unless  the  law  has 
declared  in  specific  terms  that  it  shall  be  the  only  evidence  and  shall  be 
unimpeachable. 

I  have  referred  to  that  clause  of  the  Constitution  which  requires  the 
electors  to  certify  to  their  own  appointment,  and  the  manner  in  which 
they  have  executed  their  office ;  and  I  submit  in  this  connection  that  it 
is  not  within  the  power  of  Congress  to  tie  its  hands  so  that  it  can  never 
inquire  into  the  truth  of  the  due  appointment  of  the  electors  and  the 
true  electoral  vote.  It  is  not  within  the  power  of  Congress  to  estop  the 
two  Houses  from  ascertaining  what  is  the  true  vote.  The  language  of 
the  article  referred  to  requires  the  return  of  the  vote  by  the  electors, 
requires  them  to  name  in  their  ballots  the  persons  voted  for  as  President 
and  Vice-President,  to  make  distinct  lists,  to  return  the  certificate  of 
their  vote  to  the  President  of  the  Senate,  and  then  it  proceeds  as  fol 
lows: 

The  President  of  the  Senate  shall,  in  the  presence  of  the  Senate  and  House  of  R  pre~ 
sentatives,  open  all  the  certificates,  and  the  votes  shall  then  be  counted. 

The  learned  objectors  upon  the  other  side  stated  yesterday  that  the 
word  "counted'7  was  the  controlling  word  in  the  sentence,  and  that  giv 
ing  that  word  its  proper  and  only  signification,  the  clause  that  1  have 
read  conferred  no  other  power  upon  the  two  Houses  of  Congress  than 
the  power  of  enumeration.  I  respectfully  submit  that  the  controlling 
word  in  that  sentence  is  "votes" — S'the  votes  shall  then  be  counted" — 
and  that  the  word  "votes77  controls  the  word  "counted;"  and  when  you 
refer  to  the  word  "counted'7  you  have  to  go  back  and  see  what  it  is 
that  you  are  required  to  count.  What  is  it,  may  it  please  your  hon 
ors,  that  is  to  be  counted  ?  It  is  "  the  votes,'7  and  if  those  votes  are  cast 
by  persons  not  duly  appointed  electors  under  the  law  of  the  State,  they 
are  not  votes,  and  when  you  count  them  you  count  something  the  Con 
stitution  did  not  authorize  you  to  count.  Therefore,  in  executing  your 
duties  under  this  clause,  you  must,  before  you  count,  ascertain  what  are 
votes.  Having  ascertained  what  are  votes,  you  count  those  votes, 
throwing  aside  whatever  ballots  you  may  find  that  are  not  votes. 
Under  this  article  of  the  Constitution,  and  this  particular  clause  of  the 


ELECTORAL    COURT    OF    1877.  93 

article,  I  respectfully  submit  that  there  is  in  the  two  Houses  of  Con 
gress  a  power  to  determine  what  are  votes. 

Then  the  question  arises  as  to  how  far  you  shall  go  in  taking  testi 
mony  to  determine  what  are  votes;  but  as  preliminary  to  that  question 
I  beg  leave  to  add  that  if  the  Constitution  has  devolved  upon  the  two 
Houses  of  Congress  the  duty  of  counting  the  votes,  the  true  votes,  and 
the  necessary  power  of  determining  what  are  the  true  votes,  Congress 
'possesses  no  power  to  say  what  shall  be  conclusive  and  unimpeachable 
evidence  of  those  votes  ;  but,  in  the  performance  of  their  high  function, 
the  two  Houses  must  ascertain  what  are  the  true  votes,  without  any 
limitation  placed  upon  them  by  Congress,  and  without  being  so  restrained 
that  they  cannot  go  into  the  inquiry  as  to  the  truth.  Congress  may  pre 
scribe  raodes  of  authentication,  but  merely  modes  of  authentication  as 
aids  and  not  as  conclusive  evidence  or  restraints  upon  the  Houses  in 
their  action.  We  therefore  submit  that  any  legitimate  evidence  going 
to  determine  what  are  the  true  votes  is  proper  and  competent  evidence 
before  this  tribunal. 

And,  may  it  please  your  honors,  upon  the  question  of  whether  you 
can  go  behind  the  certificate  of  the  executive  of  the  State,  and  whether 
the  certificate  is  conclusive  or  not  upon  Congress,  I  beg  to  refer  you  to 
a  high  and  most  responsible  authority,  an  authority  that  has  the  sanc 
tion  of  some  of  the  most  distinguished  names  that  now  adorn  the  pass 
ing  history  of  the  Republic.  In  1873  the  question  came  before  Congress 
as  to  the  counting  of  the  Louisiana  vote.  The  electors  met;  they 
voted ;  they  sent  up  to  the  President  of  the  Senate  the  certificate  re 
quired  by  the  twelfth  article  of  amendments  to  the  Constitution,  stating 
for  whom  they  had  voted,  and  inclosed  in  that  certificate  so  sent  up 
the  certificate  of  the  recognized  governor  of  Louisiana  certifying  to 
their  due  apointment ;  and  all  their  proceedings  were  regular  on  their 
face  from  beginning  to  end.  There  was  no  objection  made,  and  none 
intimated,  to  those  proceedings,  because  of  their  non -conformity  to  the 
statutes  of  the  United  States.  When  that  vote  was  opened,  objection 
was  made  to  it ;  but  prior  to  the  time  when  the  vote  was  opened,  it  was 
understood  that  there  was  some  difficulty  in  reference  to  that  vote,  of 
some  kind  or  other.  The  Senate  of  the  United  States  directed  its  Com 
mittee  on  Privileges  and  Elections  to  inquire  into  the  circumstances 
attending  the  election  of  the  electors  of  that  State.  That  committee 
entered  upon  the  inquiry ;  it  examined  witnesses,  and  they  were  also 
cross-examined.  All  the  facts  that  were  needed  and  desired  lying  be 
hind  that  certificate  were  gone  into  fully  by  that  committee.  Having 
gone  into  all  those  facts,  they  made  their  report  to  the  Senate.  In  that 
report,  made  February  10,  1873,  (which  is  to  be  found  on  page  1218  of 
the  Congressional  Globe,  part  2,  third  session  of  the  Forty-second  Con 
gress,)  the  chairman  of  the  committee,  one  of  the  honorable  Commis 
sioners  whom  I  have  now  the  privilege  of  addressing,  states  as  follows : 

If  Congress  chooses  to  go  behind  the  governor's  certificate,  and  inquire  who  had  been 
•chosen  as  electors,  it  is  not  violating  any  principle  of  the  right  of  the  States  to  prescribe 
what  shall  be  the  evidence  of  the  election  of  electors,  but  it  is  simply  going  behind  the 
evidence  as  prescribed  by  an  act  of  Congress  ;  and,  thus  going  behind  the  certificate  of 
the  governor,  we  find  that  the  official  returns  of  the  election  of  electors,  from  the 
various  parishes  of  Louisiana,  had  never  been  counted  by  anybody  having  authority 
to  count  them. 

In  the  conclusion  of  the  report  Senator  MORTON  says : 

Whether  it  is  competent  for  the  two  Houses,  under  the  twenty-second  joint  rule,  (in 
regard  to  the  constitutionality  of  which  the  committee  here  give  no  opinion,)  to  go  be 
hind  the  certificate  of  the  governor  of  the  State,  to  inquire  whether  the  votes  for  elect- 


94  ELECTORAL    COUNT    OF    1877. 

ors  have  ever  been  counted  by  the  "legal  returning-board  created  by  the  law  of  the 
State,  or  whether,  in  making  such  count,  the  board  had  before  them  the  official  returns, 
the  committee  offer  no  suggestions,  but  present  only  a  statement  of  the  facts  as  they 
understand  them. 

Now,  in  reference  to  the  power  of  the  joint  rule  of  the  two  Houses,  it 
is  proper,  before  I  proceed  further,  that  I  should  make  a  single  remark. 
That  joint  rule  could  give  to  the  two  Houses  no  power  they  did  not 
possess  under  the  Constitution.  It  could  neither  enlarge  nor  abridge 
their  constitutional  powers.  It  is  beyond  the  authority  of  Congress  or 
of  any  other  tribunal  to  enlarge  or  abridge  the  powers  with  which  the 
Constitution  has  vested  that  body.  A  joint  rule  might  formulate  that 
power;  a  joint  rule  might  indicate  the  manner  in  which  that  power 
should  be  exercised ;  a  joint  rule  might  prescribe  the  methods  of  pro 
ceeding  in  the  execution  of  that  power;  but  it  could  neither  give  power 
nor  diminish  power.  In  this  report  the  only  objection  made  to  the  vote 
of  Louisiana  is  that  the  returns  for  electors  in  that  State  had  never  been 
canvassed  or  counted.  It  was  conceded  that  the  certificate  of  the  gov 
ernor  was  regular,  perfectly  regular  on  its  face;  and  the  honorable 
chairman  of  the  committee,  after  stating  those  facts,  says  that  he  declines 
to  make  any  suggestion  to  Congress  as  to  what  disposition  ought  to  be 
made  of  the  vote. 

May  it  please  your  honors,  the  evidence  taken  by  that  committee  was 
before  the  two  Houses  of  Congress  when  they  met  to  count  the  vote 
four  years  ago.  The  intimation  of  the  objection  in  the  report  was  before 
those  two  Houses,  and  that  intimation  found  shape  and  substance  and 
form  in  a  motion  made  by  the  Senator  from  Wisconsin,  that  the  vote  of 
Louisiana  should  not  be  counted.  I  am  aware  that  that  Senator,  at  the 
time,  maintained  that  Louisiana  was  not  a  State  bearing  such  relation 
to  the  Federal  Union  as  authorized  her  to  participate  in  the  election  of 
a  Chief  Magistrate,  but  in  that  position  it  is  a  well-known  political  and 
historical  fact  that  few  or  none  of  the  Senators  sympathized.  He  made 
his  motion,  stating  different  grounds  for  the  motion,  but  the  only  ground 
before  the  Senate,  conceding  that  Louisiana  was  a  State  and  could 
participate  in  that  election,  the  only  ground  before  the  two  Houses  of 
Congress  upon  which  her  vote  could  be  excluded  by  any  possibility,  or 
under  the  process  of  any  sophistry  or  logic,  was  that,  although  the 
certificate  of  the  governor  to  the  election  of  the  electors  was  regular  in 
form,  yet  the  return  lying  behind  that  certificate,  and  upon  which  that 
certificate  purported  to  be  founded,  had  never  been  canvassed.  The 
question  came  up  for  determination  in  the  Senate  on  the  12th  day  of 
February,  1873,  (as  will  be  seen  by  reference  to  page  1293  of  the  same 
volume,)  and  it  was  voted  upon.  Mr.  Carpenter's  resolution  that  the 
vote  should  not  be  counted  was  determined  in  the  affirmative  and  the 
vote  was  not  counted. 

Mr.  Commissioner  EDMUNDS.  Have  you  there,  and  will  you  read, 
the  resolution  adopted  by  the  Senate  on  that  occasion  ? 

Mr.  MEREICK.  The  only  one  I  have  been  able  to  find  is  Mr.  Car 
penter's  resolution  "that  the  vote  should  not  be  counted."  He  objected 
to  the  vote,  stating  various  grounds,  but  the  only  resolution  I  have  been 
able  to  find  is  a  simple  resolution  that  the  vote  of  Louisiana  should  not 
be  counted. 

Mr.  Commissioner  EDMUNDS.  Without  stating  in  terms  the  grounds 
on  which  it  proceeded? 

Mr.  MERR1CK.    Yes,  sir ;  I  indicated  that. 

Mr.  Commissioner  EDMUNDS.     I  was  only  inquiring  for  information. 

Mr.  MERRICK.     But  I  supplemented  the  indication  by  this  further 


ELECTORAL    COUNT    OF    1877.  95 

statement :  that  there  was  no  ground  before  the  Senate  upon  which  the 
vote  could  have  been  excluded,  as  far  as  I  can  ascertain  from  the  record, 
except  that  the  vote  for  electors  had  not  been  canvassed.  If  there  is 
any  other  ground  stated  in  the  report  of  the  committee  I  have  been  un 
able  to  find  it.  Mr.  Carpenter  entertained  a  different  opinion  from 
nearly  every  Senator  as  fo  the  peculiar  relations  of  Louisiana  to  the 
Federal  Union.  He  may  have  voted  upon  that  ground ;  but  I  believe 
that  no  other  Senator,  or  not  more  than  one  or  two,  shared  his  opinion. 
I  believe  his  honor  who  made  the  inquiry  of  me  voted  in  the  affirmative 
on  the  resolution  that  the  vote  should  not  be  counted. 

Now,  may  it  please  your  honors,  I  refer  to  this  precedent  as  authority 
for  two  propositions:  First,  that  the  testimony  taken  by  a  committee  of 
either  of  the  Houses  inquiring  into  the  regularity  and  legality  of  an 
electoral  vote  is  competent  testimony  to  be  considered  when  the  ques- 
tion_ arises  as  to  what  disposition  you  shall  make  of  that  vote;  secondly, 
that  it  is  competent  for  Congress,  under  the  Constitution  of  the  United 
States,  to  go  behind  the  certificate  of  the  governor  and  throw  out  a 
vote,  where  the  testimony  proves  that  that  certificate  does  not  properly 
indicate  the  wishes  of  the  people  in  the  individuals  that  certificate 
designates  as  the  agents  of  the  State,  and  those  facts  being  established, 
it  is  competent  to  discard  the  vote. 

But,  may  it  please  your  honors,  in  the  case  of  the  State  of  Florida 
we  shall  not  ask  for  evidence  going  behind  the  certificate.  This  case 
presents  itself  to  the  court  in  a  peculiar  aspect.  The  evidence  which 
we  shall  offer  and  which  we  claim  to  be  admissible  as  to  that  State,  is 
evidence  furnished  by  the  State  herself  as  indicated  in  the  proposition 
read  by  the  distinguished  gentleman  with  whom  I  have  the  honor  to  be 
associated,  [Mr.  O'Conor.J 

Two  propositions  as  to  evidence,  then,  come  before  your  honors. 

First,  whether  the  United  States,  through  its  Congress,  or  either  or 
both  Houses  of  Congress,  can,  in  reference  to  an  electoral  vote,  institute 
an  original  inquiry  itself,  and  by  a  committee  of  either  House  take  tes 
timony  going  behind  the  certificate  of  the  State,  and  invalidate  that  cer 
tificate  on  its  own  motion,  when  the  State  still  adheres  to  the  regularity 
of  that  certificate.  That  is  one  question,  and  a  very  important  one ; 
but  there  is  another  totally  different  from  that. 

Second,  whether  when  the  Houses  of  the  Congress  of  the  United  States 
come  to  inquire  into  the  electoral  vote,  and  ascertain  which  vote  shall 
be  counted,  it  is  competent  for  them  to  receive  evidence  furnished  by 
the  State  herself  in  reference  to  the  certificate  her  governor  may  have 
given. 

Your  honors  perceive  at  once  the  wide  difference  in  the  two  cases ; 
and  I  respectfully  submit  in  connection  with  this  proposition,  that  if  the 
power  does  not  exist  in  the  two  Houses  of  Congress  as  a  primary  and 
original  power  separately  to  take  testimony  going  behind  the  certificate, 
then  it  must  exist  in  the  State  to  correct  its  own  certificate  or  impeach 
it  for  fraud  or  falsehood ;  else  we  may  be  irrevocably  tied  to  an  acci 
dent  or  mistake,  and  a  presidential  election  may  turn  upon  a  certificate 
which  is  known  to  all  the  world  to  be  an  accident,  a  falsehood,  or  a 
fraud,  which  can  neither  be  impeached  by  the  State  that  gave  it,  be 
cause  of  fraud,  accident,  or  mistake,  nor  interfered  with  in  any  way  by 
the  Federal  Government  to  which  it  is  addressed,  but  must  become  a 
substantial  and  perpetual  truth  in  the  presence  of  convincing  evidence 
that  it  is  an  active  and  living  lie. 

In  the  case  of  the  State  of  Florida,  taking  up  the  second  proposition, 
the  State  herself,  after  the  meeting  of  the  electors,  ascertaining  that 


&6  ELECTORAL    COUNT    OF    1877. 

this  certificate  given  by  Governor  Stearns,  was  given  either  in  mistake 
or  fraud,  and  founded  upon  an  irregular  and  illegal  canvass  of  the  votes 
according  to  the  laws  of  Florida,  by  her  legislature  passed  a  law  direct 
ing  another  canvass  to  be  made.  But  she  did  not  pass  that  law,  even, 
until  she  had  appealed  to  her  judicial  tribunals  to  interpret  the  laws 
previously  existing,  and  relating  to  the  subject.  Having  appealed  to 
those  tribunals  to  interpret  those  laws,  and  in  the  mandamus  case  having 
received  from  her  tribunal  of  last  resort  an  opinion  giving  construction 
to  those  previously  existing  laws,  by  which  opinion  it  became  apparent 
that  the  returning-board  had  transcended  its  jurisdiction  and  made  a 
return  which  was  erroneous  under  the  law,  her  legislature  then,  on  the 
basis  of  that  opinion,  directed  another  canvass  of  the  vote  to  be  made 
in  accordance  with  the  judicial  construction  of  the  law.  When  that  can 
vass  was  made  and  returned  to  the  legislature,  her  legislature  passed 
another  act  on  the  basis  of  that  canvass,  declaring  that  the  parties  to 
whom  the  certificate  had  been  issued,  by  Governor  Stearns,  had  not 
been  appointed,  and  designating  the  persons  who  had  been  chosen  as  the 
agents  of  the  State  to  speak  her  voice  in  the  electoral  college.  But  she 
has  gone  further.  A  quo  warranto  was  issued  against  these  parties  who 
assumed  to  exercise  the  electoral  office  under  the  certificate  granted  by 
Governor  Stearns,  and  that  quo  icarranto  having  come  before  her  judi 
cial  tribunals,  they,  in  the  exercise  of  a  jurisdiction  given  to  them  by 
the  State  laws  of  Florida,  decided  that  the  men  who  had  received  that 
certificate  were  not  elected,  but  that  other  men  were  elected;  and  those 
other  men  so  elected  received  a  certificate  from  the  governor  of  Florida, 
and,  in  the  execution  of  the  office  to  which  they  had  been  appointed  by 
the  people  in  the  previous  November,  discharged  their  duties  as  electors 
and  voted  for  President  and  Vice-President  on  the  day  designated  by 
the  law  of  the  United  States. 

Now,  then,  may  it  please  your  honors,  you  have  from  that  State  this 
mass  of  evidence — evidence  from  her  legislature,  evidence  from  her  exec 
utive,  evidence  from  her  judicial  tribunals — that  the  electors  to  whose 
vote  we  object,  were  not  the  duly  appointed  electors  of  Florida;  and, 
through  all  the  departments  of  her  government,  Florida  therefore  comes 
to  the  United  States  Congress  and  begs  that  you  (for  you  now  exercise 
that  power  and  it  is  vested  in  you)  will  protect  her  people  from  the 
enormity  of  having  their  voice  simulated  by  parties  never  appointed  to 
speak  in  her  behalf.  Is  not  that  competent  evidence  to  go  before  the 
Houses  of  Congress  ?  If  it  is  not,  and  if  Congress  itself  cannot  in  the 
exercise  of  its  original  power  go  forward  and  inquire  into  the  due  elec 
tion  of  these  electors,  then  you  have  placed  the  whole  Government  and 
administration  of  the  United  States  in  the  power  of  any  executive  who 
may  issue  his  certificate  to  a  party  never  voted  for  at  all,  while  the 
unanimous  vote  of  the  State  may  have  been  in  favor  of  another  party. 
You  may  take  the  whole  population  of  Florida,  and  although  they  may 
never  have  voted  for  A  and  B  at  all,  and  though  the  vote  may  have 
been  unanimous  in  favor  of  other  parties,  if  the  governor  chooses  to 
issue  his  certificate  to  A  and  B,  that  certificate  becomes  binding  upon 
Congress  and  may  determine  a  presidential  election.  If  this  be  the 
law,  may  it  please  your  honors,  then  icho  icill  deliver  us  from  tlie  body  of 
this  death  f  It  is  beyond  the  power  of  Congress  to  grant  relief;  and  re 
lief  is  beyond  the  power  of  the  State. 

I  find  that  I  have  consumed,  may  it  please  your  honors,  more  than  the 
time  allotted  me. 

The  PRESIDENT.     Fifty  minutes  you  have  occupied. 

Mr.  BLACK.     Mr.  President  and  gentlemen  of  the  Commission,  the 


ELECTORAL    COUNT    OF    1877.  97 

time  allowed  for  the  opening  of  this  argument  oil  our  side  is  nearly 
consumed.  I  do  not  presume  to  do  more  than  merely  supplement  or 
enforce  by  a  few  general  propositions  Mr.  Merrick's  admirable  statement 
of  our  case,  which  is  as  well  calculated  to  impress  the  true  nature  of  it 
on  the  minds  of  this  court  and  to  give  a  full  notice  to  the  gentlemen  on 
the  other  side  of  what  we  intend  to  rely  upon  as  anything  that  could 
possibly  have  been  said.  I  am  only  "  gilding  refined  gold  "  when  I 
attempt  to  add  anything  to  it. 

You  have  before  you  the  question  whether  this  case  is  to  be  decided 
by  you  upon  the  evidence  taken  for  the  purpose  of  enabling  the  Senate 
and  House  of  Representatives  to  do  the  duty  which  the  Constitution 
cast  upon  them  of  counting  the  votes  and  of  seeing  that  votes  only  were 
counted.  For  all  the  reasons  that  I  gave  this  morning,  and  for  many 
other  reasons  which  I  might  add  if  I  had  time,  I  insist  upon  it  that  the 
evidence  being  once  reported  and  filed  in  the  cause  is  to  be  treated  as  a 
court  of  equity  treats  evidence  in  the  same  condition.  You  may  throw 
it  out;  you  are  not  required  to  give  it,  because  you  have  admitted  it, 
any  particular  amount  of  force  or  weight  or  value  in  your  final  judgment; 
but  you  are  to  look  at  it  and  determine  the  case  upon  all  that  is  in  it. 
And  I  can  give  you  an  assurance,  founded  upon  some  little  experience, 
that  a  judge  never  decides  upon  any  subject  much  the  worse  for  knowing 
a  little  about  it  before  he  does  decide.  This  notion  of  determining  the 
whole  case  upon  an  offer  to  admit  evidence  is  a  thing  that  you  have  got 
to  forget.  It  is  impressed  upon  those  who  practice  the  common  law  very 
strongly  by  that  peculiar  and  anomalous  system  which  is  adopted  in  the 
common-law  courts  upon  jury-trials.  It  is  not  natural;  it  does  not 
belong  to  any  other  kind  of  tribunal.  If  there  be  any  evidence  here 
which  comes  through  illegal  channels,  or  from  any  improper  source,  let 
the  other  side  move  to  suppress  it.  But  being  in  already,  and  therefore 
part  of  the  case  now,  you  cannot  ask  us  to  offer  it  over  again. 

I  need  not  certainly  produce  Chitty7s  Pleading,  Daniell's  Chancery 
Practice,  or  Starkie  on  Evidence,  or  any  of  the  rest  of  the  books  in  which 
these  rules  are  laid  down.  I  need  not  show  you  what  is  the  code  of  pro 
cedure  in  courts  of  admiralty  and  courts  of  equity ;  for  I  take  it  for 
granted  that  these  are  things  on  which  I  may  speak  as  unto  wise  men. 
One  of  the  gentlemen  who  spoke  yesterday  repeated  what  had  been 
said  by  Judge  Marshall,  and  which  I  am  glad  he  did.  We  have  heard 
it  before,  but  it  cannot  be  told  too  often,  for  it  contains  a  very  wholesome 
moral.  The  judge  said  to  a  counselor  who  was  addressing  him  that  a 
judge  of  the  Supreme  Court  was  presumed  to  know  something.  I  hope 
that  no  decision  which  you  make  in  this  case  will  repel  that  presump 
tion.  Indeed,  I  think  it  will  be  extended  and  enlarged,  and  that  the 
presumption  after  this  will  be  not  only  that  the  judges  of  the  Supreme 
Court  know  something,  but  that  members  of  the  Senate  and  House  of 
Representatives  also  know  something. 

There  has  been  much  talk  here  about  getting  behind  the  action  of  the 
State.  I  do  believe  firmly  in  the  sovereign  power  of  the  State  to 
appoint  any  person  elector  that  she  pleases,  if  she  does  it  in  the  manner 
prescribed  by  the  legislature;  and,  after  she  has  made  the  appointment 
in  that  manner,  no  man  has  a  right  to  go  behind  her  act  and  say  that  it 
was  an  appointment  not  fit  to  be  made.  A  man,  whether  he  be  an  officer 
of  the  State  or  an  officer  of  the  General  Government,  who  undertakes 
to  set  aside  such  an  appointment  is  guilty  of  a  usurpation  and  his  act  is 
utterly  void.  Therefore,  if  the  governor  of  the  State  of  Florida,  alter 
this  appointment  of  electors  was  made  by  the  people,  undertook  to  cer 
tify  that  they  were  not  elected  and  to  put  somebody  else  in  the  place 
7  E  G 


98  ELECTORAL   COUNT    OF   1877. 

which  belonged  to  them,  his  act  was  utterly  void  and  false  and  fraudu 
lent.  We  are  not  going  behind  the  action  of  the  State;  we  are  going 
behind  the  fraudulent  act  of  an  officer  of  the  State  whose  act  had  no 
validity  in  it  whatever. 

This  is  a  question  of  evidence.  Who  are  the  electors  ?  Two  sets  of 
persons  come  here,  each  of  them  pretending  to  be  the  agents  of  the 
State  of  Florida,  for  the  purpose  of  performing  that  important  function 
of  the  State,  the  election  of  a  President  and  Vice-President  of  the 
United  States.  It  is  the  business  of  the  two  Houses  to  count  the  votes. 
Now,  remember  the  argument  that  Mr.  Merrick  made  upon  that  Con 
stitution  ;  let  it  sink  into  your  hearts,  and  do  not  forget  it,  because  it  is 
the  God's  truth.  The  word  "votes"  it  is  that  controls  the  meaning  of 
it.  "The  votes  shall  then  be  counted;"  the  votes,  mind  you;  not  the 
frauds  nor  the  forgeries.  But  they  on  the  other  side  tell  us  that  if  the 
President  of  the  Senate  lays  before  the  two  Houses  when  the  votes  are 
to  be  counted  a  false  paper,  a  paper  which  was  absolutely  counterfeited, 
that  is  an  end  of  it ;  you  cannot  produce  any  extrinsic  evidence  for  the 
purpose  of  showing  that  it  is  a  forgery  or  any  evidence  to  show  that  it 
is  not  genuine.  The  doctrine  goes  that  far  if  it  is  to  be  adopted  at  all. 
Carry  that  proposition  to  its  logical  consequences,  and  where  does  it 
take  you  ?  That  you  must  simply  receive  whatever  anybody  chooses 
to  fabricate  and  lay  before  Congress  through  the  President  of  the  Sen 
ate,  and  that  neither  the  President  of  the  Senate,  nor  either  of  the  two 
Houses,  nor  both  of  them  together,  can  do  anything  but  just  take  what 
is  given  to  them,  without  inquiring  into  its  genuineness  at  all.  I  affirm, 
everybody  affirms,  and  I  hope  to  God  that  nobody  here,  even  on  the 
other  side,  will  attempt  to  deny,  that  the  Congress  of  the  United  States 
has  the  verifying  power,  the  power  that  enables  it  to  inquire  whether 
this  is  a  forgery  or  not ;  and,  if  you  have  the  right  to  inquire  whether 
it  is  counterfeit,  you  have  a  right  to  inquire  whether  it  is  or  is  not  in 
validated  by  the  base  fraud  in  which  this  thing  was  concocted.  The 
wrork  of  the  counterfeiter  is  as  well  entitled  to  be  received  for  truth  as 
this  spawn  of  a  criminal  conspiracy  got  up  to  cheat  the  State  and  the 
Union,  overturning  and  overthrowing  the  great  principle  that  lies  at 
the  foundation  of  all  our  security. 

Why,  this  doctrine  that  a  thing  which  is  false,  willfully  false,  is  utterly 
void  and  good  for  nothing,  has  been  by  this  court  (I  mean  by  the  Supreme 
Court)  asserted  a  thousand  times.  Nay,  I  undertake  to  say  that  the 
contrary  doctrine  has  never  yet  been  set  up  by  any  judge  or  any  lawyer 
whose  authority  is  worth  one  straw.  Suppose  you  have  a  case  of  a 
patent  issued  by  the  Secretary  of  the  Interior  or  the  Commissioner  of 
the  General  Land  Office,  the  validity  of  which  depends  upon  a  confirma 
tion  by  the  court,  and  he  falsely  recites  that  the  court  delivered  a  judg 
ment  which  the  record  shows  it  never  did  pronounce,  and  upon  that 
basis  puts  the  patent.  Is  the  patent  worth  anything  ?  Why  is  it  worth 
less?  Because  it  is  based  upon  a  fact  which  is  untrue.  "False"  is 
u  fraudulent"  in  all  cases  of  this  kind.  When  a  man  undertakes  to  say 
"I  certify  to  this  fact,"  and  at  the  time  he  does  it  there  glares  upon  him 
from  the  record  that  lies  before  him  the  evidence  that  the  fact  is  the 
other  way,  is  not  that  a  fraudulent  certificate  ?  And  if  it  be  fraudulent, 
is  it  not  as  void  in  law  and  as  corrupt  in  morals  as  if  it  \vere  a  simple 
counterfeit  9 

In  this  case  we  show  that  it  was  fraudulent.  How  ?  By  producing 
the  evidence  which  the  governor  was  as  well  aware  of  as  we  are,  which 
every  man  and  woman  and  child  in  this  whole  nation  knew  or  had  reason 
to  believe  was  true,  namely,  that  the  other  set  of  electors  had  a  decisive 


ELECTORAL    COUNT    OF    1877.  99 

and  clear  majority  of  the  votes  that  were  received  and  counted  at  the 
polls.  He  knew  it,  because  it  was  recorded  in  every  county  of  his  State; 
the  votes  were  collected  together  and  filed  in  the  office  of  the  secretary 
of  state.  That  is  one  way  in  which  we  show  the  falsehood  and  the 
fraud  ;  but  we  show  it  again  by  the  evidence  of  an  act  of  the  legfslature 
containing  the  solemn  protest  of  the  State  against  the  cheat  which  her 
de  facto  governor  attempted  to  palm  off  upon  her  and  upon  the  nation. 
We  prove  it  again  by  showing  that  the  governor  himself— not  the  same 
person  but  the  same  officer—rebuked  this  fraud,  declaring  that  the  other 
parties,  and  not  those  whose  votes  are  now  offered,  were  elected  and 
chosen  and  authorized  exclusively  to  cast  the  vote  of  the  State. 

Thus  acted  two  departments  of  the  State  government  of  the  State. 
But  the  State,  determined  not  to  be  cheated  out  of  her  vote  and  de 
termined  that  she  would  ascertain  it  in  some  undeniable  form  by  a  pro 
ceeding  the  correctness  and  truth  of  which  could  never  be  impeached, 
took  these  usurpers  by  the  throat  and  dragged  them  into  a  court  of 
justice,  and  there,  in  the  presence  of  a  competent  tribunal,  she  impleaded 
them,  charged  them  with  the  offense,  brought  the  other  parties  who 
also  claimed  to  be  her  agents  for  this  purpose  and  set  them  face  to  face. 
The  proofs  were  given  upon  both  sides,  and  it  ended  in  a  solemn  adju 
dication  by  that  court  of  competent  jurisdiction  that  the  persons  who 
claimed  to  cast  these  votes  for  Hayes  and  Wheeler  had  no  right,  nor 
authority,  nor  power  whatever  to  do  that  thing. 

Now  look  at  this.  Whenever  a  cause  has  been  decided  by  a  court  of 
competent  jurisdiction,  the  determination  of  that  court,  as  a  plea  is  a 
bar,  as  evidence  is  conclusive  of  every  fact  and  every  matter  of  law 
which  was  or  could  have  been  adjudged  there,  and  neither  law  nor  fact 
there  determined  shall  ever  afterward  collaterally  or  directly  be  drawn 
into  controversy  again.  Is  not  that  the  rule  ?  It  was  so  laid  down  in 
the  Duchess  of  Kingston's  case,  which  has  been  followed  in  every  court 
in  Christendom  from  that  day  to  this.  There  is  not  in  England  or 
America  one  judge  or  one  lawyer  who  has  undertaken  to  assert  that  the 
law  is  otherwise  stated  nor  has  it  ever  been  attempted  to  be  clothed  in 
any  other  words  than  the  clear  and  felicitous  language  used  by  Chief- 
Justice  De  Grey  in  that  case. 

This  doctrine  has  been  applied  over  and  over  again  to  election-returns, 
as  well  as  to  all  other  things.  It  would  be  perfectly  absurd  to  say  that, 
when  the  title  to  a  horse  is  in  question  before  a  justice  of  the  peace, 
the  doctrine  that  makes  the  title  void  may  be  applied  so  as  to  save  the 
horse  to  the  honest  owner  of  it,  and  should  not  be  applied  to  a  case  in 
which  the  rights  of  a  whole  nation  are  involved. 

False  returns  have  been  made  many  times;  false  counts  have  been 
made  at  the  polls;  election-officers  have  altered  the  count  afterward. 
No  man  that  I  know  of  has  ever  said  that  an  election  fraud  ought  to 
be  held  to  be  successful  merely  because  it  was  put  into  the  forms  of 
law ;  never  before  this  time,  except  on  two  occasions,  In  New  Jersey 
the  governor  of  that  State  stamped  the  broad  seal  upon  a  commission 
as  members  of  Congress  for  five  gentlemen  whom  he  knew  not  to  be 
elected.  Congress  said  that  certificate  was  void.  Then  the  House 
of  Representatives  did  precisely  what  we  ask  the  two  Houses  of  Con 
gress  and  you,  their  substitute,  to  do  in  this  case.  It  was  contended 
then,  as  now,  that  the  certificate  of  the  governor  was  conclusive  evi 
dence  of  the  right  of  the  commissioned  men  to  take  their  seats  in  the 
first  place  and  participate  in  the  organization  of  the  House.  Do  not 
let  it  be  said  that  this  arose  out  of  the  right  of  a  legislative  body  to 
pass  on  the  qualifications  of  its  own  members.  They  had  no  right 


100  ELECTORAL    COUNT    OF    1877. 

to  pass  on  the  qualifications  of  their  own  members  until  they  were 
organized.  The  right  of  those  men  to  hold  their  seats  until  the  time 
when  their  seats  were  declared  vacant  upon  a  petition  of  their  adver 
saries  to  unseat  them  was  as  conclusive  as  anything  can  be,  supposing 
it  to  be  honest.  But  it  was  not  honest,  and  that  made  it  all  void. 

Mr.  Commissioner  STRONG.  Were  those  persons  who  held  the  cer 
tificate  of  the  governor  of  New  Jersey  admitted  to  their  seats  at  all  ? 

Mr.  BLACK.    They  were  not. 

Mr.  Commissioner  STRONG.  Not  allowed  to  take  seats  and  partici 
pate  in  the  organization  ? 

Mr.  BLACK.    Not  allowed  to  take  seats  at  all. 

Mr.  Commissioner  STRONG.  I  understood  you  to  say  that  they 
were. 

Mr.  BLACK.  I  do  not  know  but  that  your  honor  was  in  Congress 
at  that  time. 

Mr.  Commissioner  STRONG.    No,  sir. 

Mr.  BLACK.  I  supposed  you  were.  That  was  in  1839.  You  were 
not  in  Congress  then.  There  was  a  very  great  struggle  over  it  and  it 
lasted  for  four  or  five  weeks,  one  set  of  men  pressing  the  fraud  with  as 
much  vigor  as  any  of  our  friends  can  press  this  one,  and  it  being 
resisted  at  the  same  time  with  perhaps  more  firmness  than  we  are  resist 
ing  now. 

There  is  another  case,  however,  that  one  of  the  judges  upon  this  bench 
will  recollect  more  distinctly.  I  do  not  say  that  there  was  any  judicial 
or  legislative  determination  of  that  question  which  makes  it  authority 
in  this  case,  but  it  is  an  illustration  of  the  condition  in  which  we  are  to 
be  thrown  if  a  mere  fraud,  a  counterfeit,  is  to  be  accepted  as  sufficient 
to  carry  everything  before  it. 

In  1838  Mr.  Porter  was  elected  governor  of  Pennsylvania  by  a  major 
ity  of  about  fourteen  thousand.  It  was  thought  desirable  that  the  elec 
tion  should  be  set  aside  and  treated  as  though  it  had  not  been  held,  and. 
in  order  to  do  that,  it  was  necessary  that  his  opponents  should  have 
possession  not  only  of  the  senate  and  executive,  which  they  had  already, 
but  of  the  other  house  of  the  legislature,  the  lower  house ;  and  in  order 
to  effectuate  that,  they  just  simply  manufactured,  fabricated  impudently 
and  boldly,  a  fraudulent  and  false  return  of  eleven  members  from  the 
county  of  Philadelphia.  The  law  was  that  the  returns  were  to  be  made 
to  the  secretary  of  the  commonwealth  and  he  was  to  make  out  from 
those  returns  a  list  of  the  persons  who  were  entitled  to  be  members  of 
the  house.  They  said  that  certificate  was  conclusive  evidence,  and  it 
was  conclusive  evidence  if  the  fourth  section  of  the  act  of  Congress  in 
this  case  makes  the  governor's  certificate  conclusive  of  the  electors' 
election,  because  it  is  very  nearly  in  the  same  language.  You  know 
what  came  of  it — the  Buckshot  war.  They  intended  to  carry  that  out 
at  the  expense  of  covering  the  whole  commonwealth  with  blood  and 
ashes,  and  would  have  done  it  only  they  could  not  get  General  Patter 
son  and  his  men  to  fire  on  the  people  who  were  there  assembled. 

Until  now,  except  in  those  two  cases,  nobody  in  this  country  has 
ever  had  the  portentous  impudence  to  offer  a  fraudulent  vote  and  insist- 
that  the  fraud  could  not  be  inquired  into  because  forsooth  it  came 
wrapped  in  the  forms  of  law. 

I  believe  my  time  is  out,  and  I  am  not  going  to  trespass  upon  your 
honors  any  further. 

Mr.  MERRICK.  May  it  please  the  Commission,  I  desire  to  file  a 
brief  prepared  by  Hon.  Ashbel  Green,  of  New  Jersey,  associated  with 
iis  in  the  case,  which  is  a  clear,  full,  and  able  discussion  of  the  question 


ELECTORAL    COUNT    OF    1877.  101 

now  before  the  Commission  and  which  brief  couusal  have  unanimously 
adopted. 

The  PRESIDENT.  It  will  be  received  and  filed.* 
Mr.  BLACK.  There  is  one  thing  which  I  omitted  to  mention  and 
which  it  is  necessary  to  call  the  attention  of  the  court  to  ;  and  that  is 
the  evidence  which  we  have  produced  here  to  show  that  one  of  the 
Hayes  electors  was  ineligible  on  account  of  his  being  an  officer  of  the 
Federal  Gouernment  on  the  day  the  election  took  place.  I  suppose  that 
makes  a  clear  case  as  against  him. 

Mr.  EVARTS.  Judge  Black,  will  you  allow  me  to  ask  a  single  ques 
tion?  A  certain  mass  of  evidence  not  otherwise  described  than  gener 
ally  in  argument,  and  which  we  have  never  seen  and  inspected,  is  ar 
gued  to  be  already  in,  upon  some  chancery  notion  that  it  has  been 
attached  to  something  that  has  brought  it  in.  What  is  it  contended 
that  it  is  attached  to  ? 

Mr.  BLACK.  O,  it  is  in  the  record,  a  part  of  the  record  in  this  case 
made  up  by  the  House  of  Representatives  before  the  case  was  sent  over 
here. 

Mr.  EVARTS.    What  is  it  attached  to  ? 

Mr.  BLACK.    "Attached  to."    Do  you  mean  to  ask  me  the  book 
binder's  question,  whether  it  is  stiched  ? 
Mr.  EVARTS.     No.     What  is  it  f    A  bill  in  chancery  ? 
Mr.  MERRICK.    It  was  attached  to  the  objection  mad^  when  the 
vote  was  offered  in  the  House,  and  is  recited  in  the  objection  as  being 
the  basis  upon  which  the  objection  rests. 
Mr.  EVARTS.     The  question  is  answered. 

Mr.  Commissioner  EDMUNDS.  Mr.  Evarts  will  find  it  on  page  3  of 
the  objection  signed  by  Charles  W.  Jones  and  others.  It  comes  in  in 
support  of  the  objection  and  is  referred  to  as  evidence  to  support  it. 

The  PEESIDENT.  The  side  that  has  been  opened  has  spoken  one 
hour  and  twenty  minutes.  We  will  now  hear  the  other  side. 

Mr.  MATTHEWS.  Mr.  President  and  gentlemen  of  the  Commission, 
unused  as  I  am  to  appearing  before  tribunals  so  unprecedented  and 
august  as  this,  and  equally  unused  to  handling  such  high  themes  as 
form  the  subject  of  the  jurisdiction  of  this  Commission,  I  rise  with  the 
most  unaffected  diffidence  to  undertake  the  discharge  of  that  duty  which 
has  been  assigned  to  me  by  my  learned  associates  ;  and  while  I  hope 
that  I  may  say  something  which  will  assist  the  Commission  in  solving 
the  questions  which  are  submitted  for  argument,  I  shall  be  only  too 
happy  if,  after  I  take  my  seat,  I  shall  be  able  to  recollect  that  I  have 
said  nothing  which  may  injure  the  cause  I  represent. 

I  take  the  earliest  opportunity  to  correct  a  serious  misapprehension 
on  the  part  of  the  learned  gentlemen  who  have  argued  as  counsel  in 
the  opening  of  this  question,  in  respect  to  the  position  which  they  seem 
to  assume  has  been  already  taken  upon  our  side.  I  refer  to  the  conclu 
sive  effect  that  they  suppose  we  attribute  to  the  certificate  of  the  gov 
ernor  of  a  State  accompanying  a  list  of  those  whom  he  certifies  as  having 
been  duly  appointed  electors  for  that  State.  I  am  authorized  to  say, 
by  the  gentlemen  who  are  objectors  to  the  second  and  third  certificates, 
that  that  statement  is  an  incorrect  representation  of  their  position,  and 
I  respectfully  submit  that  when  I  have  stated  ours  the  gentlemen  on 
the  other  side  will  understand  our  case  differently. 

I  think  I  may  also  take  this  immediate  opportunity  of  relieving  the 
apprehensions  of  my  very  learned  friend  [Judge  Black]  who  spoke  last 

*  This  brief  will  be  found  in  the  appendix  containing  the  briefs,  as  Brief  No.  1. 


102  ELECTORAL   COUNT   OF    1877. 

and  has  spoken  so  often,  in  respect  to  the  possible  effect  of  excluding 
the  consideration  of  what  he  has  been  pleased  to  call  exhibits  or  evidence, 
upon  the  judgment  of  this  tribunal.  It  is,  Mr.  President  and  gentlemen, 
the  fortunate  feature  of  your  legal  constitution  that  you  can  make  no 
mistakes.  It  was  a  quaint  saying,  I  believe,  of  Selden,  in  an  essay  on 
papal  councils,  where  he  was  treating  of  the  doctrine  that  they  were 
enlightened  by  the  presence  of  the  Holy  Ghost,  that  he  had  generally 
found  that  the  Spirit  dwelt  in  the  odd  man.  So,  in  the  exercise  of  the 
constitutional  function,  whatever  that  may  be,  devolved  upon  Congress 
in  its  participation  in  the  count  of  the  electoral  votes,  effectual  provis 
ion  has  been  made  against  the  defeat  of  the  transaction  by  referring  it 
to  a  tribunal  that  cannot  be  equally  divided. 

And  now,  Mr.  President  and  gentlemen,  allow  me  to  state  in  very  gen 
eral  terms,  and  yet  as  precisely  as  I  have  been  able  to  accomplish  it,  the 
various  propositions  by  which  and  through  which  we  lead  ourselves, 
and  hope  to  lead  you,  to  the  conclusion  for  which  we  contend  in  respect 
to  the  point  to  which  you,  as  the  representatives  of  congressional  juris 
diction,  may  go  in  this  inquiry,  and  that  point  where  you  must  stop. 

What  is  the  transaction  that  is  the  subject  of  the  general  investiga 
tion  ?  It  is  stated,  in  its  final  result,  as  the  election  of  a  President  and 
Vice-President  of  the  United  States.  In  what  does  that  consist  ?  It  is 
not  a  single  act  ;  it  is  a  series  of  acts.  The  election  of  those  two  high 
officers  is  not  a  popular  election,  according  to  the  spirit  of  the  Consti 
tution,  the  meaning  of  its  framers,  the  interpretation  of  the  generation 
which  adopted  it,  or  the  practice  under  it.  There  is  a  selected  body  of 
men  in  each  State  who  compose  the  constituent  body  which  is  to  make 
that  election  ;  and  I  need  not  remind  the  tribunal  that  they  have  a  right 
to  make  a  selection  as  well  as  an  election;  and  it  is  altogether  a  mistake, 
in  my  judgment,  to  consider  this  electoral  body  as  delegates  represent 
ing  a  State  or  the  people  of  a  State,  as  agents  accomplishing  their  will. 
They  not  only  have  power  in  the  sense  of  might,  but  they  havepoicer 
in  the  sense  of  right,  to  vote,  on  the  day  named,  for  the  persons  who,  in 
their  judgment,  ought  to  be,  all  things  considered,  the  chief  executive 
officers  of  the  nation. 

Each  State  under  the  Constitution  has  the  right  to  prescribe  the  mode 
in  which  these  electors  shall  be  appointed.  No  one  else  has  any  right 
or  authority  in  that  business.  They  may  elect  by  the  general  assembly 
or  legislature;  they  may  appoint  by  the  governor,  or  any  other  officer 
whom  they  may  choose  to  designate;  they  may  cause  that  appointment 
to  be  based  on  the  result  of  a  popular  election  ;  and  that,  in  the  case  of 
Florida  and  now  in  all  the  States,  except  the  new  State  of  Colorado,  is, 
I  believe,  the  universal  practice ;  so  that  the  appointment  of  electors  in 
a  State  is  based  on  a  popular  election. 

Now,  what  is  that  election?  That  also  consists  not  of  one  act,  but  of 
a  series  of  acts,  beginning  with  the  deposit  in  the  ballot-box,  if  it  be  by 
ballot,  as  we  may  assume  it  to  have  been,  in  each  locality  prescribed  by 
law,  called  a  parish,  or  a  precinct,  or  a  township,  or  a  school-district,  or 
whatever  small  division  of  territory  may  be  adopted.  The  voter  deposits 
his  written  or  printed  ballot  into  the  hands  of  one,  or  two,  or  three 
judges  of  election,  who  inscribe  his  name  in  a  list  of  voters,  and  put  his 
ballot  into  the  box,  and  then  at  the  conclusion  of  the  election  make  a 
return  of  the  result,  showing  how  it  has  been  attained.  That  is  carried 
from  the  primary  voting-places  to  the  county-seat,  and  there  county 
officers  compile  these  various  returns,  acting  with  more  or  less  powers 
according  to  the  statutes  of  the  State  from  which  they  derive  their  ap 
pointment;  and  the  result  of  that  choice  in  that  county  as  it  appears  to 


\ 
ELECTORAL    COUNT    OF    1877.  103 

them,  based  on  the  returns  which  they  have  received  from  the  primary 
officers,  is  reported  by  them  again  to  a  third  and  highest  and  last  re- 
turning-officer  or  canvassing-board,  who,  receiving  these  returns  from 
all  the  counties  in  the  State,  exercise  the  powers  conferred  upon  them 
by  law  and  make  that  which  in  my  judgment  is  tlie  completion  and  the 
consummation  of  this  appointment.  That  board  sitting  upon  these  returns 
make  their  final  return  of  the  fact,  as  it  appears  to  them,  sitting  under 
their  responsibility  as  public  officers  and  in  the  exercise  and  discharge  of 
public  functions  and  public  duties ;  and  having  accomplished  their  task, 
they  deposit  the  record  of  their  finding  and  declaration  in  the  public 
archives  of  the  State,  and  there  they  remain  in  perpetual  memorial  of 
the  fact  which  they  have  found. 

Up  to  that  point  the  State  alone  acts  in  the  appointment.  Tliat  last 
act  completes  the  appointment,  and  that  appointment  completed  and 
finished  is  unchangeable  except  by  State  authority  exerted  upon  that 
act  within  an  interval  of  time  ;  and  what  is  that  ?  Congress,  under  the 
Constitution  of  the  United  States,  has  had  reserved  to  it  control  in  cer 
tain  particulars  over  this  appointment ;  that  is  to  say,  it  may  designate 
the  day  on  which  the  appointment  shall  be  made,  and  it  shall  designate 
the  day  on  which  the  electors  so  appointed  shall  deposit  their  ballots 
for  President  and  Vice-President.  in  that  interval  I  do  not  know  and 
I  do  not  care  to  discuss,  I  will  neither  deny  nor  affirm,  but  I  am  willing 
to  admit,  any  and  everything  that  may  be  claimed  on  the  other  side  as 
to  the  existence  of  State  authority  to  inquire  into  and  affect  that  record. 
But  when  the  day  has  passed  when  in  pursuance  of  the  authority  of 
law  conferred  by  that  appointment  under  the  statutes  of  the  State,  on 
the  day  named  by  Congress,  the  body  which  has,  according  to  the  forms 
of  law,  been  invested  with  the  apparent  title  to  act  as  the  constituents 
of  that  great  electoral  body,  and  when  they  are  required  by  Constitu 
tion  and  law  to  accomplish  the  act  for  which  and  for  which  alone  they 
have  been  brought  into  being,  then  that  transaction,  so  far  as  State  au 
thority  is  concerned,  has  passed  beyond  the  limit  of  its  control.  It  then 
becomes  a  Federal  act.  It  then  becomes  one  of  those  things  which  pass 
into  the  jurisdiction,  whatever  that  may  be,  of  Federal  power.  It  is  the 
deposit  of  the  vote  of  the  elector  in  the  ballot-box  of  the  United  States, 
and  the  nation  takes  charge  of  its  ballot-box.  Whatever  power,  then, 
may  be  exerted  after  that  must  be  exerted  under  that  po^wer  which  is 
conferred  by  the  Constitution  upon  any  constitutional  national  author 
ity  which  is  invested  with  authority  over  the  subject.  These  electoral 
votes  so  given  are  to  be  sealed  and  transmitted  to  the  seat  of  Govern 
ment,  delivered  into  the  custody  of  the  President  of  the  Senate,  the 
Vice-President  of  the  United  States,  who  is  ex  officio  President  of  the 
Senate,  by  him  kept  unopened  until  the  day  named  when  he  is  to  open 
the  certificates,  and  then  the  votes  shall  be  counted. 

What,  then,  are  we  engaged  in  doing  ?  What,  then,  is  this  Commis 
sion  organized  to  effect  ?  It  is  to  assist  in  that  business  which  under 
the  Constitution  is  called  counting  the  electoral  vote.  This  is  all  the 
power  that  Congress  has  on  that  subject.  It  makes  no  difference  who 
is  to  do  it.  The  debate  up  to  the  passage  of  this  act  was  whether  the 
President  of  the  Senate  should  do  it  or  whether  the  two  houses  of  Con 
gress  should  participate  with  him  in  it  j  and  a  variety  of  opinions  from 
the  year  1800  up  to  now  has  been  entertained  and  expressed  by  distin 
guished  statesmen  on  both  sides  as  to  where  the  power  was  lodged.  But 
it  is  immaterial  now.  The  question  is  not  iclio  does  it,  but  ichat  is  it  that 
is  to  be  done. 

It  was  said  by  the  objectors  on  our  side— I  think  it  cannot  be  contro- 


104  ELECTORAL   COUNT   OF    1877. 

verted — that  counting  in  its  primary  meaning  is  merely  enumeration, 
and  is  limited  to  that,  in  all  caseswhere  the  subjects  of  the  count  are 
definitely  ascertained.  To  be  sure,  it  is  an  important  question  as  put 
by  the  learned  counsel  on  the  other  side,  what  is  to  be  counted  ?  There 
is  no  dispute  on  that.  It  is  the  electoral  votes  ;  and  the  cases  which 
are  referred  to  this  tribunal  are  those  of  two  sets  of  votes,  and  the 
power,  therefore,  is  implied  to  distinguish  between  these  several  sets  of 
votes  and  ascertain  which  is  the  vote  lawfully  to  be  counted. 

What  is  the  nature  and  extent  of  that  implied  power,  incident  to  this 
right  to  separate  the  lawful  from  the  unlawful  electoral  votes  ?  for  upon 
the  question  of  the  limit  of  the  inquiry  which  this  body  is  authorized  to 
make  under  the  act  which  organizes  it,  depends  the  solution  of  the 
question  as  to  what  evidence  it  may  look  to  for  the  purpose  of  deter 
mining  the  fact  which  is  the  subject  of  its  inquiry.  I  think  it  involves 
undoubtedly  the  exercise  of  certain  discretion  and  judgment.  It  may 
involve  the  decision  of  some  questions  of  fact  not  determinable  merely 
by  inspection  of  the  paper  purporting  to  contain  the  vote  or  to  consti 
tute  the  vote ;  as,  for  example,  the  very  case  put  by  one  of  the  leai-ned 
gentlemen  on  the  other  side,  its  genuineness  or  whether  it  be  a  forgery ; 
whether,  if  it  be  proven  by  a  seal,  the  seal  be  the  genuine  seal.  It  may 
also  involve  the  decision  of  some  question  of  law,  as  for  example 
whether  the  paper  offered  is  one  known  to  the  law  or  made  in  conformity 
with  the  law. 

But  this  power,  however  described,  whether  as  ministerial,  adminis 
trative,  political,  or  otherwise,  must  be  carefully  distinguished  from  that 
judicial  power  which  is  exerted  by  judicial  courts  under  the  jurisdiction 
to  try  the  title  to  an  office  by  the  prerogative  writ  of  quo  ivarranto.  In 
the  exercise  of  that  jurisdiction,  the  court,  armed  with  its  proper  forms 
and  the  machinery  of  trial  by  jury  and  for  the  enforcement  of  evidence, 
goes  to  the  very  truth  and  right  of  the  matter  without  regard  to  the  paper 
title.  It  ascertains  by  a  scrutiny  and  the  testimony  of  witnesses  who 
in  fact  received  the  legal  number  of  legal  votes  to  vest  him  with  actual 
title  to  the  office.  Is  it  proposed  here  to  do  that  ?  Why,  if  your  honors 
please,  what  length  of  time  would  be  required  to  investigate  by  recount 
ing  and  recanvassing  the  popular  vote  that  lies  at  the  foundation  of  the 
electoral  vote  in  every  State  in  the  Union,  or  even  in  those  which  are 
the  subjects  of  dispute  in  this  count!  And  if  you  cannot  go  down  to 
the  bottom, ^f  you  cannot  in  probing  and  searching  for  frauds  and  errors 
and  mistakes  go  through  the  long  and  black  catalogue  of  crime,  why 
stop  at  the  first  in  order  to  take  advantage  of  all  the  rest?  If  this 
work  is  the  work  of  this  tribunal,  then  it  is  to  be  made  thorough  and 
searching;  certainly  there  is  not  any  principle  of  law  or  good  morals 
which,  if  the  door  be  opened  to  that  inquiry,  requires  you  to  stop  before 
you  have  got  through. 

I  think  it  is  plain  that  this  Commission  is  not  engaged  in  the  exer 
cise  of  that  jurisdiction.  It  is  not  invested  with  any  portion  of  that 
judicial  power  which  is  conferred  or  constituted  by  the  Constitution  of 
the  United  States;  and  Congress,  not  possessing  "it  itself,  could  not  con 
fer  it  upon  such  a  body  as  this,  which  is  created  for  the  mere  purpose 
of  assisting  in  the  count  of  the  votes,  because  it  is  not  such  a  court  as 
Congress  is  authorized  to  create  for  the  purpose  of  receiving  a  grant  of 
the  judicial  power  of  the  Constitution.  I  do  not  doubt  that  the  juris 
diction  to  try  the  title  to  the  office  of  President  and  Vice-Presideut, 
being  judicial  and  properly  exercised  under  the  power  to  issue  writs  of 
quo  warranto,  may  be  vested  by  law  in  the  Federal  courts,  as  a  case  at 
common  law  arising  under  the  Constitution  and  laws  of  the  United 


ELECTORAL    COUNT    OF    1877.  105 

States;  but  until  vested  it  remains  dormant.  Whether  in  point  of 
fact  such  legislation  exists,  either  by  a  direct  act  of  Congress  or  indi 
rectly  by  the  adoption  of  the  Maryland  statutes  in  the  District  of 
Columbia,  is  a  question  upon  which  I  am  not  advised  ;  but  the  fact  that 
such  a  jurisdiction  either  has  been  or  may  be  evoked  out  of  the  Consti 
tution  is  an  unanswerable  reply  to  the  doctrine  that  Congress,  or  this 
tribunal  sitting  in  its  stead,  has  a  right  to  make  judicial  inquiry  as  in 
quo  warranto  into  the  title  of  any  office.  I  claim,  provided  there  be  no 
actual  legislation  such  as  I  have  spoken  of  by  Congress  in  respect  to 
quo  warranto  in  regard  to  President  and  Vice-President,  that  there  is  no 
law,  either  State  or  Federal,  in  reference  to  the  office  and  function  of 
an  elector ;  I  maintain  that  there  is  no  law,  either  State  or  Federal, 
whereby  that  title  can  be  judicially  investigated  and  determined  after  he 
has  cast  his  vote. 

I  maintain  that  no  State  can  exercise  such  jurisdiction  after  that 
event,  because  although  by  the  terms  of  the  Constitution  of  the  United 
States  each  State  by  its  legislature  may  determine  the  mode  of  the 
appointment  and  in  fact  make  the  appointment  of  its  electors,  yet  the 
function  of  voting  for  President  and  Vice-President  is  exercised  under 
the  authority  of  the  Constitution  of  the  United  States;  and  if  it  were 
possible  that  such  jurisdiction  existed  in  State  tribunals  under  the  au 
thority  of  State  laws,  it  would  be  an  easy  matter  in  the  great  strife  and 
struggle  of  political  parties  in  the  various  States  that  constitute  the 
Union,  after  the  election  to  interpose  by  judicial  process  such  delays  in 
respect  to  the  quieting  of  the  title  of  the  parties  having  the  regular  and 
formal  appearance  of  election  as  to  defeat  by  an  injunction  as  well  as 
a  quo  warranto  the  right  to  cast  the  vote  at  the  time  when  by  the  Con 
stitution  and  laws  of  the  United  States  it  is  necessary  that  it  should  be 
cast.  And  so  it  would  be  in  the  power  of  party  and  faction  at  any  time, 
when  beaten  at  the  polls  by  the  popular  vote,  to  resort  to  these  extraor 
dinary  writs  under  State  authority  and  defeat  their  adversaries  by  the 
interminable  delays  of  litigation. 

It  was  the  policy  of  our  fathers,  it  is  the  policy  of  the  Constitution,  to 
provide  a  machinery  which,  let  it  work  as  it  will,  must  nevertheless  by  the 
4th  day  of  March  after  the  election  necessarily  work  out  the  result  of  hav 
ing  some  President  and  some  Yice-President.  It  was  of  far  more  conse 
quence,  and  was  so  esteemed  by  the  framers  of  the  Constitution,  as  it 
will  be  by  every  lover  of  law  and  order,  that  we  should  have  some  con 
stituted  authority,  far  more  important  that  the  line  of  continuous  au 
thority  should  be  preserved,  than  that  either  A  or  B  should  hold  the 
place  and  receive  the  power  and  the  emoluments  of  the  office. 

I  say,  therefore,  that  although  I  admit  that  the  State  may  provide 
as  it  pleases  any  mode  by  which  the  appointment  may  be  made,  and  by 
which  the  fact  of  appointment  may  be  verified,  so  as  to  furnish  such 
machinery  and  mode  of  proof  as  it  may  choose  to  verify  its  own  appoint 
ment,  yet,  nevertheless,  it  must  take  effect,  if  it  have  any  power  what 
ever,  prior  to  the  time  when,  by  the  Constitution  of  the  United  States, 
those  who  have  the  indicia  of  office  and  the  color  of  office  are  called 
upon,  as  the  appointed  electors  of  a  particular  State,  to  discharge  the 
constitutional  duty  of  depositing  their  vote  for  President  and  Vice- 
President ;  so  that  when  the  person  appointed,  or  who  appears  to  have 
been  appointed,  having  in  his  possession  formal  evidence  of  his  appoint 
ment,  in  faqt  exercises  the  authority  conferred  upon  him  under  the  Con 
stitution  of  the  United  States,  actually  discharges  the  duty  of  casting 
the  vote  which  it  is  his  business  to  deliver,  the  transaction  to  which  he 


106  ELECTORAL    COUNT   OF    1877. 

has  been  a  party  has  passed  beyond  the  control  of  State  power  and 
authority. 

Then,  Mr.  President,  if  I  be  right,  the  actual  question  before  this 
Commission  is  not  which  set  of  electors  in  Florida  received  a  majority 
of  popular  votes ;  it  is  not  which  set  appears  from  the  return  of  the 
votes  made  at  the  primary  voting-places  to  have  had  a  majority  of 
votes  so  returned  ;  it  is  not  which  set,  by  looking  at  the  county-returns, 
appears  to  have  had  a  majority  of  the  votes  so  compiled  ;  but 'it  is  this  : 
Which  set,  by  the  actual  declaration  of  the  final  authority  of  the  State 
charged  with  that  duty,  has  become  entitled  to  and  clothed  by  the  forms 
of  law  with  actual  incumbency  and  possession  of  the  office.  'That  body 
of  electors  which,  with  an  apparent  right  and  a  paper  title,  and  in  pos 
session  of  the  function,  franchise,  or  office,  actually  exercises  it,  is  for 
the  purposes  of  this  tribunal  the  lawful  body  whose  votes  must  be 
counted.  It  is  not  necessarily  the  body  which  upon  subsequent  proceed 
ings  may  be  ascertained  to  have  had  de  jure  title  ;  but  it  is  that  body 
which,  by  color  of  office,  having  the  formal  external  proofs  of  authority, 
was  in  point  of  fact  inducted  into  possession  of  the  power  to  cast  that 
vote,  and  who  did  it ;  in  other  words,  who,  under  the  law  of  Florida, 
were  on  the  6th  day  of  December,  1876,  de  facto  electors  for  that  State. 

The  gentlemen  say  there  were  two  sets.  Why,  Mr.  President  and 
gentlemen,  it  is  as  absurd  to  say  that  there  are  or  can  be  two  sets  of 
de  facto  officers  in  the  same  office  as  it  is  to  say  that  there  or  can  be  two 
sets  of  dejure  officers.  It  is  as  absurd  in  law  as  it  would  be  in  physics 
to  say  that  two  bodies  can  occupy  the  same  space  in  the  same  moment 
of  time.  The  man  who  is  in  the  office,  who  has  possession  of  it,  who 
has  been  inducted  into  it,  who  exercises  its  authority,  who  does  the 
thing  which  that  office  authorizes  whomsoever  is  in  it  to  do,  is  the  man 
for  whom  we  are  inquiring,  for  he  is  the  man  that  votes.  Nobody  else 
votes.  Everybody  else  is  a  mere  volunteer,  unorganized,  illegal,  with 
out  authority,  no  matter  although  his  ultimate  and  final  right  be  better 
than  that  of  the  man  who  has  intruded. 

There  is  no  safety  and  there  is  no  sense — I  speak  it  with  great  respect 
to  this  tribunal  and  to  the  gentlemen  who  differ  with  me ;  I  am  bound 
to  say  it — there  is  neither  safety  nor  sense  in  any  other  doctrine.  You 
may  talk  as  eloquently  as  may  be  on  questions  of  fraud.  It  is  said, 
"  Fraud  vitiates  everything."  No,  it  does  not.  It  makes  things  void 
able,  but  it  does  not  vitiate  everything.  If  my  friend,  [Mr.  Black,]  by 
the  arts  and  stratagems  of  other  people,  (which  I  know  his  guileless 
soul  does  not  possess,)  should  hoodwink  me  by  fraudulent  misrepresenta 
tion  into  voting  for  his  candidate — if  that  be  a  possible  supposition — I 
cannot  retract  my  ballot,  nor  can  the  scrutiny  set  aside  the  result,  be 
cause  fraud  upon  private  persons  is  sometimes  insignificant  when  com 
pared  with  public  interests.  Frauds  by  trustees  or  persons  in  fiduciary 
capacities  do  not  make  void  their  fraudulent  transactions.  They  may 
be  avoided,  but  only  by  judicial  process,  and  the  defense  of  laches  is 
always  a  sufficient  answer;  and  lapse  of  time  may  be  an  element  in  a 
matter  of  such  transcendent  public  interest  as  this,  that  no  man,  after 
the  time  had  elapsed,  can  be  heard  to  allege  it. 

And,  Mr.  President,  the  only  alternative,  as  I  think  I  have  already 
once  said,  is,  upon  the  doctrine  of  our  learned  friends  on  the  other  side, 
that  if  the  inquiry  is  opened,  it  must  be  opened  to  all  intents  and  purposes; 
it  must  be  opened  for  all  inquiries  and  investigations ;  it  must  be  opened 
for  all  possible  proofs.  It  will  not  do  to  stop  at  the  first  stage  in  the 
descent ;  but  you  must  go  clean  to  the  bottom.  And,  although  it  be 
not  pertinent  to  a  forensic  discussion,  perhaps  the  example  set  to  me  by 


ELECTORAL   COUNT   OF    1877.  107 

the  learned  gentlemen  on  the  other  side  will  warrant  the  expression,  on 
my  part,  of  my  personal  confidence  that  if  that  true  result,  setting  aside 
all  the  forms  and  the  fictions  of  the  law,  could  be  ascertained,  there 
would  be  no  question  here  as  to  who  ought  to  be  entitled  to  have  counted 
in  his  favor  the  vote  of  Florida. 

Mr.  President  and  gentlemen,  an  argument  has  been  made  upon  the 
effect  of  the  act  of  Congress  of  1792,  which  provides  for  the  certification 
by  the  governor  of  a  State  of  those  who  have  been  duly  appointed 
electors  in  that  State.  I  have  already  corrected  the  misapprehension 
of  the  learned  gentlemen  on  the  other  side  that  we  regard  that  as  so 
conclusive  as  that  iriquiry  might  not  be  made  into  its  falsity,  whether  a 
forgery  or  genuine ;  but,  nevertheless,  it  is  evidence ;  it  is  evidence  pro 
vided  by  existing  law ;  it  is  the  evidence  which  Congress,  of  which  you 
are  the  advisers  and  constituent  parts  in  this  matter,  lias  made  and  de 
clared  to  be  regular,  ordinary,  usual,  formal  evidence  of  the  facts  which 
it  contains,  and  if  it  be  not  conclusive,  yet  it  is  sufficient. 

I  admit  that  the  mere  certifying  act  is  not  conclusive.  It  may  be 
dispensed  with.  Congress,  who  provided  it,  furnished  it,  made  it  a 
part  of  the  transaction,  may  disregard  it.  They  need  not  tie  them 
selves  hand  and  foot ;  they  need  not  estop  themselves ;  but  they  have 
directed  this  Commission  to  receive  only  that  which  is  competent  and 
pertinent  by  existing  law,  arid  the  existing  law  makes  the  governor's 
certificate  pertinent  and  competent  and  sufficient. 

But,  Mr.  President  and  gentlemen,  if  you  go  behind  the  certificate 
what  are  you  limited  to  by  the  necessity  of  the  thing?  In  my  judgment, 
you  are  limited  to  this:  to  an  inquiry  into  what  are  the  facts  to  which  he 
should  have  certified  and  did  not;  not  what  are  or  may  be  the  ultimate 
and  final  facts  and  right  of  the  case.  The  facts  to  be  certified  by  the 
governor  in  this  or  in  any  case  are  the  public  facts  which  by  law  remain 
and  constitute  a  part  of  the  record  in  the  public  offices  and  archives  of 
the  State,  and  of  which,  being  governor  for  the  time  being,  he  has  official 
knowledge.  So,  then,  the  case  stands,  that  on  the  day  and  at  the  time 
when,  if  ever,  the  title  and  right  to  the  possession  and  incumbency  of 
this  function  became  complete,  Governor  Stearns  was  the  lawful  gov 
ernor  of  Florida,  and  the  fact  to  be  certified  was  just  what  appeared  at 
that  time  in  his  office  or  in  the  office  of  the  secretary  of  state,  to  wit, 
that  by  the  judgment  and  finding  of  the  final  authority  of  the  State 
canvassing  that  election  the  gentlemen  whom  he  certified  to  be  electors 
had,  in  fact  and  according  to  law,  been  appointed. 

How  shall  I  treat  the  pretense  that  a  subsequent  governor  coming  in 
at  an  after-time,  or  that  a  court,  acting  upon  the  status  of  the  parties 
subsequently  when  it  rendered  its  judgment — if  it  rendered  any  at  all — 
could,  by  relation,  change  the  de  facto  situation,  or  the  pretense,  more 
groundless  still,  that  an  act  of  legislation  could  unsettle  and  otherwise 
determine  that  which  had  already  passed  beyond  the  control  of  mortal 
power!  For,  Mr.  President  and  gentlemen,  I  believe  it  is  a  saying  of 
one  of  the  sages  of  the  common  law  that  though  Parliament  be  omnipo 
tent,  it  cannot  alter  a  fact,  and  facts  are  rights.  All  our  rights  are 
founded  on  facts.  All  the  theory  and  practice  of  our  law  and  of  judicial 
tribunals  and  all  that  system  of  government  and  society  under  which 
we  live,  depend  not  upon  abstractions,  however  beautifully  they  may  be 
defined,  but  upon  the  facts  of  human  nature  and  of  human  life.  Stare 
decisis !  where  does  that  come  from  9  You  perpetuate  an  error  because 
if  you  do  not,  you  will  commit  a  wrong. 

Will  the  President  inform  me  how  much  time  I  have  consumed? 


108  ELECTORAL    COUNT    OF    1877. 

The  PRESIDENT.  You  have  spoken  forty-five  minutes.  I  will  notify 
you  when  the  hour  is  up. 

Mr.  MATTHEWS.  The  quo  ivarranto  proceedings  in  Florida  whicli 
seem  to  be  relied  upon  in  this  matter,  in  my  judgment,  cannot  be 
alleged  against  the  truth  of  the  facts  recited  in  Governor  Stearns's 
certificate,  mainly  for  the  reason  which  I  have  already  given,  because 
all  State  power  had  passed  away.  But  the  record  of  that  proceeding 
does  not  in  anywise  correspond  with  the  description  of  what  con 
stitutes  an  estoppel  by  judgment,  according  to  the  decision  of  Chief- 
Justice  De  Grey  in  the  Duchess  of  Kingston's  case.  In  the  quo  war- 
ranto  in  Florida  the  inquiry  was  not  what  it  is  here.  The  inquiry 
there  was  what  was  the  actual,  real,  final  right;  not  who  in  fact  accord 
ing  to  law  on  the  day  exercised  the  power  and  was  entitled  to  posses 
sion.  One  man  may  be  entitled  to  possession  ;  another  man  may  have 
the  right.  Nothing  is  more  common  than  that.  Gentlemen  have  sat  in 
both  Houses  of  Congress  upon  a  certificate  of  election  and  they  had  the 
right  of  possession,  when  perhaps  some  unnamed  person  outside  the 
area  and  not  entitled  to  the  privileges  of  the  floor  may  have  had  resid 
ing  within  him  all  the  time  the  real  right. 

That  leads  me  to  say  that  the  analogy  drawn  between  this  case  and 
the  celebrated  New  Jersey  case,  by  my  distinguished  friend  from  Penn 
sylvania,  [Mr.  Black,]  fails  utterly,  because  by  the  express  terms  of  the 
Federal  Constitution  the  House  of  Representatives  was  the  judge  not 
only  of  the  qualification  and  return  of  the  members  but  of  their  election. 
Therefore  it  could  set  aside  the  broad  seal  of  the  State  of  New  Jersey 
and  the  prima  facie  right,  to  inquire  into  the  real  right.  I  have  already 
undertaken  to 'show  to  this  Commission  that  they  are  not  sitting  here 
with  any  such  jurisdiction  as  that. 

But  so  far  from  availing  anything  as  proof  against  the  position 
which  I  deem  to  be  the  right  and  constitutional  one  here,  that  record 
establishes  for  us,  by  the  very  verity  which  is  claimed  for  it  on  the  other 
side,  the  essential  fact  on  which ,  in  my  judgment,  rest  all  the  rights  in 
volved  in  this  discussion  ;  and  that  is,  that  on  that  day,  on  the  6th  of  De 
cember,  the  day  appointed  by  law,  the  respondents  in  that  proceeding, 
who  are  certified  in  certificate  No.  1,  were  in  possession  of,  and  exer 
cising,  and  discharging  the  functions  and  duties  of  the  office  of  elector, 
and  that  the  complainants  or  relators  were  not,  because,  as  they  said,  we 
kept  them  out,  we  were  unlawfully  intruding  and  had  ousted  them,  and 
thereupon  they  asked  to  have  themselves  re-instated.  But  the  fact  is, 
that  on  that  day,  the  critical  day,  the  day  of  days,  the  respondents  in  that 
record  are  shown  by  the  gentlemen  to  have  been  in  the  undisturbed  ex 
ercise  of  the  actual  franchise  of  electors  for  the  State  of  Florida,  and 
hence  they  cast  their  votes  and  hence  their  votes  are  entitled  to  be  counted ; 
and  inasmuch  as  the  relators  appear  by  the  record  not  to  have  been  in 
possession,  not  to  have  been  situated  so  that  by  law  they  could  exercise 
that  function,  they  complain  and  admit  that  the  form  of  their  vote  was 
mere  dumb-show  without  meaning  or  significance  and  without  the  least 
particle  of  legality  or  constitutional  force. 

Mr.  President,  I  am  exceedingly  obliged  to  yourself  and  the  gentlemen 
of  the  Commission,  and  will  now  suspend  the  argument  so  far  as  I  am 
concerned. 

The  PRESIDENT.  You  have  occupied  fifty-five  minutes.  Is  there 
another  gentleman  to  be  heard  on  the  same  side  this  afternoon  ? 

Mr.  EYARTS.  It  was  agreed  that  Mr.  Stoughton  and  myself  would 
divide  the  remaining  two  hours  and  five  minutes,  but  we  were  not  ex 
pecting  to  proceed  to-day. 


ELECTORAL    COUNT    OF    1377.  109 

The  PEESIDENT.  The  understanding  of  the  Chair  was  that  during 
this  day  two  would  speak  on  each  side,  if  three  were  to  speak  alto 
gether. 

Mr.  Commissioner  ABBOTT.  There  is  to  be  but  one  closing  argument 
on  each  side  on  Monday,  as  I  understood  the  arrangement. 

The  PEESIDENT.  There  is  only  one  person  to  close  on  each  side  on 
Monday.  That  was  my  understanding. 

Mr.  EVAETS.  That  was  the  arrangement  when  there  were  but  two 
on  each  side  to  speak ;  but  then  when  there  were  three  introduced,  it 
was  required  that  two  should  open. 

The  PEESIDENT.     On  each  side,  I  meant. 

Mr.  EVAETS.    We  all  three  speak,  one  after  the  other? 

The  PEESIDENT.     I  think  two  had  better  speak  to-night. 

Mr.  EVAETS.    If  it  is  your  honor's  instruction,  we  will  submit. 

Mr.  STO  UGHTON.  Mr.  President  and  gentlemen  of  the  Com  mission , 
although  my  brother  Evarts  and  myself  propose  to  divide  between  us 
the  remainder  of  our  time,  I  shall  occupy,  I  think,  but  a  very  small  por 
tion  of  it. 

The  question  which  the  court  or  rather  this  tribunal  has  directed  us 
to  argue,  as  I  understand  it,  is  whether  any,  and,  if  any,  what,  testimony 
can  be  received  in  this  case  of  any  nature,  independent  of  the  docu 
ments  which  were  transmitted  to  the  President  of  the  Senate,  and 
opened  in  the  presence  of  the  two  Houses. 

In  the  first  place  it  seems  to  me  appropriate  to  ask  what  is  the  juris 
diction  of  this  tribunal  and  what  are  its  powers?  Upon  it  is  devolved 
by  legislation  of  Congress  such  power,  if  any,  to  count  the  electoral 
vote,  in  the  special  cases  referred  to  it,  as  is  possessed  by  the  two  Houses 
of  Congress  acting  separately  or  together.  The  jurisdiction  as  conferred 
is,  therefore,  an  unknown  quantity  until  it  shall  be  ascertained  what  are 
the  powers  of  the  two  Houses  acting  separately  or  together ;  and  the 
purpose  of  this  Commission  is — assuming  the  power  of  the  two  Houses 
or  of  either  to  be  to  count  the  electoral  vote — to  ascertain  what  duties, 
what  powers  are  involved  in  the  exercise  of  that  function.  The  pur 
pose  to  be  attained  is  the  count  of  the  electoral  vote.  The  power  de 
volved  upon  this  tribunal  is  to  count  that  vote  in  special  cases.  It  is 
to  count  the  electoral  vote,  and  not  to  count  the  votes  by  which  the 
electors  were  elected.  That  is  a  discrimination  which  I  think  hardly 
need  be  enforced  by  argument.  The  electoral  vote  is  to  be  counted,  and 
this  tribunal  has  no  power,  it  has  no  duty  to  count  the  vote  by  which 
the  electors  were  elected.  If  it  has,  it  will  be  compelled  to  descend  into 
an  unfathomable  depth  and  to  grope  its  way  in  paths  hitherto  untrod 
den  by  judicial  feet  and  amid  voting-polls  and  places  whence  it  cannot 
emerge  in  many  days. 

Now,  what  is  proposed  by  the  testimony  in  question  ?  The  general 
inquiry  which  counsel  ara  to  answer  is,  what,  if  any,  testimony  is  admis 
sible  in  this  case ;  and,  for  the  purpose  of  ascertaining  this,  it  is  well  to 
learn  precisely  what  this  case  is  and  what  is  the  purpose  of  the  testi 
mony  proposed.  There  are  some  facts  of  which  this  tribunal  can  take 
judicial  notice.  One  is,  the  laws  of  the  State  of  Florida.  What  are 
they  in  reference  to  this  subject,  and  what  was  done  in  pursuance  of 
them,  and  what  is  proposed  to  be  done  by  testimony— as  it  is  called— 
for  the  purpose  of  overthrowing  what  was  done  in  pursuance  of  the  laws 
of  that  State  ? 

In  the  first  place,  its  statute,  by  a  clause  a  part  of  which  I  will  take 
the  liberty  of  reading,  authorized  the  creation  of  an  ultimate  re  turning- 
board  having  capacity  to  certify  the  number  of  votes  cast  for  electors 


110  ELECTORAL   COUNT   OF   1877. 

and  who  were  elected  ;  and,  if  that  board  performed  its  duty,  however 
mistaken,  however  crowded  with  error,  however,  if  you  please,  tainted 
by  fraud,  if  that  board  discharged  the  duty  cast  upon  it  by  law,  and 
did  ascertain  and  did  declare  how  many  votes  for  particular  sets  of 
electors  were  cast,  and  did  certify  and  declare  who  were  the  persons 
elected  electors,  that  ends  all  inquiry  here,  assuming  that  you  may  go 
behind  the  governor's  certificate,  unless,  indeed,  you  may  retreat  behind 
the  action  of  the  returning-board,  the  final  tribunal  for  that  purpose 
created  by  the  laws  of  the  State,  and  ascertain  whether  it  did  or  did  not, 
according  to  your  judgment,  faithfully  return  the  votes  cast  and  faith 
fully  declare  who  were  the  persons  elected.  I  read  as  to  the  constitu 
tion  of  the  returning-board,  may  it  please  this  tribunal,  from  the  fourth 
section  of  the  act  of  1872,  which  will  be  found  on  page  2  of  the  report 
made  by  Mr.  Sargent  of  the  Senate.  It  provides  that : 

On  the  thirty-fifth  day  after  the  holding  of  any  general  or  special  election  for  any 
State  officer,  member  of  the  legislature  or  Representative  in  Congress,  or  sooner,  if  the 
returns  shall  have  been  received  from  the  several  counties  wherein  elections  shall  have 
"been  heldj  the  secretary  of  state,  attorney-general,  and  the  comptroller  of  public  ac 
counts,  or  any  two  of  them,  together  with  any  other  member  of  the  cabinet  who  may 
be  designated  by  them,  shall  meet  at  the  office  of  the  secretary  of  state,  pursuant  to 
notice  to  be  given  by  the  secretary  of  state,  and  form  a  board  of  State  canvassers,  and 
proceed  to  canvass  the  returns  of  said  election — 

Will  your  honors  mark  the  language — 

and  determine  and  declare  who  shall  have  been  elected  to  any  such  office  or  as  such 
member,  as  shown  by  such  returns.  If  any  such  returns  shall  be  shown  or  shall  ap 
pear  to  be  so  irregular,  false,  or  fraudulent  that  the  board  shall  be  unable  to  determine 
the  true  vote  for  any  such  officer  or  member,  they  shall  so  certify,  and  shall  not  include 
such  return  in  their  determination  and  declaration. 

There  was  committed  to  this  board  by  that  statute  a  capacity  to  de 
termine  and  decide — finally  and  conclusively — how  many  lawful  votes 
were  cast  and  who  were  elected  electors.  A  majority  of  that  board  were 
authorized  to  perform  that  duty ;  and  it  appears  here,  before  this  tribu 
nal,  that,  in  the  discharge  of  that  duty,  a  majority  of  its  members — 
omitting  the  attorney-general — did,  in  the  exercise  of  the  discretion 
thus  confided  to  them,  certify  and  declare  that  the  Hayes  electors,  so 
called,  were  duly  elected  by  the  lawful  voters  of  that  State.  If  we  go 
behind  that  finding  we  disregard  the  determination  of  a  tribunal  which 
the  State  of  Florida  has  declared  by  her  legislature  to  be  empowered  to 
determine  what  persons  she  has  constituted  to  declare  her  will  in  the 
electoral  college ;  for  it  is  her  will  as  a  sovereign  State — wise  or  foolish — 
which  is  to  be  thus  expressed. 

Now,  it  seems  to  me  that  if  this  Commission  shall  go  behind  the  find 
ing  of  that  board  it  will  go  behind  it  upon  the  theory  that  it  may  exer 
cise  its  will,  irrespective  of  judicial  power,  upon  some  theory  that  it  has 
the  capacity  of  both  Houses  or  of  either  House  to  do  as  it  pleases,  not 
in  subjection  to  the  Constitution  of  the  country,  but  in  obedience  to  an 
unlicensed  will  and  purpose  ;  and  I  expect,  as  my  brother  Black  did,  a 
conclusion  which  will  rescue  this  tribunal  from  falling  into  so  fatal  an 
error  as  that  of  undertaking  to  interfere  with  the  final  declaration  of 
the  tribunal  which  the  legislature  of  a  State  has  declared  shall  finally 
and  at  last  certify  who  may  deposit  the  expression  of  its  will  in  the  na 
tional  ballot-box,  as  it  has  been  called. 

I  suppose  it  will  not  be  denied— I  presume  no  one  will  deny — that  a 
State  of  this  Union,  by  its  legislature,  may  in  any  mode  it  pleases  de 
clare  who  shall  be  its  instrument  for  selecting  electors.  I  suppose  that, 
if  the  State  of  Florida  had  declared  that  one  of  its  sheriffs  should  select 
the  electors,  that  would  be  final  when  done.  Peradventure  some  theo- 


ELECTORAL   COUNT   OF   1877. 

rist,  upon  the  notion  that  you  should  go  to  the  people  as  the  source  of 
power  to  elect  judges  as  well  as  all  other  officers,  might  say  such  a  mode 
of  selection  and  appointment  would  hardly  be  in  harmony  with  repub 
lican  institutions ;  but  I  think  he  who  would  venture  to  go  behind  the 
expressed  will  of  the  State  as  to  the  method  in  which  the  electors  should 
be  appointed  would  find  himself  engaged  in  an  effort  to  invade  its  sov 
ereignty  and  interfere  with  the  supremacy  of  a  State. 

I  am  perfectly  aware  that,  if  this  tribunal  were  empowered  to  appoint 
committees  by  which  it  could  through  them  proceed  to  different  States 
and,  irrespective  of  the  rules  of  evidence  or  of  law,  gather  together  tes 
timony,  and  then  if  it  had  the  capacity  upon  that  to  do  as  it  should 
please,  it  might  go  behind  and  overset  any  final  lawful  declaration  of 
any  returniug-board  in  any  State  in  the  country.  But  Congress,  while 
it  conferred  in  the  shape  of  an  unknown  quantity  a  jurisdiction  upon 
this  tribunal — declaring  it  should  possess  the  powers,  if  any,  possessed 
by  the  two  Houses,  or  either,  for  the  purpose  of  performing  the  duty  of 
counting  the  vote — took  care  not  to  permit  it  to  found  its  conclusion 
upon  testimony  inadmissible  in  a  court  of  justice.  The  distinction 
between  the  uncertainty  of  language  which  conferred  jurisdiction  and 
the  certainty  and  precision  of  language  which  conferred  power  to  re 
ceive  testimony  is  marked  and  apparent,  and  I  will,  with  your  honors' 
permission,  refer  to  it. 

All  such  certificates,  votes,  and  papers  so  objected  to,  and  all  papers  accompanying 
the  same,  together  with  such  objections,  shall  be  forthwith  submitted  to  said  Com 
mission,  which  shall  proceed  to  consider  the  same,  with  the  same  powers,  if  any,  now 
possessed  for  that  purpose  by  the  two  Houses  acting  separately  or  together,  and,  by  a 
majority  of  votes,  decide  whether  any  and  what  votes  from  such  State  are  the  votes 
provided  for  by  the  Constitution  of  the  United  States,  and  how  many  and  what  per 
sons  were  duly  appointed  electors  in  such  State,  and  may  therein  take  into  view  such 
petitions,  depositions,  and  other  papers,  if  any,  as  shall,  by  the  Constitution  and  now 
existing  law,  be  competent  and  pertinent  in  such  consideration. 

"  Competent  and  pertinent w  in  view  of  what  ?  In  view  of  the  action 
of  Congress  through  its  committees  ?  I  mean  no  disrespect  when  I  say 
that  such  mode  permits  the  breath  of  calumny  to  be  blown  in  a  way 
which,  thank  God,  courts  of  justice  take  care  to  prevent;  and  your 
honors,  being  endowed  with  power  to  hear  depositions,  papers,  and  peti 
tions  competent  and  pertinent  within  the  meaning  of  the  Constitution 
and  existing  laws — it  being  not  expressed  precisely  what  they  are — will 
look  at  those  rules  of  law  which  guide  in  administering  justice  upon  the 
bench,  and  will  determine  what  are  the  depositions  and  papers  which 
you  may  thus  receive.  Turning  over  the  pages  of  the  law,  you  find, 
printed  in  characters  unmistakable,  your  utter  incapacity  to  receive 
other  proof  than  that  which  the  common  law  has  sanctified  by  usage 
and  through  the  lips  of  its  judges  as  fit  to  be  employed  to  affect  the 
rights  of  men,  to  say  nothing  of  the  rights  of  States  and  nations.  Here 
we  have  a  tribunal  of  special  and  limited  jurisdiction,  incapable  of  mov 
ing  out  of  the  narrow  orbit  in  which  it  is  placed,  proceeding  for  a  par 
ticular  purpose,  liable  in  the  language  of  the  act,  theoretically  but  not 
practically,  to  have  its  decision  overturned  by  a  concurrent  order  of  the 
two  Houses  acting  finally,  and  therefore  a  tribunal  thus  created  exerts 
no  powers  not  specially  conferred,  and  can  receive  no  testimony  not  in 
harmony  with  principles  of  law  long  since  settled. 

Then,  may  it  please  your  honors,  your  jurisdiction  is  to  count  the 
electoral  votes ;  your  power  is  in  counting  to  resort  to  such  proof,  if  any, 
as  the  Constitution  and  laws  permit.  You  are  dealing  with  a  delicate 
subject  when  the  question  of  jurisdiction  is  reached.  You  are  dealing 
with  the  supremacy  of  a  State  when  you  undertake  to  touch  its  final 
tribunal  for  the  purpose  of  overhauling  and  upsetting  its  action. 


112  ELECTORAL    COUNT    OF    1877. 

Now  I  have  in  a  general  way,  perhaps  very  imperfectly,  presented  my 
view  of  the  jurisdiction  and  the  power  and  the  purpose  of  this  tribunal. 
I  propose  to  say  a  very  few  words  in  addition. 

I  have  said  that  the  purpose  of  the  testimony  offered  is  to  go  behind, 
not  merely  the  governor's  certificate — for  that  undoubtedly,  upon  ques 
tions  of  forgery,  upon  questions  of  mistake,  upon  many  questions,  this 
tribunal  could  deal  with — but,  designing  to  get  behind  that,  the  purpose 
is  to  get  behind  the  action  of  that  tribunal  which  the  State  has  set  up, 
and  to  cancel  its  finding  ;  or  else  the  testimony  offered  is  senseless  and 
worthless.  What  is  specially  offered  °?  To  maintain  the  right  to  have 
the  votes  counted  for  Mr.  Tilden,  we  have  before  us  the  certificate  of  the 
attorney-general  of  Florida,  who  dissented  from  the  majority  of  the 
returning-board,  stating  in  that  certificate — with  frankness,  as  he 
does — that  there  is  no  method  of  authenticating  their  title  beyond  his 
mere  certificate,  by  obtaining  the  certificate  of  the  governor,  because 
it  would  be  in  violation  of  the  laws  of  Florida  for  him  to  certify  to  the 
election  of  electors  who  had  been  returned  as  such  by  but  a  minority  of 
the  board  empowered  to  perform  that  duty. 

What  next  do  we  find  I  We  find  a  statute  of  the  State  of  Florida 
thrust  upon  us,  passed  on  the  17th  of  January — long  after  these  elect 
ors  had  voted — authorizing  a  new  canvass — of  what?  In  harmony  with 
the  authority  to  canvass  previously  authorized u?  No,  but  a  canvass  of 
the  votes,  precisely  indicating  them,  then  in  the  office  of  the  secretary  of 
state;  and  we  find  under  that  act  a  board  of  canvassers  meeting;  a 
canvass  made  and  certified,  stating  the  Tilden  electors  to  have  been 
found  by  that  board  on  the  25th  of  January  to  have  been  elected  in  the 
November  previous.  That  is  the  authority  for  going  behind  the  certifi 
cation  of  the  electors  by  the  lawful  returning-board.  Coupled  with  this 
is  a  proceeding  by  quo  warranto,  ultimating  in  a  judgment  on  the  25th 
of  January  declaring  that  these  persons  who  performed  all  their  duties 
on  the  6th  of  December  were  not  then  electors,  but  that  all  their  acts 
were  illegal  and  invalid ;  and  the  learned  gentleman  from  Virginia  [Mr. 
Tucker]  who  yesterday  addressed  this  tribunal  said  that  decision  swept 
away  all  prior  acts  of  these  officers  de  facto;  but  for  this  he  gave  us  no 
authority.  My  memory  immediately  carried  me  to  case  after  case  in 
which  it  had  been  held  that  where  an  officer  de  facto  is  ousted  by  such 
a  proceeding,  all  his  prior  acts  are  necessarily  considered  as  valid  and 
binding.  Society  could  not  exist  without  the  application  of  such  a  rule. 
Judges  go  upon  the  bench,  property  passes  under  their  decrees,  men 
are  hung  by  their  judgments,  and  finally  some  one  after  a  litigation  of 
years  obtains  possession  of  the  office.  Is  the  virtue  of  that  decree  to 
sweep  away  the  past,  restore  to  life,  yield  back  property  f  No.  So 
here  the  act  of  the  electors  lawfully  appointed,  declared  to  be  such  in 
the  mode  prescribed  by  the  legislature  of  Florida,  doing  what  they  were 
commanded  to  perform,  is  valid  and  irreversible. 

Not  content  with  this  effort  to  succeed  by  quo  warranto  through  the 
aid  of  an  active  and  willing  court,  or  with  "the  finding  of  the  new  re- 
turning-board,  the  legislature  passed  another  act  declaring  the  canvass 
of  the  latter  board  valid  and  binding,  and  the  Tilden  electors  by  it  de 
clared  elected  to  be  duly  qualified  electors  of  the  State.  These  judi 
cial  and  statutory  contrivances  are  unavailing  and  cannot  disturb  the 
electoral  votes  duly  cast. 

The  alleged  fault  of  the  lawful  returning-board  was  not  fraud — at 
which  my  friends  are  so  shocked — but  mistake.  After  electors  are  thus 
appointed  lawfully,  but  possibly  by  a  mistaken  view  of  the  law  by  the 
board  declaring  their  election,  its  conclusion  must  forever  stand.  The 


ELECTORAL    COUNT    OF    1877.  113 

electors  who  by  virtue  of  such  an  appointment  have  cast  their  votes 
are  not  to  allow  the  day  prescribed  by  Federal  law  to  cast  the  vote  of 
the  State  to  pass,  and  the  vote  of  the  State  to  be  lost,  upon  the  theory 
that  possibly  their  work  may  be  undone  by  subsequent  judicial  action 
or  ex  post  facto  legislation. 

It  seems  to  me,  may  it  please  your  honors,  in  view  of  the  jurisdiction 
and  capacity  of  this  tribunal,  in  view  of  its  powers  to  take  testimony 
in  view  of  the  purpose  of  introducing  this  testimony,  which  I  have  un 
dertaken  to  state,  that  the  application  to  introduce  testimony  should  be 
overruled. 

The  PRESIDENT.     One  hour  and  thirty-two  minutes  are  left,  Mr. 
Evarts,  of  the  time  allotted  to  your  side. 

On  motion  of  Mr.  Commissioner  STRONG,  the  Commission  adjourned 
until  eleven  o'clock  on  Monday  morning,  the  5th  instant. 


MONDAY,  February  5,  1877. 

The  Commission  met  at  eleven  o'clock  a.  m.,  pursuant  to  adjournment, 
all  the  members  being  present. 

The  following  counsel  also  appeared  : 
Hon.  Charles  O'Connor,  of  New  York,  ~] 

Hon.  Jeremiah  S.  Black,  of  Pennsylvania,  |  Of  counsel  in  opposi- 

Eichard  T.  Merrick,  esq.,  of  Washington,  D.  0.,  }>     tion    to    certificate 
Ashbel  Green,  esq.,  of  New  Jersey,  No.  1. 

William  C.  Whitney,  esq.,  of  New  York,  J 

Hon.  William  M.  Evarts,  of  New  York.  ")  ^ 

Hon.  E.  W.  Stoughton,  of  New  York,  (  Of,  counsel  m  opposi- 

Hon.  Stanley  Matthews,  of  Ohio,  f     *lon   *°  certificates 

Hon.  Samuel  Shellabarger,  of  Ohio.  j      ^os'  2  anc  6' 

The  Journal  of  Saturday's  proceedings  was  read  and  approved. 

The  PRESIDENT.  The  concluding  counsel  on  the  part  of  the  ob 
jectors  to  the  first  certificate  is  entitled  to  an  hour  and  forty  minutes. 
Mr.  Evarts,  on  the  other  side,  who  will  speak  first,  is  en  titled  to  an  hour 
and  thirty-two  minutes. 

Mr.  EVARTS.  Mr.  President  and  gentlemen  of  the  Commission,  the 
order  of  the  Commission  inviting  the  attention  of  counsel  lays  out  for 
their  consideration  three  topics  : 

First,  whether,  under  the  powers  possessed  by  the  Commission,  any 
evidence  beyond  that  disclosed  in  the  three  certificates  from  the  State 
of  Florida,  which  were  opened  by  the  President  of  the  Senate  in  the 
presence  of  the  two  Houses  of  Congress  and  under  the  authority  of  the 
recent  act  of  Congress  are  transmitted  to  this  Commission,  can  be  re 
ceived  ; 

Second,  if  any  can  be  received,  what  that  evidence  is ;  and 

Third,  what  evidence  other  than  these  certificates,  if  any,  is  now  before 
the  Commission. 

I  will  dispose  of  the  last  question  in  the  order  of  the  Commission  first. 
It  requires  but  brief  attention  to  express  our  views  sufficiently,  and  will, 
I  think,  require  but  little  consideration,  in  point  of  time,  however  im 
portant  it  may  be  in  substance,  from  the  Commission. 

It  is  suggested  that  certain  packages  of  papers  which  were  borne 
into  the  presence  of  the  Commission  by  the  messenger  that  brought 
the  certificates  and  objections  are  already  evidence  in  the  possession  of 
SEC 


114  ELECTORAL    COUNT    OF    1877. 

the  Commission.  What  those  packages  contain,  what  degree  of  authen 
ticity,  or  what  scope  of  efficacy  is  to  be  imputed  to  or  claimed  for  them 
as  particular  matters  of  evidence  and  particular  forms  of  proof,  is  un 
known  to  us  and  unknown  to  the  Commission.  The  proposition  upon 
which  it  is  claimed  that  this  evidence,  whatever  it  may  be — subject, 
undoubtedly,  to  discussion  and  to  rejection  by  the  Commission  as  not 
pertinent  and  not  important  and  not  authentic — the  proposition  is  that, 
being  mentioned  in  one  of  the  objections  interposed  against  the  first 
certificate  as  matter  on  which  the  objection  was  founded,  instead  of 
being  a  warrant  as  it  were  to  the  objector  which  he  vouches,  he,  the 
objector,  thereby  makes  it  a  part  of  the  evidence  before  the  Commission ; 
and  our  learned  friend,  Judge  Black,  has  proposed  that,  except  as  against 
objectors  who  prevail  in  their  arts  and  efforts  in  common-law  courts  and 
whom  he  has  been  polite  enough  to  designate  as  "  snapper  adoes,"  this 
evidence  is,  by  authentic  principles  of  jurisprudence,  macle  evidence  by 
this  attachment  to  this  objection.  He  instances  the  case  of  a  bill  in 
equity  which  may  append  exhibits  and  which,  of  course,  brings  the  ex 
hibits,  as  a  part  of  itself,  into  the  possession  of  the  court.  But  that, 
thereby,  they  were  made  evidence  any  more  than  his  bill,  except  upon 
such  weight  as  should  be  imputed  to  them  by  the  answer  of  the  defend 
ant  admitting,  or  not  denying,  or  establishing  a  rule  of  necessary  contra 
diction  by  two  witnesses,  instead  of  one,  I  have  never  heard  that  the 
plaintiff  made  the  exhibits  evidence  in  the  cause  by  appending  them  to 
his  bill. 

Now,  the  provisions  of  the  recent  act  that  at  all  touch  this  matter  are 
very  few.  In  the  first  place,  the  objections  are  not  conclusive  of  any 
thing.  They  bind  nobody.  They  are  merely  the  occasion  upon  which 
the  reference  to  this  Commission  arises.  If  there  be  no  objection,  the 
case  provided  for  the  exercise  of  your  authority  is  not  produced.  If 
the  objection  is  made,  however  inartificial  or  imperfect,  the  case  has 
arisen  ;  but  that  the  objection  narrows  and  limits  and  provides  the  issue 
or  affects  the  controversy  upon  which  your  jurisdiction  attaches,  is  a 
pure  fabrication  out  of  utterly  unsubstantial  and  immaterial  suggestions 
in  the  law.  Certainly,  if  volunteer  objectors  on  one  side  and  the  other 
were  permitted  to  lay  down  the  issues,  and  adduce  the  evidence,  and 
make  up  the  packages  of  the  evidence,  it  would  be  a  strange  commit 
ment  of  your  great  authority  to  casual,  to  rash,  to  disingenuous  sugges 
tion. 

So  much,  I  think,  entirely  disposes  of  the  question  of  whether  there 
is  any  evidence  here.  The  other  question,  as  to  whether  evidence  in 
the  possession  of  either  or  both  of  the  Houses  of  Congress,  in  the  shape 
of  committees'  reports  or  conclusions  of  either  of  those  great  bodies, 
in  any  form,  is  transmissible,  and  may  be  proposed  to  this  Commission 
and  may  be  accepted  and  received  by  it  after  it  is  unfolded,  after  it  is 
understood,  after  the  paper  is  scrutinized  and  is  opposed,  is  a  question 
that  is  but  a  subordinate  part  of  the  main  question,  whether  any  evi 
dence  beyond  the  certificates  can  be  received. 

I  wish  to  preclude,  at  the  outset,  anything  that  should* carry  for  a 
moment  the  impression  that  there  has  been  overpassed  by  some  stroke 
of  astuteness  or  of  diligence  the  question  of  what  you  can  receive  and 
what  you  must  reject.  I  find  myself,  then,  unimpeded  in  the  inquiry, 
as  open  to  me  as  it  is  open  to  you,  whether  any  evidence  can  be  received, 
and,  if  any,  what,  beyond  the  certificates  opened  by  the  President  of  the 
Senate.  On  that  question  I  shall  think  it  quite  attentive  to  the  instruc 
tion  of  the  Commission  and  much  more  suitable  to  a  practical  and 
definite  discussion  and  a  practical  and  definite  determination  by  this 


ELECTORAL   COUNT   OF   1877.  115 

Commission,  that  whatever  of  general  principles,  and  however  far-reach 
ing  the  decision  on  those  general  principles  in  this  matter  of  evidence 
may  be,  the  evidence  that  is  now  actually  proposed  should  be  taken  as 
the  apparent  limit  of  the  inquiry  whether  evidence  should  be  received, 
not  from  any  particular  defect  as  to  form  or  manner  of  proffer,  but  as 
to  whether  it  falls  within  evidence  that  may  be  received  extraneous  to, 
in  addition  to,  the  certificates  opened  by  the  President  of  the  Senate. 
I  am  enabled  by  the  memorandum  presented  by  the  learned  counsel, 
Mr.  O'Conor,  which  is  found  on  the  forty-second  page  of  the  Congress 
ional  Record  of  yesterday,  to  present  the  quality  and  character,  the 
office  and  effort,  of  extraneous  evidence  that  it  is"  supposed  might  be, 
within  the  powers  of  this  Commission,  received  and  entertained  by  it. 

In  the  first  place,  he  excludes  from  the  area  of  consideration  one  of  the 
certificates,  to  wit,  that  which  contains  the  vote  of  the  Tilden  electors ; 
for  that  they  need  no  extrinsic  proof,  and  it  is  mentioned  only  that  it 
may  be  excluded.  Then,  secondly,  there  are  statements  concerning  the 
quo  warranto  suit  in  Florida,  commenced  on  the  6th  of  December  and 
ending  on  the  25th  of  January.  In  regard  to  that  the  record  is  supposed 
to  contain  in  itself  the  particular  means  of  its  use  according  to  estab 
lished  rules  of  jurisprudence  as  a  record  or  as  an  authority.  It  is  sug 
gested  in  respect  to  that,  therefore,  that  extraneous  proof  only  would  need 
to  reach  the  point  of  the  precise  hour  of  the  day  on  the  6th  of  December 
on  which  the  writ  commencing  that  action  was  served,  and  on  our  part 
perhaps  proof  that  an  appeal  had  been  taken  from  that  judgment  and 
is  still  pending. 

Then  are  enumerated  some  other  matter  sthat  require  no  proof,  as  it  is 
supposed.  Again,  the  acts  of  the  legislature  mentioned  are  public  acts 
and  matters  of  record  $  and  it  is  supposed  that  they  are  regularly  before 
the  Commission,  so  far  at  least  as  they  appear  in  the  third  certificate, 
by  virtue  of  that  transmission,  and  besides  I  suppose  that  they  are 
matters  of  public  record  as  the  action  of  the  legislature  of  the  State. 

We  come  now  to  the  following : 

Fifthly.  The  only  matters  which  the  Tilden  electors  desire  to  lay  before  the  Com 
mission  by  evidence  actually  extrinsic  will  now  be  stated. 

1.  The  board  of  State  canvassers,  acting  on  certain  erroneous  views  when  making 
their  canvass,  by  which  the  Hayes  electors  appeared  to  be  chosen,  rejected  wh  >lly  the 
returns  from  the  county  of  Manatee  and  parts  of  returns  from  each  of  the  following 
counties— 

Naming  them. 

In  doing  so  the  said  State  board  acted  without  jurisdiction,  as  the  circuit  and  su 
preme  courts  in  Florida  decided. 

That  is,  by  their  recent  judgments  in  mandamus  and  quo  warranto. 

11  It  was  by  overruling  and  setting  aside  as  not  warranted  by  law  these  rejections, 
that  the  courts  of  Florida  reached  their  respective  conclusions  that  Mr.  Drew  was 
elected  governor,  that  the  Hayes  electors  were  usurpers,  and  that  the  Tilden  electors 
were  duly  chosen.  No  evidence  that  in  any  view  could  be  called  extrinsic  is  believed 
to  be  needful  in  order  to  establish  the  conclusions  relied  upon  by  the  Tilden  electors, 
except  duly  authenticated  copies  of  the  State  canvass,"  (that  is— 

Mr.  O'Conor  adds — 

the  erroneous  canvass  as  we  consider  it,)  "  and  of  the  returns  from  the  above-named 
four  counties,  one  wholly  and  others  in  part  rejected  by  said  State  canvassers. 

Mr.  O'CONOR.    That  is  your  canvass  that  you  rely  on. 

Mr.  EVARTS.     So  I  understand.     I  was  reading  your  language. 

And  of  the  returns  from  the  above-named  four  counties,  one  wholly  and  others  in 
part  rejected  by  said  State  canvassers. 

It  is  proposed,  therefore,  as  the  matter  extraneous  that  it  is  desired 
to  introduce,  and  that  it  is  claimed  is  open  to  your  consideration,  not 
that  the  certificate  of  Governor  Stearns  falsifies  the  fact  he  was  to  cer- 


116  ELECTORAL   COUNT    OF    1877. 

tify;  not  that  it  falsifies  the  record  that  makes  the  basis  of  the  fact 
which  he  was  to  certify  ;  but  that  the  record  at  the  time  on  which  by 
law  he  was  to  base  his  certificate,  departing  from  which  his  certificate 
would  be  false,  is  itself  to  be  penetrated  or  surmounted  by  extraneous 
proof,  showing  that  by  matters  of  substance  occurring  in  the  progress 
of  the  election  itself  errors  or  frauds  intervened.  This  means  that  some 
where  in  the  steps  of  the  election  between  the  deposit  of  the  ballots  in 
the  boxes  at  the  precincts  and  the  original  computation  of  the  contents 
of  those  boxes  there,  and  the  submission  to  a  correct  canvass  in  a  county 
of  the  precincts  thus  canvassed  at  their  own  ballot-boxes,  or  between 
the  returns  of  the  county  canvass  to  the  State  canvassers,  or  in  the 
action  of  the  State  canvassers  in  the  final  computation  of  the  aggregates 
to  ascertain  the  plurality  of  votes  as  for  one  or  the  other  candidate, 
and  so  declare  the  result  of  the  election,  frauds  or  mistakes  occurred. 
In  other  words,  that  in  the  process  of  the  election  itself,  from  stage  to 
stage,  on  the  very  matter  of  right  and  on  the  question  of  the  title  dejure 
there  has  occurred  matter  of  judicial  consideration  which  should  be  in 
quired  into  here.  For  I  need  not  say  that,  however  simple  and  however 
limited  the  step  to  be  taken  behind  the  record  of  the  final  State  canvass, 
to  serve  the  needs  and  to  accomplish  the  justice  as  proposed  by  the 
learned  counsel  for  the  objectors  against  the  Hayes  certificate,  the 
principle  upon  which  this  evidence  is  offered,  if  their  occasions  re 
quired  it,  if  justice  required  it,  if  the  powers  of  this  commission  tolerated 
it,  would  carry  the  scrutiny  and  the  evidence  to  whatever  point  this 
complete  correction  or  evisceration  of  the  final  canvass  would  demand. 

I  am  at  once,  therefore,  relieved  from  any  discussion  as  practical  in 
this  case,  except  so  far  as  illustration  or  argument  may  make  it  useful, 
pro  or  con,  of  any  consideration  whether  a  governor's  certificate  could 
be  attacked  as  itself  being  not  a  governor's  certificate,  but  a  forgery. 
That  is  not  going  behind  the  governor's  certificate.  That  is  going  in 
front  of  the  governor's  certificate  and  breaking  it  down  as  no  governor's 
certificate.  That  is  not  the  question  you  are  to  consider  here.  There 
is  certainly  no  reason,  on  principle,  that  when  a  governor's  certificate 
is  required  for  any  solemnity  or  collusiveness  of  authentication,  a 
forged  paper  should  be  protected  because  it  is  called  a  governor's  cer 
tificate.  Neither  does  their  offer  of  proof  suggest  any  debate  as  to 
whether  the  fact  to  be  certified  by  the  governor,  the  substance  that  his 
certificate  is  to  authenticate,  can  be  made  the  subject  of  extraneous 
evidence  with  a  view  to  show  that  the  fact  to  be  certified  is  discordant 
with  the  certificate,  and  that  the  fact  must  prevail  over  the  interpolated 
false  certificate  of  the  fact. 

There  can  be  no  escape  from  this  criticism  on  their  offer  of  proof, 
unless  our  learned  opponents  ask  your  assent  to  a  claim  that  when  the 
act  of  Congress  requires  the  governor's  certificate  as  to  the  list  of  per 
sons  that  have  been  appointed  electors  it  requires  from  the  governor  a 
certificate  that  every  stage  and  step  of  the  process  of  the  election  has  been 
honest  and  true  and  clear  and  lawful  and  effectual,  and  tree  from  all 
exception  of  fraud.  Unless  you  make  that  the  fact  to  be  certified  by  the 
governor,  you  lay  no  basis  for  introducing  evidence  of  discord  between 
the  fact  to  be  certified  and  the  fact  that  has  been  certified.  Without 
disguise,  therefore,  the  proposition  is  that,  whether  or  no  there  might  be 
occasion  for  extraneous  proof  to  falsify  a  governor's  certificate  on  the 
ground  of  its  own  spurious  character,  or  on  the  ground  of  its  falsely 
setting  forth  the  fact  professed  to  be  stated,  and  admitting  the  governor's 
certificate  to  be  genuine,  and  admitting  the  final  canvass,  duly  tiled  and 
recorded,  to  be  in  accord  with  the  certificate,  this  Commission  stands  at 


ELECTORAL    COUNT    OF    1877.  H7 

the  same  stage  of  inquiry  and  with  the  same  right  to  investigate  the 
election  itself  to  the  bottom  as  a  judicial  court  exercising  the  familiar 
jurisdiction  of  quo  warranto.- 

There  is  also  a  suggestion  that  extraneous  proofs  may  be  necessary 
on  the  point  "  that  Mr.  Humphreys,  one  of  the  Hayes  electors,  held 
office  under  the  United  States;"  and,  in  our  behalf,  it  is  then  suggested 
by  the  learned  counsel  that  we  might  need  to  introduce  evidence  that 
be  had  resigned.  The  interposition  of  this  objection  was  a  surprise  to 
us;  for  it  was  a  matter  of  inquiry  before  the  Florida  State  cauvassing- 
board  on  the  4th  day  of  December,  187G,  antecedent  to  the  completion 
of  the  final  and  conclusive  canvass.  The  evidence  thus  taken  I  am  able 
to  read  from  page  32  of  the  Congressional  Record  of  Saturday,  in  the 
report  of  the  minority  of  the  House  committee  : 

Extract  from  testimony  before  the  Florida  State  canuassing-board ,  Man  day,  December  4,  1876. 
FREDERICK  C.  HUMPHREYS  sworn  for  the  republicans. 
Examined  by  the  CHAIRMAN  : 

Question.  Are  you  shipping-commissioner  for  the  port  of  Pen  sacola?-— Answer,  lam 
not. 

Q.  Were  you  at  one  time  ? — A.  I  was. 

Q.  At  what  time  ?— A.  Previous  to  the  7th  of  November. 

Q.  What  time  did  you  resign?— A.  The  acceptance  of  my  resignation  was  received 
by  me  from  Judge  Woods  about  a  week  or  ten  days  before  the  day  of  election,  which  I 
have  on  file  in  my  office.  I  did  not  think  of  its  being  questioned,  or  I  would  have  had 
it  here.  He  stated  in  his  letter  to  me  that  the  collector  of  customs  would  perform  the 
duties  of  the  office,  and  the  collector  of  customs  has  since  done  so. 

On  the  nature  of  an  objection  for  disqualification  as  a  subject  of  proof 
before  the  two  Houses  or  the  President  of  the  Senate,  in  their  attribu 
tion  of  authority  under  the  clause  of  the  Constitution  governing  their 
joint  meeting,  a  word  needs  to  be  said  ;  and  1  will  attempt  at  the  same 
time  to  answer  the  inquiry  made  very  pertinently  and  forcibly  by  Mr. 
Commissioner  THURMAN  the  other  day. 

There  is,  as  I  understand  the  matter,  (and  I  will  not  anticipate  a  dis 
cussion  that  must  come  later  in  this  argument,)  a  consideration  in  the 
first  place  of  whether  the  Houses  of  Congress  in  the  matter  of  the  count, 
at  the  time  of  the  meeting  for  the  constitutional  duty  of  opening  and 
counting  the  votes,  have  any  power  by  law  for  any  intervention  or  any 
methods  of  extraneous  proof.  Whatever  may  be  thought  as  to  whether 
disqualifications  of  this  nature  were  proper  for  the  scrutiny  of  the  votes 
to  be  counted,  and  however  proper  it  might  have  been  for  Congress  to 
provide  by  law  for  the  production  of  extraneous  proof  in  that  transac 
tion,  and  for  the  manner  in  which  it  might  be  adduced  and  considered, 
there  is  no  act  of  Congress  on  the  subject.  Our  proposition  is  that,  at 
that  stage  of  the  transaction  of  the  election,  the  two  Houses  cannot 
entertain  any  subject  of  extraneous  proof.  The  process  of  counting 
must  go  on.  "  If  a  disqualified  elector  has  passed  the  observation  of  the 
voters  in  the  State,  passed  the  observation  of  any  sentinels  or  safe 
guards  that  may  have  been  provided  in  the  State  law ;  when  these  are 
all  overpassed  and  the  vote  stands  on  the  presentation  and  authentica 
tion  of  the  Constitution — that  is,  upon  the  certificate  of  the  electors 
themselves  and  of  the  governor — it  must  stand  unchallengeable  and 
unimpeachable  in  the  count.  Of  course,  the  provision  of  means  of 
inquiry  at  that  stage  by  Congress,  if  they  had  thought  fit  to  provide 
means,  would  have  involved  the  delays  of  such  inquiry,  the  proof  of 
the  alleged  infirmity  in  the  elector,  and  the  counter-proof  of  its  removal, 
all  matters  ordinarily  manageable,  perhaps  in  point  of  time  not  leading 
to  much  prolixity,  but  still,  in  supposable  cases,  involving  contradiction 


118  ELECTORAL   COUNT    OF    1877. 

of  witnesses  and  discussion  as  to  the  effect  of  testimony  which  would 
involve  delay. 

Mr.  Commissioner  Thurman  asked  this  question :  "  Suppose  that  the 
electoral  vote,  when  opened,  disclosed  the  fact  that  the  four  electors 
were  then  present  members  of  Congress,  and  had  been  such  members 
at  the  time  of  appointment  as  electors,  what  then  ?  "  That  involves  an 
element,  you  will  perceive,  that  is  not  touched  by  the  considerations 
that  belong  to  proof.  That  impeachment  of  qualification  in  the  electors 
supposed  is  of  ocular  and  personal  observation  at  all  times  by  the  Presi 
dent  of  the  Senate  and  by  the  two  Houses  of  Congress,  and  is  of 
record  at  the  Capitol.  But  if  the  instance  is  merely  that  of  a  member 
of  Congress  not  presently  a  member  and  thus  involving  extraneous 
proof  of  his  retirement  from  the  office  in  season  to  qualify  him  for 
appointment  as  elector,  then  the  case  falls  back  into  the  class  of  cases 
which  I  have  just  considered,  where  there  has  been  no  provision  for 
extraneous  proof,  and  where  the  office  accorded  to  the  governor's  cer 
tificate  cannot  be  overpassed  without  extraneous  proof.  There  is,  as 
we  suppose,  no  safe  rule,  except  to  say  that  this  injunction  laid  upon  the 
States,  that  they  shall  not  appoint  the  excluded  persons,  does  not  execute 
itself  under  the'Constitution,  and  if  unexecuted  in  the  laws  of  the  State, 
is  only  to  be  executed  by  laws  of  Congress  providing  the  means  and 
time  and  place  for  proof  and  determination  on  the  fact  of  disqualification. 
This  is  all  that  I  need  to  say  on  the  question  of  personal  disqualifica 
tion. 

I  have  said  that  this  Commission  cannot  receive  evidence  in  addition 
to  the  certificates,  of  the  nature  of  that  which  is  offered  ;  that  is,  evi 
dence  that  goes  behind  the  State's  record  of  its  election,  which  has  been 
certified  by  the  governor  as  resulting  in  the  appointment  of  these  elect 
ors.  One  reason  of  this  proposition,  and  on  which  sufficiently  it  rests, 
is  that  that  is  a  judicial  inquiry  into  the  very  matter  of  right,  the  title 
to  office.  This  inquiry  accepts  the  prevalence  of  the  formal,  the  certifi 
cated,  the  recorded  title  of  the  electors,  and  proposes  then  to  investi 
gate  as  inter  partcs,  as  a  matter  of  right,  which  of  two  competing  lists 
of  electors  is  really  elected  on  an  honest  and  searching  canvass  and 
scrutiny  of  the  State  election.  It  undertakes  a  function  that  is  judicial  ; 
and  the  powers  for  its  exercise  are  attempted  to  be  evoked  by  their 
necessity  for  the  exercise  of  the  function  assumed.  What  are  adequate 
means  ?  Adequate  means  for  that  judicial  investigation  are  plenary 
means.  No  means  are  adequate  for  that  inquiry  that  are  not  plenary. 
But  no  plenary  judicial  powers,  no  plenary  powers  for  inquiry  into  fact 
and  determination  of  law  judicially,  can  be  communicated  by  Congress 
except  to  tribunals  that  are  courts  inferior  to  the  Supreme  Court  and 
that  are  filled  by  judges  appointed  by  the  President  of  the  United  States 
and  confirmed  by  the  Senate.  Will  any  lawyer,  expert  or  inexpert,  men 
tion  a  topic  or  method  of  judicature,  of  jurisprudence,  that  involves  the 
possession  of  means  of  larger  reach  and  a  more  complete  control  of 
powers  than  the  trial  of  a  quo  warranto  for  an  office  that  is  to  search  an 
election  ?  But  not  only  is  it  beyond  the  power  of  Congress  to  transfer 
to  this  Commission  the  powers  of  a  court  of  this  plenary  reach  and  effi 
ciency,  but  on  the  topic  of  quo  warranto  to  try  the  title  of  an  office  they 
would  find  a  subject  of  jurisdiction  in  regard  to  which  the  Constitution 
had  interposed  an  insurmountable  barrier  to  its  devolution  on  a  court 
like  this.  The  quo  warranto  is  a  matter  and  an  action  of  the  common 
law.  It  involves  as  matter  of  right  the  introduction  of  a  jury  into  its 
methods  of  trial.  No  title  to  office  on  a  contested  election  was  ever 
tried  without  a  jury.  The  seventh  article  of  amendments  to  the  Consti- 


ELECTORAL    COUNT    OF    1877.  119 

tution  requires  that  in  suits  at  common  law  the  right  of  trial  by  jury 
shall  be  preserved,  and  their  verdict  shall  never  be  re-examined  in  any 
court  of  the  United  States  except  by  the  rules  of  the  common  law. 

I  may  ask  your  attention,  in  connection  with  the  topic  that  I  last  dis 
cussed,  and  in  pertinent  relation  to  the  present,  to  the  case  of  Groome 
vs.  G-wynn,  in  43  Maryland  Reports,  572,  especially  at  page  624.  This 
case  shows  that  this  argument,  that  a  duty  attributed  by  law  or  the  Con 
stitution,  must  carry  to  itself,  in  the  functionary  charged  with  its  exer 
cise,  all  the  powers  necessary,  upon  the  ground  that  the  duty  must  in 
volve  the  powers,  finds  no  place  in  our  jurisprudence;  the  argument  is 
the  other  way.  If  the  functionary,  if  the  Commission  has  not  been 
clothed  with  the  necessary  faculties,  then  the  duty  is  not  accorded  or, 
the  means  of  its  exercise  not  being  furnished,  it  cannot  be  discharged. 
There  the  governor  had,  by  the  State  constitution,  the  power  to  deter 
mine  a  contest  for  the  elective  office  of  attorney-general  of  the  State  of 
Maryland.  The  governor,  finding  by  his  own  inspection  of  the  consti 
tution  that  he  lacked  the  means  of  carrying  out  the  scrutiny  that  must 
decide,  held  that  he  could  not  exercise  it  arid  he  would  not  exercise  it, 
unless  compelled  by  judicial  authority.  The  court  of  appeals,  on  an  ap 
plication  for  a  mandamus  to  compel  the  governor  to  give  the  certificate 
to  the  candidate  appearing  to  be  elected  by  the  canvass,  held  that  he 
was  vested  by  the  constitution  with  an  authority  to  decide  the  contest, 
but  that  the  laws  of  Maryland  had  not  executed  the  constitution  by 
furnishing  him  with  powers  to  perform  the  duty  assigned  to  him,  and 
that  the  mandamus  must  go  against  him  to  compel  him  to  deliver  the 
certificate  to  the  candidate  that,  on  the  fraudulent  election,  was  returned 
as  having  the  plurality  of  votes.  Thus  the  preliminary  contest  before 
the  governor  that  might  have  been  effectual  to  redress  the  frauds  of  the 
election,  was  defeated  for  want  of  necessary  legislation.  The  contest 
could  only  be  had  under  the  judicial  powers  of  the  State  lodged  in  the 
courts,  and  in  the  shape  of  quo  warranto  on  a  suit  against  the  inducted 
candidate  that  the  governor  might  or  would  have  decided  not  to  be  en 
titled  to  take  the  office. 

I  find  in  this  act  of  1877  no  such  purpose  in  the  arrangement  of  this 
Commission  or  its  endowment  with  powers  as  to  make  it  a  court  under  the 
Constitution.  I  find  no  appointment  of  these  judges  to  this  court  under 
the  powers  of  the  Constitution.  I  find  no  means  provided  for  writs  and 
their  enforcement,  nor  for  the  methods  of  trial  that  must  belong  to  a 
discussion  on  a  quo  warranto.  Now,  I  understand  that  the  proponents 
of  this  proof  lay  out  as  the  nature  and  the  limit  of  your  inquiries,  of 
your  duties  and  your  powers,  that  of  judicial  investigation  upon  quo 
warranto.  Mr.  Representative  Field  assigned  to  you  what  he  described 
as  "  powers  at  least  as  great  as  of  a  court  on  quo  warranto,"  and,  of 
course,  in  that  nature.  Mr.  Merrick  claimed  the  same.  Judge  Black 
did  not  in  terms,  yet  in  assigning  the  nature  and  the  searching  charac 
ter  of  the  transaction  that  you  are  to  enter  upon,  gave  it  that  character 
and  implied  that  demand.  The  brief  handed  in  by  Mr.  Green,  in  the  praise 
of  which  I  am  happy  to  join  with  his  learned  associates,  makes  the  claim 
distinctly  that  you  are  not  adequate  as  a  revising  canvassiug-board,  but 
you  must  have  the  powers  of  a  court  on  quo  warranto.  And  why  this  claim 
if  anything  less  magnificent  and  anything  less  intolerable  could  have  been 
found  sufficient  area  for  your  action  as  desired  ?  It  is  because  in  the  meth 
ods  and  machinery  of  elections,  as  they  insist,  the  steps  are  onward,  from 
one  canvass  to  the  next,  and  if  you  are  made  only  a  superior  cauvassing- 
board  to  determine  whether  Governor  Stearns's  certificate  that  these  elect 
ors  were  appointed  is  valid,  and  you  are  nothing  but  a  returniug-board, 


120  ELECTORAL    COUNT    OF    1877. 

surmounting  the  final  returning-board  to  see  whether  their  returns  justi 
fied  that  certificate,  that,  at  once,  you  must  find  that  it  does,  that  the 
de-facto  titleand.'possession  are  complete,  and  that  nothing  but  a  jurisdic 
tion  that  concedes  the  de  facto  title  and  possession  can  begin,  can  find 
the  case  for  beginning,  the  consideration  of  the  question  of  right.  This 
quo-warranto  suit  in  the  Florida  court,  if  it  becomes  a  subject  of  evi 
dence,  declares  absolutely,  on  the  petition  of  the  Tildeu  electors,  that 
the  Hayes  electors  are  in  possession  of  the  faculty,  the  office,  or  what 
ever  it  may  be,  and  are  exercising  it,  and  they  ask  that  an  inquiry  may 
then  proceed  in  due  course  of  law  to  inquire  whether  that  possession 
and  that  exorcise,  as  matter  of  right,  between  them  and  the  Hayes 
electors,  are  or  are  not  according  to  law  and  truth. 

And  the  Commission  will  be  good  enough  to  look  at  an  act,  not  re 
printed  in  the  little  collection  of  the  acts  so  usefully  laid  before  us,  of 
February  2,  1872,  in  the  laws  of  Florida,  in  relation  to  the  proceeding 
upon  writs  of  quo  ivarranto.  The  general  statute  of  procedure  excludes 
any  possible  writ  of  quowarranto  except  by  the  State  through  the  action 
of  the  attorney -general,  and  this  quo-ivarranto  suit  begins  by  evidence 
that  the  attorney -general  refused  to  bring  the  writ  for  the  State,  and 
that  led  to  an  inquiry  how  it  happened  that  it  was  brought  at  all,  and 
to  the  discovery  of  this  law  of  1872,  providing  that  when  the  attorney- 
general  refuses,  then  claimants  may  make  themselves  relators  and  use 
the  name  of  the  State  ;  but  in  such  case  the  suit  is  a  mere  private  suit, 
that  is  good  between  the  parties,  but  does  not  affect  the  State.  It  is  in 
terms  so  provided,  and  it  is  provided  that  the  judgment  shall  not  be  a 
bar  to  a  subsequent  suit  by  the  attorney-general  in  the  public  right.  So 
much  to  explain  that  situation. 

Mr.  Commissioner  BRADLEY.  Will  you  give  us  the  page  of  the 
session  laws  ? 

Mr.  EVARTS.    Page  28  of  the  session  laws  of  1872. 

There  is  but  one  other  point  that  I  wish  to  call  to  the  attention  of  the 
Commission  in  the  legislation  of  Florida,  for  I  can  spend  no  time  to 
rehearse  the  statutes.  On  page  53  of  the  pamphlet  that  has  been  printed 
for  the  use  of  the  Commission  there  are  found  sections  31  and  32.  One 
is  a  provision  that — 

The  secretary  of  state  shall  make  and  transmit  to  each  person  chosen  to  any  State 
office  immediately  after  the  canvass — 

showing  that  the  canvass  as  completed  is  the  basis  of  the  State's  authen 
tication  of  the  right  of  every  State  officer — 

a  certificate  showing  the  number  of  votes  cast  for  each  person,  which  certificate  shall 
be  prima  facie  evidence  of  his  election  to  such  office. 

That  gives  him  the  office.  Subsequent  inquiry  is  as  to  the  final  right. 
Then  section  32 : 

When  any  person  shall  he  elected  to  the  office  of  elector  of  President  and  Vice-Pres 
ident,  or  Representative  in  Congress,  the  governor  shall  make  out,  sign,  and  cause  to 
be  sealed  with  the  seal  of  the  State,  and  transmit  to  such  person  a  certificate  of  his 
election. 

That  is  the  State's  final  designation  of  the  person  that  has  been 
appointed  an  elector  under  the  Constitution  of  the  United  States.  Had 
these  contestants  any  such  authentication  of  their  right,  and  have  they 
proposed  any  such  evidence  of  right  as  in  existence,  on  the  6th  day  of  De 
cember  J?  Have  they  questioned  the  completeness  of  the  Hayes  electors7 
warrant  to  attend  and  discharge  their  duty  that  clothes  the  vote  when 
cast  with  the  complete  qualification  under  the  State  laws  and  the  State's 
action  ?  We  have  the  governor's  certificate — and  he  is  the  very  person 


ELECTORAL   COUNT   OF    1877.  121 

that  passed  officially  upon  that  question  which  furnishes  the  authority 
to  the  electors  to  meet  and  act — that  this  is  the  list  of  the  electors 
appointed.  Omnia  prcesumuntur  rite  acta;  but  there  is  no  presumption 
needed  here.  These  certificates  under  the  State  law  form  no  part  of 
the  return  to  the  President  of  the  Senate ;  but  when  the  same  governor 
executes  under  Federal  law  the  same  duty  and  upon  the  same  evidence 
as  under  State  law,  we  have  in  his  certificate,  now  here,  adequate  authen 
tication  of  the  completion  of  the  transaction  by  which  the  State  appointed 
the  Hayes  electors. 

Now  we  come  to  consider  the  general  doctrine  as  to  what  the  powers 
are,  and  what  the  arrangement  and  disposition  of  those  powers  are, 
under  the  Constitution  of  the  United  States  in  the  transaction  of  choos 
ing  a  President.  In  the  first  place,  the  only  transaction  of  choosing  a 
President  begins  with  the  deposit,  so  to  speak,  in  the  Federal  urn  of 
the  votes  of  certain  persons  named  and  described  in  the  Constitution 
as  electors.  From  the  moment  of  that  deposit  the  sealed  vote  lies  pro 
tected  against  destruction  or  corruption  in  the  deposit  provided  for  it, 
the  possession  of  Federal  officers  in  Federal  offices.  The  only  other 
step,  after  that,  is  the  opening  of  those  votes  and  their  counting.  All 
that  precedes  the  deposit  of  the  votes  by  electors  relates  to  their  acquisi 
tion  of  the  qualifications  which  the  Constitution  prescribes.  Those 
qualifications  are  nothing  but  appointment  by  the  State,  and  with  that 
the  act  of  Congress  and  the  Federal  Constitution,  with  due  reverence 
to  State  authority,  do  not  interfere.  It  has  been  provided  under  a  rule 
of  prudence  that  the  electors  shall  all  be  appointed  on  the  same  day  in 
all  the  States.  It  has  been  provided  that  they  shall  meet  and  cast  their 
votes  on  the  same  day.  The  latter  provision  fixes  a  duty  in  the  trans 
action  of  voting  for  President.  The  other  is  the  only  intrusion  upon 
State  authority  in  the  absolute  choice  of  the  time  and  manner  of  ap 
pointment  ;  Congress  may  prescribe  that  the  time  of  voting  shall  be  the 
same  in  all  the  States,  and  Congress  has  so  prescribed. 

What  are  we  to  gather  in  respect  to  the  stage  of  this  transaction 
which  is  the  deposit  of. the  Federal  vote  for  President  by  the  qualified 
electors?  It  is  their  own  vote.  They  are  not  delegates  to  cast  a  vote 
according  to  the  instruction  of  their  State.  They  are  not  deputized  to 
perform  the  will  of  another.  They  are  voters  that  exercise  a  free  choice 
and  authority  to  vote,  or  refrain  from  voting,  and  to  vote  for  whom  they 
please ;  and  from  the  moment  that  their  vote  is  sealed  and  sent  forward 
toward  the  seat  of  Government  no  power  in  a  State  can  touch  it,  arrest 
it,  reverse  it,  corrupt  it,  retract  it.  Nothing  remains  to  be  done  except 
count  it,  and  count  it  as  it  was  deposited.  The  wisdom  of  the  secret 
ballot  and  of  its  repose  in  the  possession  of  the  President  of  the  Senate 
secures  the  object,  ut  nihil  innovetur.  The  vote  is  to  be  opened  and 
counted,  in  contemplation  of  law,  as  freshly  as  if  it  had  been  counted 
on  the  day  it  was  cast,  in  the  State. 

These  electors,  at  our  present  election  three  hundred  and  sixty-nine 
citizens  in  number,  not  being  marked  and  designated  by  any  but  politi 
cal  methods,  are  by  the  Constitution  made  dependent  for  their  qualifica 
tion  upon  the  action  of  the  State.  If  the  State  does  not  act  there  are 
no  qualified  electors.  If  the  State  does  act,  whatever  is  the  be-all  and 
the  end-all  of  the  State's  action  up  to  the  time  that  the  vote  is  cast  is 
the  be-all  and  the  end  all  of  the  qualification  of  the  elector,  and  he  is 
then  a  qualified  elector  depositing  his  vote  to  accomplish  its  purpose, 
and  to  be  counted  when  the  votes  are  collected. 

Our  ancestors,  whom  we  revere — let  us  not  at  the  same  time  despoil 
them  of  their  right  to  our  reverence— were  riot  wanting  either  in  fore- 


122  ELECTORAL   COUNT    OF    1877. 

cast  or  in  circumspection  in  this  provision.  Every  solicitude,  every 
safeguard  that  a  not  very  credulous  view  of  human  nature  could  exact 
for  the  supremacy  of  the  Constitution  in  this  supreme  transaction  under 
it  was  provided.  At  the  bottom  of  everything  was  a  determination 
that  this  business  should  proceed  to  fill  the  office  ;  that  that  terror  of 
monarchies  and  of  republics  alike,  a  vacant  or  a  disputed  succession  to 
the  occupancy  of  the  Chief  Magistracy,  should  not  possibly  exist. 

Let  me  find  for  you  those  constitutional  limitations  upon  the  supposed 
quo  ivarranto  procedures  that  were  to  cover  investigations  into  thirteen 
or  thirty-eight  States  before  the  votes  could  be  counted.  Why,  the 
second  substituted  election,  on  the  failure  of  the  first,  must  end  by  the 
4th  of  March.  What  room  is  there  to  interpolate  quo  warranto  pro 
ceeding  in  any  stage  from  the  deposit  in  the  primary  ballot-box  in  the 
State  up  to  the  counting  of  the  votes  which  declares  a  President  elected, 
or  the  failure  to  elect,  upon  which  the  States  resume  their  control  through 
their  delegates  in  the  lower  House  of  Congress  upon  the  basis  of  State 
equality  ?  The  substituted  election  must  come  to  an  end  by  the  4th 
of  March;  and  whoever  introduces  judicial  quo  warranto  anywhere  in 
the  transaction  introduces  a  process  of  retardation,  of  baffling,  of  ob 
scuring,  of  defrauding,  of  defeating  the  election,  and  gives  to  the  Senate, 
by  mere  delay,  the  present  filling  of  the  Presidency  with  an  acting  offi 
cer  and  compels  a  new  election.  That  much  for  delay.  Now  it  is  an 
absolutely  novel  proposition  that  judicial  power  can  put  its  little  finger 
into  the  political  transaction  of  choosing  anybody  to  an  elective  office. 

The  bringing  into  office  a  President,  bringing  into  office  a  governor, 
bringing  into  office  any  of  the  necessary  agents  of  the  frame  and  struc 
ture  of  the  State,  without  which  in  present  action  it  will  be  enfeebled 
and  may  fall,  is  a  political  action  from  beginning  to  end.  It  comes  to 
furnish  a  subject  of  judicial  post  liac  investigation  only  after  it  has  been 
completed.  If  judges  are  to  intrude  and  courts  with  their  proceedings 
at  the  various  stages  that  are  to  be  passed  in  the  business  of  filling 
the  office,  so  that  there  shall  be  no  vacant  and  no  disputed  succession 
de  facto,  who  does  not  see  that  you  introduce  the  means  of  defrauding 
and  defeating  the  political  action  entirely,  and  turning  it  into  a  discus 
sion  of  the  mere  right  that  shall  leave  the  office  vacant  till  the  mere 
right  is  determined? 

It  is  an  absolute  novelty,  unknown  in  the  States,  unknown  in  the 
nation,  that  judicial  inquiries  can  be  interposed  to  stop  the  political 
action  that  leads  up  to  the  filling  of  office.  The  interest  of  the  State  is 
that  the  office  shall  be  filled.  Filling  it  is  the  exercise  of  a  political 
right,  the  discharge  of  a  political  duty.  Such  safeguards  as  can  be 
thrown  about  the  ballot-box,  about  the  first  canvass,  the  second  can 
vass,  the  third  canvass,  the  final  canvass  in  the  States,  about  the  final 
counting  before  the  two  Houses,  and  that  shall  not  retard  or  defeat  the 
progress  to  the  necessary  end,  are  provided.  These  are  provided ;  these 
are  useful;  but  you- do  not  step  with  a  judicial  investigation  into  a 
ballot-box  upon  a  suggestion  that  it  has  been  stuffed,  and  stop  the  elec 
tion  till  that  quo  warranto  is  taken ;  and  then  when  you  get  to  the  first 
canvasser  stop  his  count  from  going  on,  because  it  is  a  false  count,  and 
have  a  court  decide,  and  so  with  the  county  canvassers,  stop  their 
transaction  in  the  rapid  progress  to  the  result  aimed  at,  to  wit,  filling 
the  office,  with  a  quo  warranto  there,  and  then  in  the  State  canvass,  and 
then  here.  It  is  an  absolute  novelty.  No  judicial  action  has  ever  been 
accepted  and  followed  except  the  mandamus  to  compel  officers  to  act, 
nothing  else.  That  was  not  retarding;  that  was  ascertaining;  that 
was  compelling;  that  was  discarding  delays  on  the  question  of  right. 


ELECTORAL    COUNT    OF    1877.  123 

In  our  supreme  court  iu  New  York,  not  very  many  years  ago,  an 
attempt  was  made  to  obtain  an  injunction  against  inspectors  canvassing 
votes,  the  primary  deposit  in  the  ballot-box  of  their  election-district, 
because  they  had  been  sworn  on  the  directory  and  not  on  the  Bible. 
They  had  no  right  to  discharge  their  function  without  taking  an  official 
oath,  the  preliminary  oath.  The  court  refused  it  necessarily.  How 
ever  much  this  irregularity  might  find  play  and  place  in  a  quo  warranto 
investigation  of  the  whole  transaction,  piecemeal  inquiry  cannot  be  made 
and  no  injunction  of  a  court  can  intrude  into  the  course  of  the  political 
action  of  an  election. 

The  position  that  I  have  assigned  to  the  States  is  the  appointment 
as  they  please.  Now,  let  me  call  your  attention  to  a  provision  in  the 
act  of  Congress,  the  application  of  which  may  not  have  occurred  to  your 
observation.  It  is  provided  in  the  act  that  if  the  State  shall  have  failed 
to  appoint  on  the  day  for  appointment,  it  may  make  a  subsequent  ap 
pointment  as  the  legislature  may  please.  It  was  not  intended,  then, 
that  the  process  of  finding  out  whether  there  had  been  an  election  or 
not  should,  by  its  method  and  its  regular  action,  be  exposed  to  frustra 
tion.  Even  the  failure  itself,  disclosed  by  the  political  canvass,  was 
the  basis  on  which  the  State  was  reuevredly  to  exercise  its  right  in  time 
for  transmission  here.  Now,  you  have  in  this  act  of  Congress  a  provis 
ion  which  shows  that  they  recognized  that  the  method  of  progress  and 
result  was  to  be  cherished  above  all  others  that  its  success  might  end 
in  time  to  confer  the  qualifications  or  its  failure  in  time  that  the  substi 
tuted  appointment  reserved  to  the  States  should  be  accomplished. 

But  now  it  is  said  that  a  failure  of  election  may  be  retarded  in  its 
declaration  so  as  to  deprive  the  State  of  its  power  to  act  on  that  failure, 
and  it  is  said  that  by  the  act  of  Congress  the  contemplated  ascertain 
ment  may  involve  judicial  proceedings  in  the  State.  Why,  if  there  be 
anything  that  in  election  laws  is  provided  in  every  State,  it  is  that  there 
shall  be  no  reconsideration,  no  steps  backward,  no  delays  except  of  min 
isterial  and  apparently  easy  duty;  and  if  discretion  is  given,  by  depart 
ures  from  that  general  policy  in  particular  States,  it  is  always  found  to 
have  its  origin  in  a  motive  of  correcting  a  special  mischief  for  which  it 
is  framed,  some  abnormal  condition  of  the  body-politic  that  requires  a 
departure  from  the  general  method  of  absolute  ministerial  transaction. 
Our  proposition,  as  has  been  laid  down  so  well  by  my  learned  associates, 
is  that,  under  the  State  law  of  Florida,  that  is  the  method,  that  is  the 
purpose,  that  is  the  action,  and  that  every  step  and  stage  of  that  action, 
rightly  or  wrongly,  honestly  or  dishonestly,  purely  or  fraudulently,  has 
conferred  qualifications  such  as  the  Federal  Constitution  requires  in  the 
appointment  by  the  State  through  the  methods  that  it  had  provided. 

If  support  were  needed  for  the  point  that  the  line  of  demarkation  be 
tween  the  inception  of  the  Federal  authority  and  the  culmination  and 
consummation  of  the  State's  action  precludes  an  inquiry,  at  the  furthest, 
beyond  the  facts  certified  as  of  record  and  the  accuracy  of  the  certificate, 
is  to  be  found  in  the  legislation  proposed  iu  the  Congress  of  1800,  when 
the  wisdom  was  still  of  the  fathers.  Enlightened  by  their  experience 
of  the  working  of  the  great  scheme  they  had  framed,  it  was  declared 
that  the  demarkation  should  be  observed,  and  that  the  powers  should 
not  include  nor  be  deemed  to  include  any  inquiry  into  the  votes  as  cast  in 
the  States. 

The  novelty,  as  I  have  said,  of  the  situation  produces  strange  results. 
Never  before  has  there  been  the  retardation  of  the  political  transaction 
of  counting  an  election,  and  to  accomplish  that  almost  a  miracle  has 
been  needed,  for  the  sun  and  the  moon  have  been  made  to  stand  still 


124  ELECTORAL    COUNT    OF    1877. 

much  longer  than  they  did  for  Joshua  in  the  conflict  in  Judea.  You 
will  find  that  an  attempt  to  bring  judges — I  do  not  now  speak  of  judges 
in  the  official  capacity  that  some  portion  of  this  bench  occupy  in  the 
Supreme  Court,  but  I  mean  judges  in  the  nature  of  judicial  function  and 
its  exercise — into  the  working  of  this  scheme  of  popular  sovereignty  in 
its  political  action,  will  make  it  as  intolerable  in  its  working,  will  so  de 
fraud  and  defeat  the  popular  will,  by  the  uature  and  necessary  conse 
quences  of  the  judicial  intervention,  that,  at  last,  the  government  ot  the 
judges  will  have  superseded  the  sovereignty  of  the  people,  and  there 
will  be  no  cure,  no  recourse  but  that  which  the  children  of  Israel  had, 
to  pray  for  a  king. 

The  PEESIDENT.     Mr.  O'Conor,  the  Commission  will  now  hear  jou. 

Mr.  EVAETS.  I  ask  your  honors  to  take  a  reference  to  very  recent 
cases  in  the  seventy-eighth  volume  of  Illinois  Reports,  Dickey  vs.  Eeed. 
It  is  a  long  case  and  an  important  case.  On  pages  287,  268,  269,  the 
matter  pertinent  to  this  inquiry  is  to  be  found.  I  refer  also  to  25  Maine 
Eeports,  page  566,  an"  opinion  of  the  supreme  judicial  court  of  that  State 
on  the  powers  that  are  included  in  the  authority  to  open  and  count 
votes.  In  38  Maine  Eeports,  page  598,  is  a  similar  judicial  instruction  ; 
and  in  53  New  Hampshire  Eeports,  page  640,  there  is  a  similar  judicial 
action  under  the  constitution  of  that  State.  I  refer  also  to  a  recent 
case,  called  CaBsar  Griffin's  case,  in  the  district  of  Virginia,  in  Johnson's 
Eeports,  page  364,  a  decision  of  Chief- Justice  Chase  on  the  authority  of 
de-facto  officers  proved  not  to  have  been  de  jure  in  all  the  efficacy  of  their 
conduct  of  affairs. 

Mr.  O'CONOE.  Mr.  President  and  gentlemen  of  the  Commission  :  I 
will  not  say  probably,  because  it  may  be  said  certainly,  that  the  most 
important  case  that  has  ever  been  presented  to  any  official  authority 
within  these  United  States  is  now  brought  before  this  honorable  Com 
mission  for  its  investigation  and  decision.  It  is  brought  here  under 
circumstances  that  give  absolute  assurance,  as  far  as  absolute  assurance 
can  exist  in  human  things,  of  a  sound,  upright,  intelligible  decision  that 
will  receive  the  approval  of  all  just  and  reasonable  men.  The  great 
occasion  which  has  given  rise  to  the  construction  of  this  tribunal  has 
attracted  the  attention  of  every  enlightened  and  observing  individual 
in  the  civilized  world.  This  Commission  acts  under  that  observation. 
The  conclusion  at  which  it  may  arrive  must  necessarily  pass  into  history, 
and,  from  the  deeply  interesting  character  in  all  their  aspects  of  the 
proceedings  had  and  the  judgment  to  be  pronounced,  that  history  will 
attract  the  attention  of  students  and  men  of  culture  and  intelligence  as 
long  as  our  country  shall  be  remembered ;  for  it  cannot  be  supposed 
that  a  question  will  ever  arise  and  be  determined  in  a  similar  manner 
which,  by  its  superior  magnitude,  importance,  delicacy,  and  interest, 
will  obscure  this  one  or  cause  it  to  be  overlooked. 

The  selection  of  members  to  this  Commission  was  made  by  a  choice  of 
five  individuals  equal,  assumed  to  be  equal,  pronounced  to  be  equal,  if 
not  superior  to,  any  others  to  be  found  in  the  House  of  Eepreseutatives, 
and  a  similar  choice  of  similar  individuals  taken  from  the  Senate,  thus 
placing  the  entire  legislative  representation  of  our  whole  country  under 
the  observation  of  present  and  future  times  in  respect  to  whatever  shall 
here  be  done.  To  that  has  been  added  a  selection  of  five  other  members 
from  the  highest  judicial  tribunal  known  under  our  Constitution  and 
laws,  and  certainly  a  tribunal  equal  in  official  majesty  and  dignity,  as 
well  as  in  intellectual  power,  to  any  that  has  ever  existed.  Evidently, 
from  the  whole  frame  of  the  procedure,  these  appointments  were  made 
with  an  earnest  intent,  and  indeed  a  fixed  resolution,  to  have  here  repre- 


ELECTORAL    COUNT    OF    1877.  125 

sented  in  this  tribunal  whatever  of  perfect  impartiality  and  fairness, 
whatever  of  purity  and  integrity,  whatever  of  learning  and  dignity  of 
position  our  country  could  afford.  This,  too,  is  a  public  act  of  the  highest 
authority  that  could  be  invoked  to  express  the  sovereign  will  of  the 
whole  people. 

The  questions  to  be  considered  are  of  a  public  character  and  of  a  ju 
dicial  nature.  Every  member  of  the  Commission  has  been  a  jurist  by 
profession  during  his  life,  and  has  devoted  his  time  and  his  study  to  the 
apprehension  and  comprehension  of  legal  questions. 

It  was  said  by  a  great  English  judge,  and  an  eminent  writer  and  his 
torian,  in  the  highest  court  of  that  country,  in  a  conspicuous  case,  that 
"jurisprudence  is  the  department  of  human  knowledge  to  which  our 
brethren  of  the  United  States  of  America  have  chiefly  devoted  them 
selves,  and  in  which  they  have  chiefly  excelled." 

With  all  these  elements  affording  guarantees  in  respect  to  the  result, 
I  think  it  may  be  confidently  asserted  that  such  result  cannot  be  other 
than  the  intelligent  judgment  of  mankind  in  present  and  future  times 
will  approve.  With  that  assurance,  and  with  a  deep  sense  of  my  own 
incapacity  to  fulfill  the  part  assigned  me  in  arguing  the  great  question 
presented,  but  a  conviction  that  all  deficiencies  of  this  kind  will  be 
supplemented  by  the  learning  and  ability  of  the  tribunal,  I  proceed  to 
lay  before  your  honors  what  may  seem  proper  to  be  now  said  on  our 
part  in  relation  to  the  issues  that  have  been  raised  for  consideration  by 
the  Commission's  resolve  adopted  on  Saturday. 

The  questions,  in  short,  without  repeating  details,  are  expressed  by 
the  inquiry,  what  powers  have  been  vested  in  this  Commission  for  the 
purpose  of  enabling  its  members  to  guide  through  its  determination  the 
action  of  the  political  authorities  as  to  the  election  of  President  and 
Yice-President  ?  And  here  let  me  observe  on  a  mistake  which  the  other 
side  has  made  in  relation  to  a  paper  presented  to  the  court  on  our  part 
on  Saturday.  It  has  been  construed  as  in  some  sense  prescribing  limits 
or  giving  our  view  of  some  limit  proper  to  be  assigned  to  the  power,  and 
authority  cf  this  Commission.  This  is  a  mistake.  That  paper  was 
designed  for  no  such  purpose  and  expresses  no  such  idea.  With  a  view 
to  facilitate  the  action  of  the  court,  we  presented  in  that  paper  a  state 
ment  which  we  believe  to  be  correct,  and  true  in  point  of  fact,  showing 
the  very  narrow  range  of  inquiry  into  matters  of  fact  that  would  actually 
become  necessary. 

In  reference  to  the  question,  what  elements  of  inquiry  are  within  the 
competency  of  this  court,  we  stand  in  direct  conflict  with  the  other  side, 
and  the  issue  formed  between  us  is  this : 

We  maintain,  as  representing  what  are  called  the  Tilden  electors,  that 
this  tribunal  has  full  authority  to  investigate  by  all  just  and  legitimate 
means  of  proof  the  very  fact,  and  thereby  to  ascertain  what  was  the 
electoral  vote  of  Florida. 

On  the  other  hand,  it  is  claimed  that  this  learned  Commission  is 
greatly  trammeled  by  technical  impediments,  and  has  no  power  except 
merely  to  determine  what  may  be  the  just  inferences  from  the  docu 
ments  returned  to  the  President  of  the  Senate  from  the  State  of  Florida. 
While  thus  contending,  however,  the  Hayes  electors  mainly  repose 
themselves  on  the  proposition  that  they  are  officers  de  facto.  Admit 
ting  for  the  sake  of  argument  that  their  claim  to  be  electors  is  without 
right,  and  is  simply  clothed  with  a  false  and  fabricated  color  of  title, 
the  Hayes  electors" claim  through  their  counsel  that  inasmuch  as  they 
cast  their  vote  while  possessed  of  some  documents  which  gave  to  them 
the  mere  color  of  a  right  to  perform  that  duty,  the  fact  that  they  acted 


126  ELECTORAL    COUNT    OF    1877. 

upon  this  color,  and  did,  of  their  own  motion,  of  their  own  personal  will, 
through  their  own  right  of  selection,  cast  the  votes  for  Mr.  Hayes  that 
are  sent  here  as  the  vote  of  Florida,  completely  precludes  all  inquiry, 
and  that  it  is  impossible  for  any  earthly  tribunal  or  any  individual  to 
investigate  or  to  declare  the  invalidity  of  their  claim. 

This  issue,  thus  I  trust  not  too  narrowly  stated,  raises  the  question, 
What  are  the  powers  of  this  Commission  1  I  proceed  to  state  our  views 
on  the  subject. 

Those  powers  are  distinctly  and  briefly  expressed  in  the  electoral  bill 
under  which  you  are  acting — that  admirable  act  of  legislation,  destined 
to  the  immortal  honor  of  those  concerned  in  its  preparation,  to  pass 
into  history  with  your  action.  The  language  defining  your  powers  de 
clares  that  you  shall  possess — 

The  same  powers,  if  any,  now  possessed — 

For  the  purpose  in  hand — 
by  the  two  Houses  acting  separately  or  together. 

You  have  then  (and  this  is  the  test)  all  the  powers  of  those  two 
Houses  which  they  could  possibly  exercise  under  the  Constitution  and 
by  the  pre-existing  statutes,  for  the  purpose  of  enabling  you  to  deter 
mine  the  inquiries  submitted  to  you.  Let  us  see,  then,  what  powers  are 
possessed  by  the  two  Houses  separately  or  together  in  deciding  as  to 
the  electoral  vote  upon  the  facts  that  exist  or  that  might  exist  and  may 
be  proven.  And  this  calls  upon  us  to  say  what  those  powers  are,  and 
requires  us  to  answer  whether,  in  relation  to  the  action  which  has  here 
been  called  counting,  any  powers  under  the  laws  existing  when  this 
electoral  bill  was  passed,  and  which  were  needed  to  a  proper  ascertain 
ment  of  the  vote,  were  vested  in  the  President  of  the  Senate. 

Now,  that  no  power  of  any  description  deserving  the  name  of  a  power 
to  investigate  and  decide  resided  in  the  President  of  the  Senate  is  most 
plain  from  the  very  words  of  the  Constitution.  He  is  authorized  to 
receive  certain  packets,  and  he  has  no  authority  whatever  by  the  Con 
stitution  save  and  except  only  to  present  himself  to  the  two  Houses  of 
Congress  and  in  their  presence  to  open  these  packets.  The  phrase  is 
"  open  the  certificates,"  but  this  evidently  means  open  the  packets.  He 
has  no  right  to  open  them  at  any  previous  time  ;  he  has  no  power  what 
ever  to  investigate  what  is  contained  in  the  packets  before  thus  open 
ing  them.  He  has  no  means  of  taking  testimony  ;  he  has  no  right  to 
judge  of  anything ;  and  he  is  positively  precluded,  not  only  by  the  Con 
stitution  itself  but  by  the  physical  laws  of  nature,  from  knowing  what 
may  be  within  any  packet  thus  received  by  him  until  the  moment  at 
which  he  opens  that  packet  in  the  presence  of  the  two  Houses ;  of 
course  the  packets  which  he  is  thus  authorized  to  open  are  to  present 
the  basis  of  subsequent  action. 

Nothing  further  is  prescribed  to  him,  and  I  humbly  submit  that  it  is 
most  manifest  that  he  has  none  but  the  merest  of  clerical  powers  nor 
any  ability  to  do  anything  except  to  open  the  packets  at  that  time  and 
at  that  place  and  in  that  presence.  He  cannot  even  know  what  is  in 
the  packets  until  he  opens  the  packets.  But  it  is  manifest  that  the 
packets  which  he  thus  opens  may  require  a  decision  by  some  authority 
of  a  preliminary  question,  that  is  to  say,  what  are  the  votes  in  respect 
to  which  a  count  may  take  place  f  No  person  or  functionary  or  body 
is  specially  pointed  out  as  having  power  to  make  that  count.  Nowr 
a  great  deal  has  been  said,  which  I  consider  not  very  applicable  or  very 
instructive,  in  reference  to  this  word  "  count,"  as  if  it  were  the  operative- 
and  principal  word  here  and  were  used  to  determine  the^faculty  and 


ELECTORAL    COUNT    OF    1877.  127 

point  out  the  powerjof  those  who  have  authority  to  count.  Now,  I  hum 
bly  insist  that  the  count  itself  is  so  purely  a  simple  arithmetical  process 
that  in  reference  to  it  there  never  could  be  a  possible  difference  of  opin 
ion  anywhere  or  among  any  persons. 

I  apprehend  that  there  is  a  word  in  this  constitutional  provision  that 
ought  not  to  be  overlooked.  The  President  of  the  Senate  is  to  receive 
these  packets.  They  are  not  required  to  have  any  note  or  ear-mark  of 
any  description  to  indicate  to  him  what  they  are,  and  he  can  only  learn 
by  external  inquiry  or  report  that  they  are  sent  him  by  persons  pretend 
ing  to  be  electors  of  President  and  Yice-President ;  and  the  Constitu 
tion,  proceeding  to  declare  his  duty,  says  that  he 'shall  " open  all  the 
certificates."  The  word  "  all n  would  perform  nofunction,  and  it  would  be 
entirely  useless,  if  it  were  to  be  confined  to  indicating  the  certificates 
before  spoken  of.  The  simple  phrase  "shall  open  the  certificates" 
would  suffice;  but  he  is  to  "open  all  the  certificates;"  and  this  pro 
vision  of  the  Constitution,  not  granting  powers  of  investigation  but 
dealing  with  visible  facts,  declares  that  he  shall  "  open  all  the  certifi 
cates."  This  I  apprehend  means  all  packets  that  may  have  come  to 
him  under  color  of  being  such  packets  as  the  Constitution  refers  to ; 
that  is,  packets  containing  electoral  votes  or  appearing  to  be  of  that 
character.  He  is  bound  to  open  all  such  packets  in  the  presence  of  the 
Houses,  and  there  ends  his  duty.  But  when  we  come  to  the  prescription 
that  there  shall  be  a  count,  we  are  not  told  that  there  shall  be  a  count 
of  all  the  certificates  presented,  or  of  the  certificates,  or  of  anything  in 
the  certificates,  but  that  there  shall  be  a  count  of  "  the  votes/  This,  I 
humbly  submit,  introduces  a  necessary  implication  that  somehow  and 
by  some  authority  there  shall  be  made,  if  necessary,  a  selection  of  the 
actual  votes  from  the  mass  of  papers  produced  and  physically  present 
before  the  Houses.  Any  investigation  that  the  nature  of  the  case  may 
happen  to  require  in  order  to  determine  what  are  "  the  votes  "  must  be 
made  by  some  functionaries  having  competency  to  make  it.  This  is  a 
preliminary  inquiry,  and  whether  you  denominate  it  judicial  or  ministe 
rial  or  executive,  it  is  to  be  an  inquiry,  and  the  power  to  institute  or 
carry  it  on  is  neither  granted  in  terms,  nor  are  there  any  possible  means 
of  its  exercise  so  far  as  the  President  of  the  Senate  is  concerned.  Thi& 
is  left  to  an  implication  that  it  is  to  be  exercised  by  those  who  may  have 
occasion  to  act  officially  on  the  result  of  the  electoral  vote. 

Who  are  they  that  are  to  act  officially  by  the  terms  of  the  Constitu 
tion  in  performance  of  duty  resulting  from  the  count  of  the  votes? 
The  Constitution  is  plain.  The  votes — meaning  of  course  the  legal 
votes — are  to  be  counted.  The  count  is  the  merest  ceremony  in  itself  f 
but  the  ascertainment  of  what  are  legal  votes  presented,  necessarily  de 
volves  upon  that  body  or  those  bodies  that  must  act  on  that  which  is 
produced  as  a  result  by  the  count.  The  authorities  compelled  by  duty 
to  see  that  the  count  is  justly  and  truly  made  and  to  act  on  the  result 
are  the  two  Houses. 

Unquestionably  the  first  and  primary  duty  of  the  Houses,  if  there  is  a 
count  showing  the  election  of  a  person  to  the  Presidency  and  another  to 
the  Vice-Presidency.  |is  to  recognize  them  as  constituting  that  co-ordinate 
department  of  the  Government  called  the  Executive.  As  to  a  mere 
count,  all  the  world  may  make  it ;  no  mortal  man  can  doubt  about  the 
effect  of  a  count ;  but  I  presume  the  general  world  is  not  called  upon  to 
act  in  reference  to  the  count  until  that  count  has  been  officially  recog 
nized  by  some  lawful  authority.  But  what  is  more  certain  is  this  :  It 
is  the  duty  of  the  House  of  Eepresentatives  at  that  point  in  the  process 
to  determine  whether  an  exigency  has  arisen  which  renders  it  their  dutv 


128  ELECTORAL   COUNT   OF   1877. 

to  recognize  that  a  person  has  been  elected  as  President  by  a  majority  of 
votes,  of  the  legal  votes,  or  whether  there  has  been  a  failure  to  elect  by 
reason  of  a  tie ;  and  in  that  event,  if  it  should  occur,  that  House  is 
bound  to  act  upon  the  result,  and  in  this  exigency  itself  is  to  elect  a 
President.  The  same  observations  apply  to  the  Senate  with  reference 
to  the  Vice-President  $  that  body  is  bound  in  like  manner  to  recognize 
the  fact  of  an  election,  to  allow  it,  admit  it,  and  accept  it  as  a  fact,  or 
to  deny  it  and  say  that  it  is  not  so,  and  themselves  to  proceed  in  the 
election  of  a  Vice-President. 

I  attach  no  importance  to  the  word  "  count ;"  but  I  claim  from  the  very 
nature  of  the  thing,  from  the  laws  inwrought  into  the  constitution  of 
human  beings  and  governing  human  transactions,  that  those  who  have 
thus  to  act  officially  on  the  count  are  the  persons  who  must  do  whatever 
may  be  needful  for  the  purpose  of  enabling  a  count  to  be  made.  Those 
who  are  bound  to  act  in  the  one  direction  or  in  the  other,  as  the  case 
may  require,  must  possess  the  power  of  making  any  preliminary  investi 
gation  that  may  become  necessary. 

The  result  of  this  construction  is  that  that  officer  who  has  no  power 
but  to  open  them  is  set  aside  from  the  moment  he  opens  the  packets, 
and  the  duty  of  exercising  the  higher  function,  preliminarily,  of  inquir 
ing  what  are  the  votes,  prior  to  this  mere  formal  act,  "  counting,"  must 
devolve  upon  those  who  must  take  notice  what  are  the  legal  votes  and  act 
upon  the  count  of  them.  This  no  one  is  authorized  to  make  or  to  de 
clare  unless  it  be  themselves.  This  implied  power  is  not  introduced  by 
any  forced  construction,  but  from  the  absolute  necessity  of  the  case. 
And,  consequently,  we  claim  that  the  needful  powers  of  preliminary  in 
vestigation  were  in  the  Houses.  It  cannot  fairly  be  disputed  that  Con 
gress  by  united  action  might  have  constituted  some  public  body  to  con 
duct  the  investigation  ;  and  how  far  they  might  have  gone  toward  mak 
ing  the  result  absolutely  obligatory  on  the  Houses  themselves  respect 
ively,  we  need  not  inquire. 

They  did  not  exercise  such  a  power  prior  to  the  election  of  1876,  and 
they  have  not  otherwise  exercised  it  subsequently,  except  by  the  con 
stitution  of  this  tribunal,  and  they  have  reserved  to  themselves  the 
privilege  of  establishing  a  different  determination  by  a  concurrent  vote. 

The  competency  of  each  House  to  ascertain  the  truth  is  unquestionable. 
Each  has  complete  powers  of  investigation ;  they  can  take  proof  through 
their  committees  or  otherwise  as  to  any  matter  on  which  they  may  be 
obliged  to  decide,  and,  either  before  or  after  the  opening  of  all  the  votes, 
they  can  thus  investigate,  though  not,  it  must  be  admitted,  with  the  aid 
of  a  jury,  nor  in  the  precise  forms  of  a  judicial  proceeding.  They  can 
investigate,  as  political  and  legislative  bodies  may,  touching  all  the 
facts  and  circumstances  that  are  necessary  to  be  known  in  order  to  en 
lighten  their  judgment  and  guide  them  to  a  just  and  righteous  decision. 

Our  construction  thus  recognizes  in  those  two  bodies  on  such  a  con- 
tin  geney  as  is  here  presented  full  power  to  do  whatever  may  be  needful 
to  the  accomplishment  of  justice. 

What  is  the  objection  to  this  construction?  The  whole  argument 
against  it  resolves  itself  simply  into  the  argument  ab  inconvenienti. 
Those  who  would  seek  to  grasp  a  high  office  by  illegal,  irregular,  and 
fraudulent  means  claim  that  it  would  be  inconvenient  to  take  so  much 
trouble  as  might  become  necessary  in  order  to  investigate  rightly  and 
rightly  to  determine,  on  proofs,  the  question  of  their  delinquency  and 
the  falsehood  of  their  claim.  This  is  a  common  plea  among  persons 
who  set  up  a  falsely  and  fraudulently  contrived  title.  When  an  effort 
is  made  to  strip  them  of  their  pretended  authority  by  demonstrating 


ELECTORAL    COUNT   OF    1877.  129 

before  a  court  or  other  appropriate  tribunal  the  fallacy  of  their  claims 
and  the  necessity  to  the  ends  of  justice  of  having  that  fallacy  declared 
and  their  pretensions  set  aside,  they  point  out  the  trouble  involved  in 
the  task.  But  let  us  see  how  stands  that  argument.  Let  us  test  it  bv 
ordinary  and  familiar  principles. 

,  It  is  suggested  that  it  might  lead,  and  if  entered  upon  must  necessa 
rily  lead,  if  the  parties  think  fit,  to  an  investigation  of  the  personal 
qualifications  of  every  one  among  millions  of  electors,  and  that  if  you 
lay  down  the  rule  or  adopt  the  principle  that  you  have  a  right  to  investi 
gate  at  all,  you  open  the  door  to  that  inconvenient  and  boundless  sea 
of  litigation.  The  mischief  of  this,  they  say,  would  be  so  great  that  it 
is  better  to  let  injustice  triumph  and  permit  a  usurper  to  enter  the  ex 
ecutive  office  by  the  most  unholy  of  avenues,  that  which  is  paved  with 
falsehood,  fraud,  and  corruption.  They  say  it  is  better  to  submit  to  all 
that  or  any  other  more  enormous  evil,  if  a  more  enormous  one  can  be  im 
agined,  than  to  submit  to  the  shocking  and  monstrous  inconvenience 
that  is  thus  to  result  from  any  attempt  to  inquire  into  the  validity  of 
the  election ! 

There  is  really  nothing  in  this  broadly  presented  picture  of  over 
whelming  inconvenience.  They  say  no  matter  how  we  should  limit 
our  inquiries  to  a  very  narrow  range,  for  if  you  allow  any  investigation 
you  will  establish  the  doctrine,  you  will  open  the  door  to  intolerably 
protracted  litigation.  This  suggestion  is  not  warranted  by  law  or  the 
practice  of  courts  in  such  investigations.  True  it  is  that  in  a  writ 
of  quo  warranto  to  inquire  into  the  title  of  an  individual  to  an  office 
it  is  competent  to  investigate  all  the  particulars  down  to  the  qual 
ifications  of  each  individual  voter,  and  on  a  point  of  identity  similar 
to  that  which  occurred  in  the  Tichborne  case  one  trial  might  take  many 
years.  This  is  presenting  a  "raw  head  and  bloody  bones "  to  frighten 
this  Commission  and  the  whole  country  from  its  propriety. 

The  answer  to  all  that  is  as  simple  as  can  possibly  be  imagined.  The 
objection  you  perceive  applies  as  much  to  ordinary  writs  of  quo  warranto 
in  reference  to  ordinary  offices  as  it  does  to  this  inquiry  if  it  should  take 
place  before  Congress.  For  this  argument  ab  inconvenient*,  is  as  fatal  to 
the  general  procedure  of  courts  of  justice  in  actions  of  quo  warranto 
as  it  is  to  the  proceeding  here  suggested. 

But,  if  the  learned  Commission  please,  the  investigation  which  might 
be  allowed  to  take  place  before  either  House  of  Congress  or  any  com 
mission  appointed  by  them,  would  be  governed  by  the  same  principles 
of  general  jurisprudence  which  apply  to  the  determination  of  proceedings 
by  quo  ivarranto;  and  one  of  those  principles  is  that  no  man  has  a  right 
to  the  writ  of  quo  warranto  as  of  course  or  merely  because  he  makes  out 
an  apparent  title.  It  has  always  been  a  matter  of  discretion.  Numer 
ous  cases  are  cited  here  for  that  purpose  on  the  other  side.  It  has 
always  been  treated  as  a  matter  of  discretion  in  the  power  of  the  supreme 
tribunal,  acting  in  the  name  and  majesty  of  the  sovereign  power,  when 
applied  to  for  a  writ  of  quo  warranto,  to  allow  it  or  not  as  under  all  the 
circumstances  may  be  thought  most  consistent  with  the  public  interest 
and  the  ends  of  justice  and  the  convenience  of  society;  and,  by  conse- 
quence^  this  expanded  inquiry  could  never  take  place  in  the  writ  of  quo 
warranto;  it  never  would  be  allowed;  no  court  would  ever  permit  the  writ 
to  issue  without  a  statement  of  the  points  intended  to  be  made ;  and,  if 
it  were  necessary  in  allowing  the  writ  the  court  would  lay  their  restraint 
on  the  party  as  to  what  points  or  questions  he  might  make. 

So  it  appears  that  in  all  investigations,  judicial  or  other  wise,  as  to  the 
right  of  a  particular  individual  to  hold  and  exercise  a  public  office,  it  is 
9  E  c 


130  ELECTORAL    COUNT    OF    1877. 

in  tbe  discretion  of  the  tribunals  how  far  they  will  go,  and  it  is  in  your 
discretion,  as  it  would  be  in  the  discretion  of  either  House  of  Congress 
investigating  for  its  own  advice  and  direction,  as  to  the  election  of  Pres 
ident  or  Vice-President,  to  determine  whether  they  would  permit  any  of 
these  intolerably  prolix  investigations. 

So  much  for  the  argument  ab  inconvenienti.  It  has  no  application. 
Standing  upon  the  ancient  practices  of  the  law,  the  authority  that 
might  be  called  upon  to  institute  an  investigation  would  look  at  the 
difficulty  presented  and  say  under  the  influence  of  a  due  regard  to  the 
argument  ab  inconvenienti,  "  thus  far  you  may  go ;  no  farther  shall 
you  go." 

Now  in  reference  to  the  legal  question  presented,  as  to  what  powers 
each  House  of  Congress  has,  under  existing  laws,  and  what  powers  con 
sequently  you  can  exercise,  we  say,  as  the  learned  manager  from  the 
House  said  in  opening  this  case,  that  there  is  no  technical  legal  limit  or 
barrier,  but  that  you  exercise  the  same  high  power  of  the  Government 
which  has  always  been  exercised  in  such  questions  even  in  the  courts  of 
the  common  law  to  which  application  must  be  made  to  obtain  the  writ  of 
quo  warranto.  You  exercise  tbe  same  discretion,  but  you  can  limit 
the  inquiry,  when  the  point  arises,  within  those  limits  that  are  pre 
scribed  by  necessity  and  convenience. 

Now  this  is  our  view  stated  as  fully  as  it  is  in  my  power  to  state  it  in 
the  brief  time  I  am  permitted  to  occupy  the  attention  of  your  honors. 
We  say  that  there  is  no  limit  to  the  power  of  investigation  for  the  pur 
pose  oi'  reaching  the  ends  of  justice,  except  such  as  a  due  regard  for 
public  convenience  and  the  interests  of  public  justice  and  society  at 
large  may  impose  in  the  exercise  of  this  discretionary  authority. 

Well,  what  is  our  condition  and  the  condition  of  all  cases  of  this  kind  ? 
There  is  no  judicial  court  of  the  United  States  clothed  with  authority  to 
deal  with  the  premises.  We  assert  that,  without  stopping  to  cite  books 
and  to  prove  it  to  you  negatively.  It  seems  to  be  conceded  that,  if  such 
a  powrer  might  have  been  created,  it  has  remained  dormant  and  has  not 
been  exercised.  And  consequently  we  are  told  that  here  we  stand,  in  the 
second  century  of  this  Republic's  existence,  in  such  a  condition  that  there 
is  no  possible  remedy  against  the  most  palpable  fraud  and  forgery  that 
could  be  perpetrated  or  against  any  outrageous  acts  in  violation  of  the 
rights  of  the  people  of  the  respective  States  and  of  the  whole  nation  ; 
that  Congress  must  sit  by  blind  and  silent  and  permit  an  alien  to  be 
counted  into  office  as  President  of  the  United  States ;  they  must  sit  by 
and  permit  a  set  of  votes  plainly  and  palpably  fraudulent,  votes  given 
by  individuals*  not  only  disqualified  for  want  of  having  been  chosen  by 
the  States  but  being  themselves  absolutely  disqualified  by  the  Constitu 
tion  from  acting  in  the  office  or  casting  the  vote,  and  must  permit  the 
usurpation  contemplated  to  take  place  merely  because  our  wise  fathers — 
one  would  think  that  the  compliment  was  intended  as  a  sarcasm — had 
so  chosen  to  constitute  the  Government  they  created  that  injustice,  how 
ever  flagitious,  might  be  perpetrated  in  open  day  without  the  possibility 
of  having  any  remedy  or  even  uttering  decorously  a  complaint. 

This,  we  humbly  submit,  cannot  be  the  Constitution  and  the  law. 
Reason  forbids.  All  acts,  however  solemn,  however  sacred,  from  what 
ever  quarter  coming,  by  whatever  body  perpetrated,  are  liable  to  re 
view  in  some  manner,  in  some  judicial  or  other  tribunal,  so  that  fraud 
and  falsehood  may  shrink  abashed  and  defeated  and  may  fail  in  the  at 
tempt  to  trample  upon  the  right. 

It  seems  to  be  virtually  conceded  here  that  the  governor's  certificate 
is  not  conclusive.  I  have  not  time  to  say  much  about  that.  It  is  not 


ELECTORAL    COUNT    OF    1&77  131 

required  by  the  Constitution.  It  is  only  required  by  ati  act  of  Congress. 
The  governor  could  not  have  been  compelled  to  give  it.  Many  circum 
stances  might  prevent  his  giving  it,  and  he  might  have  given  it  under  cir 
cumstances  of  plainly  flagitious  falsehood,  without  any  election,  without 
any  proceeding  had  to  sanction  it.  He  might  have  given  his  certificate 
to  his  own  four  little  boys  and  constituted  them  an  electoral  college,  and 
the  vote  which  they  gave  pursuant  to  his  bidding,  by  force  of  his  cer 
tificate,  would  be  absolutely  conclusive,  forsooth,  and  binding  upon  all 
the  authorities  of  the  United  States  that  had  any  power  to  act  in  the 
premises ! 

I  submit  to  your  honors  that  this  is  not  so,  and  I  beg  you  to  turn, 
when  you  come  to  consider  this  matter,  to  the  citations  of  the  Arnistad 
case  in  Mr.  Green's  brief,  15  Peters,  594,  where  the  Supreme  Court, 
speaking  by  the  voice  of  Judge  Story,  pronounced  all  decisions  of  every 
description,  however  solemn,  impeachable  for  fraud  and  capable  of  be 
ing  reversed.  In  the  case  of  the  State  of  Michigan  vs.  Phoenix  Bank, 
in  33  New  York — I  will  refer  to  the  particular  page,  though  I  will  not 
stop  to  read  it — page  27,  your  honors  will  find  that  the  most  solemn 
judgments  of  any  court  may  be  overhauled  and  reviewed  and  be  shown 
to  have  been  procured  by  a  trick,  a  deception,  or  a  falsehood,  and  may 
be  completely  reversed  and  defeated. 

The  inquiry  then  is,  How  far  are  we  to  go  in  this  case  ?  The  Florida 
laws  to  which  you  have  been  referred  show  that  it  may  not  be  neces 
sary  to  go  further,  and  we  have  not  asserted  that  it  will  be  necessary  to 
go  further,  than  to  make  a  correction  of  the  unlawful  extrajudicial  acts 
of  the  canvassing-board.  When  you  come  to  look  at  the  law  which  is 
contained  in  the  little  document  placed  before  you,  at  page  55,  you  will 
find  that  there  is  no  such  sanctity  attending  the  action  of  this  State 
board  as  is  supposed.  They  have  but  little  power  in  the  matter. 

If  any  such  returns — 

That  is,  the  county  returns  to  them — 

shall  be  shown  or  shall  appear  to  be  so  irregular,  false,  or  fraudulent  that  the  board 
fchall  be  unable  to  determine  the  true  vote  for  any  such  officer  or  member,  they  shall  so 
certify,  and  shall  not  include  such  return  iu  their  determination  and  declaration  ;  and 
the  secretary  of  state  shall  preserve  and  tile  in  his  office  all  such  returns,  together  with 
such  other  documents  arid  papers  as  may  have  been  received  by  him  or  by  said  board 
of  canvassers. 

One  of  which  must  be  the  certificate  of  their  action  rejecting  these 
returns.  The  law  itself  provides  for  and  contemplates  an  investigation 
of  the  action  of  the  board  of  State  canvassers  ;  and  turning  back  to  the 
laws  in  relation  to  the  county  board  of  canvassers,  and  to  the  inspectors 
of  elections,  you  find  that  neither  of  those  bodies  has  any  power  what 
ever  except  simply  to  compute  and  return  the  vote  as  received.  Such 
is  the  case  as  to  the  primary  board  of  canvassers  and  the  second  board 
of  canvassers,  and  the  last  and  ultimate  board  of  canvassers  have  these 
very  limited  powers,  which  they  seem  to  have  exercised  only  in  respect 
to  one  single  county  if  you  are  to  take  our  assertions  as  an  evidence  of 
the  probable  line  of  proof  before  you,  because  they  rejected  some  little 
fragments  of  three  other  counties,  but  did  not  exercise  the  power  ot 
rejecting  the  whole  of  these  returns,  which  was  the  only  power  that 
they  possessed.  In  one  single  county  they  seem  by  some  human  possi 
bility  to  have  acted  within  the  limits  of  their  power  and  authority  ;  I 
say  it  may  be  supposed  rather  that  by  some  human  possibility  they  did 
act  within  them.  We  purpose  to  show  that  they  did  not,  \\  e  show  it 
by  their  own  certificate  which  the  law  compelled  them  to  file  and  place 


132  ELECTORAL    COUNT    OF    1877. 

along  with  the  canvass  which  they  made,  and  which  very  short,  brief, 
and  simple  proof  will  demonstrate  the  monstrosity  of  the  deed  that  we 
seek  to  set  aside. 

We  claim  that  the  quo  warranto  is  admissible.  You  will  perceive  by 
looking  at  that  same  statute  to  which  we  have  referred  that  unless  the 
electors  are  State  officers  this  canvassing- board  had  no  authority  what 
ever  to  deal  with  the  subject,  and  you  would  be  called  upon  to  disre 
gard  the  canvass  which  they  made  and  to  look  at  the  county  returns 
which  the  law  does  authorize  to  be  made  in  reference  to  presidential 
electors  as  well  as  State  officers,  in  terms.  If  they  are  State  officers, 
surely  they  were  subject  to  correction  by  the  State  if  there  were  any  pos 
sible  means  or  contrivance  by  which  they  could  be  corrected  at  all ; 
and  the  familiar,  ordinary,  regular  course  of  proceeding  by  quo  warranto 
was  commenced  in  due  season,  before  they  had  actually  cast  their  vote, 
and  their  authority  was  determined  to  be  utterly  void,  it  was  annulled, 
and  that,  too,  long  before  their  vote  had  reached  the  seat  of  Govern 
ment  or  could  possibly  have  been  subjected  to  count.  If  they  are  not 
State  officers,  then  we  have  done  with  the  canvass  of  the  State  board, 
and  have  only  to  look,  in  case  you  pass  by  the  governor's  certificate,  to 
the  next  element  of  proof,  and  that  is  the  whole  set  of  county  returns, 
which  being  footed  up  would  show  the  result  to  be  as  we  claim,  and  tha't 
the  governor's  certificate  was  utterly  false. 

Subsequent  legislation  has  been  placed  before  your  honors  and  a  sub 
sequent  investigation  for  the  purpose  of  a  recanvass,  or  will  be  before 
your  honors  if  necessary ;  indeed,  it  is  before  your  honors  already  in  the 
original  documents  opened  by  the  President  of  the  Senate  and  which, 
at  least,  are  here. 

We  claim  that  on  these  principles  and  on  these  proofs  and  such  full 
proofs  as  may  be  offered  to  you,  subject  only  to  the  restraint  to  which  I 
have  referred  that  you  may  exercise  in  your  discretion,  you  have  a  right 
to  go  on  to  investigate  this  matter  and  to  determine  two  things :  first, 
whether  the  Hayes  electoral  vote  is  valid ;  and,  secondly,  whether  the 
Tilden  electoral  vote  is  valid.  The  final  decision  at  which  you.  may 
arrive  might  reject  either  or  might  reject  both.  They  are  not  involved 
in  precisely  the  same  question  necessarily.  Different  questions  might 
possibly  apply,  and  the  vote  for  Mr.  Hayes  might  be  pronounced  invalid 
and  the  vote  for  Mr.  Tilden  equally  so.  I  have  not  time  to  discuss  more 
fully  the  question  as  to  the  right  of  setting  up  the  Tilden  vote  in  case 
the  Hayes  vote  should  be  rejected. 

Perhaps  in  the  little  time  that  is  left  to  me  I  have  hardly  an  oppor 
tunity  of  saying  one  word  in  reference  to  that  which  is  the  main  reliance 
of  these  parties,  and  that  is  the  doctrine  of  officer  de  facto. 

What  is  this  doctrine  of  officer  de  facto  f  The  best  definition  of  an 
officer  de  facto  that  I  have  fallen  in  with  is  given  by  Lord  Ellenborough, 
in  The  King  vs.  The  Corporation  of  Bedford  Level,  6  East,  368 : 

An  officer  de  facto  is  one  who  has  the  reputation  of  being  the  officer  he  assumes  to 
De,  and  yet  is  not  a  good  officer  in  point  of  law. 

One  who  somehow  has  clothed  himself  with  a  reputation  of  being  the 
officer;  and  in  relation  to  that  person  the  law,  with  its  wise  conservatism, 
has  declared  that  during  the  period  that  the  person  pretending  title  to 
the  office  was  in  apparent  possession  of  all  its  powers  and  functions  and 
exercised  the  duties  of  it,  his  acts,  as  it  respects  persons  who  in  the  ordi 
nary  course  of  things  were  obliged  to  recognize  him  and  to  act  under 
him  and  in  conformity  with  his  directions  and  his  power,  shall  be  es 
teemed  valid,  that  individuals  may  not  be  deceived  by  this  species  of 


ELECTORAL    COUNT    OF    1877.  133 

disorder  or  temporary  insurrection  that  has  broken  in  upon  the  func 
tions  of  government. 

It  is  the  duty  of  individuals,  and  they  are  under  a  necessity  also  for 
their  own  business  purposes,  of  bowing  to  the  existing  authorities  who 
have  thus  color  of  right  and  are  the  only  authorities  to  which  they  can 
refer,  and  in  that  action,  as  a  reward  for  their  humble  obedience  and  re 
spect  for  order,  regularity,  and  the  apparent  law,  they  are  held  to  be 
entitled  to  protection,  and  in  all  forms,  ways,  and  places  that  may  be 
needed  they  are  protected.  The  officer  himself,  however,  is  never  pro 
tected.  That  this  is  the  precise  rule  in  relation  to  that  class  of  officers. 
I  would  take  leave  to  prove  by  referring  your  honors  to  Green  vs.  Burke, 
23  Wendell,  502,  where  a  very  able  opinion  was  written  by  one  of  the 
most  elaborate  investigators  of  legal  authorities  that  I  have  known  or 
ever  heard  of,  Judge  Cowen,  formerly  of  the  State  of  New  York.  The 
cases,  to  be  sure,  have  gone  pretty  far.  He  examined  all  the  authori 
ties,  and  what  he  says  is : 

I  know  the  cases  have  gone  a  great  way;  but  they  have  stopped  with  preventing 
mischief  to  such  as  confide  in  officers  who  are  acting  without  right. 

A  summing  up  of  the  authorities  and  of  the  principle. 

Now,  what  is  the  proposition  here  contended  for?  That  these  offi 
cers,  having  acted  under  color  of  right,|and  having  completely  exercised 
and  perfected  the  function  with  which  they  appeared,  it  is  said,  to  be 
charged,  and  with  which,  if  they  were  duly  elected,  they  were  charged, 
any  subsequent  attempt  to  set  it  aside  would  be  contrary  to  that 
principle,  contrary  to  convenience,  and  mischievous  to  society.  Is  this 
so  1  Is  not  that  principle  of  necessity  confined  to  acts  affecting  private 
persons  9  Is  not  that  necessity  confined  to  cases  where  the  act  of  the 
officer  de  facto  is  consummated  and  perfected  and  has  taken  effect  in 
some  manner  before  it  is  ascertained  that  he  is  not  entitled  to  his  office 
and  he  is  ousted  ?  Are  the  bank-notes  of  a  bank  not  having  authority 
to  issue  them,  though  signed,  perfected,  and  finished,  and  put  in  the 
hands  of  an  agent,  valid  and  effectual  under  this  principle  until  some 
person  has  confided  in  them,  has  received  them,  and  thus  been  misled 
by  the  appearance  of  right  with  which  the  bank  had  improperly  clothed 
itself? 

We  maintain  that  neither  the  public  good,  nor  the  protection  of  men 
from  deception,  nor  any  rule  of  convenience  or  policy,  requires  the 
allowance  of  pretended  electors,  whose  title,  on  an  investigation  by  com 
petent  authority  before  the  votes  have  been  opened  and  counted,  has 
been  ascertained  to  be  groundless. 

Referring  to  the  facts  of  the  case,  what  do  we  find  ?  These  four  gen 
tlemen  sat  down  with  a  false  governor's  certificate  or  a  sham  certificate 
from  a  board  of  State  canvassers,  and  they  of  their  own  authority,  cer 
tifying  their  acts  themselves,  cast  four  votes  in  a  given  direction,  put 
them  in  a  packet,  and  sent  it  to  an  officer,  who  cannot  look  at  it  until 
the  time  of  its  presentation  for  the  purpose  of  being  considered  and 
counted.  Before  the  time  arrived  at  which  that  act  of  theirs  could  de 
ceive  anybody,  could  have  any  operation,  could  take  any  effect,  could 
get  into  such  a  condition  that  its  preservation  and  maintenance  was 
necessary  to  the  cause  of  public  justice  or  private  right,  their  lack  of 
title  was  ascertained  by  a  solemn  writ  of  quoicarranto  to  be  groundless ; 
it  was  determined  that  they  were  usurpers,  had  no  right  to  the  office, 
and  that  their  acts  were  void.  Is  there  any  such  principle  as  that  the 
inchoate,  partial  action  of  an  officer  de  facto  shall  be  carried  onward, 
carried  forward,  and  given  its  perfection  by  the  acceptance  of  the  act 
as  a  due  and  valid  act  after  the  invalidity  of  that  officer's  claim  has 


134  ELECTORAL    COUNT    OF    1877. 

been  established?  Here  we  repose,  upon  the  quo  warranto  under  your 
honors'  allowance,  or  repose  upon  the  proofs  which  may  be  here  offered, 
admitted,  and  passed  upon  by  your  honors,  for  the  purpose  of  showing 
the  utter  invalidity  of  these  gentlemen's  claim  to  the  office  of  electors. 
In  whichever  shape  this  matter  is  presented  or  carried  forward,  that 
the  act  of  these  officers  de  facto  fails  to  have  reached  the  point  where 
it  could  have  or  take  any  effect,  or  mislead  or  deceive  anybody,  is  shown 
and  established  by  competent  means  to  be  an  act  of  those  who  had  no 
authority  to  perform  it. 

And  the  position  of  the  thing  is  very  striking  in  this  singular  attitude 
which  the  other  side  have  assumed,  the  attitude  of  an  undoubted,  un 
disputed,  convicted  usurper.  They  claim  to  be  received  and  that  their 
act  shall  have  an  effect  which  as  yet  it  never  has  had,  although  since 
the  time  they  performed  the  initiatory  and  preliminary  step  they  have 
been  shown  to  be  utterly  without  right  to  their  pretended  offices.  It 
may  be  said  that  this  sharpened  arrow  aimed  at  the  heart  of  the  nation, 
aimed  for  the  purpose  of  establishing  falsehood,  seating  a  usurper,  and 
trampling  down  the  right  of  the  State  and  of  the  Union — it  may  be 
said  that  this  arrow  was  placed  in  the  bow  of  the  false  elector,  that  ad 
equate  force  and  strength  were  imparted  to  it  to  carry  it  to  the  bosom 
that  was  to  be  wounded  and  stung  to  death  by  it ;  but  it  cannot  be 
denied,  if  the  quo  warranto  is  effectual,  or  if  we  have  a  right  now  to 
prove  the  facts  of  the  case,  that  a  shield  is  interposed  Between  the 
wrong-doer's  arrow  and  the  bosom  he  designed  to  pierce,  by  which  that 
arrow,  steeped  in  guilt  and  fraud,  designed  for  the  perpetration  of  in 
justice  and  the  consummation  of  an  atrocious  wrong,  has  been  arrested 
in  its  flight  and  deprived  of  its  poison  and  its  force. 

In  tins  connection,  under  this  strange  head  of  a  claim  to  have  a  de 
facto  President  by  force  of  a  set  of  de  facto  electors,  I  would  call  your 
honors'  attention  to  a  single  view  of  which  this  case  is  susceptible. 
Although  there  may  be  an  officer  de  facto,  it  seems  to  be  in  the  nature 
of  things  that  there  cannot  be  an  unlawful,  unauthorized  tribunal  or 
body  de  facto  acting  without  right.  These  persons  could  not  act  except 
by  constituting  what  has  been  well  enough  called  an  electoral  college, 
of  which  they  were  to  be  the  members.  They  undertook  to  constitute 
it.  It  was  an  electoral  college  of  their  own.  They  filled  it  up  with 
their  own  wrongful  claims  and  intrusive  persons,  and  thus  sought  to 
create  by  wrong  and  without  one  single  element  of  right  but  this  mere 
color  or  reputation  resting  in  these  individuals  a  lawful  electoral  college. 
I  would  ask  your  honors  for  the  purpose  of  showing  that  that  distinc 
tion  is  entitled  to  considerable  weight,  to  refer  to  the  case  of  Hildreth's 
Heirs  against  Mclntyre's  Devisee,  (I  J.  J.  Marshall's  Kentucky  Reports, 
206,)  where  certain  persons,  being  no  doubt  de  facto  officers,  claimed 
that  they  had  established  a  de  facto  court;  and  the  determination,  upon 
very  good  reasoning  which  I  submit  to  your  honors'  consideration,  was 
that  there  could  not  be  a  de  facto  court,  although  there  might  be  a  de 
facto  judge  or  a  de  facto  officer;  and  we  vsay,  by  the  same  reasoning,  there 
cannot  be  an  unlawful  de  facto  electoral  college  composed  of  mere  pre 
tenders  to  that  office  who  have  no  right. 

In  this  connection  you  have  exactly  the  case  that  was  before  the  court 
there  and  which,  perhaps,  exists  in  other  States  of  this  Union  about 
this  time.  You  have  the  case  of  two  distinct  bodies  existing  at  the  same 
time,  one  rightful  and  the  other  wrongful ;  I  mean  formal  bodies  at 
tempted  to  be  created.  The  Tilden  electors  who,  though  they  had 
not  documentary  evidence  to  establish  their  title,  had  actually  been 
elected,  if  our  evidence  is  to  be  believed,  convened  their  electoral  col- 


ELECTORAL    COUNT    OF    1877.  135 

lege,  performed  every  ceremony  that  the  Constitution  of  the  United 
States  enjoined  upon  them,  performed  every  ceremony  that  the  laws  of 
the  United  States  enjoined  upon  them  and  that  it  was  possible  to  per 
form,  failing  only  in  this,  that  they  did  not  obtain  the  certificate  of  the 
governor.  They  met ;  they  constituted  a  college  ;  they  acted ;  and  they 
sent  forward  their  votes.  Thus  you  have  two  rival  bodies  acting  at,  to 
be  sure,  the  right  time  and  in  the  right  place,  as  prescribed  by  all  laws 
bearing  on  this  subject ;  two  rival  colleges,  one  of  which  was  composed 
of  persons  truly  elected,  the  other  of  which  was  composed  of  persons 
who  had  no  right,  but  only  the  mere  color  of  pretense  of  right,  who 
were  usurpers,  as  has  been  ascertained  in  one  form,  and  will  be  ascer 
tained  in  any  other  that  will  be  satisfactory  to  you,  if  you  will  permit 
us  to  present  the  evidence. 

This,  then,  is  the  actual  condition  of  this  case.  The  Constitution  pre 
scribes  no  forms  save  such  as  have  been  complied  with  by  the  Tilden 
electors  5  the  laws  of  Congress  prescribe  no  forms  that  were  not  corn- 


So  then,  in  this  case  of  rivalry  between  these  two  sets  of  electors,  it 
appears  to  me  that  we  present  the  best  legal  title.  That  we  have  the 
moral  right  is  the  common  sentiment  of  all  mankind.  It  will  be  the 
judgment  of  posterity.  There  lives  not  a  man,  so  far  as  I  know,  upon 
the  face  of  this  earth,  who,  having  the  faculty  of  blushing,  could  look 
an  honest  man  in  the  face  and  assert  that  the  Hayes  electors  were  truly 
elected.  The  whole  question,  therefore,  is  whether  in  what  has  taken 
place  there  has  been  such  an  observance  of  form  as  is  totally  fatal  to 
justice,  and  beyond  the  reach  of  any  curative  process  of  any  description. 

I  have gust  about  time  left  to  say  that  it  was  not  intentional  that  the 
law  of  Florida  in  relation  to  writs  of  quo  warranto  was  omitted.  I  have 
copies  of  it,  enough,  I  think,  to  deliver  to  the  court ;  but  I  found,  on 
looking  about  after  an  observation  was  made  about  it,  that  1  have  not 
any  of  them  here.  I  will  have  them  delivered  to  the  court.  They  were 
printed  long  ago,  with  the  view  of  having  them  sent  up,  but  the  gentle 
man  who  prepared  the  pamphlet  copies  of  some  of  the  laws  here  did  not 
insert  it.  Perhaps  it  was  because  he  knew  it  was  already  printed,  and 
thought  it  was  already  here.  I  have  not  had  time  to  inquire  into  that, 
nor  is  it  at  all  necessary.  That  law  is  to  be  found  in  the  laws  of  Florida 
for  1872,  page  29.  It  will  be  found  that  it  does  not  confine  the  effect  of 
the  quo  warranto  to  the  parties  prosecuting  ;  that  it  does  not  in  any  way 
impair  or  diminish  or  lessen  the  force  and  effect  of  the  judgment  in  quo 
warranto  at  the  suit  of  the  rival  claimant,  who  was  justly  entitled  to  the 
office,  except  in  this  :  it  provides  in  section  3  that,  while  the  judgment  is 
to  have  full  effect  and  to  entitle  the  relator  to  be  placed  in  the  office  until 
he  is  ousted,  the  judgment  in  the  case  shall  not  have  conclusive  effect 
as  against  the  State  in  case  the  State  shall  prosecute  another  quo  icar- 
ranto  in  its  own  behalf  against  the  party  who  was  successful  in  the  first. 
That  is  all  that  that  law  requires.  It  in  no  way  changes  or  diminishes 
the  effect. 

Now,  I  think  I  have  observed  as  much  as  was  any  way  needful  upon 
the  other  questions  as  to  what  evidence  is  admissible  here.  I  conceive 
that  the  propositions  we  have  advanced  have  the  effect  of  entitling  us 
to  produce  any  evidence  here  which  either  of  the  Houses  of  Congress 
prosecuting  an  investigation  of  this  description  might  lawfully  receive, 
and  that  we  are  subject  here  only,  as  we  would  be  before  one  of  the 


136  ELECTORAL    COUNT    OF    1877. 

Houses  of  Congress,  to  the  discretion  which.  I  have  before  referred  to, 
by  which  you  can  restrain  us  as  you  can  restrain  the  other  party  from 
going  into  interminable  and  absurd  inquiries. 

As  to  what  is  actually  here,  the  course  of  my  argument  has  been  in 
tended  to  establish  and,  if  of  any  value,  has  established  that  each  House 
of  Congress  had  jurisdiction  of  the  matter,  each  of  them  at  least  of  one 
section  of  it?  and,  therefore,  that  the  evidence  which,  according  to  the 
customs  and  usages  of  legislative  bodies,  either  House  has  taken  and  has 
upon  its  files  and  will  consent  to  send  in  here  or  has  sent  in  here  at  our 
request,  is  already  in  evidence  in  the  case,  so  far  as  to  be  here,  to  be 
read  if  it  comes  within  the  range  of  subjects  as  of  matter  of  fact  which 
you  will  allow  us  to  investigate ;  it  is  as  good  evidence  as  if  we  pro 
duced  witnesses  or  documents  here  at  tbe  bar  and  examined  them 
according  to  tbe  usages  of  the  common  law. 

Mr.  EVARTS.  Your  honors  will  allow  me  to  refer  to  page  32  of  the 
Congressional  Record  of  February  3,  which  I  omitted  to  do,  though  I 
had  the  passage  marked,  to  indicate  the  result  of  the  different  computa 
tions  under  the  new  statute  and  under  the  quo  warranto  and  under  the 
mandamus,  all  ending  in  canvasses  that  resulted  in  favor  of  the  Hayes 
electors. 

Mr.  O'CONOR.  This  matter  in  a  newspaper  is  certainly  not  to  be 
accepted  here  as  evidence.  It  is  a  report  of  a  minority  of  a  committee 
of  Congress. 

Mr.  Commissioner  EDMUNDS.  We  have  not  admitted  any  evidence 
of  this  kind  yet. 

Mr.  O'CONOR.  But  your  honors  will  permit  us  to  say  that  this  is 
brought  forward  as  matter  of  fact.  We  have  not  relied  on  being  able 
to  establish  facts  by  the  reports  of  certain  gentlemen  in  Congress.  It 
is  the  evidence  which  they  took  on  which  we  rely.  If  these  reports  as 
reports,  the  opinions  of  these  gentlemen,  are  evidence,  very  well ;  let 
us  understand  it. 

The  PRESIDENT.     The  reference  to  it  does  not  make  it  evidence. 

Mr.  EVARTS.  I  do  not  offer  it  as  evidence,  but  I  offer  it  for  your 
honors7  information,  and  in  answer  to  the  intimation  of  the  learned 
counsel  that  every  man,  woman,  and  child  knew  that,  if  the  canvass  was 
not  so,  then  the  Hayes  electors  were  not  chosen. 

Mr.  O'CONOR.     It  will  be  very  apparent. 

Mr.  EVARTS.    This  is  the  matter  to  which  I  refer  : 

As  a  summary  of  the  various  ways  of  estimating  the  vote  of  the  State  of  Florida  on 
the  7th  of  November,  the  minority  submit  the  following: 

I.  If  the  vote  be  reckoned  by  the  face  of  the  returns  which  were  opened  by  the  board 
on  the  28th  of  November,  and  unanimously  declared,  (Attorney-General  Cocke  con 
curring,)  under  the  rule  of  the  board,  to  be  the  regular  returns,  having  all  the  legal 
formalities  complied  with,  the  majority  for  the  Hayes  electors  is  43. 

II.  If  the  vote  be  reckoned  by  the  official  statutory  declaration  of  the  canvassing- 
board  exercising  its  jurisdiction  under  the  State  statute,  in  accordance  with  the  prac 
tice  adopted  without  objection,  and  by  the  advice  of  the  democratic  attorney-general, 
Coo.fco,  and  never  disputed  until  the  result  of  this  canvass  was  about  to  be  determined, 
which  declaration  in  the  belief  of  the  minority  is  final  and  irreversible,  the  majority 
for  the  Hayes  electors  is  925. 

III.  If  the  vote  be  reckoned  upon  the  principles  laid  down  by  the  supreme  court  in 
their  order  to  recanvass  in  the  case  of  Drew  vs.  Governor  Stearns,  of  not  purging  the 
polls  of  illegal  votes  aud  retaining  the  true  vote,  but  of  rejecting  the  whole  county  re 
turn  when  appearing  or  shown  to  be  so  irregular,  false,  or  fraudulent  that  the  true  vote 
could  not  be  ascertained,  the  result  would  be,  according  to  the  declaration  of  the 
board,  a  majority  for  the  Hayes  electors  of  211. 

IV.  If  the  board  had  thoroughly  reconsidered,  according  to  the  decision  of  the  su 
preme  court,  the  various  county  returns  for  the  purpose  of  throwing  out  in  toto  all  that 
could  be  shown  to  be  irregular,  false,  or  fraudulent,  instead  of  purging  the  returns  of 


ELECTORAL    COUNT    OF    1877.  137 

their  illegalities  and  returning  the  true  vote,  there  should  be  thrown  out  the  returns 
from  the  following  counties  : 


Counties. 

Tilden 

electors. 

Hayea 
electors. 

Baker                          .            

238 

143 

Clay      

287 

122 

617 

330 

Jackson      

1  397 

1  299 

262 

26 

.Total                            .            

2  801 

1  920 

eaving  a  majority  for  the  Hayes  electors  of  791. 

V.  If  the  vote  of  the  State  were  to  be  estimated  according  to  the  honest  and  true 
vote  of  the  people  at  the  polls,  without  regard  to  precinct,  county,  or  State  canvassers, 
the  result  would  be,  according  to  the  judgment  of  the  minority,  a  larger  majority  for 
the  Hayes  electors  than  the  declared  majority  of  925. 

Mr.  Commissioner  HOAR.  Can  counsel  on  either  side  furnish  the 
Commission  with  a  copy  of  the  Florida  quo-warranto  law  mentioned  to 
day? 

Mr.  EVARTS.  I  have  handed  it  to  the  clerk,  who  will  have  it  printed. 
I  believe  the  court  understands  that  that  is  a  law  amending  the  general 
quo-warranto  law,  which  is  found  in  another  place. 

Mr.  MERRICK.  If  your  honors  please,  may  we  be  allowed  to  file 
with  the  Secretary  in  a  very  short  time  a  memorandum  of  authorities 
and  citations  from  them,  which  we  have  had  printed  for  the  convenience 
of  the  Commission,  and  which  was  to  have  been  here  this  morning,  but 
has  not  yet  come  to  hand,  although  we  expect  to  receive  it  in  the  course 
of  a  very  few  minutes  ? 

The  PRESIDENT.  Mr.  Merrick  asks  leave  to  file  a  printed  list  of 
authorities  which  he  hopes  to  receive  in  a  few  minutes.  Shall  he  have 
that  leave  ? 

Leave  was  granted. 

Mr.  EVARTS.  We  ought  to  be  able  to  place  in  your  honors'  hands 
a  printed  list  of  authorities. 

The  PRESIDENT.  It  is  so  eminently  just,  if  allowed  on  one  side,  that 
the  same  right  ought  to  be  accorded  to  the  other,  that  I  will  take  the 
privilege  of  giving  the  consent  without  putting  the  question  to  the  Com 
mission. 

On  motion,  the  Commission  took  a  recess  for  three-quarters  of  an 
hour.  On  re-assembling  at  three  o'clock  and  fifteen  minutes  p.  ni.,  the 
Commission  proceeded  to  deliberate  with  closed  doors. 

The  room  being  cleared,  and  the  doors  closed,  the  Commission,  at 
three  o'clock  and  fifteen  minutes,  met  for  deliberation  as  to  whether  any, 
and  what,  evidence  would  be  considered  in  the  matter  of  the  electoral 
vote  of  the  State  of  Florida. 

On  motion  of  Mr.  Commissioner  THURMAN, 

Ordered,  That  the  public  session  of  the  Commission  be  adjourned  until  day  after 
to-morrow,  (Wednesday,  the  7th  instant,)  at  eleven  o'clock  a.  m. 

After  some  time  spent  in  deliberation,  at  three  o'clock  and  forty-five 
minutes  the  Commission  adjourned  until  to-morrow  at  twelve  o'clock, 
noon. 


138  ELECTORAL    COUNT    OF    1877. 

TUESDAY,  February  6,  1877. 

The  Commission  met  at  ten  o'clock  a.  m.  pursuant  to  adjournment,  all 
the  members  being  present. 

The  Journal  of  yesterday  was  read  and  approved. 

The  Commission  proceeded  to  deliberate  on  the  matters  submitted. 

After  debate, 

On  motion  of  Mr.  Commissioner  BRADLEY,  (at  three  o'clock  p.  m.,) 
the  Commission  took  a  recess  of  half  an  hour. 

On  re-assembling,  the  Commission  resumed  its  session. 

After  debate, 

Mr.  Commissioner  STRONG  (at  seven  o'clock  and  forty  minutes  p. 
m.)  moved  that  the  vote  on  the  question  now  pending  be  taken  at  an 
hour  not  later  than  three  o'clock  p.  in.  to-morrow  ;  and  the  motion  was 
agreed  to. 

On  motion  of  Mr.  Commissioner  GARFIELD,  it  was 

Ordered,  That  when  the  Commission  adjourn  it  be  until  ten  o'clock  a.  in.  to-mor 
row. 

And,  on  motion  of  Mr.  Commissioner  PAYNE,  (at  seven  o'clock  and 
forty:five  minutes  p.  m.,)  the  Commission  adjourned. 


WEDNESDAY,  February  7, 1877. 

The  Commission  met  at  ten  o'clock  a.  m.  pursuant  to  adjournment,  all 
the  members  being  present. 

Tbe  Journal  of  yesterday  was  read  and  approved. 

The  PRESIDENT  stated  that  on  the  5th  instant  an  order  had  been 
made  requiring  an  open  session  of  the  Commission  at  eleven  o'clock  a. 
m.  to-day. 

On  motion  of  Mr.  Commissioner  FRELINGHOTSEN,  it  was 

Ordered,  That  at  eleven  o'clock  a.  m.,  the  hour  designated  by  the  order  of  the  5th 
instant  requiring  an  open  session,  the  doors  be  considered  as  open,  and  the  Commission 
at  once  adjourn  the  same  for  deliberation. 

The  Commission  resumed  its  session  for  deliberation  on  the  question 
pending  in  the  matter  of  the  electoral  vote  of  the  State  of  Florida. 

After  debate, 

The  hour  of  eleven  o'clock  a.  m.  having  arrived,  and  the  doors  being 
considered  as  open, 

On  motion  of  Mr.  Commissioner  MORTON,  it  was 

r    Ordered,  That  the  public  session  of  the  Commission  be  adjourned  until  eleven  o'clock 
a.  m.  to-morrow,  the  8th  instant. 

Thereupon,  the  Commission  resumed  its  session  for  deliberation  with 
closed  doors. 

After  further  debate, 

The  hour  of  three  o'clock  having  arrived,  being  the  time  designated 
by  an  order  of  the  Commission  at  which  the  question  on  the  matter 
pending  should  be  submitted, 

Mr.  Commissioner  MILLER  moved  the  following  order  : 

Ordered,  That  no  evidence  will  be  received  or  considered  by  the  Commission  which 
was  not  submitted  to  the  joint  convention  of  the  two  Houses  by  the  President  of  the 
Senate  with  the  different  certificates,  except  such  as  relates  to  the  eligibility  of  F.  C. 
Humphreys,  one  of  the  electors. 


ELECTORAL    COUNT    OF    1877.  139 

The  question  being  on  its  adoption,  it  was  determined  in  the  affirm 
ative  : 

Yeas , „.  8 

Nays 7 

Those  who  voted  in  the  affirmative  are :  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong. 

Those  who  voted  in  the  negative  are :  Messrs.  Abbott,  Bayard,  Clif 
ford,  Field,  Hunton,  Payne,  and  Thurman. 

So  the  motion  of  Mr.  Commissioner  Miller  was  agreed  to. 

Mr.  Commissioner  ABBOTT  moved  the  following  order : 

Ordered,  That  in  the  case  of  Florida  the  Commission  will  receive  evidence  relating  to 
the  eligibility  of  Frederick  C.  Humphreys,  one  of  the  persons  named  in  certificate  No. 
1,  as  elector. 

The  question  being  on  its  adoption,  it  was  determined  in  the  affirm 
ative  : 

Yeas 8 

Nays 7 

Those  who  voted  in  the  affirmative  are:  Messrs.  Abbott,  Bayard, 
Bradley,  Clifford,  Field,  Huntou,  Payne,  and  Thar  man. 

Those  who  voted  in  the  negative  are:  Messrs.  Edmunds,  Freling- 
huyseii,  Garfield,  Hoar,  Miller,  Morton,  and  Strong. 
On  motion  of  Mr.  Commissioner  HOAE,  it  was 

Ordered,  That  the  proceedings  of  to-day's  session,  as  entered  in  the  Journal,  be  read 
by  the  Secretary  at  the  public  session  of  the  Commission  to-morrow. 

On  motion  of  Commissioner  THURMAN,  it  was 

Ordered,  That  the  Secretary  of  the  Commission  is  hereby  directed  to  furnish  imme 
diately  to  counsel,  on  both  sides,  copies  of  the  orders  made  to-day,  and  to  notify  them 
that  the  Commission  will  be  ready  at  eleven  o'clock  a.  in.  to-niorrow  to  proceed  with 
the  case  now  before  them. 

And  on  motion  of  Mr.  Commissioner  MILLER  (at  three  o'clock  and 
forty-five  minutes  p.  in.)  the  Commission  adjourned. 


THURSDAY,  February  8,  1877. 

The  Commission  met  at  eleven  o'clock  a.  in.  pursuant  to  adjournment, 
all  the  members  being  present. 

The  following  counsel  were  also  present: 

Hon.  Charles  O'Couor,  of  New  York,  "J 

Hon.  Jeremiah  S.  Black,  of  Pennsylvania,  I  Qf  counsel  in  Opposi- 
Richard  T.  Merrick,  esq.,  of  Washington,  D.  C.;  I  tjou  to  certiticate 
George  Hoadly,  esq.,  of  Ohio,  ^Q  1< 

Ashbel  Green,  esq.,  of  New  Jersey,  | 

William  C.  Whitney,  esq.,  of  New  York,  3 

Hon.  William  M.  Evarts,  of  New  York,  ]  Qf  counsel  in  opposi- 

Hon.  E.  W.  Stoughton,  of  New  York,  I  tiou  to  certificates 
Hon.  Stanley  Matthews,  of  Ohio,  -^os>  2  and  3. 

Hon.  Samuel  Shellabarger,  of  Ohio,  J 

The  Journal  of  yesterday's  proceedings  was  read  and  approved. 
The  PRESIDENT.     The  proceedings  to-day  are  under  the  orders 
adopted  yesterday,  of  which,  on  motion  of  Mr.  Thurmau,  counsel  were 


140  ELECTORAL    COUNT    OF    1877. 

notified  last  evening.  The  Secretary  was  directed  to  notify  counsel 
that  at  eleven  o'clock  to-day  the  Commission  would  proceed  with  the 
case  now  before  it,  subject  of  course  to  the  two  orders  which  have  been 
read  in  the  proceedings  of  yesterday  ;  one,  that  no  evidence  will  be  re 
ceived  except  what  was  submitted  to  the  two  Houses  by  the  President 
of  the  Senate ;  and  the  other,  that  in  the  case  of  Florida  this  Commis 
sion  will  receive  evidence  relating  to  the  eligibility  of  one  elector 
named. 

Mr.  MERRICK.  Mr.  President  and  gentlemen,  will  you  give  the 
marshal  an  order  to  admit  the  witnesses  for  the  objectors?  There  are 
two  or  three  witnesses  in  attendance  who  are  not  allowed  to  enter  with 
out  such  an  order. 

The  PRESIDENT,  (to  members  of  the  Commission.)  Shall  the  mar- 
shal  be  so  directed?  [Putting  the  question.]  The  motion  is  adopted. 
The  marshal  will  admit  the  witnesses  designated  by  the  counsel  who 
made  the  motion. 

Mr.  EYARTS.  May  I  ask  for  an  order  that  a  witness  in  attendance 
on  our  part,  Mr.  Humphreys,  may  be  admitted  ? 

The  PRESIDENT.  I  will  give  the  order  without  putting  the  ques 
tion.  The  marshal  will  admit  the  witness. 

Mr.  GREEN.  Mr.  President  and  Commissioners,  we  propose  to  call 
as  a  witness  George  P.  Raney,  of  Florida. 

The  PRESIDENT.  The  witnesses  who  are  called  will  be  sworn  by 
the  Secretary. 

The  Secretary  administered  an  oath  to  the  respective  witnesses  in 
the  following  form : 

You  do  solemnly  swear  that  the  evidence  you  shall  give  in  the  case 
now  before  the  Commission  shall  be  the  truth,  the  whole  truth,  and 
nothing  but  the  truth. 

GEORGE  P.  RANEY  sworn  and  examined. 

By  Mr.  GREEN  : 

Question.  Where  do  you  [reside? — Answer.  I  reside  in  Tallahassee, 
Florida. 

Q.  What  is  your  occupation  or  profession  I — A.  I  am  a  lawyer  by  pro 
fession. 

Q.  What  official  position  do  you  hold,  if  any  ? — A.  I  am  attorney- 
general  of  the  State  of  Florida. 

Q.  Where  were  you  on  the  6th  of  December,  1876?— A.  I  was  in  the 
city  of  Tallahassee,  in  the  State  of  Florida. 

Q.  Have  you  any  knowledge  as  to  the  time  of  the  service  of  the  writ 
of  quo  warranto  f 

Mr.  EVARTS.  One  moment.  That  is  not  within  the  license,  as  we 
understand,  of  the  order  of  the  Commission. 

Mr.  GREEN.     I  should  like  to  hear  the  objection  stated. 
^  Mr.  EVARTS.     The  objection  is  that  it  is  not  within  the  order  of  the 
Commission  admitting  evidence  concerning  the  eligibility  of  Mr.  Hum 
phreys  and  excluding  all  other  evidence. 

Mr.  GREEN.  We  propose  to  prove  by  this  witness  the  simple  fact  as 
to  the  precise  time  when  the  writ  of  quo  warranto  was  served  upon 
Messrs.  Humphreys  and  others,  known  as  the  Hayes  electors.  It  is 
apprehended  upon  our  side  that  the  order  which  has  been  made  by  the 
Commission  does  not  in  its  spirit  exclude  the  consideration  of  the  quo 
warranio  proceedings  which  have  been  laid  upon  the  table,  and  it  is  in 
aid  of  what  may  be  perhaps  considered  a  question  as  to  the  precise 


ELECTORAL    COUNT    OF    1877. 

moment  when  the  writ  of  quo  warranto  was  served  upon  Humphreys 
and  others,  that  we  desire  to  make  this  proof  this  morning. 

The  PRESIDENT.  I  will  submit  the  question  to  the  Commission. 
Gentlemen  of  the  Commission,  is  the  objection  well  taken  ?  [Putting  the 
question.]  The  ayes  have  it,  and  the  objection  is  sustained.  Proceed 
with  the  examination  of  the  witness. 

Mr.  GREEN.  We  can  now  dispense  with  this  witness  and  will  call 
James  E.  Yonge. 

JAMES  E.  YONGKE  sworn  and  examined. 
By  Mr.  GREEN  : 

Question.  Where  do  you  reside  ? — Answer.  At  Pensacola,  Florida. 

Q.  Do  you  know  Frederick  C.  Humphreys  ? — A.  I  do. 

Q.  Where  does  he  reside  ?— A.  At  Peusacola,  Florida. 

Q.  How  long  have  you  known  him  ?— -A.  I  have  known  him  for  about 
ten  years. 

Q.  What  is  his  business  or  occupation  ?— A.  Agent  for  an  express 
company,  and  has  been  United  States  shipping-commissioner. 

Q.  Have  you  known  him  to  act  in  the  capacity  of  United  States  ship 
ping-commissioner  ? — A.  I  have. 

Mr.  EVARTS.  We  submit  that  if  an  official  position  is  to  be  proved 
as  by  authority  communicated  from  the  Government,  in  the  absence  of 
some  reason  to  the  contrary,  the  official  appointment  should  be  given. 

The  PRESIDENT.    Perhaps  it  is  about  to  be  produced. 

Mr.  GREEN.    This  is  evidence  of  his  use  of  the  office. 

Mr.  EVARTS.  That  is  my  objection,  that  use  is  not  sufficient  on  a 
matter  depending  upon  authority. 

Mr.  GREEN.     We  propose  to  follow  that 

The  PRESIDENT.  You  had  better  introduce  the  commission  at  once, 
to  save  time*. 

Mr.  GREEN.  I  offer  in  evidence  an  order  of  the  United  States  cir 
cuit  court  for  the  northern  district  of  Florida  at  the  December  term, 
1872: 

United  States  circuit  court,  northern  district  of  Florida.    December  term,  1872. 

DECEMBER  3,  1872. 

In  the  matter  of  the  appointment  of  Frederick  C.  Humphreys,  shipping-commissioner 

of  the  port  of  Pensacola. 

Ordered  by  the  court  that  Frederick  C.  Humphreys,  of  Pensacola,  be,  and  he  is 
hereby,  appointed  shipping-commissioner  for  the  port  of  Pensacola. 

Further  ordered  that  said  commissioner  may  enter  upon  the  duties  of  his  said  ap 
pointment  upon  taking  and  filing  the  oath  prescribed  by  law.  And  it  is  further  ordered 
that  the  clerk  of  this  court  do  furnish  said  commissioner  with  a  certified  copy  of  this 
order. 

I.  J.  E.  Townsend,  clerk  of  the  circuit  court  of  the  United  States  for  the  northern 
district  of  Florida,  do  certify  that  the  above  and  foregoing  is  a  true  copy  of  the  original 
order  as  of  record  in  this  office. 

[SEAL.]  J.  E.  TOWNSEND,  Clerk. 

I  do  solemnly  swear  that  I  will  support  the  Constitution  of  the  United  States;  and 
that  I  will  truly  and  faithfully  discharge  the  duties  of  a  shipping-commissioner  to  the 
best  of  my  ability  and  according  to  law. 

F.  C.  HUMPHREYS. 

Sworn  and  subscribed  before  me  this  9th  day  of  December,  A.  D.  1872. 

GEO.  E.  WENTWOKTH, 
United  /States  Commissioner  for  the  United  Mates  Circuit  Court, 

Northern  District  of  Florida. 
Fi,ed  December  9,  1878.  M.  P.DE  EIOBOO, 


142  ELECTORAL    COUNT    OF    1877.' 

Northern  District  of  Florida  : 

I,  M.  P.  De  Rioboo,  clerk  United  States  circuit  court,  in  and  for  said  district,  at 
Pensacola,  do  hereby  certify  the  foregoing  to  be  a  true  copy  as  the  same  remains  on 
file  in  my  office.  I  further  certify  that  no  resignation  of  said  office  of  shipping-com 
missioner  has  been  filed  in  my  office  by  the  said  Frederick  C.  Humphreys. 

Given  under  my  hand  and  seal  of  said  court,  at  Pensacola,  this  January  24,  1877. 

[SEAL.]  M.  P.  DE  RIOBOO,  Clerk. 

Q.  (By  Mr.  Green.)  Do  you  know  Frederick  C.  Humphreys,  one  of 
the  persons  who  was  voted  for  as  an  elector  for  President  and  Vice-Pres- 
ident  of  the  United  States  at  the  election  in  November,  1876  ? — A.  I  do. 

Q.  Is  he,  or  is  he  not,  the  same  Frederick  C.  Humphreys  of  whom  you 
have  spoken  as  being  United  States  shipping-commissioner  ? — A.  He  is 
the  same  person. 

Q.  Have  you  seen  Mr.  Frederick  C.  Humphreys  in  the  exercise  of  any 
acts  as  United  States  shipping-commissioner? — A.  I  have  had  trans 
actions  with  him  in  that  capacity. 

Q.  How  late  and  when  ? — A.  I  had  transactions  with  him  from  time 
to  time  from  the  early  part  of  1873  up  to  the  date  of  my  leaving  Pensa 
cola,  some  time  between  the  middle  and  latter  part  of  August  of  last 
year. 

Q.  Describe  the  business  you  had  with  Mr.  Humphreys  as  shipping- 
commissioner. — A.  I  frequently  had  occasion  to  communicate  with  him 
on  the  subject  of  the  discharge  of  American  seamen.  His  duties  in  the 
capacity  of  shipping-commissioner  related  to  such  matters  between 
American  seamen  and  shipping-masters. 

Q.  Did  you  testify  as  to  your  occupation  ? — A.  I  did  not. 

Q.  What  is  your  occupation  ? — A.  I  am  a  lawyer. 

Q,  Engaged  in  the  practice  of  your  profession  where? — A.  In  Pensa 
cola. 

Q.  And  as  a  lawyer  have  you  from  time  to  time  had  transactions 
with  Mr.  Humphreys  as  United  States  shipping-commissioner? — A.  I 
have. 

Q.  Have  you  appeared  before  him  from  time  to  time  ? — A.  Yes,  sir. 

Q.  How  late  f — A.  From  time  to  time,  as  I  answered  before,  up  to 
the  date  of  my  leaving  Pensacola,  which  was  between  the  middle  and 
latter  part  of  August  of  last  year,  1876. 

Q.  Did  Mr.  Humphreys,  as  United  States  commissioner,  take  cogni 
zance  of  any,  and,  if  so,  what,  questions  which  may  have  been  from 
time  to  time  presented  to  him  ? — A.  The  ordinary  questions  of  difference 
between  seamen  and  masters  of  vessels — questions  of  the  right  to  their 
discharge  and  the  right  to  receive  their  wages. 

Q.  Did  he  hold  court  there  for  that  purpose  ?— A.  It  was  a  sort  of 
informal  court. 

Q.  In  which  parties  appeared  before  him  ? — A.  Yes,  sir. 

Q.  Did  he  hear  evidence? — A.  He  heard  the  testimony. 

Q.  And  arguments  of  counsel  ? — A.  When  arguments  were  presented. 
It  was  seldom  that  arguments  were  presented  in  such  cases. 

Mr.  GKEEN.    That  is  all. 

The  PRESIDENT.    Do  the  other  side  desire  to  cross-examine  ? 

Mr.  EVAKTS  and  Mr.  STOUGHTON.     No. 

Mr.  GKEEN.  That  is  all  that  we  propose  to  offer  on  that  point  by 
way  of  affirmative  evidence,  unless  there  may  be  something  which  may 
be  required  to  be  offered  by  way  of  rebuttal  when  the  other  side  shall 
have  presented  their  testimony. 

The  PRESIDENT.    Is  there  anything  to  be  offered  on  the  other  side? 

Mr.  EVAKTS.    Without  commenting  upon  the  state  of  the  proof  thus 


ELECTORAL    COUNT    OF    1877.  143 

far  reached  as  calling  upon  us  to  offer  any  evidence  in  rebuttal,  princi 
pally  upon  the  point  that  as  yet  no  evidence  has  been  adduced  which 
shows  that  he  held  and  exercised  the  office  of  shipping-commissioner  at 
the  date  of  the  November  election,  we  will  introduce  the  proof  on  our 
part  and  leave  any  question  for  discussion  hereafter. 

F.  0.  HUMPHREYS  sworn  and  examined. 
By  Mr.  STOUGHTON: 

Question.  Where  do  you  reside  ?  —  Answer.  In  Pensacola. 

Q.  Were  you  a  candidate  for  elector?  —  A.  I  was. 

Q.  On  the  republican  ticket  ?  —  A.  Yes,  sir. 

Q.  Had  you  prior  to  being  such  candidate  held  any  office  ?  —  A.  Yes, 
sir. 

Q.  What?  —  A.  I  was  United  States  shipping-commissioner  for  the 
port  of  Pensacola. 

Q.  When  did  you  cease  to  act  as  such?  —  A.  On  the  5th  day  of  Oc 
tober,  when  acceptance  of  my  resignation  was  received  from  Judge 
Woods. 

Q.  Did  you  resign  your  office?  —  A.  I  did. 

Q.  By  resignation  to  whom  ?  —  A.  By  resignation  through  the  mail. 

Q.  To  whom  ?—  A.  To  Judge  Woods. 

Q.  Have  you  the  acceptance  of  that  resignation  ?  —  A.  I  have. 

Q.  Have  you  that  in  your  possession  ?  —  A.  I  have. 

Q.  Be  kind  enough  to  let  me  see  it.  —  A.  [Producing  a  paper.]  That  is 
the  paper. 

Q.  Judge  Woods  is  one  of  the  circuit  judges  of  the  United  States  ? 

The  PRESIDENT.    The  court  is  aware  of  that, 

Mr.  MERRICK.  We  object,  if  your  honors  please,  to  the  production 
of  this  paper  as  the  acceptance  of  a  resignation,  as  it  is  the  act  of  an 
individual  and  not  the  act  of  the  court. 

The  PRESIDENT.  The  simple  question  now  is  whether  you  object 
to  its  admissibility.  Its  effect  will  be  a  subject  of  argument  afterward. 

Mr.  EVARTS.     Its  authenticity  is  not  objected  to. 

Mr.  MERRICK.  It  is  hardly  anticipating  the  main  question,  but  of 
course  I  will  waive  it  at  the  suggestion  of  the  President  of  the  Com 
mission  for  the  present. 

The  PRESIDENT.     Its  effect  can  be  judged  of  afterward. 

Mr.  MERRIOK.  If  I  shall  not  be  understood  as  waiving  my  objec 
tion,  very  well. 

The  PRESIDENT.  The  question  of  its  effect  will  be  considered  as 
reserved. 

Q.  (By  Mr.  Stoughton.)  You  received  from  Judge  Woods,  in  reply 
to  your  resignation,  this  paper?  —  A.  Yes,  sir. 

Mr.  Commissioner  MILLER.     It  had  better  be  read. 

Mr.  STOUGHTON.     I  will  read  it, 

NEWARK,  October,  1876. 

DEAR  SIR  :  I  inclose  the  acceptance  of  your  resignation  as  shipping-commissioner. 
The  vacancy  can  only  be  filled  by  the  circuit  court,  aud  until  I  can  go  to  Pensacola 
to  open  court  for  that  purpose,  the  duties  of  the  office  will  have  to  be  discharged  by 
the  collector. 

EespectfuHy,  yours, 


Major  F.  C.  HUMPHREYS, 

Pensacola,  Fla. 

To  F.  C.  HUMPHREYS,  Esq., 

Pensacola,  Fla.: 
Your  letter  of  the  24th  of  September,  1876,  resigning  your  office  of  United  States 


144  ELECTORAL    COUNT    OF    1877. 

shipping-commissioner  for  the  port  of  Pensacola,  in  the  State  of  Florida,  has  been 
received,  and  your  resignation  of  said  office  is  hereby  accepted. 
Very  respectfully,  your  obedient  servant, 

United  States  Circuit  Judge. 

OCT.  2,  1876. 

Mr.  MEREICK.  What  place  is  it  dated? 

Mr.  STOUGHTON.  Newark. 

Mr.  EVARTS.  What  State  ? 

Mr.  STOUGHTON.  There  is  no  State  on  it. 

The  PRESIDENT.  If  no  objection  be  made,  the  paper  will  be  filed 
with  the  Secretary. 

Mr.  STOUGHTON.  I  have  another,  may  it  please  your  honors.  [To 
the  witness.]  Did  you  receive  the  paper  I  now  hold  in  ray  hand,  dated 
October  1, 1876,  from  Hiram  Potter,  collector  of  customs  at  Pensacola? 

A.  I  did. 

Q.  Is  this  his  signature  ? — A.  It  is. 

Mr.  MEEEIOK.  We  object  to  that  paper  being  received. 

Mr.  STOUGHTON.  It  connects  itself  with  the  other  two,  as  the 
Commission  will  see. 

Mr.  MEERICK.  I  make  the  objection,  reserving  the  consideration 
of  the  question. 

The  PRESIDENT.  It  will  be  received  subject  to  the  decision  of  the 
Commission  as  to  its  effect. 

Mr.  MEEEICK.  Yes,  sir;  and  as  to  its  admissibility,  also. 

The  PEESIDENT.  Yes. 

Mr.  STOUGHTON.  This  letter  is : 

CUSTOM-HOUSE,  PENSACOLA,  FLORIDA, 

Collector's  Office,  October  5,  1876. 
F.  C.  HUMPHREYS,  Esq., 

Pensacola,  Fla. : 

SIR:  I  am  informed  by  Judge  Woods  that  he  has  accepted  your  resignation  as  U. 
S.  shipping-commissioner,  and  that  it  devolves  upon  me  to  assume  the  duties  of 
the  office  until  a  regular  appointment  shall  be  made  by  the  circuit  court.  I  respect 
fully  request,  therefore,  that  you  will  turn  over  to  me  such  public  books,  papers,  rec 
ords,  &c.,  as  may  pertain  to  the  business. 

I  remain,  very  respectfully,  your  obedient  servant, 

HIRAM  POTTER,  JR., 

Collector  of  Customs. 

(To  the  witness.)  Was  he  the  collector  ? 

The  WITNESS.  Yes,  sir. 

Q.  (By  Mr.  STOUGHTON.)  Did  you  cease  to  act  in  your  office  from  the 
time  of  the  receipt  of  the  letter  accepting  your  resignation  ? — A.  I  did. 

Q.  Have  you  acted  at  all  in  that  capacity  since  ? — A.  No,  sir. 

Q.  Has  the  collector  acted  in  your  place  f — A.  Yes,  sir. 

Q.  Did  you  turn  over  to  the  collector  whatever  you  had  of  public 
papers  or  property  connected  with  the  office,  if  you  had  any  f — A.  I  had 
none.  The  blanks  were  my  personal  property,  bought  and  paid  for 
with  my  own  money. 

Cross-examined  by  Mr.  HOADLY  : 

Q.  Have  you  a  copy  of  your  letter  of  resignation  ? — A.  Yes,  sir. 

Q.  How  did  you  convey  it  to  Judge  Woods  ?— A.  Through  the  mail. 

Q.  To  what  point  did  you  address  that? — A.  To  Newark,  in  the  State 
of  Ohio.  He  was  there  on  a  visit. 

Q.  Judge  Woods  was  on  a  visit  to  Newark,  Ohio  I — A.  Yes,  sir. 

Q.  Has  there  been  any  open  session  of  the  circuit  court  of  the  United 
States  for  the  northern  district  of  Florida  since  the  date  of  that  resig 
nation  9 — A.  No,  sir. 


ELECTORAL    COUNT    OF    1877.  145 

Q.  When  did  you  receive  Judge  Woods's  reply  to  your  letter  ?— A.  Oil 
the  5th  of  October. 

The  PRESIDENT.  Is  there  anything  further  ? 

Mr.  STOUGHTON.  Nothing  further. 

The  PRESIDENT.  Anything  in  rebuttal  ? 

Mr.  MERRICK.  Nothing  further. 

The  PRESIDENT.  The  testimony  is  closed.  The  third  rule  is  as 
follows : 

Counsel,  not  exceeding  two  in  number  on  each  side,  will  be  heard  by  the  Commis 
sion  on  the  merits  of  any  case  presented  to  it,  not  longer  than  two  hours  being  allowed 
to  each  side,  unless  a  longer  time  and  additional  counsel  shall  be  specially  authorized 
by  the  Commission. 

I  consider  myself  instructed  to  say  that  the  whole  case  is  now  open 
for  argument  under  that  rule.  If  members  of  the  Commission  enter 
tain  a  different  view  they  will  suggest  it.  That  is  my  understanding 
on  the  construction  I  give.  I  think  the  order  should  be  as  before,  that 
one  counsel  representing  the  objections  to  certificate  No.  1  should  open, 
that  two  on  the  other  side  should  reply,  and  then  the  other  counsel  hav 
ing  the  affirmative  should  have  the  close. 

Mr.  MERRICK.  Mr.  President,  we  would  ask,  if  it  be  agreeable  to 
the  Commission,  that  there  should  be  allowed  three  counsel  to  be  heard 
for  the  objectors  to  certificate  No.  1. 

The  PRESIDENT.  I  will  allow  that  without  submitting  the  question 
to  the  Commission,  provided  no  additional  time  is  asked. 

Mr.  MERRICK.  We  were  going  to  ask  for  some  slight  addition  to 
our  time. 

The  PRESIDENT.  That  is  for  the  Commission. 

Mr.  MERRICK.  The  reason  for  asking  that  three  be  heard  is  that 
there  is  a  new  and  quite  important  question  raised  by  the  testimony 
this  morning  in  reference  to  Mr.  Humphreys,  and  it  enlarges  very  con 
siderably  the  sphere  of  the  argument. 

The  PRESIDENT.  How  much  more  time  do  you  want? 

Mr.  MERRICK.  An  hour.  We  desire  to  have  that  question  in  its 
first  presentation  to  the  court  fully  presented,  and  it  is  a  question  upon 
which  Mr.  Hoadly  has  prepared  himself  with  some  careful  examination, 
and  it  is  one  which  before  the  Commission  finally  disperses  may  again 
arise  5  and  we  deem  it  important  that  it  should  be  fairly,  fully,  and  ably 
discussed  when  first  presented  to  your  consideration. 

Mr.  Commissioner  MILLER.  Mr.  Merrick,  nearly  all  the  other  ques 
tions  were  discussed  in  the  first  argument.  The  effect  of  the  papers 
submitted  by  the  President  of  the  Senate  was  fully  discussed  in  the 
opening  argument  by  counsel  on  both  sides,  and  it  does  seem  to  me,  as 
we  must  get  along  and  discharge  this  business,  that  we  should  get 
through  with  the  argument  to  day. 

The  PRESIDENT.  What,  if  anything,  is  said  on  the  other  side  ? 
What  are  the  views  of  the  other  side  ?  Do  they  wish  to  be  heard  by 
three  counsel? 

Mr.  EYARTS.  We  shall  not  want  more  than  two  hours,  even  if  three 
should  be  allowed  to  speak. 

The  PRESIDENT.  Will  more  than  two  counsel  speak  on  your  side  1 

Mr.  EVARTS.  I  think  not. 

The  PRESIDENT.  The  question  submitted  to  the  Commission  is 
whether  an  additional  hour  shall  be  allowed  to  counsel  for  the  time  of 
argument. 

The  question  being  put,  it  was  determined  in  the  affirmative. 

Mr.  HOADLY.  May  it  please  the  Commission,  it  has  been  established 

10  E  0 


146  ELECTORAL    COUNT    OF    1877. 

by  the  proof  that  Frederick  C.  Humphreys  held  the  office  of  shipping  - 
commissioner  by  appointment  of  the  circuit  court  of  the  United  States 
in  Florida.  It  has  been  established  by  the  proof  that  before  the  Novem 
ber  election  he  attempted  to  divest  himself  of  this  office  by  forwarding 
to  the  city  of  Newark,  in  the  State  of  Ohio,  a  paper  resignation  of  the 
office,  and  by  receiving  from  the  judge,  not  the  court,  acting  not  in 
Florida  but  in  Ohio,  an  acceptance  of  that  resignation. 

The  powers  of  this  office  are  derived  from  section  4501  of  the  Revised 
Statutes : 

The  several  circuit  courts  within  the  jurisdiction  of  which  there  is  a  port  of  entry  > 
&c.,  shall  appoint,  &c. 

The  resignation  cannot  be  made  except  to  the  same  authority  that 
appointed.  The  resignation  could  not,  therefore,  be  made  by  letter  ad 
dressed  to  the  judge  in  Ohio.  The  acceptance  of  the  resignation  could 
not  emanate  from  the  judge  in  Ohio.  The  court  has  not  since  held  a 
session.  The  court  which  clothed  the  officer  with  the  power  has  not 
relieved  him  from  the  performance  of  the  duty,  and  I  respectfully  sub 
mit  that  this  proposition  is  sustained  by  a  cause  recently  decided  in 
the  Supreme  Court  of  the  United  States,  the  opinion  in  which  has  just 
been  placed  in  my  hands,  the  case  of  Badger  and  others  vs.  The  United 
States  on  the  relation  of  Bolton,  a  copy  of  the  decision  in  which  will  be 
furnished  to  your  honors.  It  is  also,  I  am  advised,  according  to  the 
practice  of  the  Government  as  shown  by  Document  No.  123,  Twenty- 
sixth  Congress,  second  session,  House  of  Representatives,  and  by  the 
second  volume  of  the  Opinions  of  the  Attorneys-General,  pages  406  and 
713.  Therefore,  considering  that  Frederick  C.  Humphreys  had  been 
duly  appointed  to  this  office,  that  by  the  laws  of  the  United  States  it  is 
shown  to  be  an  office  of  profit  and  trust,  is  by  the  Revised  Statutes  so 
made ;  considering  that  the  judge  of  the  circuit  court  acting  in  Ohio  was 
not  the  circuit  court  and  was  not  the  power  that  clothed  him  with  the 
authority,  and  could  not  relieve  him  from  the  performance  of  the  duty 
with  which  he  had  been  intrusted  by  another  power;  considering  that 
the  judge  of  the  circuit  court  of  the  United  States  acting  in  chambers 
could  not  in  Ohio  release  him  from  a  trust  with  which  the  court  not  in 
chambers  clothed  him  in  Florida;  considering  these  circumstances,  we 
respectfully  submit  that  he  held  an  office  of  profit  and  trust  on  the  day 
of  the  November  election  for  electors  of  President  and  Vice-President, 
and  that  therefore  the  vote  that  he  cast  as  an  elecctor  in  December  can 
not  be  counted. 

The  provision  of  disqualification  contained  in  the  first  section  of  the 
second  article  of  the  Constitution  I  will  read,  that  I  may  have  freshly 
before  my  own  mind  the  text  in  reference  to  which  this  debate  must 
proceed. 

Mr.  Commissioner  THURMAN.  Before  you  proceed  with  that,  will 
you  state  whether  this  was  an  office  a  resignation  of  which  must  be  ac 
cepted,  or  could  the  officer  resign  of  his  own  motion  at  any  time? 

Mr.  HOADLY.  There  is  nothing  in  the  statute  with  regard  to  the 
resignation  of  this  office  at  all.  Having  accepted  the  office,  given  bond, 
and  taken  oath  to  perform  its  duties,  we  submit  that  he  could  not  divest 
himself  of  it  by  his  own  act.  I  will  read  the  whole  section  which  au 
thorized  the  appointment: 

The  several  circuit  courts  within  the  jurisdiction  of  which  there  is  a  port  of  entry 
which  is  also  a  port  of  ocean  navigation  shall  appoint  a  commissioner  for  each  such 
port  which  in  their  judgment  may  require  the  same,  such  commissioners  to  be  termed 
shipping-commissioners ;  ami  may,  from  time  to  time,  remove  from  office  any  commis 
sioner  whom  the  court  may  have  reason  to  believe  does  not  properly  perform  his  duties, 


ELECTORAL    COUNT    OF    1877.  147 

and  shall  then  provide  for  the  proper  performance  of  his  duties  until  another  person  is 
duly  appointed  in  his  place. 

I  submit  that  where  the  legislative  body  have  created  an  office,  and 
the  judicial  authority  has,  according  to  the  law,  clothed  a  person  with 
the  trusts  of  that  office,  public  policy  requires  that  it  should  not  be  held 
at  his  will  and  pleasure,  it  being  an  office  of  public  convenience  and  ne 
cessity,  for  the  performance  of  which  bond  is  required  to  be  given,  and  the 
filling  of  which  may  be  at  all  times  essential  to  the  performance  of  pub 
lic  duty. 

Turning  to  the  constitutional  provision,  I  read  : 

Each  State  shall  appoint,  in  such  manner  as  the  legislature  thereof  may  direct,  a 
number  of  electors  equal  to  the  whole  number  of  Senators  and  Representatives  to  which 
the  State  may  be  entitled  in  the  Congress  ;  but  no  Senator  or  Representative,  or  person 
holding  an  office  of  trust  or  profit  under  the  United  States,  shall  be  appointed  an 
elector. 

The  form  is  mandatory;  it  is  negative ;  that  is,  the  provision  of  dis 
qualification  is  negative.  It  is  coupled  with  the  grant  of  power  by  the 
word  "  but,"  which,  together  with  the  words  of  the  context,  shows  that 
it  is  a  limitation,  a  qualification,  a  diminution  of  the  grant  of  power. 
The  grant  of  power  is  to  the  State,  not  to  the  people  of  the  State,  but 
to  the  State  as  a  legal  entity,  as  an  organized  body-corporate  in  its 
character;  and  to  this  grant  thus  given  to  the  State  is  attached  a  limit 
ation  introduced  by  words  of  exception,  "  but  no  Senator  or  Kepreseuta- 
tive  shall  be  entitled."  It  is  clothed  in  negative  language.  "  Negative 
language,"  it  is  said,  "  will  make  a  statute  imperative  ;  and  this  is  incon 
testable.  Negative  words  will  make  a  statute  imperative.  Affirmative 
words  may  :  negative  must,"  as  is  stated  in  Sedgwick  on  Constitutional 
and  Statutory. Law,  page  370;  Copley  on  Constitutional  Limitations, 
75;  Potter's  Dwarris  on  Statutes,  228;  Rex  vs.  Justices  of  Leicester,  7 
Barnewall  &  Cresswell,  6,  12. 

But  what  is  of  more  consequence  than  the  form,  although  the  form  is 
indicative  of  the  purpose  of  the  authors  in  using  the  words  of  substance, 
the  provision  is  in  substance  imperative  and  admits  of  no  evasion. 
Lord  Mansfield  distinguishes  mandatory  from  directory  clauses  in  stat 
utes  by  reference  to  '*  circumstances  which  are  of  the  essence  of  a  thing 
required  to  be  done"  as  distinguished  from  circumstances  which  are 
u  merely  directory.77  Rex  vs.  Loxdale,  1  Burr.,  447. 

Having  relation,  as  Lord  Mansfield  says,  to  that  which  is  essential  as 
different  from  that  which  is  merely  directory,  I  suggest  that  several  cir 
cumstances  show  that  our  fathers,  who  framed  this  provision,  consid 
ered  it  essential.  It  seems  to  have  been  first  adopted  into  the  Consti 
tution  on  the  motion  of  Mr,  Gerry  and  Mr.  Gouverneur  Morris,  in  a 
slightly  different  form  from  that  in  which1  it  now  appears.  On  July  19, 
1787,  Mr.  Gerry  and  Mr.  Gouverneur  Morris  moved  "  that  the  electors 
of  the  Executive  shall  not  be  members  of  the  National  Legislature,  nor 
officers  of  the  United  States,  nor  shall  the  electors  themselves  be  eligible 
to  the  Supreme  Magistracy.  Agreed  to  nem.  con"  (Madison  Papers,  343.) 

On  September  6,  Mr.  Kufus  King  and  Mr.  Gerry  moved  to  insert  in 
the  fourth  clause  of  the  report,  after  the  words  "  may  be  entitled  in  the 
Legislature,77  the  following : 

But  no  person  shall  be  appointed  an  elector  who  is  a  member  of  the  Legislature  of 
the  United  States,  or  who.holds  any  office  of  profit  or  trust  under  the  United  States. — 
Madison  Papers,  515. 

It  passed  nem.  con.  It  was  the  unanimous  will  of  our  fathers,  there 
fore,  that  this  disqualification  should  attach ;  that  it  should  attach  in 
the  nature  of  an  exception  or  proviso  to  the  grant  of  power  to  the  States 


148  ELECTORAL    COUNT    OF    1877. 

to  elect  electors ;  that  it  should  attach  by  disqualification  of  the  persons 
who  might  be  appointed  electors ;  that  it  should  attach  by  disqualifica 
tion  of  the  State  in  the  appointment  of  electors.  The  State  is  disquali 
fied  from  appointing,  the  elector  from  accepting  the  trust.  The  disquali 
fication,  therefore,  is  imposed  both  upon  the  appointing  power  and  upon 
the  candidate,  and  the  effect  of  such  disqualification,  it  is  respectfully 
submitted,  is  to  render  the  action  of  the  State  in  the  appointment  null 
and  void.  The  disqualification  is  of  the  action  of  the  State  ;  of  the  State 
in  all  its  departments  5  of  the  voters  of  the  State  as  well  as  of  the  gov 
ernment  of  the  State.  The  disqualification  binds  every  citizen  of  the 
State,  every  functionary  of  the  State,  and  attaches  to  and  qualifies  and 
limits  the  corporate  action  of  the  State,  and  is  equivalent  to  saying 
"  the  State  may  appoint  from  among  the  number  of  qualified  persons." 
I  submit  that  the  substance  and  real  meaning  of  the  sentence,  although 
it  is  cast  in  the  negative  and  inhibitory  form,  is  that  from  among  the 
number  of  those  who  do  not  occupy  positions  of  profit  and  trust  the 
State  may  appoint  electors.  The  object  of  our  fathers  in  introducing, 
without  dissent,  this  provision,  was  to  prevent  the  Federal  power,  the 
officers  controlling  Federal  agencies,  from  continuing  their  power  through 
the  influence  of  the  offices  of  trust  with  which  they  were  clothed  for 
Federal  and  State  benefit.  It  was  not  merely  to  protect  the  State  in 
which  the  candidate  might  be  elected  from  the  intrusion  of  a  Federal 
office-holder  into  the  electoral  office,  but  it  was  to  protect  every  other 
State,  each  State,  all  the  States,  and  the  people  of  each  and  every  State 
by  a  mutual  covenant  in  the  form  of  a  limitation  of  power,  that  no  State 
should  appoint  a  disqualified  person.  Each  State,  therefore,  through 
the  agencies  of  the  Federal  Government,  is  entitled  to  be  protected 
from  the  illegitimate  use  of  Federal  power  in  any  State.  Delaware, 
Oregon,  the  smallest  of  our  States,  are  entitled  to  ask,  through  their 
Senators  and  Representatives,  that  the  Federal  power  shall  enforce  this 
provision  for  their  protection  against  the  corruption  of  the  elections  in 
the  larger  States  by  means  of  the  election  of  disqualified  persons. 

If  it  be  said — but  I  do  not  think  it  will — that  the  remedy  which  our 
fathers  provided  for  the  evil  which  they  apprehended  has  but  little 
value,  and  that  their  forecast  was  not  great,  so  much  the  more  reason 
for  rigidly  insisting  upon  such  value  as  it  possesses  now ;  for  surely  time 
has  not  proved,  experience  has  not  shown  that  theevils  which  our  fathers 
apprehended,  as  they  clearly  manifested  and  showed  by  the  text  of  the 
provision  itself,  are  any  less  than  they  supposed  they  would  be.  The 
influence  of  Federal  power  through  the  candidacy  of  Federal  officers  for 
electors  is  explicitly  here  prohibited.  The  object  is  to  diminish  and  pre 
vent  and  restrict  Federal  interference  in  the  election  of  electors.  It  is 
the  duty,  not  of  the  States,  in  purging  the  votes  of  electors,  but  of  the 
Federal  Government,  for  the  protection  of  each  State,  to  insist  upon 
and  carry  into  full  force  this  provision. 

Again,  the  occasions  upon  which  this  provision  has  been  considered 
during  our  history  emphasize  this  suggestion  as  to  the  purpose  of  our 
fathers  in  adopting  it.  In  1837  five  postmasters,  or  five  persons  bearing 
the  same  names  as  certain  postmasters,  were  appointed  or  attempted  to 
be  appointed  electors.  Mr.  Clay  submitted,  on  January  27,  1837,  this 
instruction,  which  he  asked  to  be  given  to  the  joint  committee  of  the 
Senate  and  House  appointed  to  ascertain  and  report  a  mode  of  examin 
ing  the  votes  for  President  and  Vice-President  of  the  United  States, 
namely,  that  they  should 

Inquire  into  the  expediency  of  ascertaining  whether  any  votes  were  g\  ven  at  the  recent 
election  contrary  to  the  prohibition  contained  in  the  second  section  of  the  second 


ELECTORAL    COUNT    OF    1877.  149 

,  and  if  any  such  votes  were  given,  what  ought  to  be  done 
with  them  ;  and  whether  any  and  what  provision  ought  to  be  made  for  securing  the 
faithful  observance,  in  future,  of  that  section  of  the  Constitution. 

The  members  of  this  committee  on  the  part  of  the  Senate  were  Felix 
Grundy,  Henry  Clay,  and  Silas  Wright ;  on  the  part  of  the  House. 
Francis  Thomas,  Churchilll  C.  Cainbreleng,  John  Keed,  Henry  W.  Con 
nor,  and  Francis  S.  Lyon,  the  latter  of  whom,  I  was  informed' in  Mobile 
a  few  days  since,  is  the  only  survivor,  now  living  in  Alabama  at  a  great 
age,  and  deeply  interested  in  this  discussion.  Mr.  Grundy  submitted  a 
report  of  the  committee  on  February  4,  from  which  I  desire  to  read  the 
following  quotation : 

That  the  short  period  at  which  they  were  appointed,  before  the  day  on  which  the 
votes  for  President  and  Vice-President  of  the  United  States  have  to  be  counted,  has 
prevented  them  from  investigating  the  facts  submitted  to  their  examination  as  fully 
as  might  have  been  done  had  more  time  been  allowed.  The  correspondence  which  has 
taken  place  between  the  chairman  of  the  committee  and  the  heads  of  the  different 
departments  of  the  executive  branch  of  the  government  accompanies  this  report, 
from  which  it  appears  .  .  .  that  in  two  cases  persons  of  the  same  names  with  the 
individuals  who  were  appointed  and  voted  as  electors  in  the  State  of  North  Carolina 
held  the  office  of  deputy -postmaster  under  the  General  Government. 

I  suggest,  in  passing,  that  the  course  taken  by  this  committee  of  the 
most  eminent  men  of  that  generation  indicates  that  I  am  right  in  the 
suggestion  that  the  duty  was  then  considered,  as  we  now  claim  it  should 
be,  as  imposed  on  the  Federal  power  to  take  testimony  so  as  to  ascer 
tain  the  facts  and  by  Federal  agencies  enforce  the  prohibition  for  the 
protection  not  merely  of  the  State  in  which  the  disqualified  elector 
has  voted,  but  of  the  States  in  which  the  disqualified  elector  has  not 
voted  for  the  election  of  President  and  Vice-President,  and  thus  that  it 
concerns  all  the  States,  and  relates  to  the  deepest  and  most  vital  inter 
ests  of  all  the  States.  The  disqualification  cannot  therefore  be  per 
mitted  to  be  evaded  in  one  State  without  a  blow  struck  at  every  other 
State. 

I  will  continue  reading  the  report: 

It  also  appears  that  in  New  Hampshire  there  is  one  case  ;  in  Connecticut  there  is 
one  case  ;  in  North  Carolina  there  is  one  case  in  which,  from  the  report  of  the  Post 
master-General,  it  is  probable  that  at  the  time  of  the  appointment  of  electors  in  these 
States  respectively  the  electors  or  persons  of  the  same  name  were  deputy  postmasters. 
The  committee  have  not  ascertained  whether  the  electors  are  the  same  individuals  who 
held  or  are  presumed  to  have  held  the  office  of  deputy  postmasters  at  the  time  when 
the  appointment  of  electors  was  made  ;  and  this  is  the  less  to  be  regretted,  as  it  is  con 
fidently  believed  that  no  change  in  the  result  of  the  election  of  either  the  President 
or  Vice-President  would  be  effected  by  the  ascertainment  of  the  fact  in  either  way, 
as  five  or  six  votes  only  would,  in  any  event,  be  abstracted  from  the  whole  number,  for 
the  committee  cannot  adopt  the  opinion  entertained  by  some,  that  a  single  illegal 
vote  would  vitiate  the  whole  electoral  vote  of  the  college  of  electors  in  which  it  was 
given,  particularly  in  cases  where  the  vote  of  the  whole  college  has  been  given  for 
the  same  persons. 

From  this  sentence  it  appears  that  at  that  time,  forty  years  ago,  the 
question  in  debate  was  whether  the  single  illegal  vote  vitiated  more 
than  the  vote  itself,  and  the  committee  were  of  opinion  that  it  did  not. 

The  committee  are  of  opinion  that  the  second  section  of  the  second  article  of  the 
Constitution,  which  declares  that  "  no  Senator  or  Representative,  or  person  holding  an 
office  of  trust  or  profit  under  the  United  States,  shall  be  appointed  an  elector,"  ought 
to  be  carried,  in  its  whoje  spirit,  into  rigid  execution,  in  order  to  prevent  officers  of 
the  General  Government  from  bringing  their  official  power  to  influence  the  elections 
of  President  and  Vice-President  of  the  United  States.  This  provision  of  the  Constitu 
tion,  it  is  believed,  excludes  and  disqualifies  deputy  postmasters  from  the  appointment 
of  electors;  and  the  disqualification  relates  to  the  time  of  the  appointment,  and  that 
a  resignation  of  the  office  of  deputy  postmaster  after  bis  appointment  as  elector  would 
not  entitle  him  to  vote  as  elector  under  the  Constitution. 


150  ELECTORAL    COUNT    OF    1877. 

I  submit  that  when  it  appears  that  two  such  minds  as  those  of  Henry 
Clay  and  Silas  Wright,  statesmen  of  such  opposite  political  education  and 
modes  of  thought,  concur  in  a  statement  with  reference  to  the  reasons 
and  meaning  of  the  Constitution,  it  comes  to  us  with  a  weight  and  with 
an  authority  that  is  not  to  be  gainsaid.  Fortunately  or  unfortunately, 
however,  our  American  habit  of  not  bridging  chasms  until  we  reach 
them  prevented  any  action  by  Congress  such  as  Mr.  Clay  suggested ; 
and  accordingly  the  question  re-presents  itself  to-day  without  any  further 
elucidation  by  legislation  than  it  had  then. 

Mr.  Commissioner  EDMUNDS.  What  did  the  committee  say  ought 
to  be  done,  Mr.  Hoadly,  if  anything  f 

Mr.  HOADLY.  Only  this,  "  that  the  article  ought  to  be  carried  in 
its  whole  spirit  into  rigid  execution ;"  but,  inasmuch  as  the  disquali 
fication,  if  admitted  in  its  whole  spirit  and  carried  into  rigid  execution, 
did  not  change  the  result  of  that  election,  as  Martin  Van  Buren  was 
elected  President,  and  the  election  of  Vice-President  went  to  the  Senate, 
they  reported  no  steps  as  necessary  to  be  taken,  and  no  steps  were 
taken. 

Mr.  Commissioner  EDMUNDS.  Have  you  read  the  conclusion  of 
the  report  ? 

Mr.  HOADLY.  I  cannot  answer  the  question.  I  think  I  have  read 
the  conclusion  of  the  report,  but  unfortunately  copying  not  from  the 
Congressional  Globe  but  from  an  excerpt  which,  working  in  great  haste, 
I  had  to  use  for  my  own  convenience,  I  cannot  answer  the  question. 

Mr.  Commissioner  EDMUNDS.  I  had  the  impression  that  the  com 
mittee  had  added  something  else. 

Mr.  Commissioner  BRADLEY.     What  is  the  date  of  the  report  ? 

Mr.  HOADLY.     February  4,  1837. 

If  we  are  right  in  our  proposition  with  regard  to  the  facts,  Humphreys 
held  the  office  at  the  time  when  he  cast  his  vote.  The  only  two  ques 
tions,  therefore,  which  present  themselves  for  debate  are,  first,  did  he 
hold  at  the  time  an  office  of  profit  or  trust ;  secondly,  as  to  the  effect  of 
the  holding,  provided  the  fact  has  been  shown.  As  the  questions  thus 
present  themselves,  we  are  not  concerned  to  consider  the  authorities 
decided  in  cases  of  resignation  after  the  election,  except  so  far  as  they 
indicate  the  views  of  courts  with  regard  to  the  effect  of  the  disqualifying 
facts.  In  Rex  vs.  Monday  (Cowper,  page  536,)  Sergeant  Buller,  after 
ward  Mr.  Justice  Buller,  states  the  rule  thus,  arguendo  : 

Two  requisites  are  necessary  to  make  a  good  election  :  first,  a  capacity  in  the  elect 
ors  ;  second,  a  capacity  in  the  elected  ;  and  unless  both  concur  the  election  is  a  nullity. 
With  respect  to  the  capacity  of  the  electors,  their  right  is  this:  They  cannot  say  there 
shall  be  no  election,  bat  they  are  to  elect.  Therefore,  though  they  may  vote  to  prefer 
one  to  fill  an  office,  they  can  not  say  that  such  a  one  shall  not  be  preferred,  or  by 
merely  saying,  "  We  dissent  to  every  one  proposed,"  prevent  any  election  at  all.  Their 
right  consists  in  an  affirmative,  not  a  negative  declaration.  Consequently  there  is  no 
effectual  means  of  voting  against  one  man  but  by  voting  for  another;  and  even  then, 
if  such  other  person  be  unqualified  and  the  elector  has  notice  of  his  incapacity,  his  vote 
will  be  thrown  away. 

Such  is  the  well- settled  English  rule,  as  affirmed  by  a  multitude  of 
cases  since. 

Lord  Chief- Justice  Wilrnot,  in  the  same  volume,  note  to  page  393,  in 
the  case  of  Harrison  vs.  Evans,  discussing  the  statute  of  13  Charles  II, 
which  enacted  that  no  person  should  be  elected  into  any  corporation- 
office  who  had  not  received  the  sacrament  within  a  twelvemonth  pre 
ceding  his  election,  and  in  default  of  doing  so  the  election  and  choice 
should  be  void,  said  : 

The  provision  is  not  only  addressed  to  the  elected  and  a  provision  upon  them,  but  a 


ELECTORAL    COUNT    OF    1877.  151 

provision  laid  down  upon  the  electors  if  they  have  notice.  The  legislature  has  com 
manded  them  not  to  choose  a  non-conformist,  because  he  ought  not  to  be  trusted. 
Consequently,  with  respect  to  any  legal  effect  of  operation,  it  is  as  if  there  had  been 
no  election. 

So  in  a  multitude  of  cases  in  England  since,  as  I  said,  which  need  not 
be  here  more  particularly  referred  to,  but  with  a  reference  to  which 
your  honors  will  be  furnished  in  my  brief.  The  same  doctrine  is  applied 
in  many  American  cases  also,  and  it  is  respectfully  submitted  that  there 
is  no  case  to  the  contrary.  American  cases  have  differed  widely  upon 
the  question  whether  the  non-eligibility  of  the  candidate  receiving  the 
largest  vote  has  the  effect  to  elect  the  next  highest  competing  candi 
date;  but  no  American  case,  it  is  respectfully  submitted,  treats  the 
election  of  one  who  at  the  time  was  non-qualified  and  who  attempted  to 
act  as  other  than  an  absolutely  null  appointment.  To  this  effect  is  the 
case  of  Searcy  vs.  Grow,  15  California,  118,  which  was  a  contest  for  the 
office  of  sheriff  of  Siskiyou  County,  where  Grow  was  returned  as  having 
been  elected  and  was  found  to  be  the  holder  of  an  office  of  profit  and 
trust  under  the  constitution  of  California,  to  which  a  disqualification 
was  attached  by  the  constitution,  and  who  had  resigned  after  the  election 
and  before  induction  into  the  shrievalty,  but  was  holding  the  disqualify 
ing  office  at  the  time  of  the  election.  Mr.  Justice  Baldwin  (Cope,  J.,  and 
Field,  C.  J.,  concurring)  said: 

The  people  in  this  case  were  clothed  with  this  power  of  choice.  Their  selection  of 
a  candidate  gave  him  all  the  claim  to  the  office  which  he  has.  His  title  to  the  office 
comes  from  their  designation  of  him  as  sheriff.  But  they  could  not  designate  or  choose 
a  man  not  eligible — that  is,  not  capable  of  being  selected.  They  might  select  any  man 
they  chose,  subject  only  to  this  exception  :  that  the  man  they  selected  was  capable  of 
taking  what  they  had  the  power  to  give.  We  do  not  see  how  the  fact  that  he  became 
capable  of  taking  office  after  they  had  exercised  their  power  can  avail  the  appellant. 
If  he  was  not  eligible  at  the  time  the  votes  were  cast  for  him,  the  election  failed. 

Of  course  your  honors  will  see  the  pertinency  of  this  quotation  to  other 
questions  that  may  arise  in  other  cases,  and  I  am  compelled  to  read  por 
tions  of  the  opinion  which  do  not  refer  to  the  particular  case  in  hand, 
in  order  to  use  intelligently  those  portions  that  do: 

If  he  was  not  eligible  at  the  time  the  votes  were  cast  for  him,  the  election  failed. 
We  do  not  see  how  it  can  be  assumed  that  by  the  act  of  the  candidate  the  votes  which, 
when  cast,  were  ineffectual  because  not  given  for  a  qualified  candidate,  became  effect 
ual  to  elect  him  to  office. 

So  in  the  case  of  the  State  of  Nevada  on  the  relation  of  bourse  vs. 
Clarke,  (3  Nevada,  566,)  which,  it  is  true,  may  be  treated  as  obiter  dic 
tum,  because  it  was  found  there  that  the  resignation  had  been  effect 
ually  made  before  the  election,  the  court  discussed  this  question  with 
this  result:  "That  a  person  holding  the  office  of  United  States  district 
attorney  on  the  day  of  election  was  incapable  of  being  chosen  to  the 
office  of  attorney-general  of  the  State,  because  of  a  provision  in  the 
State  constitution  to  the  effect  that  no  Federal  office-holder  <  shall  be 
eligible  to  any  civil  office  of  profit  under  this  State.'  'Which  word  eli 
gible,7  says  this  learned  court,  <  means  both  capable  of  being  legally 
chosen  and  capable  of  legally  holding.'" 

The  word  here  is  "  appointed ;  »  that  no  person  holding  an  office  shall 
be  appointed  an  elector.  Who  appoints  *  The  State  appoints  ;  not  the 
voters  of  the  State  ;  not  the  legislature  of  the  State;  not  the  governor 
of  the  State  ;  but  the  State  appoints.  The  State  appoints  from  among 
qualified  persons ;  or,  which  is  the  same  thing,  the  State  appoints,  but 
may  not  appoint  a  disqualified  person.  Now  the  State  does  appoint  a 
disqualified  person,  and  the  disqualification  is  one  contained  in  the  same 
constitutional  provision  as  a  qualification,  limitation,  restriction  ot  the 


152  ELECTORAL    COUNT    OF    1877. 

same  constitutional  clause  which  gives  the  right  to  appoint,  a  part  of 
the  same  sentence  attached  to  the  grant  of  power.  The  appointment 
refers  to  the  act  of  the  State,  the  act  of  the  State  on  the  day  which  Con 
gress  has  named  as  the  day  upon  which  only  the  choice  of  elector  can 
be  made.  On  that  day  the  State  shall  appoint,  but  shall  not  appoint 
a  person  not  legally  qualified  to  hold  the  office. 

In  Commonwealth  vs.  duly  (56  Pennsylvania  State  Reports,  270)  the 
election  went  back  to  the  people.  In  the  Indiana  cases  the  next  highest 
competing  candidate  was  declared  elected — going  beyond  the  rule  we  ask 
to  be  applied  to  the  Florida  electoral  college.  In  Searcy  vs.  Grow,  I  sup 
pose  the  result  of  the  contest  was  to  unseat  the  disqualified  person  with 
out  seating  the  next  highest  competing  candidate.  In  all  the  cases 
which  are  commented  upon  in  the  decision  of  Gulick  vs.  New,  in  14 
Indiana,  93,  and  by  the  various  authorities  and  text-writers  on  this 
subject,  no  one,  1  submit,  will  be  found  which  favors  the  idea  that  the 
election  of  one  constitutionally  disqualified  can  by  any  possibility  result, 
if  it  do  not  elect  the  next  highest  candidate,  in  anything  else  than  a 
failure  to  elect ;  and  Congress  by  its  legislation  on  the  subject  has  in 
dicated  its  purpose  in  the  same  direction.  Thus  the  one  hundred  and 
thirty-third  section  of  the  Revised  Statutes  provides  for  a  case  of  vacancy 
occurring  when  the  college  of  electors  shall  meet  to  cast  their  votes. 
Section  134  provides  for  a  case  where  the  State  shall  fail  to  elect ;  that, 
where  the  State  shall  fail  to  elect  on  the  day  provided,  the  electors  may 
be  appointed  on  a  subsequent  day  in  such  manner  as  the  legislature  of 
such  State  may  direct.  These  provisions  of  law,  which  have  been  in 
force  since  the  act  of  January  23,  1845,  in  that  statute  were  attached, 
and  not  separated  as  in  the  Revised  Statutes  and  throAvn  into  two  sepa 
rate  sections  ;  these  two  provisions  of  law,  which  were  then  attached  to 
each  other,  indicate  the  meaning  of  the  law- makers  of  this  generation 
and  the  last  to  furnish  a  remedy  in  case  of  the  election  of  one  disquali 
fied  under  the  Constitution. 

If  it  be  shown  that  the  State  of  Florida  has  acted  under  the  one  hun 
dred  arid  thirty -fourth  section  of  the  Revised  Statutes,  then  the  vote  of 
Florida  is  not  diminished  by  reason  of  the  fact  that  on  the  7th  of  No 
vember  one  of  the  persons  voted  for  was  disqualified. 

SEC.  134.  Whenever  any  State  has  held  an  election  for  the  purpose  of  choosing  elect 
ors,  and  has  failed  to  make  a  choice  on  the  day  prescribed  by  law,  the  electors  may  be 
appointed  on  a  subsequent  day  in  such  a  manner  as  the  legislature  of  such  State  may 
direct. 

If  it  were  true,  as  ruled  in  Furman  vs.  Clute,  50  New  York  Reports  j 
in  Commonwealth  vs.  Cluly,  56  Pennsylvania  State  Reports  ;  in  Searcy 
vs.  Grow,  in  15  California  Reports ;  if  it  were  true,  as  ruled  in  all  the 
American  cases,  which  have  held  that  the  next  highest  competing  can 
didate  was  not  elected,  that  the  case  was  one  of  noti-election,  and 
rendered  necessary  a  new  election,  then  I  respectfully  submit  that  the 
one  hundred  and  thirty-fourth  section  of  the  Revised  Statutes  pro 
vided  for  the  State  of  Florida  a  remedy  for  the  mischief  to  which  she 
was  found  on  the  7th  of  November  to  have  been  subjected.  She  could 
have  provided  by  law,  as  I  shall  presently  show  to  your  honors  was 
done  in  the  State  of  Rhode  Island,  to  meet  the  exact  contingency.  It 
is  not  the  case  of  an  absolute  non-election,  or  one  where  there  has  been 
no  attempt  to  hold  an  election,  to  which  this  section  refers.  This  pro 
vision  of  law  operates  whenever  any  State  has  held  an  election  for  the 
purpose  of  choosing  electors  and  has  failed  to  make  a  choice  on  the  day 
prescribed  by  law.  Then  the  electors  may  be  appointed  on  a  subse 
quent  day  in  such  manner  as  the  legislature  of  such  State  may  direct. 

If  every  elector  in  every  State  in  the  United  States  were  disqualified^ 


ELECTORAL    COUNT  "OF    1877.  153 

would  it  not  be  true  that  there  was  an  election  held  and  a  failure  to 
make  choice  ?  If  every  elector  in  the  State  of  Florida  was  disqualified, 
would  it  not  be  true  that  there  was  an  election  held,  but  without  choice  I 
If,  in  the  State  of  Pennsylvania,  in  the  case  of  Cluly,  the  people  had 
again  to  elect;  if,  in  New  York,  in  Furman  vs.  Clute,  the  people  had 
again  to  elect ;  if,  in  California,  in  the  case  of  Searcy  vs.  Grow,  the 
people  had  again  to  elect,  then  it  would  follow  that,  if  all  the  four 
electors  of  the  State  of  Florida  were  disqualified,  it  would  be  clearly  a 
case  of  failure  to  make  choice,  and  the  people  would  have  to  elect 
again,  provided  the  legislature  confided  to  the  people,  under  section 
134,  the  function  of  electing  for  the  second  time  and  did  not  exercise  it 
themselves,  as  was  done  in  Rhode  Island.  Omne  majus  continetjin  se 
minus. 

If  it  be  a  failure  to  make  choice  where  a  single  disqualified  candidate 
runs  against  another  officer,  if  it  be  a  failure  to  make  choice  so  that  he 
can  be  ousted  and  a  new  election  is  required  to  be  held,  and  if  there  be 
a  provision  of  statute  law  of  the  United  States  contemplating  the 
emergency  and  providing  a  remedy,  and  if  the  power  of  appointment 
be  with  the  State,  and  if  the  opportunity  of  remedy  be  with  the  State, 
then  I  submit  that  it  must  be  shown  that  the  State  has  taken  advantage 
of  this  provision  of  the  Revised  Statutes,  section  134,  or  the  single 
vote  is  lost. 

The  question  came  directly  before  the  judges  of  the  supreme  court  of 
Rhode  Island,  in  the  case  of  George  H.  Corliss,  who  held  the  office  of 
member  of  the  Centennial  Commission  under  the  United  States  on  the 
day  of  the  presidential  election.  The  governor,  under  the  authority  of 
the  statutes,  submitted  to  the  judges  of  the  supreme  court  of  that  State 
five  questions :  First,  whether  the  office  of  centennial  commissioner  was 
an  office  of  trust  and  profit,  which  they  answered,  by  a  majority  of 
voices,  it  was,  such  as  disqualified  the  holder  for  the  office  of  elector  of 
President  and  Vice-President.  Secondly,  whether  the  candidate  who 
received  a  plurality  of  votes  created  a  vacancy  by  declining  the  office. 
Thirdly,  whether  the  disqualification  was  removed  by  the  resignation 
of  the  said  office  of  trust  or  profit.  Fourthly,  whether  the  disqualifica 
tion  resulted  in  the  election  of  the  candidate  next  highest  in  number  of 
votes,  or  in  failure  to  elect.  Fifthly,  if  by  reason  of  the  disqualification 
of  the  candidate  who  received  the  plurality  of  the  votes  given  there  was 
no  election,  could  the  general  assembly  in  grand  committee  elect  an 
elector  f 

The  judges  answered  the  first  question,  as  I  said,  by  a  majority  of 
voices,  that  it  was  a  disqualifying  fact,  this  office  of  commissioner  of 
the  United  States  Centennial  Commission,  and,  by  all  their  voices  agree 
ing,  answered  that  "  such  candidate  who  received  a  plurality  declining 
the  office  did  not  create  a  vacancy ;  that  the  disqualification  was  not 
removed  by  the  resignation  of  the  office,  but  that  the  disqualification 
did  not  result  in  the  election  of  the  candidate  next  in  vote,  but  did  re 
sult  in  a  failure  to  elect,  and  that  there  was  no  election,  so  that  the 
general  assembly  in  grand  committee  might  elect,  and  the  general 
assembly  in  grand  committee  did  elects" 

The  opinion  is  signed  by  all  the  judges,  Thomas  Durfee,  W.  S.  Bar 
ges,  E.  R.  Potter,  Charles  Mattesou,  and  Stiuess.  It  was  a  question 
submitted  under  the  constitution  and  laws  of  that  State.  I  read  it  at 
this  time  in  order  that  I  may  if  possible  satisfy  the  Commission  that 
the  construction  which  I  place  on  section  134  of  the  Revised  Statutes  is 
the  correct  construction. 

In  answer  to  the  fourth  question,  which  was  this,  "If  not,  does  the 


154  ELECTORAL    COUNT    OF    1877. 

disqualification  result  in  the  election  of  the  candidate  next  in  vote  or 
in  a  failure  to  elect?"  the  court  answered  : 

We  think  the  disqualification  does  not  result  in  the  election  of  the  candidate  next  in 
vote,  but  in  a  failure  to  elect. 

In  England  it  has  been  held  that  where  electors  vote  for  an  ineligible  candidate, 
knowing  his  disqualification,  their  votes  are  not  to  be  counted  any  more  than  if  they 
were  thrown  for  a  dead  man  or  the  Man  in  the  Moon,  and  that  in  such  a  case  the  oppos 
ing  candidate,  being  qualified,  will  be  elected,  although  he  has  had  a  minority  of  the 
votes. 

And  such  is  the  rule  in  Indiana  and  as  was  established  at  an  early  day 
in  Maryland  by  Chief-Justice  Samuel  Chase,  of  that  State,  and  has  con 
tinued  in  force,  as  I  arn  informed,  down  to  this  time,  and  been  enforced 
very  recently.  The  judges  of  Ehode  Island  sustain  this  by  the  follow 
ing  references :  King  vs.  Hawkins,  10  East.,  210 ;  Keg.  vs.  Coaks,  3 
El.  &  B.  253. 

But  even  in  England,  if  the  disqualification  is  unknown,  the  minority  candidate  is 
not  entitled  to  the  office,  the  election  being  a  failure.  (Queen  vs.  Hiornes,  7  Ad.  &  E., 
960 ;  Rex  rs.  Bridge,  1  M.  &  Selw.,  76.)  And  it  has  been  held  that  to  entitle  the  minority 
candidate  to  the  office  it  is  not  enough  that  the  electors  knew  of  the  facts  which  amount 
to  a  disqualification,  unless  they  likewise  knew  that  they  amount  to  it  in  point  of  law. 
(The  Queen  vs.  The  Mayor,  &c.,  Law  Rep.,  3  Q.  B.,  629.) 

In  this  country  the  law  is  certainly  not  more  favorable  to  the  minority  candidate. 
(State  vs.  Giles,  1  Chandler,  (Wis.,)  112;  State  vs.  Smith,  14  Wis.,  497 ;  Saunders  vs. 
Haynes,  13  Cal.,  145;  People  vs.  Clute,  50  N.  Y.,  451.)  The  question  submitted  to  us 
does  not  allege  or  imply  that  the  electors,  knowing  the  disqualification,  voted  for  the 
ineligible  candidate  in  willful  defiance  of  the  law  ;  and  certainly,  in  the  absence  of 
proof,  it  is  not  to  be  presumed  that  they  so  voted.  The  only  effect  of  the  disqualifica 
tion,  in  our  opinion,  is  to  render  void  the  election  of  the  candidate  who  is  disqualified, 
and  to  leave  one  place  in  the  electoral  college  unfilled. 

The  answer  to  the  fifth  question,  u  If,  by  reason  of  the  disqualification 
of  the  candidate  who  received  a  plurality  of  the  votes  given,  there  was 
no  election,  can  the  general  assembly,  in  grand  committee,  select  an 
elector,"  was  in  the  affirmative.  The  court,  in  discussing  another  ques 
tion,  had  cited  the  seventh  section  of  the  General  Statutes  of  Ehode 
Island,  chapter  11,  to  wit : 

If  any  electors,  chosen  as  aforesaid,  shall,  after  said  election,  decline  the  said  office, 
or  be  prevented  by  any  cause  from  serving  therein,  the  other  electors,  when  met  in 
Bristol  in  pursuance  of  this  chapter,  shall  till  such  vacancies. 

They  had  decided  that  disqualification  did  not  create  a  case  of  va 
cancy.  They  then  considered  another  statute  of  Ehode  Island,  which 
they  held  to  have  been  passed  under  the  authority  confided  to  the  State 
of  Ehode  Island  by  the  one  hundred  and  thirty-fourth  section  of  the 
Eevised  Statutes  of  the  United  States : 

Our  statutes  (General  Statute,  chapter  11 ,  section  5)  provides  that  "  if,  by  reason  of  the 
votes  being  equally  divided,  or  otherwise,  there  shall  not  be  an  election  of  the  num 
ber  of  electors  to  which  the  State  may  be  entitled,  the  governor  shall  forthwith  con 
vene  the  general  assembly  at  Providence  for  the  choice  of  electors  to  fill  such  vacancy 
by  an  election  in  grand  committee."  We  thiiik  this  provision  covers  the  contingency 
which  has  happened,  acd  that,  therefore,  the  general  assembly  in  grand  committee  can 
elect  an  elector  to  fill  up  the  number  to  which  the  State  is  entitled.  The  law  of  the 
United  States  provides  that  "  whenever  any  State  has  held  an  election  for  the  purpose 
of  choosing  electors,  and  has  failed  to^nake  choice  on  the  day  prescribed  by  law,  the 
electors  may  be  appointed  on  a  subsequent  day,  in  such  manner  as  the  legislature  of 
the  State  may  direct." 

We  have,  then,  the  unanimous  opinion  of  all  the  judges  of  Ehode 
Island  to  the  effect  that  the  distinction  on  which  we  insist  is  well  taken, 
that  the  acts  of  Congress  are  furnished  for  the  purpose  of  covering  all 
the  cases  that  may  arise,  in  order  that  the  constitutional  provision  may 
have  full  force  and  effect,  and  yet  that  the  State  may  not  be  deprived 


ELECTORAL    COUNT    OF    1877.  155 

of  its  opportunity  to  be  fully  represented  in  the  electoral  college.  The 
inhibition  of  the  constitution  being  peremptory,  and  like  all  the  inhibi 
tions,  whether  express  or  implied,  self-enforcing,  were  there  no  such 
provision  as  that  contained  in  section  134,  the  vote  of  the  State  would 
necessarily  be  lost,  unless  it  could  be  shown  by  some  principle  of  law, 
by  the  authority  of  some  decided  case,  that  the  election  of  a  disquali 
fied  candidate  is  possible,  notwithstanding  the  disqualification  contained 
in  a  constitutional  inhibition  of  the  character  here  referred  to. 

But  peradventure  by  mistake,  and  without  the  intent  to  violate  the 
spirit  of  the  constitutional  provision,  by  mere  misadventure  the  State 
may  have  selected  as  one  of  its  electors,  or  as  all  of  its  electors,  persons 
holding  disqualified  offices,  and,  therefore,  said  Congress,  whenever 
there  be  a  case  of  non-election  in  any  State  the  legislature  may  provide 
a  method  of  supplying  the  defect ;  and  whenever  there  be  a  case  of 
vacancy  the  legislature  may  provide  a  method  of  supplying  the  defect  j 
a  vacancy  which  occurs  when  the  college  of  elected  electors  meets,  a 
non-election  which  occurs  when  an  election  has  been  held.  If  no  elec 
tion  has  been  held,  there  is  no  provision  of  statutory  law  to  meet  the 
case  at  all;  but  the  one  hundred  and  thirty- third  section  provides  for 
the  case  of  a  vacancy  when  there  has  been  a  qualified  person  elected, 
and  the  one  hundred  aad  thirty-fourth  section  provides  for  the  case  of 
non-election  when  an  election  has  been  held.  It  does  not  contemplate 
the  case  where  no  election  at  all  has  been  held,  but  it  explicitly  pro 
vides  for  a  case  where  an  election  has  been  held  which  has  not  resulted 
in  the  choice  of  a  competent  and  qualified  candidate,  and  furnished  to 
the  people  of  the  State  of  Florida,  as  it  did  to  the  State  of  Ehode 
Island,  ample  opportunity  to  save  themselves  from  all  misadventure, 
from  all  the  consequences  of  mistake,  or  ignorance,  or  innocent  evil,  by 
enabling  them  to  have  a  second  opportunity,  notwithstanding  the  con 
stitutional  provision  that  Congress  may  determine  the  time  of  choosing 
the  electors. 

Mr.  GBEETs.  Mr.  President  and  gentlemen  of  the  Electoral  Com 
mission,  that  portion  of  the  duty  which  has  been  assigned  to  me  con 
sists  in  submitting,  by  way  of  opening,  the  views  which  the  counsel  for 
the  objectors  to  return  No.  1  feel  it  necessary  to  make  under  the  order 
of  the  Commission  read  to  them  this  morning.  That  portion  of  the 
opening  argument  which  relates  to  the  second  branch  of  the  order  has 
been  disposed  of  by  my  friend,  Judge  Hoadly,  and  we  leave  it  just 
there  with  a  single  additional  suggestion  which  I  have  been  desired  to 
make,  namely,  that  this  office  of  shipping-commissioner,  being  one  to 
be  filled  by  the  court,  could  be  only  surrendered  up  or  resigned  to  the 
court  itself;  that  the  so-called  letter  of  resignation  sent  to  Judge  Woods, 
and  for  aught  this  Commission  knows  by  him  still  retained,  fails  to  per 
form  the  office  sought  to  be  imputed  to  it  until  it  reaches  the  records 
of  the  court  or  receives  some  official  recognition  from  the  court  itself. 
If  that  letter  had  been  sent  by  mail,  it  could  have  no  effect  until 
it  reached  its  destination.  Had  it  been  sent  by  messenger,  no  effect 
could  have  been  given  to  it  until  it  reached  the  archives  of  the  court ; 
and  the  mere  fact  of  its  reception  by  Judge  Woods  himself  gives  it  no 
other  or  greater  validity  than  if  it  had  been  in  the  pocket  of  the  mes 
senger  or  in  the  mail-bag. 

Moreover,  I  am  desired  to  call  the  attention  of  the  Commission  to 
the  certificate  of  the  clerk  of  the  circuit  court  read  in  evidence  this 
morning.  I  have  not  the  paper  before  me,  and  therefore  may  not  state 
its  date  with  accuracy;  but  my  recollection  of  it  is  that  it  contains  a 
certificate  that  up  to  a  very  recent  period,  certainly  subsequent  to  the 


156  ELECTORAL    COUNT    OF    1877. 

time  when  Humphreys  acted  as  an  elector,  no  resignation  of  his  office 
had  yet  reached  the  archives  of  the  court  j  and  with  these  suggestions 
I  pass  to  the  other  branch  of  the  case. 

The  order  which  has  been  read  to  us  this  morning  directs  the  re 
ception  and  consideration  of  all  evidence  submitted  to  the  joint  conven 
tion  of  the  two  Houses  by  the  President  of  the  Senate,  together  with 
the  certificates  which  were  also  presented  by  him  to  the  joint  conven 
tion  ;  and  in  order  that  we  may  distinctly  understand  where  we  have 
arrived  in  the  progress  of  the  discussion  of  this  great  question,  it  is 
proper  for  us  to  consider  what  were  the  papers  presented  by  the  Presi 
dent  of  the  Senate  to  the  joint  convention  of  the  two  Houses. 

They  were,  first,  what  is  known  as  return  No.  1,  which  has  been 
printed  for  the  use  of  the  Commission.  It  consists  of  three  documents. 
The  first  one  is  the  certificate  of  Governor  Stearns,  dated  6th  Decem 
ber,  1876,  under  the  seal  of  the  State,  and  attested  by  the  secretary  of  state. 
It  purports  to  be  the  list  which  is  contemplated  by  the  act  of  Congress. 
Although  that  list  may  not  state  the  exact  and  true  fact,  it  would  seem 
to  be  not  objectionable  in  point  of  form.  Next  follows  the  certificate 
signed  by  Humphreys,  Pearce,  Hoi  den,  and  Long,  the  Hayes  electors, 
stating  that  they  bad,  pursuant  to  the  Constitution  and  laws  of  the 
United  States,  been  appointed  electors,  and  had  assembled  at  the  State 
capitol  and  had  voted  by  ballot  for  President  and  Vice-President  in 
two  distinct  ballots,  stating  in  the  first  certificate  the  result  for  Presi 
dent,  and  with  a  like  preamble  stating  the  result  for  Vice-President  in 
the  second  certificate.  This,  if  the  Commission  please,  is  all  that  is 
contained  in  what  is  known  as  certificate  or  return  No.  1. 

Certificate  or  return  No.  2  consists  of  a  certificate  of  Mr.  Cocke, 
the  attorney-general  of  the  State  of  Florida,  to  the  effect  that  he  is 
attorney-general  of  the  State  of  Florida  and  a  member  of  the  State 
board  of  canvassers,  and  that  by  the  authentic  returns  of  the  votes 
cast  in  the  several  counties  of  the  State  of  Florida  at  the  election  held 
in  November,  1876 — 

Said  returns  being  on  file  in  the  office  of  the  secretary  of  state,  and  seen  and  con 
sidered  by  me,  as  such  member  of  the  board  of  State  canvassers  of  the  said  State  of 
Forida,  it  appears  and  is  shown  that  Wilkinson  call — 

And  the  other  Tilden  electors,  naming  them — 

were  chosen  the  four  electors  of  President  and  Vice-Presideut  of  the  United  States. 
And  he  further  certifies — 

That,  under  the  act  of  the  legislature  of  the  State  of  Florida  establishing  said  board 
of  State  canvassers,  no  provision  has  been  enacted,  nor  is  any  such  provision  contained 
in  the  statute  law  of  this  State,  whereby  the  result  shown  and  appearing  by  said 
returns  to  said  board  of  State  canvassers  can  be  certified  to  the  executive  of  the  said 
State. 

Next  follows  an  oath  of  office  on  the  part  of  Call  and  the  other  so- 
called  Tilden  electors,  and  then  the  certificate  of  Call  and  the  other 
electors  of  their  having  met  according  to  law  and  having  balloted  for 
President  and  also  Vice-President  by  distinct  ballots,  and  certifying 
that  the  result  is  that  Samuel  J.  Tilden,  of  the  State  of  New  York,  re 
ceived  4  votes  for  President,  and  Thomas  A.  Hendricks,  of  the  State  of 
Indiana,  4  votes  for  Vice-President.  Attached  to  this  certificate  is 
another  one : 

And  we  further  certify  that,  having  met  and  convened  as  such  electors,  at  the  time 
and  place  designated  by  law,  we  did  notify  the  governor  of  the  State  of  Florida,  the 
executive  of  said  State,  of  our  appointment  as  such  electors,  and  did  apply  to  and  de 
mand  of  him  to  cause  to  be  delivered  to  us  three  lists  of  the  names  of  the  electors 
of  the  said  State,  according  to  law,  and  the  said  governor  did  refuse  to  deliver  the 
same  to  us. 


ELECTORAL    COUNT    OF    1877.  157 

This  return  No.  2,  made  by  the  attorney-general  and  by  the  electors, 
accompanied  by  the  oath  of  office  on  the  part  of  the  electors,  being  an 
official  document  under  the  sanction  of  an  official  oath,  being  a  declara 
tion  made  by  these  electors  and  by  the  attorney-general,  who  was  also 
a  member  of  the  board  of  State  canvassers,  solemnly  in  this  manner,  is 
at  least  some  evidence  before  this  Commission  to  support  the  facts 
which  are  stated  in  it.  It  appears  from  this  official  certificate,  thus 
made  by  the  attorney- general,  that  by  the  returns  of  the  election  on  file 
in  the  office  of  the  secretary,  of  state,  seen  and  considered  by  him  as  a 
member  of  the  board  of  State  canvassers,  Call  and  the  other  Tilden 
electors  were  duly  chosen  and  appointed  electors  for  the  State  of 
Florida  5  and  it  also  supplies  the  evidence  necessary  to  satisfy  the 
inquiry  why  the  attorney-general  should  make  this  certificate  and  why 
the  governor  did  not,  because  the  electors  themselves  certify  that  they 
made  an  application  to  the  governor  for  a  proper  certificate  and  that  he 
refused  to  give  it  to  them. 

Certificate  or  return  No.  3,  which  was  received,  as  it  appears  from  the 
statement  made  by  the  Presiding  Officer  of  the  joint  convention,  on  the 
31st  day  of  January,  1877,  and  so  stated  by  him  to  the  joint  convention 
on  Thursday  last,  consists  of  several  papers,  and  I  proceed  now  to  call 
the  attention  of  the  Commission  to  what  those  papers  are. 

First  in  order  is  a  certificate  of  Governor  Drew,  the  governor  of  the 
State  of  Florida,  bearing  date  the  26th  day  of  January,  1877,  under 
the  great  seal  of  the  State  and  atteste  d  by  the  secretary  of  state.  It 
recites  first  an  act  of  the  legislature  of  the  State  of  Florida  of  the  17th 
of  January,  1877,  being  an  act  to  procure  a  recanvass  of  the  electoral 
vote  of  the  State  of  Florida,  as  cast  at  the  election  held  on  the  7th  of 
November,  1876.  It  recites  the  making  of  the  canvass  under  the  au 
thority  of  the  act,  according  to  the  laws  and  the  interpretation  thereof 
by  the  supreme  court  of  the  State  of  Florida.  It  recites  that  by  the 
said  canvass  the  Tilden  electors  were  duly  determined,  declared,  and 
certified  to  have  been  elected  electors  at  the  election  held  in  November, 
1876,  as  shown  by  the  returns  of  the  votes  on  file  in  the  office  of  secre 
tary  of  state.  It  recites  that  in  quo-warranto  proceedings  wherein  the 
said  Robert  Bullock  and  others,  the  Tilden  electors,  were  relators,  and 
Pearce  and  others,  the  Hayes  electors,  were  respondents — 

The  circuit  court  of  this  State  for  the  second  judicial  circuit,  after  full  consideration 
of  the  law  and  the  proofs  produced  on  behalf  of  the  parties  respectively,  by  its  judgment, 
determined  that  said  relators  were,  at  said  election,  in  fact  and  law,  elected  such 
electors  as  against  the  said  respondents  and  all  other  persons. 

So  that,  with  whatever  force,  as  to  its  weight  or  as  to  the  sufficiency 
of  its  mode  of  proof,  this  Commission  has  before  it  this  day  such  evi 
dence  as  must  carry  conviction  to  the  mind  of  every  member  of  the 
commission  that  in  a  court  of  the  State  of  Florida  in  quo-warranto  pro 
ceedings,  by  the  judgment  of  that  court  upon  the  pleadings  and  upon 
the  proofs,  it  was  held  and  determined,  not  merely  as  matter  of  law  but 
also  as  matter  of  fact,  that  the  Tilden  electors  were  entitled  to  office  as 
against  the  Hayes  electors  and  all  the  world  beside.  The  governor  then , 
in  pursuance  of  another  act  of  the  legislature  of  the  State  of  Florida  of 
the  26th  of  January,  1877,  makes  and  certifies  a  list  of  the  names  of  the 
electors  chosen,  appointed,  and  declared  as  aforesaid,  which  contains 
the  names  of  the  Tilden  electors.  That  is  the  first  paper  in  what  is 
known  as  return  No.  3. 

The  second  paper  consists  of  a  certificate  under  date  of  the  26th  ot 
January,  1877,  signed  by  the  Tilden  electors,  reciting  that  the  executive 
had  caused  three  lists  of  electors  to  be  made,  certified,  and  delivered  to 


158  ELECTORAL    COUNT    OF    1877. 

them,  one  of  which  was  thereto  annexed,  by  which  it  appeared  that  they 
had  on  the  7th  of  November,  1876,  been  duly  appointed  electors,  and 
then  that  they  did  on  the  first  Wednesday  of  December,  1876,  meet  at 
the  capitol  at  Tallahassee  to  give  and  cast  their  votes  as  electors,  and 
did  as  such  electors  by  ballot  vote  for  President  and  Vice-President  of 
the  United  States,  and,  the  ballots  having  been  opened,  inspected,  and 
counted,  the  ballots  were  given  for  what  are  called  the  Tilden  electors, 
and  then  follow  the  distinct  lists  of  votes  cast  for  President  and  Vice- 
President  in  the  form  required. 

The  next  paper  in  order  in  this  return  is  an  act  of  the  State  of  Florida 
under  the  date  of  the  17th  of  January,  1877,  certified  by  the  secretary 
of  state  under  the  great  seal.  This  act  provides  for  a  board  of  State 
canvassers,  and  directs  them  to  meet  forthwith  at  the  office  of  the  secre 
tary  of  state  and  to  proceed  to  canvass  the  returns  of  the  election  of 
electors  and  determine  and  declare  who  were  elected  and  appointed  elect 
ors  at  the  election,  as  shown  by  the  returns  on  file  in  the  office  of  the 
secretary  of  state.  It  then  goes  on  to  provide  that  the  mode  which  shall 
be  adopted  by  this  board  of  canvassers  for  determining  and  declaring 
the  votes  shall  be  the  law  as  prescribed  by  the  supreme  court  of  the 
State  of  Florida  in  two  cases  named,  the  case  of  Bloxham  vs.  Gibbs  and 
the  case  of  Drew  vs.  McLin,  the  latter  one  of  which  has  been  known  as 
the  mandamus  proceeding  instituted  by  Governor  Drew  as  against  McLin 
and  the  other  members  of  the  State  canvassing-board,  and  which  pro 
ceedings  by  mandamus  and  the  opinion  of  the  court  in  regard  thereto 
the  Commission  have  before  them  and  will  find  in  House  Document  No. 
35,  part  3,  and  known  as  the  exhibits. 

These  documents  of  course  are  not  in  evidence  before  the  Commis 
sion  in  the  strict  sense  of  that  word ;  but  we  respectfully  submit  to 
the  Commission  that  inasmuch  as  in  order  to  determine  this  question 
they  must  arrive  at  a  construction  of  the  statutes  of  the  State  of  Flor 
ida,  it  is  their  duty,  as  it  is  the  rule  of  every  court  in  the  United  States, 
to  consider  such  decisions  as  binding  and  conclusive  upon  them,  and 
to  follow  the  construction  given  by  the  State  courts  to  the  State  stat 
utes.  Therefore,  in  considering  what  are  the  powers  of  this  State 
board  of  canvassers  originally,  the  law  creating  it  and  defining  its  duties 
is  to  be  taken  into  consideration  in  connection  with  the  determination  of 
the  highest  court  of  the  State  of  Florida  ;  and  it  is  with  a  view  that  the 
Commission  may  be  informed  as  to  the  precise  facts  which  were  under 
consideration  in  this  mandamus  case,  that  I  call  your  attention  to  the 
exhibits  mentioned  in  that  document.  It  will  be  found,  upon  inspection  of 
the  document  and  of  the  record,  that  it  arose  out  of  transactions  of  the 
same  board  of  canvassers  at  the  same  election,  and  passes  directly  upon 
the  legality  of  the  same  action  of  the  board  of  canvassers  as  is  involved 
in  the  presidential  contest.  The  Commission  will  learn  from  the  opin 
ions  and  from  the  exhibits  that  the  decision  of  the  supreme  court  of 
the  State  of  Florida  is  full  upon  the  point  which  has  been  argued  before 
them  heretofore.  They  clearly  demonstrate  that  the  action  of  the  State 
board  of  canvassers  in  November  last,  by  which  the  flayes  electors 
claimed  to  have  been  rightfully  elected,  has  been  solemnly  pronounced 
by  adjudication  of  the  supreme  court  of  that  State  to  be  unauthorized, 
illegal,  and  void. 

Now,  is  it  necessary  for  me  to  interject  just  here  any  authority 
upon  the  point  as  to  the  binding  effect  of  this  decision  of  the  State 
courts  ?  And  yet,  perhaps,  it  will  be  as  convenient  to  do  so  here  as  at 
any  other  time.  If  the  Commission  please,  from  the  time  of  the  case 
of  Shelby  vs.  Gray,  in  11  Wheaton,  361,  through^Green  tra.jJSTeal,  6 


ELECTORAL    COUNT    OF    1877.  159 

Peters,  291 ;  Christy  vs.  Pritchett,  4  Wallace,  201 ;  Tioga  Eailroad  vs. 
Blossburg  Kailroad,  20  Wallace,  137,  down  to  Blmwood  vs.  Macy,  2 
Otto,  289,  an  unbroken  line  of  decisions  will  be  found  ;  and,  if  we  cor 
rectly  apprehend  the  force  and  effect  of  this  current  of  judgment  in  the 
Supreme  Court  of  the  United  States,  it  is  that  the  adjudications  of  the 
highest  tribunal  of  the  State  are  to  be  deemed  and  taken  as  a  part  of 
the  very  statute  itself,  and  that  other  courts,  in  considering  what  is 
meant  by  the  statute,  what  is  the  legislative  intent,  exercise  no  inde 
pendent  judgment  or  criticism  upon  the  language  itself,  or  upon  its  scope, 
meaning,  or  effect,  but  accept,  as  if  it  were  incorporated  into  the  very 
body  of  the  legislative  act,  the  construction  thus  placed  upon  it  by  the 
highest  judicial  authority  in  the  State.  The  court  say,  in  the  case  of 
Green  vs.  Neal : 

The  decision  of  this  question  by  the  highest  tribunal  of  a  State  should  be  consid" 
ered  as  final  by  this  court,  not  because  the  State  tribunal  in  such  a  case  has  any  power 
to  bind  this  court,  but  because  a  fixed  and  received  construction  by  a  State  in  its  own 
court  makes  it  a  part  of  the  State  law. 

Returning  now  to  the  consideration  of  this  return  No.  3,  the  Commis 
sion  will  find  that  by  the  third  section  of  the  act  the  board  is  to  u  make 
and  sign  a  certificate  containing  in  words  written  at  full  length"  the 
result  of  that  election,  and  that  that  certificate  is  to  be  recorded  in  the 
office  of  the  secretary  of  state  in  a  book  kept  for  that  purpose. 

Next  following  this  act  of  the  legislature  is  the  certificate  of  the  board 
of  State  canvassers  organized  under  this  law  which  I  have  just  read,  and 
dated  the  19th  day  of  January,  1877,  and  which  presents  to  the  consid 
eration  of  this  tribunal,  county  by  county,  all  the  returns  for  presiden 
tial  electors  on  file  in  the  office  of  the  secretary  of  state,  with  all  the 
details  of  the  number  of  votes  cast  in  each  county  for  each  one  of  the 
persons  voted  for,  and  at  the  end  of  it  is  a  summary  or  tabulation,  the 
result  of  which  shows  the  election  of  the  Tilden  electors,  one  and  all. 

So  that  the  Commission  thus  far  have  not  only  the  certificate  of  the 
governor  of  the  State  to  the  main  fact  at  issue  before  this  tribunal,  but 
they  have  in  detail,  county  by  county,  all  the  votes  cast  for  electors  of 
President  and  Vice  President,  and  a  tabulated  statement  showing  the 
election  of  the  Tilden  electors.  It  is  true  that  they  have  not  all  this 
mass  of  documents,  sent  in  with  the  objections  filed  to  the  returns;  it 
is  true  they  have  not  all  the  original  precinct-returns  before  them  5  but 
they  have  that  before  them  which  answers  practically  the  same  purpose. 
They  have  a  certificate  made  in  due  form  of  law  by  the  State  authority 
showing,  so  far  as  needs  to  be  inquired  into  just  here  and  now,  pre 
cisely  how  many  votes  were  cast  for  the  Hayes  electors  and  precisely 
how  many  votes  were  cast  for  the  Tilden  electors  in  every  county  of  the 
State  of  Florida. 

Then  follows  another  act  of  the  legislature.  The  executive  has 
spoken ;  the  canvassing-board  erected  under  State  authority  has  spoken; 
and  now  the  legislature,  another  branch  of  the  government,  speaks  in 
the  same  unmistakable  tones  by  an  act  of  the  legislature  of  the  26th  of 
January,  1877.  The  preamble  recites  that  according  to  the  returns 
from  the  several  counties  on  file  in  the  secretary  of  state's  office,  that 
according  to  the  canvass  made  by  the  board,  the  Tilden  electors  were 
chosen  in  such  manner  as  the  legislature  of  the  State  had  directed; 
that  the  original  canvassers  had  interpreted  the  law  defining  their  pow 
ers  and  duties  in  such  a  manner  as  to  give  them  power  to  exclude  cer 
tain  regular  returns,  and  did  under  such  erroneous  interpretation 
exclude  certain  returns,  which  interpretation  had  been  solemnly  ad 
judged  by  the  supreme  court  to  be  improper  and  illegal.  It  also  recites 


160  ELECTORAL   COUNT   OF   Ifc77. 

that  Governor  Stearns  by  means  of  such  illegal  action  misled,  deceived 
— no  allegation  of  fraud  it  is  true  there,  but  misled,  deceived — by  this 
erroneous  interpretation  of  the  board  of  State  canvassers,  founded  upon 
their  erroneous  interpretation  of  the  law,  and  deceived  by  the  illegal 
and  erroneous  canvass  of  the  canvassers,  did  erroneously  cause  to  be 
made  a  certified  list  containing  the  names  of  the  Hayes  electors,  when 
in  fact  such  persons  had  not  received  the  highest  number  of  votes,  and 
on  a  canvass  conducted  according  to  the  rules  prescribed  and  ad 
judged  by  the  supreme  court,  were  not  appointed  electors  or  entitled  to 
receive  such  lists  from  the  governor,  and  that  the  Tilden  electors  were 
truly  appointed  electors  and  entitled  to  have  their  names  made  upon  a 
list  and  certified  by  the  governor.  This  is  the  preamble  to  this  confirm 
atory  act. 

It  then,  in  section  1,  declares  that  the  Tilden  electors  were  duly 
appointed  and  authorized  to  act,  and  their  acts  are  ratified  and  con 
firmed  and  declared  to  be  valid,  and  that  they  were  appointed  on,  from, 
and  after  the  7th  of  November,  1876.  The  second  section  authorizes 
the  governor  to  make  and  certify  three  lists  of  electors ;  to  transmit 
them  in  the  manner  therein  mentioned ;  provides  that  the  electors  are 
to  meet  at  Tallahassee,  and  that  they  are  to  give  an  additional  certifi 
cate  of  the  votes  which  had  been  cast  by  them  on  the  6th  of  December, 
and  to  send  that  to  the  President  of  the  Seriate  as  required  by  law. 

So  then,  if  the  Commission  please,  in  this  return  No.  3  we  have  prac 
tically  all  the  branches  of  the  government  of  the  State  of  Florida  speak 
ing  with  unanimous  and  united  voice  to  the  same  effect,  and  certifying 
to  the  same  fact  which  is  the  question  now  before  this  tribunal  for 
decision. 

It  is  upon  this  evidence  that  this  question  is  now  to  be  determined; 
and  the  different  kinds  of  evidence  may  be  thus  classified:  They  consist, 
first,  of  lists  purporting  to  be  made  by  the  electors  under  the  twelfth 
article  of  amendments  to  the  Constitution,  the  certificates  and  lists  made 
out  under  and  in  pursuance  of  that  article  of  the  Constitution.  If  these 
prove  themselves,  they  both  have  the  same  force  and  effect,  and  this 
Commission  would  be  at  a  loss  to  determine  which  one  of  these  pieces 
of  conflicting  evidence  is  to  be  potential,  and  in  any  event  this  testimony 
must  be  deemed  inconclusive.  The  second  class  of  evidence  are  the 
lists  of  the  executive  under  the  one  hundred  and  thirty-sixth  section  of 
the  United  States  Eevised  Statutes.  I  shall  not  presume  at  this  stage 
of  the  case  to  re-argue  the  question  as  to  the  conclusiveness  of  the  gov 
ernor's  certificates.  It  would  not  be  necessary  to  do  so  after  what  has 
already  been  said.  Moreover  I  conceive  that  the  order  itself  practically 
determines  that  question  in  the  negative,  for  it  permits  other  evidence. 
These  governor's  certificates  are  not  essential.  They  are  not  made 
indispensable  or  conclusive  or  exclusive  or  invested  with  any  particular 
force  or  effect  by  the  statute.  Their  permanent  absence  would  not  be 
fatal  to  the  validity  of  the  vote  of  the  electors.  They  are  mere  requests, 
not  obligatory  on  the  executive;  there  is  no  mode  of  compelling  the 
performance  of  the  duty  imposed  on  him.  And  here,  if  the  Commission 
please,  I  beg  leave  to  call  attention  to  the  message  of  Governor  Han 
cock  of  the  commonwealth,  of  Massachusetts,  which  will  be  found 
appended  to  a  brief  which  we  shall  hand  up,  bearing  the  date  ot  the 
8th  day  of  November,  1792.  It  is  as  follows : 

Gentlemen  of  the  Senate  and  the  House  of  Representatives  : 

By  the  Constitution  of  the  United  States  of  America,  each  State  is  to  appoint,  in 
such  manner  as  the  legislature  shall  direct,  electors  of  President  and  Vice-President. 
By  a  late  act  of  Congress  it  is  enacted  "  that  the  supreme  executive  of  each  State  shall 


ELECTORAL   COUNT   OF    1877. 

cause  three  lists  of  the  names  of  the  electors  of  snch  State  to  be  made  and  certified 
and  to  be  delivered  to  the  electors  on  or  before  the  first  Wednesday  in  December  " 

I  feel  the  importance  of  giving  every  constitutional  support  to  the  General  Govern 
ment,  and  I  also  am  convinced  that  the  existence  and  well-being  of  that  Government 
depends  upon  preventing  a  confusion  of  the  authority  of  it  with  that  of  the  States  sep 
arately.  But  that  Government  applies  itself  to  the  people  of  the  United  States  in  their 
natural,  individual  capacity,  and  cannot  exert  any  force  upon,  or  by  any  means  control 
the  officers  of  the  State  governments  as  such  ;  therefore,  when  an  act  of  Congress  uses 
compulsory  words  with  regard  to  any  act  to  be  done  by  the  supreme  executive  of  this 
commonwealth,  I  shall  not  feel  myself  obliged  to  obey  them,  because  I  am  not  in  mv 
official  capacity,  amenable  to  that  Government. 

My  duty  as  governor  will  most  certainly  oblige  me  to  see  that  proper  and  efficient 
certificates  are  made  of  the  appointment  of  electors  of  President  and  Vice-President  • 
and  perhaps  the  mode  suggested  in  the  act  above  mentioned  may  be  found  to  be  the 
most  proper.  If  you,  gentlemen,  have  any  mode  to  propose  with  respect  to  the  con 
duct  of  this  business,  I  shall  pay  every  attention  to  it. 

Gentlemen,  I  do  not  address  you  at  this  time  from  a  disposition  to  regard  the  pro 
ceedings  of  the  General  Government  with  a  jealous  eye,  nor  do  I  suppose  that  Congress 
could  intend  that  clause  in  their  act  as  a  compulsory  provision;  but  I  wish  to  prevent 
any  measure  to  proceed  through  inattention,  which  may  be  drawn  into  precedents 
hereafter  to  the  injury  of  the  people  or  to  give  a  constructive  power  where  the  Federal 
Constitution  has  not  expressly  given  it. 

This  injunction,  therefore,  is  not  mandatory  in  its  character ;  it  is  not 
obligatory  upon  the  State  officers ;  it  is  not  addressed  to  the  electors 
who  cast  the  votes  or  to  the  tribunal  which  counts  them ;  but  to  a  third 
party  to  do  an  act  for  the  convenience  of  the  electors  and  of  the  count 
ing  tribunal.  But  it  has  been  intimated,  and  it  may  be  argued  perhaps, 
that  this  certificate  or  return  No.  3  did  not  arrive  at  the  seat  of  Govern 
ment  before  the  first  Wednesday  in  January,  according  to  a  forced  con 
struction,  as  it  seems  to  us,  of  the  one  hundred  and  fortieth  section  of  the 
Eevised  Statutes  of  the  United  States.  We  respectfully  submit  to  the 
Commission  that  this  provision  of  the  Eevised  Statutes  of  the  United 
States  in  section  140,  as  well  as  the  direction  contained  in  section  136 
as  to  the  delivery  of  the  lists  by  the  executive  to  the  electors,  is  merely 
directory.  Upon  that  subject  I  desire  to  call  the  attention  of  the  Com 
mission—I  shall  not  stop,  to  read  it — to  what  is  said  in  Sedgwick  on 
Statutory  and  Constitutional  Law,  page  3G8  of  the  edition  of  1857,  and 
also  to  recall  to  the  attention  of  the  Commission  what  was  said  by  Lord 
Mansfield  in  the  case  of  the  King  vs.  Loxdale  in  1  Burrows's  Eeports, 
page  447. 

There  is  a  known  distinction  between  the  circumstances  which  are  of  the  essence  of 
the  thing  required  to  be  done  by  an  act  of  Parliament  and  clauses  merely  directory. 
The  precise  time  in  many  cases  is  not  of  the  essence. 

Now,  if  the  Commission  look  at  the  purpose  of  this  enactment,  if 
they  will  consider  what  were  the  reasons  which  induced  the  Congress 
of  the  United  States  to  prescribe  the  times  therein  mentioned,  we  sub 
mit  that  they  will  come  to  the  conclusion  that  the  time  or  times  men 
tioned  therein  within  certain  prescribed  limits  are  not  of  the  essence, 
and  that  they  are  not  essential  to  the  purpose  which  the  legislature  had 
in  view  when  they  made  the  enactment.  Delay  in  the  transmission  of 
the  certificates  within  proper  limits  cannot  produce  any  invalidity  or 
work  any  legal  consequences.  The  reason  the  governor  is  directed  in 
section  136  to  furnish  the  list  on  or  before  the  meeting  of  the  electoral 
college  was  doubtless  that  the  college  may  not  be  hindered  in  annexing 
the  lists  on  the  first  day  of  their  meeting  if  they  choose  then  to  annex 
them  to  their  statements  of  the  votes  they  cast  for  President  and  Vice- 
President.  There  is  no  express  direction  anywhere  which  requires  that 
the  electoral  college,  after  it  shall  have  met  and  cast  its  ballots,  shall 
immediately  proceed  to  make  out  the  lists  which  are  to  be  transmitted 
to  the  President  of  the  Senate.  There  is  no  express  declaration  any- 
11  E  0 


162  ELECTORAL   COUNT    OF    1877. 

where,  either  in  the  Constitution  or  in  the  laws,  that  if  they  do  not 
immediately  proceed  to  make  out  and  certify  their  lists,  which  are  to  be 
sent  to  the  President  of  the  Senate,  their  action  shall  be  nugatory.  The 
main  fact  which  is  to  be  determined  is,  did  the  electors  vote  according 
to  the  constitutional  requirement  ?  If  they  did  so  vote,  the  lists  which 
they  are  to  send  to  the  President  of  the  Senate  may  as  soon  as  can  con 
veniently  be  done  be  made  out  and  sent;  but  there  is  no  absolute 
requirement  that  they  shall  be  so  made  out  and  sent  immediately. 

The  first  Wednesday  in  December  is  fixed  by  the  statute  tor  the 
meeting  of  the  electors.  The  delivery  of  the  statement  by  the  electors 
of  their  votes  by  messenger  to  the  President  of  the  Senate  at  the  seat 
of  Government  is  to  be  made  at  any  time  before  the  first  Wednesday  in 
January.  Thirty  days  are  thus  allowed  for  transmission  and  delivery. 
No  doubt,  we  submit,  it  would  be  a  perfect  compliance  with  this  provis 
ion  if  the  electors'  statement  of  their  votes  were  made  out  and  the  list 
of  the  governor  obtained  and  annexed  at  any  time  so  that  the  delivery 
should  be  made  within  the  thirty  days.  It  is  true  that  the  statement  of 
the  votes  to  be  forwarded  by  mail  and  the  statement  to  be  deposited 
with  the  district  judge  are  required  to  be  sent  forthwith;  but  the  one 
transmitted  by  messenger  would  be  good  whether  the  others  reached 
the  seat  of  Government  or  not.  And  practically  it  is  matter  of  public 
notoriety  that  the  occasion  has  never,  or  if  ever  very  seldom,  arisen 
when  the  certificate  deposited  with  the  district  judge  has  been  called  in 
requisition  or  has  reached  the  seat  of  Government.  No  time  is  fixed  by 
any  of  the  statutes  of  the  United  States  for  the  arrival  at  the  seat  of 
Government  of  the  certificate  deposited  with  the  district  jadge.  If  it 
was  received  at  any  time  before  it  was  to  be  used  in  the  counting  of  the 
votes,  we  submit  that  that  would  be  sufficient.  The  vote  could  not  be 
objected  to  because  it  had  not  arrived  earlier. 

Now,  taking  all  these  statutory  provisions  together,  they  exhibit 
careful  precautions  that  the  votes  shall  be  received  before  the  count. 
That  is  the  point  to  be  arrived  at,  that  the  votes|shall  be  received  before 
the  counting  takes  place.  Whether  they  get  here  one  day  after  the 
meeting  of  the  electoral  college  or  thirty  days  after  the  meeting  of  the 
electoral  college  is  immaterial.  The  point  to  be  arrived  at  is  that  they 
get  to  the  seat  of  Government  before  the  count. 

The  specifications  of  the  times  at  which  or  before  which  acts  shall  he  done  to 
furnish  evidence  to  the  counting  tribunal  as  to  who  have  been  appointed  electors  and 
for  whom  those  electors  have  voted  are  merely  directory.  The  times  are  fixed  so  that 
each  act  shall  be  done  in  season  to  enable  the  next  step  to  be  promptly  taken  and  in 
season  to  enable  any  failures  to  be  remedied.  These  limitations  of  the  time  are  pre 
cautionary  and  remedial ;  they  are  intended  to  save  and  give  effect  to  the  votes.  They 
are  not  snares  to  betray  and  destroy  the  votes. 

This  line  of  argument  is  carried  out  more  fully  in  the  printed  brief 
which  we  shall  submit  to  the  Commission,  and  I  therefore  pass  to  an 
other  point.  We  contend  that  these  certified  lists  which  are  contained 
in  return  No.  3,  and  furnished  afterward,  are  effectual.  We  submit  the 
proposition  that  such  acts  of  public  officers,  if  not  done  within  the  time 
prescribed  by  law,  do  not  thereby  become  incapable  of  being  done  after 
ward.  They  do  not  only  remain  capable  of  being  done,  but  the  duty 
of  public  officers  to  do  them  subsists  in  full  vigor  and  operation,  and 
the  right  to  compel  their  performance  by  public  officers  accrues  for  the 
very  reason  that  the  time  limited  by  the  law  has  passed. 

I  beg  to  call  the  attention  of  the  tribunal  upon  that  point  to  what  is 
said  by  the  court  of  Queen's  Bench  in  11  Adolphus  and  Ellis : 

It  would  be  too  great  a  triumph  for  injustice  if  we  should  enable  it  to  postpone  forever  the 
performance  of  a  plain  duty  only  becau.se  it  had  done  wrong  at  the  right  season. 

This  same  idea  is  illustrated  by  the  doctrine  of  the  courts  in  regard 


ELECTORAL   COUNT    OF    1877.  163 

to  mandamus.  It  is  often  invoked  on  the  very  ground  that  the  time 
fixed  by  law  for  specific  acts  has  expired.  In  the  case  of  The  Mayor  of 
Eochester  vs.  The  Queen,  in  1  Blackburn  and  Ellis,  page  1024,  the" court 
say : 

We  are  of  opinion  that  the  court  of  Queen's  Bench  was  right,  and  ought  to  be  af 
firmed.  It  seems  to  us  that  Rex  vs.  Sparrow,  2  Strange,  1123,  and  Rex  vs.  Mayor  of 
Norwich,  1  B.  and  Adolphus,  310,  are  authorities  upon  the  point,  and  that  the  princi 
ple  of  those  cases  establishes  the  doctrine  that  the  court  of  Queen's  Bench  ought  to 
compel  the  performance  of  a  public  duty  by  public  officers,  although  ihe  time  prescribed 
~by  statute  for  the  performance  of  them  has  passed. 

And  in  particular  I  refer  to  what  is  said  by  the  supreme  court  of  New 
York  in  the  case  of  ex parte  Heath,  3  Hill  K.,  42,  which  was  an  election 
case  coming  up  on  proceedings  for  mandamus : 

Ward  inspectors  of  New  York  City  were  required  by  statute  to  certify  the  result  of 
the  ward  election  "  on  the  day  subsequent  to  the  closing  of  the  polls,  or  sooner."  A  ward 
election  was  held  on  the  12th  of  April;  the  result  was  not  certified  until  the  14th. 

The  return  was  held  valid  notwithstanding,  and  the  mandamus  was 
directed  to  go  commanding  the  mayor  to  administer  the  oath  to  the 
persons  returned  as  elected.  In  the  opinion  of  the  court  it  is  said  : 

The  idea  which  we  understood  to  be  thrown  out  in  argument,  that  the  return  from 
the  sixth  ward  was  void  because  not  completed  till  the  14th  of  April  instead  of  the  13th, 
is  altogether  inadmissible.  Nothing  is  better  settled,  as  a  general  rule,  than  that  where 
a  statute  requires  an  act  to  be  done  by  an  officer  within  a  certain  time,  for  a  public  pur 
pose,  the  statute  shall  be  taken  to  be  merely  directory;  aud  though  he  neglects  his 
duty  by  allowing  the  precise  time  to  go  by,  if  he  afterward  perform  it,  the  public  shall 
not  suffer  by  the  delay. 

I  next  call  the  attention  of  the  tribunal  to  another  piece  of  evidence 
which  is  of  the  third  class,  namely,  the  act  of  the  legislature  of  Janu 
ary  17, 1877.  This  is  a  curative  act,  simply  allowing  and  requiring  a 
piece  of  evidence  to  be  supplied  after  the  time  within  which  the  law 
required  the  public  officers  to  furnish  it.  I  shall  not  trouble  the  Com 
mission  with  going  over  it  again.  I  simply  call  their  attention  to  the 
fact  that  this  is  what  it  seeks  to  accomplish.  It  is  a  curative  act.  It 
simply  allows  and  requires  this  piece  of  evidence  to  be  supplied  after 
the  time  within  which  the  law  required  the  public  officers  to  furnish  it, 
but  before  it  is  needed  for  the  use  intended ;  it  is  allowing  an  act  to  be 
done  nunc pro  tune  in  furtherance  of  right  and  justice,  as  courts  some 
times  do,  curing  a  defect  of  form,  which  the  law-making  power  has  a 
large  discretion  to  do  and  frequently  and  habitually  does. 

It  has  been  suggested  to  this  Commission,  rather  than  gravely  argued, 
that  this  act,  as  well  as  the  other  act  of  the  State  of  Florida,  is  to  be 
considered  in  some  sense  as  an  ex  post  factory?.  I  submit  to  this  tribunal 
that  neither  of  these  laws  comes  within  the  definition  of  ex  post  facto 
laws.  They  are  retrospective  and  retroactive,  but  not  ex  post  facto  laws. 
It  certainly  will  not  be  necessary  for  me  to  do  more  than  to  refer  the 
Commission-  to  what  is  said  upon  that  subject  by  Mr.  Justice  Chase  in 
3  Dallas,  in  the  celebrated  case  of  Calder  vs.  Bull,  more  particularly  to 
what  he  says  on  the  three  hundred  and  ninetieth  page : 

I  will  state  what  laws  I  consider  expostfaclo  laws,  within  the  words  and  the  intent 
of  the  prohibition.  First.  Every  law  that  makes  an  action  done  before  the  passing  of 
the  law,  and  which  was  innocent  when  done,  criminal;  aud  punishes  such  action. 
Second.  Every  law  that  aggravates  a  crime,  or  makes  it  greater  than  it  was  when 
committed. 

The  PRESIDENT.  Mr.  Green,  it  is  hardly  necessary  to  cite  authori 
ties  to  us  that  that  is  not  an  ex  post  facto  law  within  the  meaning  of  the 
Constitution. 

Mr.  GREEN.  I  am  very  happy  to  be  relieved  from  further  discussion 
of  the  character  of  these  legislative  acts. 


164.  ELECTORAL    COUNT    OF    1877. 

The  PRESIDENT.  I  do  not  suppose  anybody  in  the  Commission  has 
any  donbt  about  that. 

Mr.  GREEN.  Then  the  next  piece  of  evidence  is  the  actual  canvass 
on  file  in  the  secretary  of  state's  office,  showing  in  detail  the  votes  of 
the  several  counties  and  the  election  of  the  Tilden  electors.  Superadded 
to  all  this,  we  submit  to  the  Commission,  that  even  under  the  order 
which  was  read  to  us  this  morning1,  in  the  light  of  the  governor's  certifi 
cate,  this  Commission  has  a  right  to  look  into  these  quo  warranto  pro 
ceedings  with  a  view  of  seeing  what  they  are.  I  shall  not  discuss  that ; 
I  shall  simply  call  the  attention  of  the  Commission  in  passing  to  the 
fact  that  they  will  find  noted  on  the  brief  already  handed  up  that  the 
jurisdiction  of  the  circuit  court  of  the  State  of  Florida  is  ample  and  full, 
that  the  authorities  are  there  cited,  and  I  beg  leave  to  ask  the  Commis 
sion  to  refer  to  them.  I  only  allude  to  it  now  in  order  that  our  learned 
friends  on  the  other  side  may  take  notice  that  we  conceive  and  shall  in 
sist  that,  even  under  the  order  of  the  Commission  read  to  us  this  morn 
ing,  by  virtue  of  the  governor's  certificate  which  is  the  commencement 
of  return  No.  3,  this  Commission  may  look  into  and  consider  the  quo 
icarranto  proceedings  and  their  effect  upon  the  question  now  before  us. 

The  only  additional  authorities  that  we  desire  to  call  the  attention  of 
the  Commission  to  on  the  subject  of  that  quo  warranto  are,  the  Common 
wealth  vs.  Smith,  45  Pennsylvania  State  Reports,  page  59,  where  Mr. 
Justice  Woodward,  delivering  the  opinion  of  the  court,  held  this 
language: 

I  have  no  donbt  that  quo  ivarranto  brought  vrithin  the  term  of  an  office  may  be  well 
tried  after  the  term  has  expired. 

And  the  case  of  Hunter  vs.  Chandler,  45  Missouri,  page  435,  where 
the  court  held  that  an  information  in  the  nature  of  a  quo  warranto  to 
try  the  right  to  a  public  office  may  be  tried  after  the  term  has  expired 
or  the  officer  holding  has  resigned,  if  the  information  was  filed  or  the 
proceedings  begun  before  resignation  took  place  or  the  term  had  ex 
pired. 

The  sixth  class  of  evidence  is  the  confirmatory  act  of  January  26, 
1877.  I  shall  say  nothing  on  that  subject,  except  to  ask  the  attention 
of  the  tribunal  to  what  is  stated  on  the  brief  which  we  shall  hand  up. 

Now,  if  the  Commission  please,  we  rest  here  upon  the  testimony 
before  you,  and  we  humbly  submit  to  the  tribunal  that  even  upon  that 
testimony,  meager  as  it  is  contended  to  be,  there  is  but  one  proper  con 
clusion  to  be  arrived  at,  namely,  that  this  voice  of  the  State  of  Florida 
which  is  uttered  not  only  by  its  executive  and  legislative,  but  by  its 
judicial  departments,  shall  be  respected,  and  that  this  Commission  can 
not  come  to  any  other  determination  than  that  the  vote  of  the  State  of 
Florida  is  truly  contained  in  the  returns  2  and  3,  and  is  not  correctly 
returned  in  the  return  No.  1. 

No  one  can  be  more  aware  than  I  am  how  inadequately  I  have  en 
deavored  to  rise  to  the  height  of  this  great  argument.  If  I  have  failed 
to  convince  your  judgments  as  judges,  I  shall  not  appeal  to  your  pa 
triotism  as  statesmen ;  but  here  in  this  place  consecrated  by  the  mem 
ories  of  those  early  senatorial  conflicts  which  resulted  so  often  in  the 
preservation  of  the  Union  and  the  maintenance  of  the  Constitution,  as 
well  as  by  the  recollection  of  the  decisions  of  the  most  august  tribunal 
upon  earth  which  is  accustomed  here  to  assemble  in  favor  of  human 
freedom  and  of  human  rights;  in  the  name  of  the  American  people; 
in  the  name  of  that  Constitution  which  we  all  have  sworn  to  uphold  and 
maintain  ;  in  the  name  of  that  Union  to  form  and  perpetuate  which  the 
Constitution  was  framed,  and  of  that  liberty  which  is  at  once  the  origin 


ELECTORAL    COUNT    OF    1877.  165 

and  the  result  of  that  Union ;  not  as  a  partisan ;  not  as  an  advocate  of 
Mr.  Tilden  or  Mr.  Heudricks;  nor  yet  as  an  opponent  of  Mr.  Hayes  or 
Mr.  Wheeler,  but  as  an  American  citizen,  speaking  to  American  citizens, 
I  demand  your  judgment  for  the  right. 

The  PBESIDENT.    We  will  now  hear  the  other  side. 

Mr.  SHELLABARGEK.  Mr.  President  and  gentlemen  of  the  Com 
mission,  this  morning  before  I  knew  how  thoroughly  all  that  part  of 
the  papers  that  were  laid  before  this  Commission  which  relate  to  those 
matters  occurring  subsequently  to  the  date  of  the  electoral  vote  had 
been  disposed  of  by  your  order,  I  had  arranged  to  speak  a  very  few 
minutes  in  regard  to  those  matters — their  competency  in  this  case. 
Since  I  came  into  court  and  heard  the  decision  of  the  Commission  ex 
cluding  the  offer  of  testimony  touching  the  date  of  the  service  of  pro 
cess  in  the  quo  warranto  case,  all  that  part  of  the  case  of  Florida  which 
I  had  proposed  to  discuss  seems  to  me  to  be  thoroughly  disposed  of 
and  such  discussion  rendered  unnecessary.  It  is  only  because  on  the 
other  side  discussion  has  been  indulged  in  with  regard  to  the  effect  of 
matters  subsequent  to  the  electoral  vote  that  I  venture  to  do  what  I 
would  not  otherwise  do,  make  some  few  remarks  in  regard  to  the  legal 
value  of  those  matters  that  follow  in  point  of  time  the  date  of  that 
vote. 

It  will  be  observed  by  reading  what  has  been  here  called  certificate 
No.  3,  that  there  can  reasonably  be  no  possible  claim  that  the  record  in 
the  proceedings  in  quo  warranto  is  in  any  sense  or  way  before  this  Com 
mission.  The  only  papers  before  the  Commission  are  those  which  were 
submitted  to  the  Commission  by  the  President  of  the  Senate  or  sub 
mitted  to  the  Houses  and  thence  here.  In  those  papers,  thus  submitted, 
there  is  but  one  allusion  to  this  proceeding  in  quo  icarranto,  and  that  is 
where  the  governor,  Drew,  states  that — 

In  a  proceeding  on  the  part  of  the  State  of  Florida,  by  information  in  the  nature  of 
quo  warranto,  wherein  the  said  Robert  Bullock,  Robert  B,  Hilton,  Wilkinson  Call,  and 
James  E.  Yonge  were  relators,  and  Charles  H.  Pearce,  Frederick  C.  Humphreys,  William 
H.  Holden,  and  Thomas  W.  Long  were  respondents,  the  circuit  court  of  this  State  for 
the  second  judicial  circuit,  after  full  consideration  of  the  law  and  the  proofs  produced 
on  behalf  of  the  parties  respectively,  by  its  judgment  determined  that  said  relators 
were,  at  said  election,  in  fact  and  law,  elected  such  electors  as  against  the  said  respond 
ents  and  all  other  persons. 

That  being  the  only  thing  that  is  before  this  Commission,  it  will  not 
be  claimed,  I  think,  even  on  the  other  side,  that  there  is  any  evidence  in 
the  record  before  this  body  that  any  judgment  in  quo  warranto  was  ever 
pronounced.  The  governor  cannot  make  you  acquainted  with  the  ex 
istence  of  the  record  in  that  way.  The  action  of  the  Commission  in  ex 
cluding  that  manuscript  copy  of  the  record  of  such  judgment  tendered 
as  evidence,  in  moreover  excluding  all  evidence  about  the  date  of  serv 
ice  of  process,  taken  in  connection  with  all  else  which  has  transpired, 
makes  it  entirely  and  utterly  certain  that  we  have  reached  a  stage  in 
the  case  where  at  least  that  proceeding  and  judgment  in  quo  warranto  are 
excluded.  So,  too,  in  regard  to  the  certificates  No.  2  and  No.  3.  These 
are,  as  we  regard  the  matter,  and  for  precisely  the  same  reasons  which 
exclude  the  quo  warranto  case,  now  excluded  by  the  order  that  has 
already  been  made.  Still,  since  discussion  by  the  other  side  in  regard 
to  the  effect  of  these  papers,  Nos.  2  and  3,  has  been  indulged  in,  I  de 
sire  to  make  a  few  statements  in  the  way  of  mere  propositions  rather 
than  of  extended  argument,  in  regard  to  the  whole  matter  of  the  legal 
effect  upon  the  electoral  vote  of  transactions  of  the  State  functionaries 
occurring  after  the  date  of  such  vote. 

Now  I  state  my  foundation  proposition  in  regard  to  all  these  post- 


166  ELECTORAL    COUNT    OF    1377. 

election  matters — whether  it  be  the  mandamus,  the  legislation  of  Jan 
uary,  the  quo  icarranto,  the  canvass  by  the  improvised  returniug-board, 
or  any  other  act  post-dating  the  electoral  vote — in  these  words,  that 
"this  power  bestowed  by  the  Constitution  upon  the  State,  of  appoint 
ing  an  electoral  college  for  the  election  of  a  President  and  Vice-Pres- 
ident  of  the  United  States,  is  such,  in  its  very  nature,  and  by  the  ne 
cessities  of  the  case,  that  every  act  of  the  State  in  accomplishing  the 
*  appointment7  must  antedate  the  performance  of  that  one  single  func 
tion  which  the  appointee  is  competent  to  discharge  under  the  Constitu 
tion.77  If  that  proposition  is  sound,  then  of  course  all  that  the  gentle 
men  say  in  regard  to  the  effect  of  the  decisions  of  the  courts  in  deter 
mining  the  signification  of  their  own  statutes,  all  the  decisions  which 
have  been  referred  to  in  regard  to  the  obligation  of  all  Federal  tribunals 
to  follow  the  interpretation  which  the  State  courts  put  upon  their  own 
statutes,  lose  all  significance  in  this  case.  In  other  words,  if  when 
the  electoral  vote  of  a  State  has  once  been  cast  by  men  endowed  with 
every  muniment  of  title  to  the  ofiice  of  elector  which  the  laws  of  the 
State  enabled  them  to  hold  at  the  date  when  they  must  do  their  first 
and  last  official  act,  the  power  of  the  State  to  manipulate  that  vote,  its 
jurisdiction  over  it.  has  gone  away  from  the  State  to  the  nation,  then,  of 
course,  these  acts  of  Florida  done  after  the  electoral  vote,  in  the  fran 
tic  effort  to  change  the  result  of  a  national  election,  lose  every  sem 
blance  of  legal  significance. 

The  strongest  statement  I  have  heard  of  the  position  of  the  gentle 
men  on  the  other  side  in  regard  to  the  grounds  on  which  they  rest  their 
claim  of  right  in  these  States  to  handle,  by  means  of  quo  warranto  and 
the  like,  the  electoral  vote  after  it  has  gone  under  seal  to  the  President 
of  the  Senate  is  in  its  substance  this :  It  is,  they  say,  competent  for  the 
States,  not  to  appoint  electors  after  the  voting-day,  not  to  qualify  them 
after  the  voting-day,  but  competent  for  them  through  their  courts, 
after  the  voting-day  has  passed,  to  make  interpretations  of  their  own 
election  laws  which  shall  act  backward,  shall  throw  light  on  and  bind- 
ingly  decide  the  question  who  of  rival  claimants  were  the  true  function 
aries  of  the  State  on  that  voting-day  and  thus  competent  for  the  States 
to  settle  the  question  which  of  the  two  rival  bodies  were  really  the  law 
ful  electors  of  the  State.  That  is,  I  think,  about  the  substance  of  the 
strongest  statement  I  have  seen  of  this  claim,  so  zealously  pressed  by 
the  other  side,  alleging  power  in  the  State  after  the  electoral  vote  is 
cast  to  destroy  it,  and  to  unseat  a  President,  though  elected  by  electors 
who  held  in  favor  of  their  title  every  judgment,  determination,  and  cer 
tificate  which  it  was  possible  for  the  State  to  bestow  under  her  existing 
laws,  before  the  time  when  the  electoral  vote  must  be  cast  and  sent  off, 
under  seal,  to  its  Federal  custody. 

Let  us  analyze  that  claim  for  a  moment,  and  see  if  it  is  not  utterly 
unsound.  The  Constitution  in  its  express  terms  limits  the  powers  of 
the  State  to  that  matter  which  it  has  denominated  tersely  by  the 
word  "  appoint.77  About  this  first  point  there  can  be  no  debate.  The 
utmost  power,  the  furthest  reach  of  the  State  in  regard  to  this  matter 
of  making  a  President  stops  when  "appointment"  stops;  not  a  hair7s 
breadth  beyond  that  anywhere  can  the  State  go  in  creating  your  Presi 
dent  by  the  popular  vote.  Then  when  we  get  the  true  sense  of  the 
word  "appoint 77  we  know  the  boundary  of  the  powers  of  the  State  in 
this  regard. 

JSTow,  sirs,  what  gentleman  of  this  Commission,  so  learned  as  it  is  in 
all  these  great  constitutional  and  legal  ideas,  will  say  to  me,  "  There  are 
some  functions  in  the  nature  of  '  appointment ' — functions  which  go  to 


ELECTORAL    COUNT    OF    1877.  167 

make  up  £  appointment7— which  the  States  may  exercise  after  the  office 
has  passed  away  and  all  its  duties  are  done  forever!"  Such  a  proposi 
tion  as  that  simply  reduces  the  Constitution  and  this  whole  debate,  I 
submit,  to  the  most  intense  and  unmitigated  absurdity.  Therefore 
every  act  of  the  State  in  the  way  of  exercising  power  must  be  "  appoint 
ment,'7  and  "  appointment "  in  the  very  nature  of  the  case  cannot  follow 
the  day  when  the  first  and  the  last  and  the  only  act  of  the  functionary 
must,  by  the  Constitution  and  law,  be  completely  and  forever  dis 
charged.  Is  it  not  plain,  therefore,  thus  far,  that  it  was  the  design  of  the 
Constitution,  is  the  express  requirement  of  the  Constitution,  that  every 
act  of  the  State,  being  all  appointment  and  appointment  only,  shall 
antedate  the  vote  ? 

Mr.  Commissioner  THUKMAN.  If  it  does  not  interrupt  you,  let  me 
ask  this  :  Suppose  it  to  be  granted  that  every  act  which  constitutes  the 
appointment  must  be  done  before  the  day  when  the  electors  cast  their 
votes,  does  it  follow  that  there  can  be  no  inquiry  afterward  as  to  whether 
any  appointment  was  made  ? 

Mr.  SHELLABARGEK.  I  shall  come  to  that  In  a  moment,  and  I 
thank  the  Senator  and  member  of  the  Commission  for  the  suggestion. 
It  is  really  the  same  idea  to  which  I  alluded  when  I  undertook  to  state 
the  position  of  the  other  side  as  well  as  I  could,  as  to  whether  acts  sub 
sequently  to  the  day  of  voting  and  to  the  appointment  may  not  be 
looked  to  as  throwing  light  or  deciding  upon  the  matter  as  to  Vho  the 
appointee  really  was,  as  made  on  the  day  of  the  vote.  That  is  a  fair 
question.  It  deserves  a  fair,  frank,  and  square  answer,  arid  I  shall 
make  it  as  I  proceed,  as  well  as  I  can. 

First  of  all,  when  the  Constitution  is  confessed  to  design  that  the 
power  of  the  State  over  the  votes  shall  stop  at  the  moment  it  puts  them 
under  seal,  then  that  confession  involves  the  admission  that  that  is  the 
moment  at  which  the  State  must  have  completed  all  the  scrutinies  and 
trials  it  can  employ  in  adjudging  who  are  its  electors.  In  other  words, 
if  an  elector  on  the  voting-day  is  endowed  with  all  the  insignia  of  right, 
with  all  the  apparent  title  of  office  that  can,  according  to  the  then  exist 
ing  State  machinery,  be  held  on  that  day,  he  is,  to  every  possible  legal 
intent,  as  against  the  State,  the  elector  both  de  facto  and  dejure.  If  after 
that  any  power  can  try  the  title,  it  is  not  the  State,  but  the  nation. 
That  arises  out  of  the  very  nature  of  this  sui  generis  thing  with  which 
we  deal,  this  dual  government  of  ours,  having  no  likeness  any  where  else 
in  the  governments  of  the  world  or  in  the  law-books  of  the  world.  It  is  a 
case  where  two  sovereignties  combine,  not  in  the  mere  process  of  making 
an  election — for  it  is  more  than  that — combine  their  powers  in  the  pro 
cess  of  inaugurating  government  and  of  creating  the  executive  branch 
of  a  powerful  people,  in  transmitting  succession;  a  process  wherein  the 
boundary-line  between  the  powers  of  the  two  sovereigns  is  carefully 
marked  in  the  Constitution.  That  boundary  is  at  the  point  where  the 
vote  is  sealed  and  goes  to  the  capital.  At  that  time,  before  that  vote, 
the  State  must  have  done  her  last  act  in  adjudging  who  are  her  elect 
ors  and  bestowing  the  evidences  of  their  title. 

When  that  process  is  complete  on  the  part  of  the  State,  when  all  that 
she  is  permitted  to  transact  in  the  way  of  appointing  her  electors  has 
been  discharged  according — to  repeat  what  I  said  a  moment  ago,  and  I 
wish  to  state  it  with  the  utmost  care  about  my  words — when  that  polit 
ical  transaction  by  the  State  has  been  discharged  according  to  the  re 
quirements  of  the  law  of  the  State  as  it  existed  upon  the  day  of  voting, 
then  the  power  of  the  State  over  the  subject-matter  is  anr  accomplished 
process  of  government  on  the  part  of  the  State,  and  the  power  of  the 


168  ELECTORAL   COUNT    OF    1677. 

State  over  the  subject-matter  has  passed  forever  away.  It  becomes 
from  that  moment  a  matter  of  Federal  care  and  solicitude,  and  not  of 
State.  In  other  words,  and  to  state  my  proposition  in  still  another 
form,  every  part  of  the  machinery  of  a  State  which  it  proposes  to  make 
use  of  in  the  business  of  making  a  Federal  elector  must  be  placed  in 
point  of  time  in  front  of  the  exercise  of  the  office  of  an  elector.  Xo  part 
of  it  can  be  placed  behind,  because  on  that  day  the  power  of  the  State 
over  the  subject-matter  is  completely  and  forever  ended. 

Now,  in  the  way  of  enforcing  this  view,  let  me  take  some  propositions 
that  seem  to  me  to  be  exceedingly  conclusive  in  regard  to  it.  In  the 
first  p'lace  take  the  common,  plain,  practical,  every-day,  non-lawyer  sense 
of  the  thing,  and  how  does  it  look  then  ?  Everybody  agrees  that  the 
trial  of  the  matter  as  to  who  is  appointed  is  a  part  of  the  appointment 
itself.  Therefore  I  concede  that  it  is  within  the  power  of  the  State  to 
try  the  title  of  her  electors.  She  can  try  it  by  quo  warranto;  she  can 
try  it  by  any  machinery  she  pleases.  It  is  within  the  province  of  the 
State  to  try  the  question  by  her  own  machinery  as  to  whom  she  has 
selected  to  cast  her  vote ;  but  if  she  makes  any  part  of  that  machinery 
up  in  such  a  way  that  the  trial  cannot  come  until  after  the  office  is  per 
formed,  then  she  must  content  herself  with  such  scrutinies  as  she  has 
arranged  in  advance  of  the  discharge  of  the  function  of  the  elector. 
How  would  an  act  of  a  legislature  sound  which  read :  "  Be  it  enacted, 
That  this  State  reserves  to  herself  the  power  to  try  by  quo  warranto 
who  were  her  Federal  electors  after  the  time  when  they  are  compelled 
to  cast  the  electoral  vote  1n  Would  not  such  an  act  be,  on  its  very  face, 
simply  a  monstrosity  ?  Would  it  help  it  any  to  add  the  proviso :  "Pro 
vided,  That  somebody  shall  start  the  quo  warranto  suit  before  the  vote 
is  cast?" 

Suppose  you  should  see  a  system  of  government  that  deliberately 
placed  any  part  of  the  trial  or  "  contest "  of  an  election  to  an  office  after 
the  office  by  the  very  organic  law  must  have  been  performed  and  passed 
away  !  You  would  say,  would  you  not,  that  such  a  system  was  simply 
insane  ?  To  give  to  the  States  the  power  here  claimed  would  be  not 
only  this  degree  of  insanity,  but  would  also  enable  the  States  to  contest 
an  election  after  every  possible  function  of  the  office  must  have  been 
discharged,  and  also  it  places  this  contest  and  destruction  of  the  vote 
by  the  State  after  the  time  when  all  the  State's  power  over  the  vote  is 
carefully  withdrawn.  More  even  than  this  ;  it  enables  any  one  who  can 
manipulate  the  courts  of  the  States  to  render  an  election  by  the  people 
impossible,  or,  at  best,  within  the  mercy  of  the  courts.  Surely,  such  is 
not  the  insanity  of  the  Constitution.  In  this  view,  therefore,  I  repeat 
that  the  State  must,  by  the  very  nature  of  the  case,  place  her  election 
machinery  for  testing  or  determining,  whether  by  her  returning-board, 
or  by  courts  in  quo  warranto,  or  in  whatever  tribunal  she  may  please, 
the  question  whom  she  has  selected,  before  the  time  when  the  office  ex 
pires,  her  powers  over  the  vote  have  ended,  and  her  act  has  become  an 
investiture  of  government  by  act  of  the  State. 

But  take  another  step.  Everybody  agrees — the  Constitution's  terms 
and  its  history  both  combine  to  make  everybody  agree — that  the  reasons 
why  the  Constitution  held  back  from  the  State  and  kept  within  the 
nation  the  power  to  fix  the  day  for  counting  the  vote,  also  the  require 
ment  that  the  day  shall  be  the  same  in  all  the  States,  also  the  require 
ment  that  the  vote  shall  be  by  ballot  and  that  it  shall  remain  under 
seal  from  the  moment  of  its  casting  until  the  day  of  its  counting — those 
requirements  .are  confessed  all  to  be  in  the  Constitution  for  the  vital 
purpose  of  rendering  it  impossible  for  the  States  to  intrigue  after  they 


ELECTORAL    COUNT    OF    1877.  169 

knew  the  votes  of  sister  States,  for  the  changing  of  the  result  of  the 
election.  They  meant  that  no  post  liac  judgments,  no  political  intrigues, 
no  subsidized  courts,  should  be  enabled  to  destroy  the  votes  of  States 
and  unseat  a  President  after  they  had  found  out  just  how  many  votes 
must  be  destroyed,  by  purchased  judgments  in  quo  warranto  y  in  order  to 
unseat  a  President  elected  and  even  inaugurated  according  to  all  the 
forms  of  law.  And  here  let  it  be  remembered  forever  that  in  order  to 
unseat  Presidents  by  this  modern  plan  of  post-election  quo  warranto,  it 
is  not  necessary  that  any  rival  electors  should  have  voted  on  the  elec 
tion-day.  All  that  is  needed  is  that  enough  quo  warrantos  shall  be  got 
to  adjudge  bad  enough  of  the  electors  of  the  successful  party  to  change 
the  result. 

Tbe  third  volume  of  Elliot's  Debates,  page  101,  Story  on  the  Consti 
tution,  section  1475,  and  every  other  commentator  on  that  subject,  state 
the  reason  of  the  stopping  the  power  of  the  States  over  the  votes  at 
election-day,  sealing  them  up,  and  casting  of  them  on  the  same  day, 
just  as  I  have  stated  it  now.  No  debate  is  possible  with  regard  to  that 
vital  object,  or  about  that  being  the  design,  or  at  least  the  leading  design, 
of  these  provisions.  Now,  what  will  be  the  effect  upon  these  provisions 
of  the  Constitution  of  suffering  the  States,  by  judgment  in  quo  warranto 
or  acts  of  legislation  or  any  other  act  destructive  of  a  State's  vote  after 
they  have  found  out  how  their  sister  States  have  voted,  to  change  the 
result  by  placing  some  part  of  the  machinery  of  the  State  for  contesting 
this  election  after  the  election  is  over,  and  all  power  over  the  subject- 
matter  of  the  election  has  passed  over  to  the  nation  I  Plainly,  most 
manifestly,  right  on  its  face,  it  completely  destroys  every  object  for 
which  those  provisions  making  the  voting-day  the  same,  and  the  like, 
were  put  into  the  Constitution. 

Your  honors,  if  I,  in  my  own  State,  being  an  earnest  partisan,  after 
I  have  found  out  how  my  sister  States  have  voted  and  after  I  have 
learned  that  it  only  requires,  say,  nineteen  votes  to  be  destroyed  in  order 
to  change  the  presidential  election,  can  go  to  work  in  my  local  nisiprius 
court,  and  get  a  judgment  in  quo  icarranto,  and  this  in  my  own  name,  and 
without  the  leave  of  my  State,  (as  is  done  in  Florida,)  that  will  unseat 
the  electors  of  my  State  and  unseat  a  President,  then  I  have  turned  the 
Government  into  a  farce  and  the  Constitution  into  a  sham.  I  know  such 
a  caricature  of  our  form  of  government  is  revolting  to  every  mind  that 
I  now  address;  and  yet  I  defy  the  ingenuity  of  counsel  to  devise  a 
reply  which  will  show  that  these  opportunities  for  mischief,  nay,  sir, 
these  mischiefs  themselves,  will  not  come  if  you  suffer  the  determina 
tion  by  the  States  of  who  were  their  electors  to  come  after  they  have 
found  out  how  the  other  States  have  voted. 

But  the  reply  is  made  to  that,  "  We  commenced  our  quo  warranto 
before  the  vote  was  cast,"  Pray,  gentlemen  of  the  Commission,  tell  me 
how  does  that  relieve  the  subject  of  its  difficulties  ?  It  puts  you  just  in 
this  position :  Mark  you,  this  was  an  information  (and  so  it  may  be  in 
every  State  if  they  so  enact)  upon  the  part,  not  of  the  State,  but  of  a 
set  of  defeated  candidates.  It  therefore  puts  it  in  the  power  of  every 
individual  who  is  disappointed,  who  is  unhappy  about  results,  or  who  is 
"enterprising,"  to  attack  and  destroy  the  title  to  the  greatest  office  of  the 
world,  and  to  precipitate  the  nation  in  revolution  and  unutterable  disas 
ter.  The  mere  fact  that  such  a  one  chooses  to  launch  such  a  specu 
lative—a  private,  speculative,  or  tentative  quo  warranto,  before  the 
voting  is  done,  and  thus  putting  himself  in  the  position  of  preparing 
for  emergencies  after  he  finds  out  how  his  sister  States  have  voted— 
putting  himself  in  the  position  of  "  commanding  the  situation,"  in  the 


170  ELECTORAL    COUNT    OF    1677. 

situation  of  taking  time  by  the  forelock,  of  getting  hold  of  the  reins, 
puts  him  in  the  position  of  defeating  and  defying  the  provisions  of  the 
Constitution  setting  bounds  to  the  power  of  the  States  over  the  votes, 
thereby  causing  them  all  to  be  trampled  down. 

All  this  is  to  be  done  by  the  simple  act  of  a  private  individual  in  a 
nm-prius  court,  in  a  partisan  court,  starting  a  suit  that  cannot  be  tried 
until  long  after  the  election  is  over — starting  a  suit  for  the  purpose  of 
holding  the  reins  and  commanding  the  situation.  How  does  that 
launching  of  a  suit  before  the  vote  relieve  the  subject  of  its  difficulties  J? 
Not  in  the  slightest  degree.  I  submit  with  the  utmost  deference  both 
to  the  learned  counsel  on  the  other  side  and  to  the  Commission,  not  the 
slightest.  You  cannot  travel  an  inch  in  that  direction  without  destroy 
ing  the  guarantees  that  the  Constitution  has  so  wisely  furnished  whereby 
a  presidential  election  is  an  accomplished  fact  so  far  as  the  States  are 
concerned  contemporaneously  throughout  the  Union.  Was  that  not 
wise — do  not  the  debates  on  the  Constitution  show  you  the  sagacity  and 
the  marvelous  foresight  of  your  fathers  when  they  made  it  so  that  it 
was  impossible  for  the  States  to  find  out,  in  advance  of  their  own  action, 
how  their  sisters  had  voted?  Do  not  the  perils  of  this  hour,  nay,  the 
appalling  dangers  which  now  we  trust  in  God  are  passing  away,  in 
which  we  see  these  attempts  to  overthrow  the  votes  of  the  States  be 
cause  so  few  overthrown  will  change  the  result,  impress  us  anew  with 
the  wisdom  of  the  provision  which  requires  all  the  States  to  take  off 
all  their  hands  at  the  same  hour  from  all  presidential  votes  ? 

But,  gentlemen  of  the  Commission,  there  is  another  part  of  this  great 
theme  that  is  equally  conclusive;  and  indeed  I  have  not  followed  the 
points  that  I  had  marked  in  my  brief  at  all.  I  have  gone  over  as  many 
of  them  as  I  care  to  go  over  at  this  time,  except  the  one  that  I  now 
come  to. 

In  the  very  able  argument  that  was  offered  by  Mr.  O'Conor,  he  stated 
what  seemed  to  me  to  be  the  strongest  proposition  on  his  side  that  he 
did  state  at  all.  It  was  stated  in  reply  to  our  proposition  that  the 
elector  who  on  the  election-day  was  endowed  with  all  the  insignia  of 
office  which  the  State  laws  enabled  him  to  hold  on  that  day,  and  who 
thus  endowed  cast  the  vote  of  the  State,  that  such  an  officer,  so  en 
dowed,  had  in  fact  and  in  law  then  and  thereby  accomplished  an  act  of 
government;  that  whether  he  were  an  officer  de  jure  or  de  facto,  still 
being  upon  that  day  so  endowed,  so  IN  OFFICE,  so  acting  in  the  actual 
occupancy  of  office,  wit'i  all  apparent  right,  that  in  such  case  such  act 
constituted  an  act  of  government,  that  thereby  the  act  of  the  State  was 
accomplished  in  law — it  was  government,  not  mere  election,  but  govern 
ment — government  inaugurated,  accomplished,  endowed.  That  was 
our  proposition,  and  that,  therefore,  whether  de  jure  or  de  facto  an 
elector,  provided  he  had  all  the  evidences  and  insignia  of  right,  the  act 
was  good  as  the  act  of  the  State,  and  I  stand  by  that.  But  it  was  met 
by  what,  I  say,  was  the  strongest  position  that  can  be  taken  against  it, 
and  it  was  about  this,  as  near  as  1  can  state  it ;  I  shall  be  pardoned  if 
I  state  it  with  less  strength  than  it  was  stated  by  the  distinguished 
author  of  it.  It  was  about  this  :  "  You  are  mistaken,  gentlemen ;  that 
is  not  an  act  of  government ;  it  is  not  an  exercise  of  official  power  by 
one  in  office,  which,  if  not  sustained,  if  stricken  down,  would  hurt  some 
third  person,  some  public,  some  other  person."  "  That  is  not  your  case," 
says  Mr.  O'Conor,  "  but  this  is  your  case :  your  case  is  that  of  an  attempted 
vote,  that  vote  by  a  man  having  no  power  to  cast  it,  and  it  is  arrested  on 
its  way  to  Government  in  transitu;  it  is  arrested  by  our  process  in  the 
nature  of  a  quo  icarranto,  and  therefore  it  is  not  at  all  the  case  of  a  de 
facto  exercise  of  authority." 


ELECTORAL   COUNT    OF    1877.  171 

One  of  the  errors  of  that  position,  the  one  that  strikes  me  as  the 
fatal  one,  and  I  submit  it  with  the  utmost  deference,  is  that  it  mis 
states  the  nature  of  the  legal  characteristics  of  this  business  of  a  State 
casting  its  vote -by  its  electors.  That  is  government,  bless  you  ;  that  is 
more  than  an  election  ;  it  is  government.  It  is  the  last  act  of  the  State 
in  exercising  its  part  of  the  creation  of  a  President.  It  is,  therefore, 
when  done,  government  accomplished,  irrevocably  done. 

My  friend's  position  is,  if  I  conceive  the  truth  of  this  point,  utterly 
fallacious  in  that  it  assumes  a  legal  status  that  does  not  belong  to  the 
case  you  are  dealing  with,  a  case  where  a  State  has  endowed  her  elector 
with  all  the  right  which  her  machinery  enables  that  elector  to  hold  on 
the  day  that  he  must  vote.  He  has  it  all ;  every  appearance  of  right. 
Now  the  law  says,  the  Constitution  says,  the  necessities  of  the  case  say 
that  a  man  thus  endowed  on  that  day  when  the  act  must  be  accom 
plished,  if  ever,  can  perform  an  act  of  government,  and  he  does  do  it. 
Therefore  the  public  is  hurt,  the  community  is  hurt,  your  country  is 
hurt,  the  Constitution,  all  its  designs  are  hurt,  if  you  strike  down  an 
act  of  government  performed  and  forever  performed  on  the  only  day 
that  it  could  be  performed,  by  men  who  had  every  insignia  of  right  that 
the  State  laws  enabled  them  to  have  on  the  day  when  it  was  performed. 
Therefore  it  is  the  act  of  a  man  de  facto,  an  officer  whether  dejure  so  or 
not,  and  his  act  is  government  accomplished  when  it  is  performed 
under  all  the  apparent  rights  of  office  that  our  electors  were  surrounded 
with. 

In  enforcement  of  that  view,  suffer  me  to  call  your  attention  to  some 
language  in  the  case  of  Potter  vs.  Bobbins,  in  Clarke  and  Hall's  Con 
tested  Elections,  pages  900  and  901.  I  ought  to  say  in  regard  to  this 
case  what,  if  I  am  in  error  about,  the  very  learned  gentlemen  of  the 
Commission  will  correct  me,  that  I  understand  that  ever  since  its  an 
nouncement  it  has  been  admitted  and  held  to  be,  in  so  far  as  it  goes  in 
the  way  of  exposition,  the  law  of  the  Constitution  upon  the  subject  to 
which  it  relates.  It  was  pronounced  in  the  year  1834  by  the  Senate  of 
the  United  States,  in  one  of  the  most  celebrated  debates  that  ever 
occurred,  so  far  as  I  know,  in  the  history  of  the  Senate,  in  regard  to  the 
question  of  a  right  to  a  seat  in  that  body.  Among  the  men  who  debated 
it  and  who  sustained  the  position  that  is  here  stated  that  1  am  about  to 
read,  you  will  find  such  names  as  Bell,  Calhoun,  Clay,  Clayton,  Ewiug, 
Frelinghuysen,  Kent,  Mangum,  Poindexter,  Preston,  Webster,  and 
others,  embracing  of  course  some  of  the  most  illustrious  names  of  our 
country,  nearly  all  of  whom  participated  in  this  debate  and  who  voted 
to  sustain  the  proposition  that  I  am  about  to  read.  It  was  a  case  where 
the  legislature  of  Bhode  Island,  after  it  had  elected  Mr.  Bobbins  to  the 
Senate,  undertook  at  a  subsequent  meeting  of  the  legislature  to  declare 
that  election  worthless,  to  take  it  back,  to  put  in  the  place  of  Mr. 
Bobbins  Mr.  Potter,  whom  they  elected  six  mouths  after  they  had  elected 
Mr.  Bobbins.  The  report  in  the  case  discusses  the  power  of  the  State 
to  withdraw  the  act  of  election  on  the  one  hand  and  the  power  of  the 
Senate  on  the  other  hand  to  look  into  the  question  whether  or  not  some 
members  of  that  legislature  were  or  were  not  entitled  to  vote.  Upon 
the  question  of  the  power  of  the  State  to  take  back  any  part  of  its  act 
in  creating  a  Senator,  and  also  the  question  of  the  power  of  the  Senate 
to  look  into  the  question  of  the  individual  right  of  members  to  vote  m 
the  body  that  composed  the  legislature,  the  report  in  that  case  used 
language  that  I  now  read  : 

In  the  performance  of  this  duty,  the  State  acts  in  its  highest  sovereign  capacity, 
and  the  causes  which  would  render  the  election  of  a  Senator  void,  must  be  sucli— 


172  ELECTORAL    COUNT    OF    1677. 

And  I  call  attention  to  this  language  because  it  is  the  most  terse,  the 
best  stated  that  I  have  seen  on  the  subject — 

as  would  destroy  the  validity  of  all  laws  enacted  by  tbe  body  by  which  the  Senator 
was  chosen. 

It  must  go  to  the  destruction  of  the  body  itself,  and  cannot  inquire 
into  the  eligibility  of  the  persons  that  made  the  election.  Now,  omitting 
some,  I  read  this  : 

But  where  the  sovereign  will  of  the  State  is  made  known  through  its  legislature, 
and  consummated  by  its  proper  official  functionaries  in  due  form,  it  would  be  a  dan 
gerous  exertion  of  power  to  look  behind  the  commission  for  defects  in  the  component 
parts  of  the  legislature,  or  into  the  peculiar  organization  of  the  body  for  reasons  to 
justify  the  Senate  in  declaring  its  acts  absolutely  null  and  void.  Such  a  power,  if 
'carried  to  its  legitimate  extent,  would  subject  the  entire  scope  of  State  legislation  to 
be  overruled  by  our  decision,  and  even  the  right  of  suffrage  of  individual  members  of 
the  legislature,  whose  elections  were  contested,  might  be  set  aside.  It  would  also  lead 
to  investigations  into  the  motives  of  members  in  casting  their  votes,  for  the  purpose 
of  establishing  a  charge  of  bribery  or  corruption  in  particular  cases.  These  matters, 
your  committee  think,  properly  belong  to  the  tribunals  of  the  State,  and  cannot  con 
stitute  the  basis  on  which  the  Senate  could,  without  an  infringement  of  State  sover 
eignty,  claim  the  right  to  declare  the  election  of  a  Senator  void,  who  possessed  the 
requisite  qualifications  and  was  chosen  according  to  the  forms  of  law  and  the  Con 
stitution* 

What  now  is  the  application  of  that  to  this  occasion?  Manifestly 
this :  The  closest  analogy  which  we  have  at  all  under  our  system  of  gov 
ernment  to  this  choice  by  the  States  of  electors  is  the  one  I  have  just 
read  from,  is  the  choice  of  a  Senator.  The  language  of  the  Constitution 
in  regard  to  the  election  of  Senators  is  that  they  shall  be  chosen  by  the 
legislature,  and  that  that  choice  shall  be  in  such  manner  as  the  legisla 
ture  shall  prescribe — almost  the  precise  words  of  the  Constitution  in  re 
gard  to  the  manner  of  choosing  electors. 

It  is  true  that  the  Senate  itself,  having  the  large,  unlimited  range  of 
vision  that  belongs  to  courts  when  trying  quo  warrantos,  having  the 
power  of  trying  the  election  of  its  members,  cannot  without  invading 
the  rights  of  the  States  go  behind  the  action  of  the  legally-constituted 
legislature  for  the  purpose  of  inquiring  into  the  eligibility  of  the  men 
who  created  the  appointment,  cannot  strike  down  that  act  of  the  legis 
lature  except,  to  adopt  the  words  of  this  report,  for  causes  that  would 
render  the  laws  passed  by  the  legislature  invalid.  If  that  be  so,  1  say, 
in  regard  to  this  limitation  on  the  powers  of  the  Senate  on  one  side  to 
overthrow  the  action  of  the  States  in  making  the  election,  and  also  on 
the  other  side  limiting  the  powers  of  the  States  to  take  back  an  election 
that  is  accomplished  according  to  the  forms  of  law,  if  that  be  true  in 
this  case,  as  it  is,  then  it  must  be  true,  I  submit,  utterly  true  be 
yond  fair  room  for  debate,  that  when  the  States,  whose  power  is  limited 
to  a  single  act  of  appointing  according  to  the  requirements  of  the  legis 
lature  electors,  have  made  that  appointment,  have  made  it  on  the  only 
day  that  they  could,  have  made  it  by  the  men  who  held  on  that  day 
every  vestige  and  indication  of  right  which  it  was  possible  to  hold  on 
the  day  of  election — if  it  be  true,  I  say,  that  such  is  the  limitation  as 
between  the  Senate  and  its  members,  how  much  more  thoroughly  true 
must  it  be  that  this  body  having  no  power  but  the  power  to  count — 
I  care  not  now  how  latitudinary  you  may  make  that  word  signify  for 
the  purposes  of  this  Commission,  still  it  is  but  a  power  to  count — how 
much  more  true  must  it  be  that  under  your  power  to  count  you  cannot 
assume  that  these  officers,  appointed  according  to  the  form  of  every  law 
that  existed  on  election-day,  holding  all  the  authority  that  the  legisla 
ture  enabled  them  to  hold  on  that  day,  certified  by  every  certificate  that 


ELECTORAL    COUNT    OP    1877.  173 

it  was  possible  to  hold  under  the  laws  of  the  States  on  that  day,  you, 
with  no  other  power  than  the  power  to  count,  cannot  go  back  and  de 
stroy  by  quo  warranto  or  anything  else  that  act  after  the  accomplish 
ment  of  the  election  of  a  President,  and  thus  throw  away,  destroy, 
overthrow  an  election  accomplished  according  to  all  the  forms  of  law. 

Gentlemen,  I  say  without  exaggeration  and  without  falling  into  any 
extravagance  that  comes  from  heat  of  debate,  that  it  is  inevitably  true 
that  if  you  suffer  men  to  start  away  down  in  the  piepoudre  courts  of  our 
country,  on  their  own  private  motion,  quo  warrantos,  or  bills  in  the  leg 
islature,  or  any  act  that  shall  unseat  the  President  of  the  United  States 
before  the  day  of  counting,  you  can  unseat  him  after.  I  challenge  gen 
tlemen  to  show  where  that  rule  of  law  is  that  shall  say,  "  thus  far  thou 
mayest  go,  and  no  farther."  If  you  can  unseat  Mr/Tilden  to-day,  he 
being  the  President,  by  a  judgment  of  a  republican  court  in  my  repub 
lican  State  you  can  do  it  after  he  is  in  office,  for  there  is  no  limitation 
upon  the  power ;  and  there  is  no  principle  that  compels  the  courts  that 
have  jurisdiction  in  quo  loarranto,  and  whose  case  is  simply  started  before 
the  vote,  to  make  their  decision  before  the  count  in  February ;  no  prin 
ciple  that  compels  them  to  make  their  decision  before  the  inauguration- 
day;  and  you  establish  that  rule,  and  you  have  at  once  put  it  in  the  power 
of  the  States,  as  I  have  already  remarked,  to  overthrow  the  Constitu 
tion,  to  destroy  it  in  this,  its  very  citadel,  and  to  end  the  life  of  the  state. 

I  thank  you,  gentlemen,  for  the  very  singular  kindness  with  which  I 
have  been  listened  to. 

Mr.  EVARTS.  Mr.  President  and  gentlemen  of  the  Commission,  the 
wisdom  of  the  method  and  order  of  this  examination  adopted  by  the 
Commission  has  fully  proved  itself  in  its  execution.  The  intelligent  and 
experienced  and  learned  minds  acting  in  the  Commission  saw  at  once 
that  the  decisive  lines  of  the  controversy  were  to  be  determined  upon 
the  limitation  of  their  powers  and  the  limitation  of  the  subjects  and  the 
means  for  producing  those  subjects  upon  which  those  powers  were  to 
act.  In  the  full  discussion  accorded  to  counsel,  and  in  the  deliberations 
of  the  Commission  extended  during  the  periods  of  their  private  session, 
the  result  is  disclosed  in  this  form  and  to  this  effect,  that  this  Commis 
sion  will  receive  no  evidence,  and  will  merely  inspect  the  certificates 
that  the  Constitution  and  the  laws  of  the  United  States  have  authorized 
for  transmission,  and  as  such,  received  by  the  President  of  the  Senate, 
have  been  opened  to  the  two  Houses,  save  in  one  particular,  that  in  aid 
ing  them  to  inspect  these  certificates,  and,  within  the  limits  of  the  in 
formation  there  disclosed,  determine  and  advise  the  two  Houses  of  Con 
gress  how  many  and  what  votes  shall  be  counted  for  the  State  of  Flor 
ida,  it  will  receive  evidence  touching  the  eligibility  of  one  of  the  named 
electors  appointed.  In  that  determination  I  do  not  understand  the 
Commission  to  have  overpassed  the  question,  what  the  effect  is  as  to 
the  acceptance  or  rejection  of  a  vote  thus  challenged  for  ineligibility, 
but  to  have  decided  that  on  that  point  they  will  receive  the  evidence 
that  may  be  offered  in  order  that  they  may  determine  in  the  first  place 
whether  upon  the  facts  the  exception  taken  to  Humphreys's  vote  is 
maintainable;  and  secondly,  whether,  if  maintainable  and  maintained 
upon  the  facts,  the  methods  of  the  Constitution  and  the  duty  now  pres 
ently  being  discharged  permit  of  any  rejection  from  the  certificated 
vote  transmitted  and  opened  of  the  vote  of  an  elector  upon  that  ground. 

I  will  first  deal  with  the  question  of  fact.  I  call  the  attention  of  the 
Commission  to  the  proposition  that  the  point  of  exception  under  the 
Constitution,  the  matter  proposed  of  disqualification  under  the  Consti 
tution,  is  simply  this  :  that  at  the  time  of  his  appointment  he  filled  an 


174  ELECTORAL    COUNT    OF    1877. 

office  of  honor  or  emolument  under  the  United  States.  I  except  to  the 
mode  of  proof  as  to  its  effect  when  it  stops  where  it  did.  that  was  used 
by  the  excepting  party  to  his  qualification,  that  they  used  a  commission 
of  the  date  of  1872  and  proved  no  occupation  of  the  office  later  than 
August,  1876.  I  understand  that  when,  under  the  certificate  of  a  gov 
ernor  the  vote  of  a  State  is  in  the  very  process  of  counting,  to  be  ques 
tioned  in  the  presence  of  the  two  Houses  of  Congress,  no  exception  that 
shall  proceed  for  its  prosperity  upon  the  power  of  the  exceptor  to  find  an 
old  commission  and  then  take  advantage  of  the  unreadiness  or  want  of 
notice  that  the  exception  was  to  be  raised  is  admissible,  to  argue  from  the 
ancient  case  that  all  things  remain  as  they  were  until  contradicted.  The 
danger  of  that  proposition  in  a  transaction  of  this  nature  can  be  at  once 
discerned.  Let  whosoever  take  up  the  burden  of  proving  that  on  the  7th 
day  of  November  one  of  these  certified  electors  having  the  warrant  of  the 
seal  and  authority  of  the  State  as  having  been  elected  was  disqualified 
for  that  election,  he  must  prove  it  down  to  and  as  of  that  day.  But 
when  the  proof  stops  there,  the  neighbor,  the  friend,  the  lawyer  whose 
dealings  are  to  fill  out  with  living  effect  the  dead  commission,  stops  with 
his  necessary  proof  in  the  month  of  August,  you  have  failed  to  find  that 
actual  possession  and  use  of  the  office,  even  presumptively,  beyond  the 
date,  for  no  reason  was  given  in  the  witness's  evidence  why  his  knowl 
edge  stopped  there  unless  the  action  of  the  officer  stopped  there. 

You  must  dispose  of  this  question  of  fact  upon  some  method  of  strict 
ness  suitable  to  the  nature  of  the  transaction  in  which  you  are  engaged 
and  suitable  to  the  exercise  of  the  duty,  not  under  an  organized  and  ar 
ranged  Commission  like  this,  but  as  an  ordinary  discharge  of  constitu 
tional  duty  by  the  two  Houses  in  their  joint  convention  ;  and  I  submit 
that  there  is  no  claim,  the  proof  there  stopping,  that  it  is  to  be  regarded 
as  a  challenge  which  requires  the  fact  that  he  was  in  office  on  the  7th 
of  November  to  be  presumed. 

I  now  come  to  the  counter-proof,  supposing  that  that  step  is  passed ; 
and  the  counter-proof,  not  challenged  in  form,  comes  to  this,  that,  early 
in  October,  Humphreys  resigned  in  writing  his  office  to  the  circuit  judge 
of  that  circuit,  and  received  from  him  an  acceptance  of  the  resignation, 
such  judge  proceeding  to  instruct  him  to  turn  over  whatever  of  public 
means  for  the  exercise  of  the  office  he  held  to  the  collector  of  customs, 
who  would  discharge  the  office,  such  judge  at  the  same  time  advising 
the  collector  of  the  accepted  resignation  and  of  the  devolution  of  the 
office  upon  him,  followed  by  the  evidence  of  Mr.  Humphreys  that  there 
after,  from  the  early  day  in  October,  he  himself  discharged  no  part  of 
its  duties  and  held  out  no  professions  of  capacity  to  discharge  them, 
and  moreover  that  the  collector  from  that  time  thenceforth  until  after  the 
period  of  inquiry,  the  7th  of  November,  and  perhaps  till  now,  occupied 
the  office  and  discharged  its  duties. 

Upon  this  plenary  and  apparently  conclusive  proof,  an  objection  is 
made  that  as  the  appointment  was  made  by  the  circuit  court,  the 
resignation  could  only  be  made  to  and  received  by  the  court  in  session, 
and  that  no  such  session  having  taken  place,  within  the  meaning  of 
the  Constitution  of  the  United  States  which  prescribes  as  a  qualification 
for  an  elector  that  he  should  not  exercise  an  office  under  the  United 
States,  Mr.  Humphreys  was  an  officer  of  the  United  States  on  the  7th 
day  of  November.  Now,  this  office  had  no  term  whatever  prescribed 
by  statute ;  it  had  no  enlargement  by  necessity  or  by  prescription 
beyond  the  present  will  of  resignation.  The  office  itself  was  secured 
for  the  public  by  no  clause  requiring  it  to  be  occupied  and  exercised 
until  a  successor  was  qualified.  There  was  no  need  of  the  office  being 


ELECTORAL    COUNT    OF    1677.  175 

refilled.  The  act  took  care  of  the  service  by  prescribing  that  when 
there  was  no  officer  of  this  kind  the  collector  should  discharge  the  duty 
of  this  act  of  Congress. 

Upon  that  state  of  law,  in  view  of  the  existing  legislation  of  Congress 
on  the  subject  of  resignations  to  which  I  shall  call  your  attention,  is  it 
to  be  pretended  for  a  moment  that  there  was  any  power  to  hold  an 
occupant  of  that  office  to  the  performance  of  its  duties  one  moment 
beyond  his  will  ?  Can  it  be  pretended  that,  beyond'  the  necessity  of 
the  conveyance  of  the  resignation  as  determining  that  will,  executed 
and  placed  in  the  power  of  the  authority  thus  made  its  depositary,  he 
could  be  held  under  any  law,  if  there  had  been  any,  or  his  sureties 
under  any  law  or  jurisprudence  enforcing  the  obligations  of  sureties, 
for  the  failure  to  perform  acts  or  to  do  duties  after  his  office  was  thus 
resigned  ? 

Besides,  look  at  the  nature  of  this  disqualification  as  proposed  to  the 
voters  in  the  State  of  Florida  and  those  who  produce  the  candidates 
and  name  them  to  be  voted  for.  Is  the  title,  the  paper-title  back  in  the 
archives  of  courts  or  offices,  to  be  searched  for  by  electors  in  deter 
mining  whether  their  fellow-citizen  Mr.  Humphreys  shall  receive  their 
votes  9  They  know  who  are  in  the  possession  and  in  the  exercise  of 
offices  under  the  Government  of  the  United  States  by  their  action,  by 
their  public  possession  and  exercise  of  office  ;  and  now  when  Mr.  Hum 
phreys,  to  the  knowledge  of  his  neighbors  in.  Pensacola  and  the  com 
munity  throughout  the  State  of  Florida,  is  out  of  his  office,  and  its 
constant  duties  are  performed  by  another  from  and  after  the  date  in 
October,  are  they  to  lose  the  effect  of  their  suffrage  by  the  production 
of  a  certificate  that  in  1872  he  held  the  office  f  I  think  not. 

I  have  said  I  would  ask  your  attention  to  the  only  provisions  in  the 
statutes  of  the  United  States  that  bring  their  bearing  upon  the  question 
of  resignation  j  and  they  are  found  at  three  pages  ofthis  volume — 233, 
251,  and  277. 

Mr.  Commissioner  ABBOTT.     Are  you  quoting  by  pages  or  sections  ? 

Mr.  EV^  RTS.     Pages. 

Mr.  Commissioner  ABBOTT.    The  Eevised  Statutes  I 

Mr.  EVAETS.  Yes.  They  relate  only  to  resignations  of  military 
officers  or  enlisted  soldiers  in  the  nature  of  desertion.  Now,  under  a 
scheme  of  law  that  from  the  foundation  of  the  Government  until  now 
has  never  lifted  finger  to  restrict  the  right  of  citizens  to  retire  from 
office  at  their  mere  will,  who  shall  say  that  within  the  property  of  this 
electoral  qualification  and  this  count  of  it  on  this  evidence  any  question 
is  to  be  made  ? 

But  the  authorities  seem  to  be  very  clear  as  to  the  right  of  resigning 
without  even  acceptance.  In  section  260  of  Mr.  McCrary's  book  I 
read : 

Where  the  law  requires  an  officer  resigning  to  do  so  by  a  written  resignation— 

Where  the  law  in  terms  requires  an  officer  resigning  to  do  so  by  a 
written  resignation — 

to  be  sent  to  the  governor,  it  is  not  necessary  that  the  governor  should  signify  his 
acceptance  of  a  resignation  to  make  it  valid.  The  tenure  of  office,  m  such  a  case,  does 
not  depend  upon  the  will  of  the  executive,  but  of  the  incumbent. 

Mr.  Commissioner  ABBOTT.  Is  not  that  a  case  where  the  law  expressly 
provides  that  the  office  may  be  resigned  by  the  party  by  a  written  resig 
nation  without  any  acceptance  ? 

Mr.  EYARTS.     I  have  not  examined  the  law. 

Mr.  Commissioner  ABBOTT.     I  think  you  will  find  it  so. 


176  ELECTORAL    COUNT    OF    1877. 

Mr.  EVAETS.  It  is  spoken  of  as  a  law  which  requires  a  resignation 
in  writing.  This  careful  commentator  quotes  it  as  a  law  that  requires 
"  an  officer  resigning  to  do  so  by  a  written  resignation." 

A  civil  officer  has  the  absolute  right  to  resign  his  office  at  pleasure,  aud  it  is  not 
within  the  power  of  the  executive  to  compel  him  to  remain  in  office. 

And  the  authorities  for  this  are  given  in  the  first  volume  of  McLean's 
Reports,  page  512,  where  that  learned  judge  says : 

There  can  be  no  donbt  that  a  civil  officer  has  a  right  to  resign  his  office  at  pleasure ; 
and  it  is  not  in  the  power  of  the  executive  to  compel  him  to  remain  in  office.  It  is  only 
necessary  that  the  resignation  should  be  received  to  take  effect ;  and  this  does  not 
depend  upon  the  acceptance  or  rejection  of  the  resignation  by  the  President.  And  if 
Fogg  had  resigned  absolutely  and  unconditionally,  I  should  have  no  doubt  that  the 
defendant  could  not  be  held  bound  subsequently  as  his  surety. 

This  was  a  question  of  suretyship.  There  is  a  case  in  California,  The 
People  vs.  Porter,  6  California  Eeports,  27.  "Eesignation  of  office"  is 
the  head-note.  "A  resignation  is  effectual  without  its  acceptance  by 
the  appointing  power."  You  will  observe  that  under  this  condition  of 
law,  all  the  circumstances  of  this  office  making  its  application  a  necessary 
result  from  the  nature  of  the  office  and  the  tenure  not  limited  in  any  way, 
all  that  was  necessary  was  to  make  a  permanent  vacation  of  the  office, 
evidenced  by  the  conduct  of  the  resigning  officer,  and  followed  not 
necessarily  by  any  necessary  proof,  but  if  followed  by  the  public  posses 
sion  and  discharge  of  the  office  by  another,  it  took  the  officer  out  of  his 
place  within  the  disqualification  or  qualification  concerning  it. 

I  might  refer  to  a  very  important  proposition  made  by  Mr.  Manager 
Hoar  on  the  impeachment  of  Mr.  Belknap,  found  on  page  62  of  the 
Eecord,  volume  4,  part  7,  of  this  Congress,  the  two  concluding  para 
graphs  on  the  first  column  of  that  page.  I  will  not  occupy  time  by  read 
ing  them $  but  it  was  there  laid  down  by  the  authority  of  the  House  of 
Eepresentatives  through  their  managers  that  in  this  country  the  accept 
ance  of  a  resignation  was  not  essential  to  vacate  office,  and  that  the 
English  authorities  to  the  contrary  turned  upon  the  peculiarity  of  their 
laws  and  their  system  which  exacted  maintenance  of  office  against  the 
will  of  an  officer. 

Mr.  Commissioner  HOAE.  With  the  exception  there  stated,  that  of  the 
class  of  offices  which  a  person  could  be  compelled  by  mandamus  to 
accept. 

Mr.  EYAETS.  So  I  understood 5  but  that  was  drawn  from  the  Eng 
lish  cases. 

Mr.  Commissioner  HOAE.  And  the  early  Xew  England  cases.  The 
office  of  constable  a  person  could  be  compelled  by  mandamus  to  accept. 

Mr.  EVAETS.  But  there  it  was  I  believe  contended,  certainly  it  is 
matter  of  public  knowledge  and  history,  that  in  the  United  States  ser 
vice  there  are  no  such  civil  officers ;  and  no  pretense  of  any  such  obliga 
tion  has  been  set  forth.  We  have  been  satisfied  to  rest  upon  the  work 
ing  maxim  of  our  politics  that  none  resign. 

Kow,  I  will  consider,  and  very  briefly,  the  question  of  ineligibility  made 
apparent  by  proof  aliunde,  as  bearing  upon  the  question  whether  the 
vote  is  to  be  omitted  in  the  count.  That  question,  if  not  open  for  dis 
cussion,  will  nevertheless  occupy  me  but  a  very  brief  period,  and  I  must 
assume  that  it  is  open,  that  there  has  been  no  determination  that  ineli 
gibility  made  to  appear  by  extraneous  proof  would  lead  to  the  rejection 
of  the  vote.  This  clause  of  the  Constitution,  which  simply  prescribes 
an  exclusion  from  the  office  of  elector,  left  open  to  the  appointment  of 
the  States,  of  persons  filling  seats  in  Congress  or  occupying  office  under 
the  United  States,  is  a  clause  of  the  Constitution  not  executing  itself 


ELECTORAL    COUNT    OF    1877.  177 

and  not  executed  by  law ;  and  when,  therefore,  in  the  presence  of  the 
two  Houses,  the  transaction  commences  of  counting  the  presidential 
votes,  no  objection  of  that  kind  can  be  heard  or  entertained,  because 
Congress  has  not  filled  out  the  legislation  necessary  to  provide  the  means 
of  adducing  proof  in  advance,  one  way  and  the  other,  and  the  effect  that 
is  to  be  given  to  the  presence  of  a  disqualified  elector.  Let  me  call  your 
attention  to  a  case  of  the  greatest  weight  in  all  our  discussions  of  mat 
ters  before  the  Supreme  Court — the  case  of  Groves  vs.  Slaughter,  in  15 
Peters ;  I  read  from  page  500.  Look  at  that  question  as  it  was  presented. 
The  constitution  of  Mississippi  contained  this  provision : 

The  introduction  of  slaves  into  this  State  as  merchandise  or  for  sale  shall  be  prohib 
ited  from  and  after  the  1st  day  of  May,  1833. 

After  that  date  they  were  imported  for  sale ;  they  were  sold ;  and  the 
buyer  gave  his  notes  for  the  price ;  and  the  question  was  whether  the 
notes  could  be  collected.  The  courts  of  Mississippi  held  that  they  could 
not ;  and  the  Supreme  Court  of  the  United  States,  with  but  two  dissent 
ing  judges,  held  that  the  constitution  did  not  execute  itself  and  that 
until  legislation  was  provided  that  was  to  have  that  effect,  it  was  not 
executed.  The  court  had  the  advantage  in  their  decision  of  the  argu 
ments  of  the  ablest  men  at  the  bar;  Mr.  Clay  and  Mr.  Webster  both  ap 
peared  in  this  case  and  other  very  eminent  lawyers.  At  pages  500  and 
501,  Mr.  Justice  Thompson,  giving  the  opinion  of  the  court,  said : 

Admitting  the  constitution  is  mandatory  upon  the  legislature,  and  that  they  have 
neglected  their  duty  in  not  carrying  it  into  execution,  it  can  have  no  effect  upon  the 
construction  of  this  article.  Legislative  provision  is  indispensable  to  carry  into  effect 
the  object  of  this  prohibition.  It  requires  the  sanction  of  penalties  to  effect  this  object. 
How  is  a  violation  of  this  prohibition  to  be  punished  ?  Admitting  it  would  be  a  mis 
demeanor,  punishable  by  fine,  this  would  be  entirely  inadequate  to  the  full  execution 
of  the  object  intended  to  be  accomplished.  What  would  become  of  the  slaves  thus  in 
troduced  ?  Will  they  become  free  immediately  upon  their  introduction  or  do  they  be 
come  forfeited  to  the  State?  These  are  questions  not  easily  answered.  And  although 
these  difficulties  may  be  removed  by  subsequent  legislation,  yet  they  are  proper  cir 
cumstances  to  be  taken  into  consideration  when  we  are  inquiring  into  the  intention  of  the 
convention  in  thus  framing  this  article.  It  is  unreasonable  to  suppose  that,  if  this 
prohibition  was  intended,  per  se,  to  operate  without  any  legislative  aid,  there  would 
not  have  been  some  guards  and  checks  thrown  around  it  to  secure  its  execution. 

Now,  suppose  this  injunction  of  the  Constitution  is  mandatory  on  the 
States  not  to  appoint  as  electors  those  who  are  within  the  prescribed 
disqualification,  Congress  has  not  undertaken  to  execute  it;  the  States 
have  not  undertaken  to  execute  any  procedure  by  which  votes  for  dis 
qualified  persons 'shall  cause  the  failure  of  the  vote  of  the  State.  They 
have  provided  no  means;  none  have  been  exercised  here;  and  I  submit 
to  this  Commission  that,  laying  down,  as  you  must,  a  rule  that  is  suit 
able  to  the  ordinary  and  orderly  and  unretarded  progress  of  the  pro 
ceedings  of  the  two  Houses,  when  the  President  of  the  Senate  opens  the 
certificates,  and,  dealing  only  with  the  certificates  as  your  judgment 
about  evidence  is  they  must  deal  unless  in  this  particular,  you  must 
hold  that  in  this  particular  also,  unless  there  be  statutory  provisions  of 
the  United  States  or  of  the  State  purging  the  lists,  you  must  count  the 
vote  that  the  State  sends  forward  and  that  its  governor  certifies,  where 
there  is  no  question  of  objection  of  any  other  nature,  which,  of  course, 
the  case  now  being  considered  contains.  You  are  undertaking  to  deal, 
in  the  process  of  counting  the  vote,  with  a  question  to  be  settled  by 
fact  antecedent  to  the  appointment,  and  you  are  exposed  to  a  final  and 
irrevocable  rejection  ot  a  vote  from  the  mere  casual  impression  or  un 
certainty  of  evidence. 

This  subject,  then,  being  rejected  from  a  further  consideration,  I  under- 
12  E  0 


178  ELECTORAL    COUNT    OF    1877. 

staml  there  is  no  matter  left  but  for  the  execution  by  this  Commission 
of  the  duty  accorded  to  it  by  the  act  of  Congress  under  which  it  is 
organized,  to  determine  out  of  the  materials  of  these  three  certificates 
what  and  how  many  votes  are  to  be  counted  for  the  State  of  Florida. 

The  first  certificate  is  subject  to  no  criticism.  You  have  rejected  all 
means  whatever  of  questioning  it  by  evidence  as  to  what  occurred  before 
the  vote  was  cast,  before  the  vote  was  certified  by  the  governor,  or  after 
either  of  those  parts  of  the  transaction  up  to  the  time  of  the  counting. 
No  fact  can  intervene.  This  vote,  then,  is  to  be  counted,  not  because 
it  is  the  best  that  is  seen,  but  by  the  absolute  fullness  of  its  title  in  com 
plying  with  all  the  laws  that  have  been  imposed  by  Congress  concerning 
the  complete  verification  of  a  certificate.  The  fact  certified  is  not  gain 
said  by  proof,  for  it  is  excluded.  There  was  no  offer  of  proof  between  the 
fact  of  the  canvass  closed  and  recorded  and  the  governor's  certificate. 

This  certificate  then  includes,  with  every  degree  of  certainty  and  as 
surance,  the  votes  of  the  State  of  Florida,  and  there  are  four  votes  here, 
and  there  is  room  for  no  more.  To  make  it,  therefore,  of  any  practical 
importance  in  the  further  discussion,  there  must  be  apparent  on  the  two 
other  certificates  either  such  disparagement  of  the  first  or  such  authen 
ticity  in  the  latter  as  should  displace  the  one  and  substitute  the  other, 
or  there  must  be  such  production  of  rival  and  competing  certificates  as 
leaves  the  Commission  to  rest  in  doubt  and  uncertainty  as  to  which 
votes  are  to  be  counted. 

Now,  as  you  will  not  allow  evidence  outside  of  this  first  certificate  as 
bearing  directly  upon  its  actual  affirmative  authenticity  and  sufficiency, 
you  will  not  allow  any  evidence  collaterally  on  the  mere  presentation  or 
support  of  any  other  certificate.  If  another  certificate  comes  here  that, 
by  its  own  credit,  is  made  superior  to  ours,  it  displaces  it.  If  it  is  made 
equal  to  ours,  then  there  are  two  certificates,  and  then  you  must  deter 
mine  which  of  the  two,  or  whether  either,  is  entitled  to  consideration. 
That  leads  me  to  ask  attention  to  these  other  certificates,  so  called.  By 
the  only  certificate  that  relates  to  an  apparent  act  in  the  election  of 
President  of  the  United  States  on  the  part  of  the  State  of  Florida,  it  is 
shown  to  have  been  wholly  without  authority  of  law,  and  this  second 
certificate,  so  far  from  competing  with  the  first  or  disparaging  the 
first,  confirms  it  in  all  respects ;  in  the  first  place  negatively,  for  it 
wants  the  certificate  of  the  executive  that  is  prescribed;  in  the  second 
place,  by  an  entirely  superfluous  and  worthless  paper,  so  far  as  the 
Constitution  and  laws  of  the  United  States  are  concerned  and  so 
far  as  the  laws  of  Florida  are  concerned,  of  an  attorney-general  of  that 
State,  having  no  more  power  or  authority  to  certify  anything  about  the 
election  than  the  commander  of  the  militia  of  the  State,  carrying  there 
fore  on  its  face  no  invitation  to  your  hospitality  and  excluding  itself 
from  consideration  by  its  being  wholly  without  legal  support  in  the  laws 
of  Florida  and  wholly  unrecognized  under  the  Constitution  and  laws  of 
the  United  States. 

But  if  you  treat  it  as  a  paper,  read  it  for  what  it  says.  It  shows  you 
that  the  recorded  canvass  as  it  lay  in  the  secretary  of  state's  office  was 
the  only  transaction  in  that  election  that  the  governor  of  the  State  by 
its  laws  could  certify  to,  and  that  his  certificate  rested  upon  that  fact 
and  could  not  be  questioned  for  reason  of  its  not  observing  the  execu 
tive  duty.  Let  me  ask  your  attention  to  the  true  resulr  of  this  certifi 
cate,  as  was  well  and  firmly  stated  by  my  associate,  Mr.  Stoughton, 
when  he  said  that  it  showed  that  it  would  have  been  a  violation  of  duty 
on  the  part  of  the  governor  of  the  State  of  Florida  to  have  certified  or 
looked  at  anything  else,  provided  you  take  this  attorney -general's  cer- 


ELECTORAL    COUNT    OF    1877  179 

tificate  of  what  the  law  is.  He  describes  himself  as  an  attorney-general, 
and  by  virtue  of  that  office  one  of  the  members  of  the  board  of  State 
canvassers  of  the  State  of  Florida,  and  he  undertakes  to  certify  "  that, 
by  the  authentic  returns  of  the  votes  cast  in  the  several  counties  of  the 
State  of  Florida,  *  *  *  said  returns"— that  is,  the  county  returns-— 
"  being  on  file  in  the  office  of  the  secretary  of  state,  and  seen  and  con 
sidered  by  me  as  such  member  of  the  board  of  State  canvassers  of  the 
said  State  of  Florida,  it  appears  and  is  shown"  that  the  four  gentlemen 
named  "  were  chosen  the  four  electors  of  President  and  Vice-President 
of  the  United  States." 

Aud  I  do  further  certify  that,  under  the  act  of  the  legislature  of  the  State  of  Florida 
establishing  said  board  of  State  canvassers,  no  provision  has  been  enacted,  nor  is  any 
such  provision  contained  in  the  statute  law  of  this  State,  whereby  the  result  shown 
and  appearing  by  said  returns — 

That  is,  the  county  returns — 
to  said  board  of  State  canvassers  can  be  certified  to  the  executive  of  the  said  State. 

If  that  is  not  as  complete  an  exclusion  of  the  possibility  of  there  being 
any  reliance  or  resort  by  the  laws  of  Florida  on  the  part  of  the  execu 
tive  to  any  of  this  evidence,  these  returns,  or  any  part  of  them,  what 
could  supply  such  a  conclusion?  And  when  you  look  at  the  law  of 
Florida  already  brought  to  the  attention  of  the  Commission,  you  find 
that,  as  a  part  and  the  final  part  of  the  transaction  of  appointing 
electors,  the  canvassers  having  made  their  report,  it  is  the  governor's 
duty  thereupon  to  issue  his  certificate  to  the  electors  thus  shown  to  be 
elected,  which  is  the  final  warrant  by  the  State  of  Florida  of  their  ap 
pointment  and  the  justification  of  their  action  in  voting. 

I  come  now  to  a  third  certificate,  so  called,  and  we  are  to  proceed  to 
inquire  whether  there  is  anything  on  that  which  disparages  or  overtops 
the  paramount  authority  of  the  first  certificate.  In  regard  to  this  cer 
tificate,  I  say  that  it  is  a  paper  having  no  warrant  whatever  under  the 
Constitution  or  laws  of  the  United  States  or  of  the  State  of  Florida— I 
mean  the  laws  of  the  State  of  Florida  as  they  existed  when  the  ap 
pointment  was  completed  and  when  the  vote  was  cast  and  certified  and 
transmitted  here.  It  is  a  posthumous  certificate  of  post-mortem  action, 
never  proceeding  from  any  vital  or  living  college  of  electors,  but  only 
by  the  galvanic  agency  of  interested  party  purpose,  taking  effect  after 
the  whole  transaction  was  ended.  I  submit  to  your  honors,  without 
making  any  imputation  as  between  political  parties,  that  the  inspection 
of  this  certificate  shows  that,  the  transaction  having  gone  on  and  been 
completed  within  the  purview  of  the  Constitution  and  the  laws  of  the 
United  States  and  the  laws  of  the  State  of  Florida,  a  government,  com 
ing  into  being  on  the  subsequent  1st  of  January  by  the  change  of  po 
litical  parties,  undertakes  to  undo  what  has  already  been  done. 

That  proposes  (without  offense  to  the  arrangement  of  the  two  parties 
in  this  transaction)  that  one  party  was  in  possession  of  power  during  the 
procedure  of  the  transaction  and  was  succeeded  by  a  change  of  party. 
It  would  be  just  the  same  if  the  reverse  situation  in  the  names  of  the 
parties  were  concerned.  If  it  can  be  done,  then  all  the  care  and  all  the 
wisdom  and  all  the  contrivances  that  are  to  make  this  transaction  in  the 
States  final  at  some  point,  certifiable  at  some  point,  and  in  some  manner 
and  by  some  officer,  are  to  go  for  nothing,  if  when  there  are  new  officers, 
new  interests,  new  legislators,  by  either  or  all  the  powers  of  the  changed 
government,  the  vote  that  has  been  deposited  can  be  corrupted,  sub 
tracted,  obscured,  or  substituted ;  if  legislature,  governor,  judiciary,  all 
enter  into  the  transaction  that  is  to^substitute  for  the  deposited  vote  of 


180  ELECTORAL   COUNT   OF    1877. 

the  State  a  vote  tbat  they  then  presently  seek  to  deposit,  or  that  its 
efficacy,  if  not  adequate  for  its  own  counting,  shall  displace  the  counting 
of  the  completed  transaction. 

This  certificate,  opened  by  the  President  of  the  Senate,  and  by  that 
mere  act  therefore  laid  before  the  Houses  of  Congress,  and  transmitted 
here,  when  the  contents  are  opened  and  read,  is  shown  to  be  no  cer 
tificate  under  the  Constitution  of  the  United  States  or  the  act  of  Con 
gress  or  the  laws  of  Florida  in  existence  at  the  time  of  the  casting  of 
the  electoral  vote  of  that  State  within  its  borders.  It  is,  under  the 
aspect  and  the  cover  of  a  certificate,  transmitted  to  the  President  of 
the  Senate,  connected  with  the  election,  made  the  vehicle  of  carrying 
into  the  physical  presence  and  power  of  the  two  Houses,  and  thus  of 
this  Commission,  what  is  utterly  nugatory,  utterly  ineffectual,  utterly 
unauthorized  by  any  provision  of  the  Constitution. 

You  cannot  count  that,  then,  as  an  electoral  vote.  Nobody  pretends 
that  that  certificate,  coming  here  on  the  31st  of  January,  reciting  legis 
lation  not  completed,  I  think,  until  the  26th,  and  some  quo  icarranto 
judgment  referred  to  that  was  terminated  on  the  23d  or  17th — the  dates 
are  utterly  immaterial — is  a  paper  that  the  President  of  the  Senate 
was  by  the  Constitution  required  to  receive.  It  is  not  a  paper  that  is 
a  certified  vote  of  a  State.  It  is  not  a  paper  that  can  carry  any  means 
of  furnishing  you  with  the  vote  of  the  State  to  be  counted.  So  in 
respect  of  evidence  it  is  wholly  without  authority. 

It  will  be  observed  that  the  certificate  of  Governor  Drew,  by  public 
knowledge  shown  to  have  come  into  his  office  on  the  1st  of  January  or 
later  perhaps,  but  the  term  of  his  office  dates  from  then,  undertakes  by 
authority  of  an  act  passed  January  17,  1877,  which  had  ordered  a  new 
"  canvass  of  the  returns  of  said  votes  on  file,"  which  canvass  "  was,  on 
the  19th  day  of  January,  made  according  to  the  laws  of  the  State  and 
the  interpretation  thereof  by  the  supreme  court,"  to  recite  that  four 
gentlemen  named  u  were  duly  determined,  declared,  and  certified  " — 
that  is,  by  these  canvassers  taking  up  the  transaction  in  January  under 
a  law  passed  in  January,  and  making  a  scrutiny  ending  on  the  17th — 
"  to  have  been  elected  electors  of  President  and  Vice-President  of  the 
United  States  for  the  State  of  Florida  "  at  the  past  election  in  Novem 
ber,  " as  shown  by  said  returns;"  and  it  further  recites  that — 

In  a  proceeding  on  the  part  of  the  State  of  Florida  by  information  in  the  nature  of 
quo  warranto  wherein  the  said  Robert  Bullock,  Robert  B.  Hilton,  Wilkinson  Call,  and 
James  E.  Yonge  were  relators,  arid  Charles  H.  Pearce,  Frederick  C.  Humphreys,  Will 
iam  H.  Holder),  and  Thomas  W.  Long  were  respondents,  the  circuit  court  of  this 
State  for  the  second  judicial  circuit,  after  full  consideration  of  the  law  and  the  proofs 
produced  on  behalf  of  the  parties  respectively,  by  its  judgment  determined  that  said 
relators  were,  at  said  election,  in  fact  and  in  law,  elected  such  electors  as  against  the 
paid  respondents  and  all  other  persons: 

Now,  therefore,  and  also  in  pursuance  of  an  act  of  the  legislature  entitled  "An  act 
to  declare  and  establish  the  appointment  by  the  State  of  Florida  of  electors  of  Presi 
dent  and  Vice-President  of  the  United  States,"  approved  January  26,  A.  D.  1877,  I, 
George  F.  Drew,  governor  of  the  State  of  Florida,  do  hereby  make  and  certify  the 
following  list  of  the  names  of  the  said  electors  chosen,  appointed,  and  declared  as 
aforesaid,  to  wit : 

The  certificate  required  was  a  certificate  to  be  delivered  to  the  college 
of  electors  at  or  before  the  day,  and  that  is  the  only  certificate  which 
can  have  any  force;  and  here  we  have  a  certificate  of  a  governor  who 
was  not  governor  at  that  time. 

Then,  besides,  we  have  all  that  is  here  stated,  absolutely  post  hac, 
subsequent  to  the  transaction,  and  only  allowed  to  present  itself  on  the 
31st  day  of  January  just  past,  to  have  some  influence  upon  the  trans 
action  that  had  been  completed  and  been  certified;  and  that  when  the 


ELECTORAL   COUNT   OF    1877.  181 

two  competing  certificates  of  the  rival  electors  had  been  finished  and 
placed  in  possession  of  the  President  of  the  Senate  long  before  this 
authority  arose.  What  becomes  of  the  authority  in  Congress,  exercised 
under  the  Constitution,  to  say  that  the  votes  shall  all  be  delivered  on 
the  part  of  the  States  on  the  same  day  ?  Is  not  that  a  substantive  pro 
vision?  Is  not  that  a  hold  that  Congress  by  the  Constitution  was  given 
concerning  the  deposit  of  the  electoral  vote?  Certainly  it  was.  What 
becomes  of  the  provision  of  the  act  of  Congress,  justified  by  the  Con 
stitution,  that  the  elections  or  other  methods  of  appointment  that  the 
State  may  use  shall  be  on  the  same  day?  What  does  it  mean  ?  Does 
it  mean  anything!  Did  our  fathers  trifle  upon  questions  of  punctilio 
and  order?  No.  If  it  means  anything,  it  means  that  it  must  be  done 
on  one  day,  that  it  shall  not  be  undone  on  any  other  day.  It  is  to  be 
done  on  one  day ;  it  is  to  be  finished  on  one  day ;  and  they  would  laugh 
at  the  triviality  of  the  wisdom  of  their  successors  in  the  great  places  of 
the  Constitution,  the  Senate  and  the  House  and  the  great  judges  of  the 
laud,  if  on  the  first  occasion  that  it  became  necessary  or  at  all  effectual 
to  undo,  it  should  be  held  as  constitutional  law  that  when  it  was  pro 
vided  it  should  all  be  done  on  one  day,  that  meant  that  after  what  was 
done  was  known,  and  after  the  importance  of  undoing  it  was  under 
stood,  and  after  the  change  of  parties  or  the  ambition  of  human  nature 
made  it  important  to  undo  in  separate  parcels  and  at  various  times  what 
had  been  supposed  to  have  been  concluded  and  made  sacred  in  the 
deposit  that  the  Constitution  had  assigned  for  a  finished  transaction, 
that  courts,  that  legislatures,  that  governors  remote  from  responsibility, 
or  seconded  in  their  transgressions  by  the  opinion  of  party  and  the 
applause  of  political  interests,  should  have  the  fingering  of  every  vote 
for  President  until  the  counting  was  concluded. 

What  are  the  prodigious  claims  here?  That  by  a  lawsuit,  and  a  law 
suit  in  a  State  court,  begun  and  ended  it  may  be  afterward,  begun  if 
yon  please  before  but  ended  afterward,  by  virtue  of  that  transaction  the 
State's  completed  vote  is  ro  be  retrieved  and  reversed ;  and  that  when  a 
justice's  court  of  the  first  instance  has  so  decided,  as  my  learned  brother, 
Mr.  Green,  has  said,  the  courts  of  the  United  States  make  a  low  obeisance 
to  Mr.  Justice  White,  and  say,  "  That  is  the  end  of  the  law ;  that  is  the 
fiat  of  the  State."  Well,  supposing  that  we  had  succeeded  in  counting 
a  President  in  under  quo  warranto,  justified  under  the  Constitution  and 
the  laws  as  they  now  are  or  that  shall  be  opened  by  legislation  to  the 
tribunals  of  the  country,  and  suppose  that  then  a  quo  warranto  is  started 
to  prove  that  the  President  in  his  seat  should  be  dislodged  because 
some  of  the  votes  counted  for  him  were  not  by  de-jure  electors,  and  then 
it  is  proposed  that  the  decision  of  the  State  court  is  "  the  be-all  and  the 
end-all"  of  that  inquiry;  that  whichever  of  these  candidates  takes  his 
seac  as  President  of  the  United  States  in  a  situation  of  evenly-balanced 
elections,  his  continued  possession  of  the  Federal  office  upon  the  judg 
ment  post  hac  of  a  State  court  that  holds,  whenever  a  quo  warranto  comes 
to  an  end  by  due  procedure  of  their  laws,  that  the  title  of  the  President 
that  acquired  the  count  of  the  votes  of  Ohio  or  of  New  York  was  a  mis 
count,  a  count  of  spurious  votes,  so.  held  and  determined  by  the  State  in 
the  independence  of  its  judiciary  passing  upon  the  question.  What  sort 
of  a  government,  what  sort  of  a  presidency,  what  sort  of  muniments  and 
protections  of  regularity  and  permanence  of  authority  under  the  Consti 
tution  are  provided  by  a  scheme  of  perpetual  four  years'  dependence 
upon  a  quo  warranto  in  the  State  of  Nevada  or  of  Florida  ? 

You  then  must  never  lose  sight  of  the  matter  that  you  are  to  advise 
what  votes  and  how  many  shall  be  counted  by  the  two  Houses  that 


182  ELECTORAL    COUNT    OF    1877. 

stand  in  a  present  duty,  never  intended  by  the  Constitution  to  be  inter 
rupted  by  a  day  or  by  an  hour.  When  you  have  determined  that  evi 
dence  shall  not  invade  the  regularity  of  the  finished  transaction  of  the 
State  or  defeat  the  regularity  of  the  certification  under  the  acts  of  Con 
gress  at  the  time  when  the  votes  are  sealed  up  in  their  packages  and 
transmitted — when  you  have  determined  that  that  shall  not  be  invaded 
by  extraneous  evidence,  you  have  determined  as  by  a  double  decision 
that  it  shall  not  be  invaded,  disparaged,  or  exposed  to  any  question  by 
a  mere  certificate  that  is  its  own  agent  arid  author  and  volunteer  in  dis 
turbance  of  the  counting  of  the  votes. 

The  PRESIDENT.  Will  any  other  gentleman  speak  on  your  side, 
Mr.  Evarts  ? 

Mr.  EVARTS.     We  have,  I  believe,  a  little  unoccupied  time. 

The  PRESIDENT.     O,  yes. 

Mr.  EVARTS.     We  do  not  propose  to  occupy  it. 

The  PRESIDENT.    The  case  is  submitted  on  your  side  ? 

Mr.  EVARTS.     Yes,  sir. 

The  PRESIDENT.  There  are  fifty-five  minutes  left  for  reply  to  the 
other  side. 

Mr.MERRICK.  Mr.President  and  gentlemen  of  the  Commission,  the 
duty  of  closing  this  argument  has,  I  regret  to  say,  been  imposed  upon 
me,  and  I  especially  regret  that  its  performance  should  be  required  at 
so  late  an  hour  of  the  day  and  after  so  protracted  a  session  of  the  Com 
mission  ;  but,  may  it  please  your  honors,  I  know  the  importance  of  a 
speedy  termination  of  the  labors  of  this  Commission,  and  shall  proceed 
to  the  discharge  of  my  duty  as  best  I  can  without  asking  the  indul 
gence  of  any  delay. 

The  counsel  on  the  other  side  in  their  arguments  to  day  seem  to  have 
taken  a  step  even  in  advance  of  that  taken  on  the  occasion  of  the 
preceding  argument,  and  now  seek  to  exclude  even  any  inquiry  what 
ever  into  the  subject-matter  submitted  to  this  Commission  for  their  con 
sideration  ;  and  while  the  learned  counsel  who  has  just  closed  has  so 
eloquently  called  your  attention  to  the  painful  condition  that  might  fol 
low  should  we  proceed  to  an  election  of  a  President  of  the  United  States 
subject  to  the  delays  that  would  be  incident  to  the  various  judgments 
that  might  be  rendered  on  quo  warrantos  instituted  in  different  States 
for  the  purpose  of  ascertaining  the  truth  of  the  due  election  of  electors, 
he  omitted  to  call  your  attention  to  the  counterpart  of  that  picture,  viz: 
the  condition  of  government  we  should  have  with  a  President  walking 
up  to  the  presidential  chair  along  a  pathway  strewn  with  recognized 
frauds,  perjuries,  and  crime,  into  which  the  people  of  this  country  are 
neither  allowed  to  inquire  through  their  representatives  in  the  Federal 
Congress  nor  through  their  representatives  in  the  governments  of  the 
States.  I  apprehend,  that  this  Commission,  in  considering  the  picture 
the  learned  gentleman  has  presented  to  you,  will  find  in  the  counterpart 
a  picture  more  painful  to  contemplate  than  that  which  he  has  drawn, 
and  one  from  which  the  mind  and  the  heart  of  every  patriotic  citizen 
will  start  back  pained  and  shocked  and  agonized. 

All  that  we  have  asked,  may  it  please  your  honors,  and  all  that  we 
ask  now,  under  the  rules  of  evidence  prescribed  by  this  tribunal,  is  that 
the  truth  shall  be  ascertained  in  these  matters  in  regard  to  which  you 
are  to  act,  and  that  when  that  truth  is  ascertained  it  may  become  in  its 
necessary  and  legal  results  substantially  and  practically  incorporated 
into  the  political  history  of  the  country. 

The  point  to  which  the  learned  gentleman  first  addressed  himself  was 
that  raised  by  the  counsel  for  the  objectors  this  morning  to  the  vote  of 


ELECTORAL    COUNT    OF    1877.  183 

Humphreys  because  of  his  position  as  an  official  under  the  Federal 
Government,  and  both  gentlemen  have  taken  the  position  that  we  are 
so  fastened  to  fraud  and  illegality,  if  either  should  exist  in  this  matter, 
that  there  can  be  no  inquiry  by  the  Congress  of  the  United  States,  ou 
this  Commission,  or  the  two  Houses  of  Congress,  to  ascertain  whether 
an  elector  coming  forward  and  depositing  his  ballot  is  within  the  class 
of  persons  inhibited  from  holding  the  office  of  elector  by  the  Constitu 
tion  of  the  United  States.  I  beg  pardon,  may  it  please  your  honors,  for 
using  the  word  "inhibited,"  for  to  speak  of  a  person  as  inhibited  by  the 
Constitution  from  holding  a  certain  Federal  office  or  to  speak  of  a  per 
son  as  ineligible  for  certain  reasons  is  to  convey  a  very  erroneous  im 
pression  of  the  provision  of  the  Federal  Constitution  on  the  subject  now 
under  consideration. 

This  provision  is  not  directed  immediately  to  any  personal  disability 
of  the  individuals  to  whom  it  refers,  nor  is  it  directed  immediately  to 
any  personal  disqualification  under  which  such  person  may  be,  but  the 
limitation  operates  upon  the  power  given  to  the  State,  and  disables  the 
State  from  appointing  such  persons,  rather  than  disables  the  person  from 
holding  the  office.  This,  probably,  is  the  only  article  in  the  Constitu 
tion  of  the  United  States  in  which  there  is  anything  in  the  nature  of  a 
grant  from  the  Federal  Government  to  the  States.  Throughout  our 
entire  system  the  Federal  Government  becomes  the  recipient  of  power 
from  the  States,  and  is  the  grantee  of  powers  and  not  the  grantor,  or  to 
speak  more  correctly  in  the  phraseology  of  the  law,  is  the  donee  and  not 
the  donor ;  but  in  this  particular  instance  a  power  is  given  to  the  States 
to  appoint  electors  in  such  manner  as  their  legislatures  respectively  may 
think  proper.  But,  says  the  article,  in  its  further  provision  limiting  the 
power  granted: 

No  Senator  or  Representative,  or  person  holding  an  office  of  trust  or  profit  under  the 
United  States,  shall  be  appointed  an  elector. 

You  will  see  from  the  phraseology  of  the  article  that  it  is  a  limitation 
upon  the  power  of  appointment  rather  than  a  specification  of  any  dis 
ability  in  the  appointee.  A  State  has  the  power  to  appoint  whom  it 
pleases  within  certain  limitations;  and  when  it  transcends  those  limita 
tions  it  does  not  execute  a  power  which  is  given  to  it,  but  assumes  to 
act  beyond  the  given  power,  and  the  attempted  appointment  is  there 
fore  absolutely  null  and  void.  And  yet  the  learned  counsel  ou  the  other 
side  contend  that,  whether  the  State  regards  this  requirement  of  the 
Federal  Constitution  or  not,  whether  the  State  in  the  execution  of  the 
power  delegated  to  her  shall  appoint  one  whom  it  is  beyond  her  power 
to  appoint  or  not,  we  are  not  permitted  to  enter  into  the  inquiry,  but 
must  accept  as  final  and  conclusive  in  a  presidential  election  the  vote 
of  one  whom  the  Constitution  of  the  United  States  has  declared  the 
State  shall  under  no  circumstances  appoint. 

In  contrast  with  this  provision  of  ^he  Constitution,  and  by  analogy  to 
develop  more  distinctly  the  view  I  have  presented,  recur,  may  it  please 
your  honors,  to  those  provisions  that  relate  to  the  personal  disqualifica 
tion  of  citizens  of  the  United  States  to  occupy  the  offices  of  Representa 
tives  and  Senators  in  Congress.  Those  provisions  ordain  that  no  per 
son  who  has  a  certain  disability,  or  who  fails  to  have  certain  qualifica 
tions,  shall  be  a  Senator  or  Representative ;  for  instance,  no  person  shall 
be  a  Representative  until  he  attains  the  age  of  twenty-five  years;  no 
person  shall  be  a  Senator  until  he  attains  the  age  of  thirty.  Under  the 
clauses  of  the  Constitution  referred  to,  if  an  individual  is  elected  to  the 
House  of  Representatives  before  he  is  twenty-five  years  of  age,  but 


184  ELECTORAL   COUNT    OF    1877. 

reaches  that  age  prior  lo  the  time  of  taking  his  seat,  he  is  capable  of 
occupying  the  position ;  and  if  a  Senator  is  elected  before  he  reaches  the 
age  of  thirty,  but  attains  that  age  before  he  takes  his  seat,  he  is  capa 
ble  of  occupying  that  position.  But  in  the  case  of  a  State  as  to  its 
electors,  it  is  not  a  personal  disability  that  either  the  lapse  of  time  or 
anything  on  earth  can  cure,  remove,  or  dispense  with,  for  it  is  a  limita 
tion  upon  the  power,  and  if  the  State  exceeds  the  power  granted,  the 
act  is  void  from  the  very  day  it  was  attempted  to  be  performed,  and  the 
individual  who  assumes  to  cast  the  ballot,  when  appointed  in  excess  of 
the  power  of  appointment,  casts  a  piece  of  paper  that  must,  in  every 
view  of  constitutional  law,  and  under  every  ordinary  and  known  princi 
ple  relating  to  the  law  of  powers,  be  regarded  as  a  blank. 

Now,  may  it  please  your  honors,  we  maintain  that  the  State  of  Florida, 
if  it  should  be  that  you  hold  the  first  certificate  valid,  has  appointed  as 
one  of  her  electors  an  office-holder  under  the  Federal  Government,  and 
thus  exceeded  her  power.  Upon  that  question  there  are  two  matters  of 
fact  arising — first,  was  the  elector  referred  to  an  office-holder,  and,  sec 
ond,  if  so,  was  he  such  at  the  time  of  the  appointment?  The  learned 
counsel  on  the  other  side  require  that  we  should  be  limited  to  the  strict 
est  possible  proof  of  the  fact  of  his  incumbency  on  the  day  of  the  ap 
pointment.  I  apprehend  that,  as  far  as  legal  principles  are  known  and 
recognized,  when  you  have  once  proved  the  incumbency  of  an  individual, 
the  presumption  of  law  follows  and  goes  with  you,  and  the  burden  of 
proof  is  upon  him  to  show  that  that  incumbency  has  ceased  to  exist. 
It  is  not  for  us  to  trace  the  fact  of  his  continuing  in  office  down  from  the 
day  of  his  appointment.  If  we  prove  the  commission  under  the  broad 
seal  by  which  he  holds  the  office,  and  then  superadd  to  that  commission 
the  fact  that  he  has  discharged  the  functions  of  the  office  at  a  period  of 
time  somewhat  near  in  date  to  the  period  of  his  appointment,  the  pre 
sumption  of  law  is  that  he  acted  under  the  commission  from  the  date  of 
his  appointment  and  up  to  the  present  time. 

But  the  learned  counsel  on  the  other  side  had  the  officer  himself  upon 
the  stand ;  and  if  the  resignation  as  proved  by  that  officer  is  not  a  suf 
ficient  resignation,  then,  as  a  matter  of  course,  he  did  not  resign  at  all 
according  to  his  own  evidence,  and  was  still  in  office  on  the  day  of  his 
pretended  appointment  as  elector.  The  resignation,  as  shown  by  him, 
was  a  private  letter  addressed  to  the  judge  of  the  circuit  court,  who 
was  then  in  Ohio — I  forget  the  particular  locality  in  Ohio  to  which  the 
letter  was  addressed 

Mr.  STOUGHTON.    Newark. 

Mr.  MEERICK.  Newark,  Ohio  ;  and  the  receipt  of  a  letter  by  him 
from  the  judge  indicating  his  acceptance  of  that  resignation.  The  stat 
ute  of  the  United  States  requires  that  this  appointment  shall  be  made 
by  the  circuit  court,  and  if  any  resignation  is  necessary  at  all,  as  we 
hold  that  it  is,  that  resignation  can  only  be  made  to  the  power  that  gave 
the  appointment,  and  the  power  Miat  gave  the  appointment  is  the  only 
power  capable  of  accepting  the  resignation  and  relieving  the  party  from 
the  incumbency  of  the  official  position. 

The  circuit  court  being  the  power  that  gave  the  appointment,  it  was 
to  the  circuit  court  that  the  resignation  should  have  been  sent ;  and  if 
an  acceptance  was  necessary  it  was  the  circuit  court  that  should  have 
given  that  acceptance,  and  the  acceptance  should  have  appeared  upon 
the  records  of  that  court,  if  ever  given,  alongside  of  the  commission, 
nullifying  the  commission  by  the  same  sanctity  of  record  which  the 
commission  possessed  that  bestowed  the  office.  But  it  is  in  proof  before 
this  honorable  Commission  that  there  is  no  record  of  that  resignation; 


ELECTORAL    COUNT    OF    1877.  185 

that  the  commission  stands  upon  the  records  of  the  court  to-day  unim- 
peached  and  unimpaired  by  any  recorded  resignation  of  the  officer  that 
it  clothed  with  official  power ;  and  I  respectfully  submit  that,  until  that 
resignation  is  there  recorded,  until  that  resignation  is  accepted  by  the 
power  which  gave  it  and  appears  of  record,  this  party  still  continues  in 
office. 

Mr.  Commissioner  HOAR.  Mr.  Merrick,  I  should  like  to  ask  you  a 
question  which  perhaps  it  will  be  convenient  to  state  now,  and  you  can 
answer  it  at  such  time  as  you  choose.  Section  6  of  article  1,  to  which 
you  have  just  referred,  provides  that  no  person  holding  any  office  under 
the  United  States  shall  be  a  member  of  either  House  during  his  continu 
ance  in  office.  Now  if  this  gentleman  had  been  elected  a  Senator  or  Rep 
resentative  of  the  United  States,  and  the  judge  of  the  circuit  court 
had  refused  to  accept  his  resignation  as  shipping-commissioner,  do  you 
hold  that  he  never  could  have  taken  the  office  of  Senator  or  Represent 
ative?  If  not,  how  do  you  distinguish  the  case  from  the  present  one? 

Mr.  MERRICK.  I  will  answer  the  question.  I  do  not  hold  that  if 
his  resignation  had  never  been  accepted  he  would  not  have  been  com 
petent  to  act  as  a  Senator  of  the  United  States;  but  when  elected  to 
the  Senate  of  the  United  States  the  acceptance  by  the  Senate  of  the 
United  States  of  that  individual  as  a  Senator  would  have  been  his  dis 
charge  from  that  office,  provided  he  had,  prior  to  that  time,  tendered  his 
resignation  to  the  court. 

Mr.  Commissioner  HOAR.  Then  if  taking  upon  himself  the  incom 
patible  office  be  a  sufficient  discharge  from  the  other  one  in  that  case,  is 
not  the  taking  upon  himself  the  office  of  elector? 

Mr.  MERRICK.  If  this  were  a  personal  disability  it  would  have  been. 
If  it  were  a  personal  disqualification  in  the  man,  it  would  have  effected 
that  result.  But  where  the  difficulty  in  taking  the  office  is  not  a  per 
sonal  disqualification  in  (lie individual,  but  a  limitation  upon  the  power 
that  is  to  give  the  office,  it  does  not  have  that  effect. 

Mr.  Commissioner  ABBOTT.  The  acceptance  in  that  way  would  be 
at  a  time  very  much  later  than  the  appointment,  would  it  not  ? 

Mr.  MERRICK.  Necessarily  so.  It  rests  upon  the  distinction  that 
in  the  one  case  there  is  a  limitation  upon  the  power  and  in  the  other 
there  is  a  disqualification  of  the  person. 

Mr.  Commissioner  ABBOTT.  Mr.  Merrick,  I  understand  you  to  claim 
in  this  case  that  an  acceptance  is  not  necessary,  but  still  the  resignation 
must  be  to  the  party  or  court  or  person  appointing. 

Mr.  MERRICK.  It  must  be,  unquestionably.  If  a  resignation  even 
is  not  necessary,  as  I  stated  to  Judge  HOAR,  I  think,  in  my  reply,  yet 
if  he  had  resigned,  whether  his  resignation  had  been  accepted  or  not, 
the  offer  of  the  resignation  is  necessary,  and  that  offer  must  be  made  to 
the  power  that  gave  the  appointment.  Suppose  he  had  resigned  to  the 
clerk  of  the  court,  addressed  the  clerk  at  Newark,  Ohio,  a  private  letter 
saying,  "I  as  shipping-commissioner  beg  leave  to  tender  my  resignation 
to  yon," or  "beg  leave  to  tender  my  resignation,"  how  would  it  have 
been  understood '?  It  would  have  been  understood  as  a  resignation  in 
tended  for  the  clerk  to  present  to  the  court,  and  until  it  got  to  the  court 
it  could  not  operate  as  a  resignation  of  his  office,  either  with  or  without 
any  acceptance. 

The  PRESIDENT.  Mr.  Merrick,  if  a  commissioner  of  the  circuit  court 
tenders  his  resignation  to  the  judge  and  the  judge  directs  it  to  be  filed 
in  the  court,  is  that  an  acceptance  ? 

Mr.  MERRICK.  When  the  court  is  in  session  it  is  an  act  of  the  court ; 
and  if  the  commissioner  sends  that  resignation  to  the  clerk's  office  it  is 


186  ELECTORAL   COUNT    OF   1877. 

there  to  wait  for  the  sitting  of  the  court,  and  is  then  filed  during  the 
session. 

Mr.  Commissioner  GAREIELD.  Mr.  Merrick,  allow  me  to  ask  you, 
do  you  hold  fchat  in  case  there  should  be  a  long  vacation  of  the  court,  or 
the  court  should  be  abolished  by  law,  or  the  judge  should  die  and  for  a 
year  or  two  no  appointment  be  made  in  his  place,  this  commissioner 
could  never  have  resigned  ? 

Mr.  MERRICK.  I  should  refer  that  case  to  one  of  the  returning- 
boards  of  the  South.  I  hardly  know  in  such  an  extreme  case  what  reply 
to  make. 

Mr.  Commissioner  GARFIELD.  I  understand  your  position  to  be 
that  he  cannot  resign  except  when  the  court  is  in  session. 

Mr.  MERRICK.  He  cannot  resign  except  when  the  court  is  in  ses 
sion  ;  but  I  presume  that  death  and  the  abolition  of  an  office  and  the 
extinction  of  a  government  and  the  wiping  out  of  a  country  and  the 
destruction  of  a  whole  people  would  make  exceptions  to  all  principles 
of  law. 

The  PRESIDENT.  I  shall  not  take  these  interruptions  out  of  your 
time,  Mr.  Merrick. 

Mr.  MERRICK.  Now,  may  it  please  your  honors,  I  pass  from  that 
branch  of  the  case. 

Mr.  Commissioner  MILLER.  Before  you  pass  from  that,  Mr.  Merrick, 
I  should  like  to  ask  you  a  question.  You  have  been  very  much  taxed, 
but  I  know  your  ability  to  reply.  You  say  that  the  distinction  between 
a  man  who  accepts  the  office  of  Senator  or  Member  of  the  House  of  Repre 
sentatives,  who  is  ineligible  by  holding  another  office,  and  the  man  who 
accepts  and  acts  in  the  office  of  elector,  being  in  the  same  situation,  is 
that  in  one  case  the  disability  or  inhibition  goes  to  the  power  of  the 
State  and  in  the  other  it  does  not.  Now,  if  the  language  is  precisely 
the  same,  that  no  man  shall  be  elected  to  the  office  of  Senator  unless  he 
is  thirty  years  old  and  no  man  shall  be  appointed  to  the  office  of  elector 
who  holds  another  office,  where  is  the  difference  in  the  question  of  power 
in  the  State  ? 

Mr.  MERRICK.  I  am  not  prepared  to  answer  that  the  language 
quoted  is  the  exact  language  used  in  the  Constitution. 

Mr.  Commissioner  MILLER.  I  do  not  know  that  it  is  the  exact  lan 
guage,  for  the  text  is  not  before  me. 

Mr.  MERRICK.  Allow  me  to  look  at  the  Constitution  before  I  an 
swer  the  question. 

Mr.  Commissioner  MILLER.  Are  not  both  State  officers  in  one  sense 
at  least ;  both  elected  by  the  power  of  the  State  ? 

Mr.  MERRICK.  No  person  of  a  certain  description  shall  be  a  mem 
ber  of  either  House.  Says  the  Constitution: 

No  Senator  or  Representative  [shall,  during  the  time  for  which  he  was  elected,  be 
appointed  to  any  civil  office  under  the  authority  of  the  United  States,  which  shall 
have  been  created,  &c. 

No  person  shall  be  a  Representative  who  shall  not  have  attained  the  age  of  twenty- 
five  years. 

No  person  shall  be  a  Senator,  who  shall  not  have  attained  to  the  age  of  thirty  years. 

But  in  reference  to  the  electors  it  is  that  "  no  person  shall  be  ap 
pointed^  following  a  previous  grant  of  power  to  appoint ;  and  accord 
ing  to  the  rules  of  law,  wherever  there  is  a  power  given  to  do  an  act, 
the  donee  of  the  power  can  only  execute  it  legally  according  to  the 
grant,  and  when  he  pursues  strictly  the  limitations  and  the  directions  of 
the  donor.  You  will  perceive  there  is  marked  difference  in  the  two 
cases. 

I  pass,  then,  may  it  please  your  honors,  from  that  subject.     My  first 


ELECTORAL    COUNT    OF    1877.  187 

inquiry  in  passing  from  it  is  as  to  what  through  the  labors  of  this  honor 
able  Commission  we  have  reached  in  reference  to  a  definite  conclusion 
with  regard  to  the  testimony  before  you  for  consideration.  The  learned 
counsel  who  last  addressed  you  seemed  to  be  under  the  impression,  and 
endeavored  to  force  that  impression  upon  your  consideration,  that  by 
the  order  passed  no  extrinsic  evidence  should  be  taken  as  to  certificate 
No.  1,  and  therefore  no  evidence  contained  in  certificates  Nos.  2  and  3 
could  be  used  to  invalidate  certificate  No.  1.  I  do  not  understand  the 
order  passed  by  this  tribunal  as  the  learned  counsel  on  the  other  side 
seem  to  have  understood  it.  I  understand  the  scope  and  meaning  of 
that  order  to  be  that  while  you,  in  the  exercise  of  the  powers  of  the  two 
Houses  of  Congress,  and  representing  the  Federal  Government  in  that 
regard,  will  not  go  behind  the  certificates,  so  to  speak,  to  impeach 
them  by  extraneous  evidence,  yet  you  will  consider  whatever  the  State 
has  sent  to  you  in  those  certificates  for  the  purpose  of  ascertaining 
which  certificate  represents  the  true  wishes  and  will  of  the  State.  The 
order  is : 

That  no  evidence  will  be  received  except  such  as  was  laid  before  the  two  Houses  by 
the  President  of  the  Senate  with  the  different  certificates. 

If  what  is  contained  in  the  three  certificates  be  evidence  before  you, 
it  is  evidence  for  all  the  purposes  of  this  case ;  and  whatever  evidence 
there  is  in  certificate  No.  3  to  show  that  that  certificate  contains  the 
names  of  the  persons  duly  appointed  electors  by  the  State  of  Florida 
must,  either  directly  or  indirectly,  operate  to  invalidate  or  affect  certifi 
cate  No.  1. 

Now  what  is  before  you  in  those  certificates  ?  In  certificate  No.  1 
you  have  the  statement  of  Governor  Stearns  as  to  the  appointment  of 
certain  individuals  as  electors,  and  in  certificate  No.  2,  which  the  coun 
sel  seemed  to  treat  with  a  good  deal  of  indignation,  if  not  contempt,  you 
have  the  certificate  of  the  attorney-general  of  Florida  as  to  the  appoint 
ment  of  certain  other  parties  as  electors  of  the  State  of  Florida,  and 
the  further  certificate  from  those  electors  that  they  applied  to  the  gov 
ernor  of  the  State  for  a  certificate,  which  was  refused.  Now,  I  submit 
as  a  principle  of  law,  sound  in  itself,  and  furnishing  a  full  reply  to  the 
argument  made  by  the  counsel  who  opened  for  the  other  side,  and  as 
giving  a  satisfactory  assurance  against  those  serious  consequences  that 
he  seemed  to  apprehend  from  the  practical  application  and  experience 
of  the  positions  advanced  by  us,  that  where  a  party  entitled  to  receive 
a  piece  of  evidence  from  an  official  applies  for  it  and  does  not  get  it, 
but  is  refused,  he  is  in  as  good  a  position  before  a  court  of  justice  as 
though  he  had  received  it.  You  cannot  and  will  not  charge  upon  that 
individual  or  upon  the  interests  and  rights  of  the  persons,  the  State,  or 
the  nation  which  that  individual  claims  to  represent,  the  consequences 
of  the  delinquency  of  an  official  who  has  failed  or  refused  to  perform 
his  duty.  It  was  not,  as  the  learned  counsel  on  the  other  side  have  in 
timated,  that  we  waited  until  after  it  was  seen  how  the  election  had 
gone.  There  is  no  danger  from  this  case,  as  he  would  suggest,  that 
hereafter,  if  the  precedent  of  a  favorable  decision  to  the  objectors 
should  be  reached,  the  door  would  be  thrown  open  to  fraud  and  to 
the  bad  passions  of  men,  to  the  excitements  of  politics,  and  the  acerb 
ity  of  party  hatreds,  to  interfere  with  the  just  result  of  popular 
expression  5  none  whatever.  On  the  contrary,  we  ask  that  those  ex 
citements  should  be  suppressed  by  the  calm  voice  of  the  reason  of  this 
august  tribunal,  and  that  men  who  would  hereafter  seek  to  perpetuate 
political  power  through  the  instrumentalities  of  fraud,  deceit,  and  bad 
practices  should  find  in  the  recorded  judgment  of  this  tribunal,  as  part 


188  ELECTORAL    COUNT   OF    1877. 

of  the  history  of  the  Government,  the  declaration  that  all  such  iniqui 
tous  proceedings,  schemes,  and  designs  will  be  utter  failures  and  una 
vailing  for  the  production  of  any  result.  Instead  of  waiting  to  see  how 
these  elections  had  gone,  as  intimated  by  the  counsel,  or  instead  of  its 
being  a  case  from  \\hich  hereafter  parties  might  be  induced  so  to  wait, 
it  is  apparent  to  this  court  from  these  certificates  that  the  men  who 
claimed  to  be  elected  as  the  so-called  Tilden  electors  of  Florida  went  to 
the  governor,  carrying  with  them  a  majority  of  the  votes  of  the  elect 
ors  of  that  State,  and  asked  the  governor  to  give  them  the  certificate 
which  under  the  statute  law  of  the  United  States  they  were  entitled  to 
receive.  That  governor,  possibly  influenced  by  some  of  those  motives 
which  the  gentleman  has  so  kindly  ascribed  as  impelling  the  action  of 
other  people,  declined  to  give  that  certificate,  and  they  were  left  to 
look  for  the  next  best  evidence  they  could  find. 

Mr.  Commissioner  THURMAN.  If  it  does  not  interrupt  you,  I 
should  like,  Mr.  Merrick,  to  hear  you  upon  this  point :  Suppose  that 
what  you  call  the  Tilden  electors  had  never  voted  at  all ;  the  question 
I  should  like  to  hear  counsel  upon  is  this :  is  it  competent,  by  subse 
quent  State  proceedings,  to  show  that  the  men  who  did  vote,  the  Hayes 
electors,  had  no  title  to  vote  ? 

Mr.  MERRICK.  Most  unquestionably.  The  State  cannot  have  her 
voice  simulated.  It  happens  that  on  this  occasion  the  true  voice  of  the 
State  was  spoken ;  but  if  it  had  not  been,  there  could  have  been  no 
more  power  and  vigor  in  the  simulated  tones  of  her  voice  to  reach  the 
councils  of  the  Federal  Government  than  there  is  when  those  simulated 
tones  come  ringing  along  with  the  true  sentiments  of  her  people.  The 
State  is  not  to  be  deceived  and  cheated  in  that  way.  She  might  on  the 
day  after  her  people  voted  have  instituted  her  quo  ivarrantOj  and,  stand 
ing  in  the  presence  of  her  own  judicial  tribunals,  clothed  with  the  majesty 
of  her  power,  and  appealing  to  her  judicial  authority,  asked  these  men, 
"  By  what  right  do  you  assume  to  exercise  the  power  of  this  State  !"  And 
she  could  have  stripped  from  them  the  garments  they  had  stolen ;  stripped 
from  their  shoulders  her  livery  which  they  had  no  right  to  wear.  She 
could  proceed  against  them,  whether  others  spoke  in  her  behalf  or  not. 
In  this  case  the  proceeding  was  by  individuals  under  circumstances 
which  the  State  subsequently  felt  constrained  to  recognize.  But  in  the 
case  supposed  by  Senator  Thurman  the  proceeding  would  have  been 
directly  by  the  State  herself  in  her  courts  or  through  her  legislature. 

Could  she  not  have  proceeded  in  her  courts  $  could  she  not,  in  conjunc 
tion  with  proceedings  in  her  courts,  also  have  proceeded  through  her 
legislature  ?  The  power  is  given  to  the  State  to  appoint  electors  in  such 
manner  as  her  legislature  may  prescribe.  That  power  so  given  to  ap 
point  necessarily  carries  with  it  and  implies  a  power  to  certify  to  that 
appointment,  and  it  is  for  her  to  authenticate  the  appointment  which 
she  makes  in  the  exercise  of  the  power  conferred  upon  her  under  that 
provision  of  the  Constitution.  I  do  not  mean  to  question  or  deny  that 
the  United  States,  through  its  statutes,  may  provide  also  for'a  mode  of 
authentication,  as  it  has  done;  but,  as  seems  to  have  been  concluded  by 
the  Commission,  that  mode  of  authentication  is  not  by  any  means  con 
clusive,  and,  I  respectfully  submit,  is  not  the  best  evidence  of  the  ap 
pointment.  The  best  evidence  of  the  appointment  is  from  the  State 
herself  in  obedience  to  her  own  law  and  in  the  execution  of  the  power 
of  providing  for  the  authentication  of  the  appointment  she  is  authorized 
to  make.  The  legislature  of  the  State  would  have  the  right  in  the  can 
vass  of  the  vote  even,  as  over  and  above  any  returning-board,  to  ascer 
tain  who  were  the  parties  really  and  truly  appointed. 


ELECTORAL    COUNT   OF   1877.  189 

Mr.  Commissioner  EDMUNDS.  Do  you  maintain  that,  Mr.  Merrick, 
as  an  act  pf  legislative  will  notwithstanding  the  previous  law  that  had 
provided  some  other  method  ? 

Mr.  MERRICK.  Yes,  may  it  please  your  honors,  notwithstanding 
the  previous  law  may  have  provided  some  other  method.  If  the  legisla 
ture  of  Florida,  having  the  power  under  the  Constitution  to  appoint 
electors,  found  that  under  the  previous  law  there  had  been  proceedings 
by  the  ministerial  officers  of  the  State  out  of  which  proceedings  had  come 
a  commission  authorizing  individuals  not  appointed  in  fact  to  exercise  a 
power  instead  of  those  who  were  truly  appointed,  she  might  by  her  legis 
lature  enact  a  law  to  proceed  not  to  change  the  relation,  not  to  divest 
vested  rights,  not  to  create  new  rights  and  new  relations,  but  in  the 
exercise  of  legislative  authority  to  ascertain  who  had  been  in  point  of 
fact  duly  appointed  according  to  existing  laws. 

Mr.  Commissioner  EDMUNDS.  By  that  you  mean  that  the  legisla 
ture  is  the  judge  of  who  had  been  appointed  in  fact"? 

Mr.  MERRICK.  The  legislature  could  proceed  to  ascertain  who  had 
been  in  point  of  fact  appointed  according  to  the  law  of  the  State,  and 
the  result  of  the  inquiry  coming  from  the  State  is  evidence,  the  best  evi 
dence,  and  therefore  better  evidence  than  the  mere  certificate  of  the 
governor. 

But  I  do  not  need  to  assume  this  position  in  the  pending  case ;  and 
the  interrogatories  propounded  upon  abstract  questions  evoke  from  me 
abstract  answers  that  are  applicable  to  those  questions  only,  for  in  this 
case  the  legislature  of  Florida  proceeded  to  execute  the  decree  of  the 
courts  of  the  State  of  Florida.  The  question  had  been  before  her  judi 
cial  tribunals  and  the  legislature  did  not  primarily  and  of  its  own  mo 
tion  enter  into  the  consideration  of  this  question  and  act  upon  it,  but 
the  question  having  come  before  the  courts  of  Florida  and  the  courts 
having  construed  the  law  of  Florida,  the  legislature  gave  effect  to  that 
judicial  construction  of  the  State  law. 

Now  it  appears  in  certificate  No.  3  that  the  governor  issued  this  cer 
tificate  in  obedience  to  the  acts  of  the  legislature  of  Florida  and  in  obe 
dience  to  the  decision  of  her  courts,  and  this  certificate  No.  3  is  the  only 
certificate  before  this  tribunal  that  contains  a  canvass  of  the  votes  of 
Florida. 

The  learned  counsel  spoke  of  the  incoming  of  a  new  administration 
and  the  displacement  of  an  old,  and  of  their  belonging  to  hostile  politi 
cal  parties ;  but  I  apprehend  that  such  a  circumstance  is  a  matter  of 
very  little  importance  in  this  inquiry,  for  the  State  as  a  political  organ 
ization  goes  on  forever  and  never  dies,  and  whatever  the  governor  who 
was  governor  at  the  time  the  electors  voted  could  do  after  that  event, 
his  successor  can  do  just  as  well.  The  change  of  the  administration 
makes  no  difference  whatever  in  the  gubernatorial  power. 

This  certificate,  then,  contains,  as  I  have  stated,  the  only  canvass  that  is 
before  your  honors  ;  it  contains  a  canvass  of  the  votes  of  the  people  of 
Florida  made  under  the  authority  of  an  act  of  the  legislature  of  Florida. 
There  is  no  other  canvass  here.  It  states  that  the  canvass  has  been 
made  and  that  a  certain  result  has  been  reached  in  virtue  of  a  decision 
of  the  court  of  last  resort  in  Florida ;  and  these  documents  are  here 
under  the  sanction  of  State  authority.  Now  how  far  will  this  tribunal 
regard  this  paper  as  representing  the  facts  in  reference  to  the  condition 
of  these  two  claimants  who  hold  these  certificates,  the  first  certificate 
unaccompanied,  the  second  accompanied  by  this  evidence  ? 

I  suppose  that  your  honors,  according  to  the  rule  you  have  laid  down, 
have  concluded  that  the  right  to  ascertain  who  were  really  the  agents  of 


190  ELECTORAL   COUNT    OF    1877. 

the  State,  who  were  really  authorized  to  represent  the  State,  was  limited 
to  the  evidence  laid  before  the  two  Houses  of  Congress  and  in  or  accom 
panying  the  certificates.  According  to  this  certificate  No.  3,  a  canvass 
of  the  votes  of  Florida  was  made  under  legislative  enactment  in  pursu 
ance  of  her  judicial  decision.  I  speak  not  now  of  the  quo  rvarranto;  I 
speak  of  a  case  that  occurred  prior  to  the  decision  of  the  quo  icarranto. 
How  far  are  we  bound  in  this  regard  by  the  judicial  decision  of  the 
court  of  Florida  ?  The  learned  counsel  who  addressed  this  Commission 
last  on  behalf  of  the  other  side  seemed  disposed  somewhat  to  sneer  at 
the  idea  that  the  tribunals  of  the  United  States  should  be  bound  by  the 
decisions  of  the  courts  of  the  State  in  matters  so  grave  as  this.  For  my 
part,  it  seems  to  me  that  the  graver  the  subject,  and  the  higher  it  rises, 
the  more  binding  become  the  obligations  of  the  law ;  and  I  submit  to 
your  honors  as  a  -proposition  of  law  that  in  reference  to  all  matters  hav 
ing  local  concern  of  a  statutory  character,  in  reference  to  all  local  muni 
cipal  laws  of  the  States  upon  all  subjects,  the  Supreme  Court  of  the 
United  States  without  exception  invariably  accepts  as  final  and  conclu 
sive  the  decisions  of  the  courts  of  the  States,  even  although  it  may  not 
approve  the  correctness  of  their  logic  or  the  wisdom  of  their  conclusion. 
I  beg  leave  to  refer  to  one  or  two  cases  upon  that  subject.  In  the  case 
of  the  Tioga  Kailroad  Company  vs.  The  Blossburg  Kailroad,  in  20  Wal 
lace,  143,  the  court  uses  the  following  language  : 

These  decisions  upon  the  construction  of  the  statute  are  binding  upon  us,  whatever 
we  may  think  of  their  soundness  on  general  principles. 

In  those  few  lines  is  contained  the  rule  I  have  just  now  indicated  to 
your  honors.  This  was  an  opinion  in  reference  to  the  operation  under 
certain  conditions  and  circumstances  of  the  statute  of  limitations  of 
New  York  ;  and  the  learned  justice,  in  delivering  the  opinion  on  behalf 
of  the  court  and  accepting  it  of  course  for  himself,  announced  the  doc 
trine  that  the  decisions  of  the  State  tribunals  "  upon  the  construction 
of  its  statutes  are  binding  upon"  the  Supreme  Court  "  whatever  we  may 
think  of  their  soundness." 

The  opinion  was  delivered  by  his  honor  Mr.  Justice  Bradley,  following 
a  long  line  of  preceding  opinions  of  the  same  character. 

In  the  case  of  Green  vs.  Neal's  lessees,  6  Peters,  the  same  doctrine 
was  announced.  In  the  case  of  The  Township  of  Elinwood  vs.  Macy,  2 
Otto,  294,  the  same  rule  was  announced.  It  is  unnecessary  for  me  to  read 
from  the  case,  for  I  shall  have  occasion  to  refer; presently  to  the  dissent- 
iog  opinion  on  another  point. 

In  the  case  of  Thompson  vs.  Whitman,  18  Wallace,  467,  where  the 
opinion  was  delivered  by  his  honor  Mr.  Justice  Bradley,  the  same  gen 
eral  principle  was  announced : 

Where  a  court  has  jurisdiction,  it  has  a  right  to  decide  every  question  which  occurs 
in  the  cause,  and  whether  its  decision  be  correct  or  otherwise,  its  judgment,  until  re 
versed,  is  regarded  as  binding  in  every  other  court.  But,  if  it  act  without  authority, 
ite  judgments  and  orders  are  regarded  as  nullities. 

And  in  the  case  in  4  Wallace,  referred  to  by  Mr.  Green  in  his  opening 
to-day,  the  same  rule  is  announced,  his  honor  Mr.  Justice  Field,  if  I  mis 
take  not,  giving  the  opinion  of  the  court  and  declaring  in  effect  that 
the  State  decision  is  incorporated  into  the  State  statute,  and  that  the 
courts  of  the  United  States  in  considering  and  applying  the  statute 
apply  it  as  modified,  enlarged,  or  limited  by  that  decision,  giving  to  the 
decision  the  same  effect  as  though  in  so  many  words  it  had  been  incor 
porated  into  the  statute  at  the  time  of  the  passage  of  the  act. 

After  submitting  these  few  suggestions  in  reference^to  the  authority 


ELECTORAL    COUNT    OF    1877.  191 

of  the  State  courts,  I  beg  leave  to  suggest  some  views  in  reference  to 
the  time  of  the  appointment  of  electors  and  as  to  what  constitutes  the 
appointment. 

The  learned  counsel  on  the  other  side  have  regarded  the  appointment 
as  made  up  of  several  acts  reaching  their  culmination  in  the  giving  of 
the  certificate  by  the  governor  at  or  about  the  time  of  the  meeting  of 
the  electoral  college.  That  certificate  has  nothing  to  do  with  the  appoint 
ment  whatever,  and  I  submit  is  simply  evidence  of  a  previously  exist 
ing  fact  which  became  a  consummated  fact  on  the  day  of  election  at 
the  hour  when  the  polls  were  closed.  A  certificate,  whether  it  be  the 
certificate  of  the  governor,  or  of  the  attorney-general,  or  of  the  canvass- 
ing-board,  is  only  evidence  that  the  appointment  has  been  made  by  the 
people,  but  itself  is  no  part  of  the  appointment,  in  no  way  essential  to 
it,  and  in  no  way  connected  with  it.  It  seems  to  be  the  theory  and  the 
basis  of  the  argument  of  the  counsel  who  preceded  me  that  this  appoint 
ment  had  depended  in  some  way  upon  the  muniment  of  the  title,  and  if 
it  did  not 

Mr.  EVARTS.  I  spoke  of  the  governor's  certificate  under  the  law 
of  Florida  which  was  given  to  each  elector  as  his  warrant  to  execute  his 
duty,  and  not  the  congressional  certificate. 

Mr.  MERRICK.  Even  that  has  as  little  reference  to  the  appointment 
as  the  certificates  required  by  Congress ;  for  these  certificates,  each  of 
them,  are  only  evidence  that  something  has  been  done — are  evidence 
that  the  individual  to  whom  they  are  given  has  been  invested  with  a 
power,  not  granted  by  the  governor,  not  granted  by  the  executive  power 
of  the  State,  but  that  he  has  been  invested  with  a  power  granted  by 
the  people,  and  of  which  grant  this  shall  be  the  muniment  of  title. 

Now,  may  it  please  your  honors,  this  principle  has  been  very  clearly 
stated  in  several  cases,  to  one  or  two  of  which  I  beg  leave  to  refer, 
among  them  the  twenty-seventh  volume  of  New  York  Reports,  the  case 
of  The  People  vs.  Pease,  at  pages  54  and  55 : 

It  is  made  the  duty  of  the  board  of  county  canvassers,  upon  the  statement  of  votes 
given,  to  determine  what  person — 

Yery  similar  to  the  law  organizing  some  of  our  present  returning- 
boards — 

to  determine  what  person,  by  the  greatest  number  of  votes,  has  been  duly  elected  to 
any  office  mentioned  in  said  statement.  (1  Revised  Statutes,  fifth  edition,  page  438, 
section  10.)  County  treasurers  of  the  several  counties  of  this  State  are  to  be  elected 
at  a  general  election,  and  hold  their  office  for  three  years.  (Ibid,  page  406,  section  17.) 
And  the  certificate  of  the  board  of  canvassers  authorized  to  canvass  the  votes  given 
for  any  elective  office  is  made  evidence  of  the  election  of  the  person  therein  declared 
to  have  been  elected. 

*  *  *  *  * 

What  is  it  that  confers  title  to  the  office,  and  the  legal  right  to  the  reception  of  its 
emoluments  ?  It  surely  is  the  fact  that  the  greatest  number  of  qualified  voters  have 
so  declared  their  wishes  at  an  election  held  pursuant  to  law.  It  is  not  the  canvass,  or 
estimate,  or  certificate  which  determines  the  right.  These  are  only  evidences  of  the 
right,  but  the  truth  may  be  inquired  into,  and  the  very  right  ascertained.  When 
so  ascertained,  the  legal  consequences  follow  that  the  person  usurping  the  office  is 
ousted,  the  person  legally  entitled  takes  the  office  and  its  fees,  &c.,  and  recovers  from 
the  usurper  the  fees  or  emoluments  belonging  to  the  office  received  by  him  by  means 
of  his  usurpation  thereof. 

It  is  not  the  canvass,  then,  or  the  estimates,  or  the  certificates  which 
determine  the  right.  The  right  is  determined  by  the  vote  of  the  people, 
and  the  canvass  is  only  to  ascertain  what  that  vote  was,  and  the  certifi 
cate  is  evidence  as  to  who  received  the  larger^ majority  of  votes. 

Mr.  Commissioner  EDMUNDS.  Was  that  a  quo  tvarranto,  Mr.  Mer- 
rick '? 


192  ELECTORAL    COUNT    OF    1877. 

Mr.  MEEEICK.  It  was  a  proceeding  by  quo  ivarranto.  There  are  other 
authorities  of  a  similar  nature  to  which  I  will  refer  the  court,  and  taking 
a  suggestion  from  the  inquiry  made  by  the  Senator,  I  would  remark 
that  it  is  quite  immaterial  whether  it  was  a  proceeding  by  quo  warranto 
or  not,  for  the  same  rule  would  apply  in  all  cases,  barring  the  fact 
claimed  by  the  other  side  in  behalf  of  a  proceeding  or  an  action  involv 
ing  the  acts  of  an  officer  de  facto.  The  rule  is  the  same,  no  matter  what 
may  be  the  form  of  action,  as  to  whether  the  appointment  is  derived 
from  executive  appointment  or  derived  from  the  people.  By  the  act  of 
the  legislature  of  Florida,  which  legislature  was  authorized  to  appoint 
her  electors  in  such  a  manner  as  it  might  deem  proper,  it  was  provided 
that  the  electors  should  be  appointed '  by  the  people.  They  were  voted 
for  and  appointed  by  the  people.  The  State  did  not  provide  that  her 
electors  should  be  appointed  by  her  executive  or  by  her  returning-board, 
but  that  they  should  be  appointed  by  the  people  5  and  whatever  other 
machinery  of  the  government  was  dedicated  to  use  in  this  direction  was 
machinery  dedicated  to  the  office  of  ascertaining  whom  the  people  had 
appointed  and  providing  those  whom  the  people  had  appointed  with 
the  proper  muniments  of  title  in  order  that  no  one  might  be  deceived  or 
led  astray,  and  no  inconvenience  might  result  from  their  claim  to  the 
official  position. 

Mr.  Commissioner  THUEMAN.  Mr.  Merrick,  are  you  not  arguing  a 
question  that  is  settled  by  the  Constitution  and  the  act  of  Congress? 
The  Constitution  says  that  Congress  may  determine  the  time  of  choosing 
the  electors.  The  act  of  Congress  says : 

Except  in  case  of  a  presidential  election  prior  to  the  ordinary  period,  as  specified  in 
sections  147  to  149,  inclusive,  when  the  offices  of  President  and  Vice-President  both  be 
come  vacant,  the  electors  of  President  and  Vice-President  shall  bt,  appointed  in  each 
State,  on  the  Tuesday  next  after  the  first  Monday  in  November,  in  every  fourth  year  suc 
ceeding  every  election  of  a  President  and  Vice-President. 

They  are  to  be  appointed  on  that  day. 

Mr.  MEEEICK.  The  Senator  is  correct.  I  am  engaged  in  possibly 
a  useless  discussion  on  this  point.  The  electors  are  to  be  appointed  on 
the  day  specified,  and  being  appointed  on  that  day  whatever  transpires 
after  that  day  with  regard  to  them  has  relation  to  that  appointment  and 
is  simply  evidence  of  that  appointment.  It  is  hardly  necessary  that  I 
should  refer  your  honors  to  any  other  authorities  upon  that  subject  after 
Senator  THURMAN'S  remark. 

Permit  me  now  a  word  or  two  in  reference  to  the  writ  of  quo  warranto; 
and  I  regret  that  my  time  is  so  nearly  spent  that  on  this  important 
branch  of  the  case  it  can  only  be  a  word  or  two.  The  counsel  on  the 
other  side  have  stated  that  they  considered  that  the  quo  warranto  judg 
ment  was  no  longer  before  the  Commission.  I  understand  the  order  of 
the  court  to  refer  to  the  certificates  and  to  state  that  all  that  the  cer 
tificates  contain  is  in  evidence,  and  as  certificate  No.  3  makes  recital 
of  the  quo  ivarranto  as  being  the  basis  of  executive  action  in  issuing  the 
certificate,  the  judgment  on  this  quo  ivarranto  is  therefore  before  this 
Commission.  It  is  before  the  Commission  as  a  judgment  of  the  court 
of  the  State,  independent  of  this  certificate.  We  have  that  judgment 
here  in  a  proper  form;  and  although  it  may  not  be  proper  under 
the  order  to  use  it  before  this  court  as  evidence  in  this  particular  case 
as  to  these  parties,  it  is  before  the  court  as  evidence  of  what  is  the  con 
struction  of  the  law  of  Florida  by  her  judicial  tribunals. 

The  PEESIDENT.  I  have  already  allowed  you  five  minutes  for  in 
terruptions.  I  must  consider  your  time  as  closed. 

Mr.  Commissioner  EDMUNDS.  •  Mr.  Merrick  has  been  interrupted 
so  much  that  I  think  he  ought  to  have  five  minutes  more. 


ELECTORAL    COUNT    OF    1877.  193 

Mr.  MEREICK.  I  am  much  obliged  to  the  Senator  for  his  considera 
tion  ;  and  while  I  accept  with  grateful  acknowledgment  the  privilege 
conferred,  I  beg  to  say  that  the  time  allowed  would  scarcely  compensate 
for  the  interruptions.  They  have  diverted  me  to  such  an  extent  from 
the  line  of  argument  I  was  pursuing  as  to  have  entirely  broken  the  di 
rection  of  thought  and  reasoning  I  had  intended  to  follow. 

I  submit  that  the  quo  warranto  is  then  before  you  at  least  as  evidence 
of  what  is  the  law  of  Florida.  If  it  is  not  evidence  as  to  the  title  of 
these  particalar  individuals,  it  is  before  you  as  evidence  of  the  law  of 
Florida,  and  it  tells  you  that  according  to  the  law  of  Florida  the  so- 
called  Hayes  electors  were  not  appointed ;  it  tells  you  that  according  to 
the  law  of  Florida  the  so-called  Tilden  electors  were  appointed.  It  is  a 
judgment  of  the  court  of  Florida  rendered  upon  an  issue  of  fact  to  which 
the  law  of  Florida  was  applied.  If  you  will  look  into  the  record  of  this 
quo  warranto  you  will  find  that  it  was  not  decided  upon  a  simple  demur 
rer,  not  upon  a  simple  question  of  jurisdiction,  although  the  court  de 
cided  that  it  had  jurisdiction,  that  question  being  directly  brought  be 
fore  it ;  but  it  was  decided  upon  the  facts  in  the  case.  A  plea  having 
been  interposed  by  the  respondents  in  the  quo  warranto  to  the  effect 
that  they  were  the  duly-elected  electors  and  had  received  a  majority  of 
the  votes  of  the  people,  and  issue  being  joined  upon  that  plea,  a  jury 
being  waived  by  agreement  of  counsel  and  the  cause  having  been  sub 
mitted  to  the  court  to  be  tried  upon  the  facts,  it  was  tried  upon  the  facts. 
All  the  facts  were  brought  before  the  court.  The  canvass  was  before 
the  court ;  the  county  returns  were  before  the  court ;  all  the  evidence 
that  the  Hayes  electors  desired  to  bring  before  the  court  to  have  the 
fact  of  their  appointment  according  to  law  adjudicated  was  there;  and 
upon  all  that  evidence,  so  before  the  court,  that  court  decided  that  ac 
cording  to  the  law  of  Florida  as  applied  to  the  case  made  before  it  the 
Hayes  electors  were  not  appointed,  and  the  Tilden  electors  were  ap 
pointed. 

I  then  submit,  may  it  please  your  honors,  in  reference  to  this  quo  ivar- 
ranto7iu  the  first  instance,  that  it  is  before  you  as  part  of  certificate  No. 
3,  so  intimately  connected  with  it  and  interwoven  with  it  that  you  can 
not  fail  to  regard  it  as  part  of  the  legitimate  evidence  to  be  considered 
when  you  come  to  determine  which  of  these  certificates  you  will  accept, 
and  that  if  it  is  not  before  you  in  that  character  it  is  then  before  you  as 
a  judicial  decision  of  the  courts  of  Florida  bearing  testimony  as  to 
what  is  the  law  of  Florida,  not  in  its  general  conclusion  and  general 
result,  but  bearing  testimony  as  to  that  law  in  specific  details  found 
throughout  the  case  as  the  various  joints  were  made  and  presented,  and 
as  you  will  find  them  decided  upon  looking  into  the  record. 

May  it  please  your  honors,  I  have  endeavored  in  the  remarks  I  have 
made^to  present'this  case,  as  far  as  I  possibly  could,  as  I  would  present 
any  ordinary  case  at  law,  keeping  far  away  from  my  heart  and  lips  all 
feeling  or  expression  of  a  partisan  character.  If,  in  the  heat  of  the  ar 
gument  or  in  response  to  inquiries  made  of  me,  I  should  have  broken  in 
any  particular  the  resolution  I  had  formed  in  that  regard,  I  can  only 
beg  pardon  of  the  sacred  traditions  that  cluster  about  this  chamber 
of  justice. 

Mr.  GREEN.  The  brief  to  which  I  alluded  in  my  argument  is  now 
here,  and,  with  the  permission  of  the  Commission,  I  will  have  it  dis 
tributed  among  its  members.* 

*  This  brief  will  be  found  in  the  appendix  of  briefs  as  brief  No.  2.  A  brief  was  also 
filed  by  Mr.  Whitney  which  will  be  there  found  as  brief  No.  3. 

13  E   C 


194  ELECTORAL    COUNT    OF    1877. 

The  PRESIDENT.     Certainly. 

Mr.  GREEK  I  will  also  ask  permission  to  state  that  the  brief  which 
had  been  prepared  for  what  is  known  as  the  Oregon  case,  to  which 
Judge  Hoadly  alluded  in  his  argument,  has  not  yet  come  from  the  printer, 
but  that  we  expect  to  have  it  during  the  afternoon.  He  requests  me 
also  to  state  that  that  brief  having  been  prepared  for  use  in  the  Oregon 
case,  necessarily  contains  some  matters  which  he  would  not  use  in  this 
argument  if  he  had  had  time  to  prepare  a  brief  specially  for  this  case. 

The  PRESIDENT.  I  will  state  to  the  bar  that  there  will  be  no  fur 
ther  public  business  transacted  to-day  by  the  Commission. 

Mr.  Commissioner  EDMUNDS.  I  move  that  the  Commission  take 
a  recess  for  half  an  hour. 

Mr.  Commissioner  PAYNE.  I  move  as  a  substitute  that  the  Com 
mission  adjourn  until  to-morrow  morning  at  ten  o'clock. 

Mr.  Commissioner  EDMUNDS.  On  that  motion  I  ask  for  the  yeas  and 
nays. 

The  PRESIDENT.  The  motion  to  adjourn  takes  precedence.  The 
question  is  on  the  motion  to  adjourn  until  to-morrow  at  ten  o'clock. 

The  question  being  taken  by  yeas  and  nays,  resulted — yeas  8,  nays  7; 
as  follows : 

Those  who  voted  in  the  affirmative  are :  Messrs.  Abbott,  Bayard, 
Bradley,  Clifford,  Field,  Huuton,  Payne,  and  Thurman — 8. 

Those  who  voted  in  the  negative  are :  Messrs.  Edmunds,  Freliughuy- 
sen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 7. 

So  the  motion  was  agreed  to ;  and  (at  four  o'clock  and  fifty  minutes 
p.  in.)  the  Commission  adjourned  until  to-morrow  at  ten  o'clock  a.  m. 

FRIDAY,  February  9,  1877. 

The  Commission  met  at  ten  o'clock  a.  m.,  pursuant  to  adjournment, 
all  the  members  being  present. 

The  journal  of  yesterday  was  read,  corrected,  and  approved. 

The  PRESIDENT.  The  case  in  regard  to  Florida  having  been  sub 
mitted,  shall  the  doors  be  closed  for  consultation  I 

Mr.  Commissioner  MORTON.    I  move  that  the  doors  be  now  closed. 

The  motion  was  agreed  to ;  and  the  Commission  proceeded  to  delib 
erate  with  closed  doors  in  the  matter  of  the  electoral  vote  Of  the  State 
of  Florida. 

After  debate, 

Mr.  Commissioner  THURMAN  (at  one  o'clock  and  thirty-seven  min 
utes  p.  m.)  moved  that  the  Commission  take  a  recess  for  half  an  hour. 

The  motion  was  agreed  to. 

At  two  o'clock  and  seven  minutes  p.  m.,  the  recess  having  expired, 
the  Commission  resumed  its  session  for  deliberation. 

After  further  debate, 

Mr.  Commissioner  STRONG  moved  that  general  debate  on  the  ques 
tion  pending  be  closed  on  or  before  six  o'clock  p.  in. 

The  motion  was  agreed  to. 

Mr.  Commissioner  EDMUNDS  moved  that  after  six  o'clock  p.  m. 
each  Commissioner  be  allowed  to  speak  but  once,  and  not  longer  than 
five  minutes. 

The  motion  was  agreed  to. 

Mr.  Commissioner  THURMAN  offered  the  following  resolution  : 

Resolved,  That  F.  C.  Humphreys  was  not  a  United  States  shipping-commissioner  on 
the  7th  day  of  November,  1876. 

After  debate, 

Mr.  Commissioner  THURMAN  withdrew  his  resolution. 


ELECTORAL    COUNT    OF    1877.  195 

After  further  debate, 

Mr.  Commissioner  EDMUNDS  offered  the  following  resolution  : 

Resolved,  That  the  following  be  adopted  as  the  decision  of  the  Commission  in  the 
case  of  Florida : 

ELECTORAL  COMMISSION, 
Washington,  D.  C.,  February  9,  A.  D.  1877. 

To  the  President  of  the  Senate  of  the  United  States,  presiding  in  the  meetino-  of  the 
two  Houses  of  Congress,  under  the  act  of  Congress  entitled  "An  act  to  provide  for 
and  regulate  the  counting  of  the  votes  for  President  and  Vice-President,  and  the 
decision  of  questions  arising  thereon,  for  the  term  commencing  March  4  A  D  1877  " 
approved  January  29,  A.  D.  1877  : 

The  Electoral  Commission  mentioned  in  said  act  having  received  certain  certificates 
and  papers  purporting  to  be  certificates,  and  papers  accompanying  the  same,  of  the 
electoral  votes  from  the  State  of  Florida,  and  the  objections  thereto  submitted  to  it 
under  said  act,  now  report  that  it  has  duly  considered  the  same,  pursuant  to  said  act 
and  has  decided,  and  does  hereby  decide,  that  the  votes  of  Frederick  C.  Humphreys' 
Charles  H.  Pearce,  William  H.  Holden,  and  Thomas  W.  Long,  named  in  the  certificate 
of  M.L.  Stearns,  governor  of  said  State,  which  votes  are  certified  by  said  persons,  as 
appears  by  the  certificate  submitted  to  the  Commission,  as  aforesaid,  and  marked 
"  number  one,"  by  said  Commission,  and  herewith  returned,  are  the  votes  provided  for 
by  the  Constitution  of  the  United  States,  and  that  the  same  are  lawfully  to  be  counted 
as  therein  certified,  namely:  Four  (4)  votes  for  Rutherford  B.  Hayes,  of  the  State  of 
Ohio,  for  President,  and  four  (4)  votes  for  William  A.  Wheeler,  of  the  State  of  New 
York,  for  Vice-President. 

The  Commission  also  has  decided,  and  hereby  decides  and  reports,  that  the  four  per 
sons  first  before  named  were  duly  appointed  electors  in  and  by  said  State  of  Florida. 

The  brief  ground  of  this  decision  is,  that  it  appears  upon  such  evidence  as  by  the 
Constitution  and  the  law  named  in  said  act  of  Congress  is  competent  and  pertinent  to 
the  consideration  of  the  subject  that  the  before-mentioned  electors  appear  to  have  been 
lawfully  elected  such  electors  of  President  and  Vice-President  of  the  United  States  for 
the  term  beginning  March  4, 1877,  of  the  State  of  Florida,  and  that  they  voted  as  such  at 
the  time  and  in  the  manner  provided  for  by  the  Constitution  of  the  United  States  and 
the  law. 

The  Commission  has  also  decided,  and  does  hereby  decide  and  report,  that,  as  a  con 
sequence  of  the  foregoing  and  upon  the  grounds  before  stated,  neither  of  the  papers 
purporting  to  be  certificates  of  the  electoral  votes  of  said  State  of  Florida  numbered 
two  (2)  and  three  (3)  by  the  Commission,  and  herewith  returned,  are  the  certificates  or 
the  votes  provided  for  by  the  Constitution  of  the  United  States,  and  that  they  ought 
not  to  be  counted  as  such. 

Done  at  Washington  the  day  and  year  first  above  written. 

Mr.  Commissioner  HUNTON  offered  the  following  as  a  substitute : 

That  the  electors  named  in  certificate  No.  2,  to  wit,  Wilkinson  Call,  J.  E.  Yonge, 
Robert  Bullock,  and  Robert  B.  Hilton,  are  the  four  persons  who  were  duly  appointed 
electors  by  the  State  of  Florida  011  the  7th  day  of  November,  1876,  and  that  their  votes  as 
certified  in  such  certificate  are  the  votes  provided  for  by  the  Constitution  of  the  United 
States. 

The  question  being  on  the  adoption  of  the  substitute,  it  was  decided 
in  the  negative : 

YEAS . , , 7 

NAYS 8 

Those  who  voted  in  the  affirmative  were:  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurman — 7. 

Those  who  voted  in  the  negative  were :  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

Thereupon  the  resolution  offered  by  Mr.  Commissioner  EDMUNDS  was 
withdrawn. 

Mr.  Commissioner  GAEFIELD  offered  the  following  resolutions : 

Resolved,  That  the  four  persons,  to  wit,  Frederick  C.  Humphreys,  Charles  H.  Pearce, 
William  H.  Holden,  and  Thomas  W.  Long,  were  duly  appointed  electors  of  President 
and  Vice-President  for  the  State  of  Florida,  and  that  the  votes  cast  by  the  aforesaid 
four  persons  are  the  votes  provided  for  by  the  Constitution  of  the  United  States. 


196  ELECTORAL    COUNT    OF    1877. 

Pesolved,  That  Mr.  Edmunds,  Mr.  Bradley,  and  Mr.  Miller  be  appointed  a  committee 
to  draft  a  report  of  the  action  of  the  Commission,  as  required  by  law. 

The  question  being  on  the  adoption  of  the  first  resolution,  it  was 
decided  in  the  affirmative : 

YEAS 8 

NAYS 7 

Those  who  voted  in  the  affirmative  were :  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong— 8. 

Those  who  voted  in  the  negative  were:  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurman — 7. 

The  question  being  on  the  adoption  of  the  second  resolution  offered 
by  Mr.  Commissioner  Garfield,  it  was  decided  in  the  affirmative. 

Mr.  Commissioner  EDMUNDS  (at  six  o'clock  and  five  minutes  p.  m.) 
moved  that  the  Commission  take  a  recess  for  one  hour. 

The  motion  was  agreed  to;  and  a  recess  was  accordingly  taken  until 
seven  o'clock  and  five  minutes  p.  in. 

The  recess  having  expired,  the  Commission  resumed  its  session  for 
deliberation. 

Mr.  Commissioner  EDMUNDS,  on  behalf  of  committee  appointed  to 
prepare  the  report  of  the  Commission  in  the  matter  of  the  electoral  vote 
of  the  State  of  Florida,  offered  the  following  order : 

Ordered,  That  the  following  be  adopted  as  the  final  decision  and  report  in  the  mat 
ters  submitted  to  the  Commission  as  to  the  electoral  vote  of  the  State  of  Florida: 

ELECTORAL  COMMISSION, 
Washington,  D.  C.,  February  9,  A.  D.  1877. 
To  the  President  of  the  Senate  of  the  United  States,  presiding  in  the  meeting  of  the 

two  Houses  of  Congress,  under  the  act  of  Congress  entitled  "An  act  to  provide  for 

and  regulate  the  counting  of  the  votes  for  President  and  Vice-President,  and  the 

decision  of  questions  arising  thereon,  for  the  term  commencing  March  4,  A.  D.  1877," 

approved  January  29,  A.  D.  1877  : 

The  Electoral  Commission  mentioned  in  said  act,  having  received  certain  certificates 
and  papers  purporting  to  be  certificates,  and  papers  accompanying  the  same,  of  the 
electoral  votes  from  the  State  of  Florida,  and  the  objections  thereto  submitted  to  it 
under  said  act,  now  report  that  it  has  duly  considered  the  same,  pursuant  to  said  act, 
and  has  decided,  and  does  hereby  decide,  that  the  votes  of  Frederick  C.  Humphreys, 
Charles  H.  Pearce,  William  H.  Holden,  and  Thomas  W.  Long,  named  in  the  certificate 
of  M.  L.  Stearns,  governor  of  said  State,  which  votes  are  certified  by  said  persons,  as 
appears  by  the  certificate  submitted  to  the  Commission  as  aforesaid,  and  marked 
"  unmber  one  "  by  said  Commission,  and  herewith  returned,  are  the  votes  provided  for 
by  the  Constitution  of  the  United  States,  and  that  the  same  are  lawfully  to  be  counted 
as  therein  certified,  namely :  four  (4)  votes  for  Rutherford  B.  Hayes,  of  the  State  of 
Ohio,  for  President,  and  four  (4)  votes  for  William  A.  Wheeler,  of  the  State  of  New 
York,  for  Vice- President. 

The  Commission  has  also  decided,  and  hereby  decides  and  reports,  that  the  four  per 
sons  first  before  named  were  duly  appointed  electors  in  and  by  said  State  of  Florida. 

The  ground  of  this  decision,  stated  briefly,  as  required  by  said  act,  is  as  follows : 

That  it  is  not  competent  under  the  Constitution  and  the  law,  as  it  existed  at  the 
date  of  the  passage  of  said  act,  to  go  into  evidence  aliunde  the  papers  opened  by  the 
President  of  the  Senate  in  the  presence  of  the  two  Houses  to  prove  that  other  persons 
than  those  regularly  certified  to  by  the  governor  of  the  State  of  Florida,  in  and  accord 
ing  to  the  determination  and  declaration  of  their  appointment  by  the  board  of  State 
canvassers  of  said  State  prior  to  the  time  required  for  the  performance  of  their  duties, 
had  been  appointed  electors,  or  by  counter-proof  to  show  that  they  had  not,  and  that 
all  proceedings  of  the  courts  or  acts  of  the  legislature  or  of  the  executive  of  Florida 
subsequent  to  the  casting  of  the  votes  of  the  electors  on  the  prescribed  day,  are  inad 
missible  for  any  such  purpose. 

As  to  the  objection  made  to  the  eligibility  of  Mr.  Humphreys,  the  Commission  is  of 
opinion  that,  without  reference  to  the  question  of  the  effect  of  the  vote  of  an  ineligible 
elector,  the  evidence  does  not  show  that  he  held  the  office  of  shipping-commissioner 
on  the  day  when  the  electors  were  appointed. 

The  Commission  has  also  decided,  and  does  hereby  decide  and  report,  that,  as  a  con- 


ELECTORAL    COUNT    OF    1877.  197 

sequence  of  the  foregoing,  and  upon  the  grounds  before  stated,  neither  of  the  papers 
purporting  to  be  certificates  of  the  electoral  votes  of  said  State  of  Florida,  numbered 
two  (2)  and  three  (3)  by  the  Commission,  and  herewith  returned,  are  the  certificates 
or  the  votes  provided  for  by  the  Constitution  of  the  United  States,  and  that  they  ought 
not  to  be  counted  as  such. 
Done  at  Washington  the  day  and  year  first  above  written. 

The  question  being  on  the  adoption  of  the  report  of  the  committee,  it 
was  decided  in  the  affirmative  : 

YEAS 8 

NAYS * 7 

Those  who  voted  in  the  affirmative  were :  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong— 8. 

Those  who  voted  in  the  negative  were:  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurman — 7. 

So  the  report  of  the  Commission  was  adopted;  and  said  decision  and 
report  was  thereupon  signed  by  the  members  agreeing  therein,  as  fol 
lows: 

SAM.  F.  MILLER, 

W.  STRONG, 

JOSEPH  P.  BRADLEY, 

GEO.  F.  EDMUNDS, 

O.  P.  MORTON, 

FRED'K  T.  FRELINGHUYSEN, 

JAMES  A.  GARFIELD, 

GEORGE  F.  HOAR, 

Commissioners. 

Mr.  Commissioner  EDMUNDS  offered  the  following  order  : 

Ordered,  That  the  President  transmit  a  letter  to  the  President  of  the  Senate,  in  the 
following  words : 

WASHINGTON,  D.  C.,  February  9,  1877. 

SIR:  I  am  directed  by  the  Electoral  Commission  to  inform  the  Senate  that  it  has  con 
sidered  and  decided  upon  the  matters  submitted  to  it,  under  the  act  of  Congress  con 
cerning  the  same,  touching  the  electoral  votes  from  the  State  of  Florida,  and  herewith, 
by  direction  of  said  Commission,  I  transmit  to  you  the  said  decision,  in  writing,  signed 
by  the  members  agreeing  therein,  to  be  read  at  the  meeting  of  the  two  Houses,  accord 
ing  to  said  act.  All  the  certificates  and  papers  sent  to  the  Commission  by  the  President 
of  the  Senate  are  herewith  returned. 

The  Hon.  THOMAS  W.  FERRY, 

President  of  the  Senate. 

And  that  he  deliver  to  him  therewith  the  written  decision  of  the  Commission  this 
day  made,  and  all  the  certificates,  papers,  and  objections  in  the  case  of  Florida. 

The  order  was  adopted ;  and  the  letter  was  thereupon  signed  accord 
ingly  by  "Nathan  Clifford,  President  of  the  Commission.'7 
Mr.  Commissioner  EDMUNDS  offered  the  following  order: 
Ordered,  That  the  President  of  the  Commission  transmit  to  the  Speaker  of  the  House 
of  Representatives  a  letter,  in  the  following  words  : 

WASHINGTON,  D.  C.,  February  9,  1877. 

SIR  :  I  am  directed  by  the  Electoral  Commission  to  inform  the  House  of  Representa 
tives  that  it  has  considered  and  decided  upon  the  matters  submitted  to  it  under  the  act 
of  Congress  concerning  the  same,  touching  the  electoral  votes  from  the  State  o] 
and  has  transmitted  said  decision  to  the  President  ot  the  Senate,  to  be  read  at  t 
meeting  of  the  two  Houses,  according  to  said  act.  

The  Hon.  SAMUEL  J.  RANDALL, 

Speaker  of  the  House  of  Representatives. 

The  order  was  adopted;  and  the  letter  was  thereupon  signed  accord 
ingly  by  "  Nathan  Clifford,  President  of  the  Commission." 


198  ELECTORAL    COUNT    OF    1877. 

On  motion  of  Mr.  Commissioner  ABBOTT,  it  was 

Ordered,  That  the  injunction  of  secrecy  imposed  on  the  action  had  to-day  as  entered 
in  the  Journal  be  removed. 

On  motion  of  Mr.  Commissioner  BRADLEY,  it  was 

Ordered,  That  when  the  Commission  adjourn  it  be  until  three  o'clock  p.  m.  to-mor 
row,  the  10th  instant. 

On  motion  of  Mr.  Commissioner  EDMUNDS,  (at  eight  o'clock  and 
five  minutes  p.  m.,)  the  Commission  adjourned. 

PROCEEDINGS  OF  THE  TWO  HOUSES. 

IN  SENATE,  Saturday,  February  10,  1877. 

The  recess  taken  on  Friday,  February  9,  having  expired,  the  Senate 
resumed  its  session  at  ten  o'clock  a.  m.  of  Saturday,  February  10. 

The  PRESIDENT  pro  tempore  laid  before  the  Senate  the  following 
communication;  which  was  read : 

WASHINGTON,  D.  C.,  February  9,  1877. 

SIR:  I  am  directed  by  the  Electoral  Commission  to  inform  the  Senate  that  it  has 
considered  and  decided  upon  the  matters  submitted  to  it,  under  the  act  of  Congress  con 
cerning  the  same,  touching  the  electoral  votes  from  the  State  of  Florida,  and  herewith, 
by  direction  of  said  Commission,  I  transmit  to  you  the  said  decision  in  writing,  signed 
by  the  members  agreeing  therein,  to  be  read  at  the  meeting  of  the  two  Houses,  accord 
ing  to  said  act.  All  the  certificates  and  papers  sent  to  the  Commission  l>y  the  President 
of  the  Senate  are  herewith  returned. 

NATHAN  CLIFFORD, 

President  of  the  Commission. 
Hon.  THOMAS  W.  FERRY, 

President  of  the  Senate. 

On  motion  of  Mr.  Senator  BOUTWELL,  the  Senate  took  a  recess  until 
twelve  o'clock  noon,  at  which  hour  it  re-assembled  ;  when,  on  motion  of 
Mr.  Senator  HAMLIN,  it  was 

Resolved,  That  the  Secretary  be  directed  to  inform  the  House  of  Representatives 
that  the  President  of  the  Electoral  Commission  has  notified  the  Senate  that  the  Com 
mission  had  arrived  at  a  decision  of  the  question  submitted  to  them  in  relation  to  the 
electoral  votes  of  the  State  of  Florida;  and  that  the  Senate  is  now  ready  to  meet  the 
House  to  receive  the  same,  and  to  proceed  with  the  count  of  the  electoral  vote  for 
President  and  Vice-President. 

IN  THE  HOUSE  OF  EEPRESENTATIVES, 

Saturday,  February  10,  1877. 

The  House  of  Representatives  resumed  its  session  at  ten  o'clock  a.  m., 
the  recess  taken  on  Friday,  February  9,  having  expired,  and  immedi 
ately,  on  motion  of  Mr.  Eepresentative  CLYMEE,  took  a  further  recess 
until  eleven  o'clock  and  fifty-five  minutes  a.  m.,  when,  after  some  formal 
business,  the  House,  by  unanimous  consent,  took  a  further  recess  till 
twelve  o'clock  noon,  when  the  Speaker  laid  before  the  House  the  fol 
lowing  communication;  which  was  read: 

WASHINGTON,  D.  C.,  February  9, 1877. 

SIR:  I  am  directed  by  the  Electoral  Commission  to  inform  the  House  of  Representa 
tives  that  it  has  considered  and  decided  upon  the  matters  submitted  to  it,  under  the 
act  of  Congress  concerning  the  same,  touching  the  electoral  votes  from  the  State  of 
Florida,  and  has  transmitted  said  decision  to  the  President  of  the  Senate,  to  be  road 
at  the  meeting  of  the  two  Houses,  according  to  said  act. 

NATHAN  CLIFFORD, 

President  of  the  Commission. 
Hon.  SAMUEL  J.  RANDALL, 

Speaker  of  the  House  of  Representatives. 

Mr.  Eepresentative  SAYLEE  moved  that  the  Clerk  be  directed  to 


ELECTORAL    COUNT    OF'J877.  199 

notify  the  Senate  that  the  House  of  Representatives  will  be  prepared  at 
one  o'clock  p.  m.  to  receive  them  for  the  purpose  of  proceeding  further 
with  the  counting  of  the  electoral  vote  for  President  and  Vice-President. 

Mr.  Eepresentative  HALE  submitted  the  following  resolution  as  an 
amendment,  viz: 

Resolved,  That  the  Clerk  of  the  House  notify  the  Senate  that  the 
House  of  Eepresentatives  is  now  in  session  and  ready  to  meet  the  Senate 
in  the  hall  for  further  proceedings  under  the  provisions  of  the  act  to 
provide  for  and  regulate  the  counting  of  votes  for  President  and  Viee- 
President. 

Mr.  Eepresentative  SAYLEE  demanded  the  previous  question ;  which 
was  seconded  and  the  main  question  ordered, 

And  being  put, 

First,  upon  the  resolution  submitted  by  Mr.  Eepresentative  Hale  as 
an  amendment  to  the  motion  of  Mr.  Eepresentative  Sayler, 

The  same  was  not  agreed  to. 

The  question  then  recurring  on  the  motion  of  Mr.  Eepresentative 
Sayler, 

The  same  was  agreed  to. 

JOINT  MEETING. 

SATURDAY,  February  10,  1877. 

The  action  of  each  House  having  been  communicated  to  the  other, 

At  one  o'clock  p.  m.  the  appearance  of  the  Senate  was  announced  to 
the  House  of  Eepresentatives. 

The  Senate  entered  the  hall  of  the  House,  preceded  by  its  Sergeant- 
at-Arms  and  headed  by  its  President  pro  tempore  and  its  Secretary,  the 
members  and  officers  of  the  House  rising  to  receive  them. 

The  PEESIDENT  jpro  tempore  of  the  Senate  took  his  seat  as  Presid 
ing  Officer  of  the  joint  convention  of  the  two  Houses,  the  Speaker  of 
the  House  occupying  a  chair  upon  his  left. 

The  PEESIDING  OFFICEE.  The  joint  meeting  of  Congress  for 
counting  the  electoral  vote  resumes  its  session.  The  two  Houses,  hav 
ing  separated  pending  the  submission  to  the  Commission  of  objections 
to  the  certificates  from  the  State  of  Florida,  have  re-assembled  to  hear 
and  to  coincide  or  otherwise  with  the  decision  of  that  tribunal,  by  a 
majority  of  the  Commission,  in  writing  and  signed  by  the  members 
agreeing  therein,  which  will  now  be  read  by  the  Secretary  of  the  Senate 
and  be  entered  in  the  Journal  of  each  House. 

The  Secretary  of  the  Senate  read  as  follows : 

ELECTORAL  COMMISSION, 
Washington,  I).  C.,  February  9,  A.  D.  1877. 

To  the  President  of  the  Senate  of  the  United  States,  presiding  in  the  meeting  of  the 
two  Houses  of  Congress,  under  the  act  of  Congress  entitled  "An  act  to  provide  for  and. 
regulate  the  counting  of  the  votes  for  President  and  Vice-President,  and  the  decision 
of  questions  arising  thereon,  for  the  term  commencing  March  4,  A.  D.  1877,"  approved 
January  29, 1877 : 

The  Electoral  Commission  mentioned  in  said  act  having  received  certain  certificates 
and  papers  purporting  to  be  certificates,  and  papers  accompanying  the  same,  of  the 
electoral  votes  from  the  State  of  Florida,  and  the  objections  thereto,  submitted  to  it 
under  said  act,  now  report  that  it  has  duly  considered  the  same,  pursuant  to  said  act, 
and  has  decided,  and  does  hereby  decide,  that  the  votes  of  Frederick  C.  Humphreys, 
Charles  H.  Pearce,  William  H.  Holden,  and  Thomas  W.  Long,  named  in  the  certificate 
of  M.  L.  Stearns,  governor  of  said  State,  which  votes  are  certified  by  said  persons,  as 
appears  by  the  certificate  submitted  to  the  Commission,  as  aforesaid,  and  marked 
"number  one"  by  said  Commission  and  herewith  returned,  are  the  votes  provided  for 


200  ELECTORAL    COUNT    OF    1877. 

by  the  Constitution  of  the  United  States,  and  that  the  same  are  lawfully  to  be  counted 
as  therein  certified,  namely:  Four  votes  for  Rutherford  B.  Hayes,  of  the  State  of  Ohio, 
for  President,  and  four  votes  for  William  A.  Wheeler,  of  the'  State  of  New  York,  for 
Vice-President. 

The  Commission  has  also  decided,  and  hereby  decides  and  reports,  that  the  four 
persons  first  before  named  were  duly  appointed  electors  in  and  by  said  State  of 
Florida. 

The  ground  of  this  decision  stated  briefly,  as  required  by  said  act,  is  as  follows : 
That  it  is  not  competent  under  the  Constitution  and  the  law,  as  it  existed  at  the 
date  of  the  passage  of  said  act,  to  go  into  evidence  alhinde  the  papers  opened  by  the 
President  of  the  Senate  in  the  presence  of  the  two  Houses,  to  prove  that  other  persons 
than  those  regularly  certified  to  by  the  governor  of  the  State  of  Florida,  in  and  accord 
ing  to  the  determination  and  declaration  of  their  appointment  by  the  board  of  State 
canvassers  of  said  State  prior  to  the  time  required  for  the  performance  of  their  duties, 
had  been  appointed  electors,  or  by  counter-proof  to  show  that  they  had  not,  and  that 
all  proceedings  of  the  courts  or  acts  of  the  legislature  or  of  the  executive  of  Florida, 
subsequent  to  the  casting  of  the  votes  of  the  electors  on  the  prescribed  day,  are  inad 
missible  for  any  such  purpose. 

As  to  the  objection  made  to  the  eligibility  of  Mr.  Humphreys,  the  Commission  is  of 
the  opinion  that,  without  reference  to  the  question  of  the  effect  of  the  vote  of  an 
ineligible  elector,  the  evidence  does  not  show  that  he  held  the  office  of  shipping-com 
missioner  on  the  day  when  the  electors  were  appointed. 

The  Commission  has  also  decided,  and  does  hereby  decide  and  report,  that,  as  a  con 
sequence  of  the  foregoing,  and  upon  the  grounds  before  stated,  neither  of  the  papers 
purporting  to  be  certificates  of  the  electoral  votes  of  said  State  of  Florida,  numbered 
two  (.2)  and  three  (3)  by  the  Commission  and  herewith  returned,  are  the  certificates,  or 
the  votes  provided  for  by  the  Constitution  of  the  United  States,  and  that  they  ought 
not  to  be  counted  as  such. 

Done  at  Washington  the  day  and  year  first  above  written. 

SAM.  F.  MILLER, 

W.  STRONG, 

JOSEPH  P.  BRADLEY, 

GEO.  F.  EDMUNDS, 

O.  P.  MORTON, 

FRED'K  T.  FPELINGHUYSEN, 

JAMES  A.  GARFIELD, 

GEORGE  F.  HOAR, 

Commissioners. 

The  PRESIDING  OFFICER,     Are  there  objections  to  this  decision  ? 

Mr.  Representative  FIELD.  I  submit  an  objection  to  the  decision 
and  report  just  read. 

The  PRESIDING  OFFICER.  The  member  from  New  York  [Mr. 
Field]  submits  an  objection  to  the  decision ;  which  will  be  read  by  the 
Clerk  of  the  House. 

The  Clerk  of  the  House  read  as  follows : 

An  objection  is  interposed  by  the  undersigned  Senators  and  Representatives  to  the 
decision  made  by  the  Commission  constituted  by  the  act  entitled  "An  act  to  provide 
for  and  regulate  the  counting  of  the  votes  for  President  and  Vice-President,  and  the 
decision  of  questions  arising  thereon,  for  the  term  commencing  March  4,  A.  D.  1877," 
as  to  the  true  and  lawful  electoral  vote  of  Florida,  upon  the  following  grounds  : 

First.  For  that  the  decision  determines  that  the  vote  cast  by  Charles  H.  Pearce, 
Frederick  C.  Humphreys,  William  H.  Holden,  and  Thomas  W.  Long,  as  electors  of 
President  and  Vice-President  of  the  United  States  in  and  for  or  on  behalf  of  the  State 
of  Florida,  is  the  true  and  lawful  electoral  vote  of  said  State,  when,  in  truth  and  in 
fact,  the  vote  cast  by  Wilkinson  Call,  James  E.  Yonge,  Robert  B.  Hilton,  and  Robert 
Bullock  is  the  true  and  lawful  vote  of  said  State. 

Second.  For  that  said  Commission  refused  to  receive  com  potent  and  material  evi 
dence  tending  to  prove  that  Charles  H.  Pearce,  Frederick  C.  Humphreys,  William  H. 
Holden,  and  Thomas  W.  Long  were  not  appointed  electors  in  the  manner  prescribed  by 
the  legislature  of  the  State  of  Florida,  but  were  designated  as  electors  by  the  return- 
ing-board  of  said  State  corruptly  and  fraudulently,  in  disregard  of  law,  and  with  the 
intent  to  defeat  the  will  of  the  people  expressed  in  the  choice  of  Wilkinson  Call,  James 
E.  Yonge,  Robert  B.  Hilton,  and  Robert  Bullock,  who  were  legally  and  regularly  ap 
pointed  electors  by  the  State  of  Florida  in  the  manner  directed  by  the  legislature 
thereof. 

Third.  For  that  the  decision  aforesaid  was  founded  upon  the  resolution  and  order  of 
said  Commission  previously  made,  as  follows: 

"  Ordered,  That  no  evidence  will  be  received  or  considered  by  the  Commission  which 


ELECTORAL   COUNT    OF   1877.  201 

was  not  submitted  to  the  joint  convention  of  the  two  Houses  by  the  President  of  the 
Senate  with  the  different  certificates,  except  such  as  relates  to  the  eligibility  of  F.  C. 
Humphreys,  one  of  the  electors." 

Fourth.  For  that  said  decision  excludes  all  the  evidence  taken  by  the  two' Houses  of 
Congress  and  by  the  committees  of  each  House  concerning  the  frauds,  errors,  and  irreg 
ularities  committed  by  the  persons  whose  certificates  are  taken  as  proof  of  the  due  ap 
pointment  of  electors. 

Fifth.  For  that  said  decision  excludes  all  evidence  tending  to  prove  that  the  certifi 
cate  of Stearns,  governor,  as  also  that  of  the  board  of  State  canvassers,  was  pro 
cured  or  given  in  pursuance  of  a  fraudulent  and  corrupt  conspiracy  to  cheat  the  State 
of  Florida  out  of  its  rightful  choice  of  electors  and  to  substitute  therefor  those  who 
had  not  been  chosen  or  appointed  electors  by  said  State  in  the  manner  directed  by  the 
legislature  thereof. 

Sixth.  For  that  said  Commission  refused  to  recognize  the  right  of  the  courts  of  the 
State  of  Florida  to  review  and  reverse  the  judgment  of  the  returuing-board  or  board 
of  State  canvassers,  rendered  through  fraud  and  without  jurisdiction,  and  rejected  and 
refused  to  consider  the  action  of  said  courts  after  their  decision  that  Charles  H.  Pearce, 
Frederick  C.  Humphreys,  William  H.  Holden,  and  Thomas  W.  Long  were  not  entitled 
to  cast  the  electoral  vote  of  Florida ;  which  said  decision  was  rendered  by  a  court  of 
said  State  in  a  case  lawfully  brought  before  said  court,  which  court  had  jurisdiction 
over  the  subject-matter  thereof  and  whose  jurisdiction  over  the  said  Charles  H.  Pearce, 
Frederick  C.  Humphreys,  William  H.  Holdeu,  and  Thomas  W.  Long  had  attached  be 
fore  any  act  was  done  by  them  as  electors. 

Seventh.  For  that  said  decision  excludes  all  evidence  tending  to  prove  that  the  State 
of  Florida,  by  all  the  departments  of  its  government,  legislative,  executive,  and  judi 
cial,  has  repudiated  as  fraudulent  and  void  the  certificate  of  -  Stearns,  governor, 
as  well  as  that  of  the  State  canvassers,  upon  which  certificate  of  the  said  governor  the 
said  Commission  has  acted,  and  by  means  of  which  the  true  electoral  votes  of  Florida 
have  been  rejected  and  false  ones  substituted  in  their  stead ;  and 

Eighth.  For  that  to  count  the  votes  of  Charles  H.  Pearce,  Frederick  C.  Humphreys, 
William  H.  Holden,  and  Thomas  W.  Long  as  electors  for  President  and  Vice-President 
would  be  a  violation  of  the  Constitution  of  the  United  States. 

CHS.  W.  JONES,  Florida, 
HENRY  COOPER,  of  Tennessee, 
FRANCIS  KERNAN,  of  New  York, 
ELI  SAULSBURY,  Delaware, 
J.  E.  McDONALD,  Indiana, 
W.  H.  BARNUM,  Connecticut, 

On  the  part  of  the  Senate. 
J.  PROCTOR  KNOTT, 
DAVID  DUDLEY  FIELD,  of  New  York, 
W.  S.  HOLMAN,  of  Indiana, 
J.  R.  TUCKER, 
CHARLES  P.  THOMPSON, 
G.  A.  JENKS,  of  Pennsylvania, 
J.  J.  FINLEY, 
MILTON  SAYLER, 
E.  JNO.  ELLIS, 
W.  R.  MORRISON, 
ABRAM  S.  HEWITT, 
WILLIAM  M.  SPRINGER, 

On  the  part  of  the  House. 

The  PRESIDING  OFFICER.  Has  the  member  from  New  York, 
who  submitted  this  objection,  a  duplicate,  so  that  each  House  may  have 
a  copy  I 

Mr.  Representative  FIELD  sent  to  the  Clerk's  desk  a  copy  of  the  ob 
jections. 

The  PRESIDING  OFFICER.  Are  there  further  objections  to  the 
decision  1  [A  pause.]  If  there  be  none,  the  Senate  will  retire  to  its 
chamber,  that  the  Houses  respectively  may  consider  and  determine  on 
the  objection. 

The  Senate  then  withdrew. 

IN  SENATE,  Saturday,  February  10,  1877—1.30  p.  m, 
The  Senate  having  returned  to  its  chamber  at  half  past  one  o'clock  p. 
m.,  the  PRESIDENT  pro  tempore  took  the  chair  and  called  the  Senate 
to  order. 


202  ELECTORAL    COUNT    OF    1877. 

The  objection  to  the  decision  of  the  Electoral  Commission  submitted 
in  the  joint  meeting  of  the  two  Houses  was  read  by  the  Secretary. 

Mr.  Senator  S HERMAN  submitted  a  resolution  ;  which  (after  debate 
and  the  rejection  of  various  amendments  thereto)  was  agreed  to  by  a 
vote  of  yeas  44,  nays  25,  in  the  following  words  : 

Resolved,  That  the  decision  of  the  Commission  upon  the  electoral  vote  of  the  State  of 
Florida  stand  as  the  judgment  of  the  Senate,  the  objections  made  thereto  to  the  contrary 
notwithstanding. 

On  motion  of  Mr.  Senator  SARGENT,  it  was 

Ordered,  That  the  Secretary  notify  the  House  of  Representatives  thereof,  and  that 
the  Senate  is  now  ready  to  meet  the  House  to  resume  the  counting  of  the  electoral 
-votes  for  President  and  Vice-President. 

The  Senate,  being  advised  that  the  House  of  Representatives  had 
taken  a  recess,  took  a  recess  (at  three  o'clock  p.  m.)  until  Monday,  Feb 
ruary  12,  at  ten  o'clock  a.  m. 

IN  THE  HOUSE  OF  REPRESENTATIVES, 

Saturday,  February  10,  1877—1.20  p.  m. 

The  Senate  having  retired, 

Mr.  Representative  LYNDE  moved  that  the  House  take  a  recess  until 
ten  o'clock  a.  m.  of  Monday,  February  12. 

Mr.  Representative  HALE  made  the  point  of  order  that  under  the  act 
of  Congress  of  January  29,  1877,  known  as  the  electoral  act,  no  such 
recess  could  be  taken,  and  that  therefore  the  motion  was  not  in  order. 

The  SPEAKER  overruled  the  point  of  order;  from  which  decision 
Mr.  Representative  HALE  appealed. 

On  motion  of  Mr.  Representative  COX,  the  appeal  was  ordered  to  lie 
on  the  table. 

The  question  recurring  on  the  motion  of  Mr.  Representative  LYNDE, 
it  was  agreed  to — yeas  162,  nays  107 ;  and  the  House  (at  two  o'clock  and 
fifty-five  minutes  p.  m.)  took  a  recess  until  Monday,  February  12,  at  ten 
o'clock  a.  m.,  the  action  of  the  Senate  being  communicated  to  the  House 
during  the  call  of  the  roll  on  the  motion  for  a  recess. 

ELECTORAL  COMMISSION. 

SATURDAY,  February  10,  1877. 

The  Commission  met  at  three  o'clock  p.  m.,  pursuant  to  adjournment. 
Present :  The  President  of  the  Commission  and  Commissioners  MIL 
LER,  FIELD,  STRONG-,  BRADLEY,  EDMUNDS,  MORTON,  FRELINGHUY- 
SEN,  GARFIELD,  HUNTON,  and  HOAR. 

The  Journal  of  yesterday  was  read,  corrected,  and  approved. 

On  motion  of  Mr.  Commissioner  EDMUNDS,  the  Commission  (at 
three  o'clock  and  twenty-eight  minutes  p.  m.)  adjourned  till  Monday 
next  at  half  past  two  o'clock  p.  m. 

PROCEEDINGS  OF  THE  TWO  HOUSES. 

IN  SENATE,  Monday,  February  12,  1877. 

The  Senate  resumed  its  session  at  ten  o'clock  a.  m.,  transacting  no 
business,  and  at  two  o'clock  and  twenty  minutes  p.  m.,  being  notified  of 
the  action  of  the  House  of  Representatives  on  the  objection  to  the  decis 
ion  of  the  Commission  as  to  the  electoral  votes  of  Florida,  it  proceeded 
to  the  hall  of  the  House  of  Representatives. 


ELECTORAL  CO  1. NT  OF  1877.  203 

IN  THE  HOUSE  OF  REPRESENTATIVES, 

Monday,  February  12,  1877. 

The  House  of  Representatives  resumed  its  session  at  ten  o'clock  a.  m. 
After  a  suspension  of  business  for  half  an  hour  by  unanimous  consent,' 
Mr.  Representative  FIELD  submitted  the  following  resolution  : 

Ordered,  That  the  counting  of  the  electoral  votes  from  the  State  of  Florida  shall  not 
proceed  in  conformity  with  the  decision  of  the  Electoral  Commission,  but  that  the 
votes  of  Wilkinson  Call,  James  E.  Yonge,  Robert  B.  Hilton,  and  Robert  Bullock  be 
counted  as  the  votes  of  the  State  of  Florida  for  President  and  Vice-President  of  the 
United  States. 

After  debate,  and  the  rejection  of  amendments  proposed,  the  reso 
lution  of  Mr.  Representative  FIELD  was  adopted — yeas  168,  nays  103  ; 
whereupon  it  was 

Ordered,  That  the  Clerk  inform  the  Senate  of  the  action  of  the  House,  and  that  the 
House  is  now  ready  to  meet  the  Senate  in  this  hall  to  proceed  with  the  counting  of  the 
electoral  votes  for  President  and  Vice-President. 

JOINT   MEETING. 

MONDAY,  February  12,  1877. 

The  Senate,  at  two  o'clock  and  twenty-five  minutes  p.  in.,  entered  the 
hall  of  the  House  of  Representatives,  preceded  by  its  Sergeant-at-Arms 
and  headed  by  its  President  pro  tempore  and  its  Secretary,  the  members 
and  officers  of  the  House  rising  to  receive  them  ;  and  the  Senators,  tell 
ers,  Secretary  of  the  Senate,  Clerk  of  the  House  of  Representatives, 
and  officers  of  the  two  Houses  took  the  seats  provided  for  them. 

The  PRESIDING  OFFICER.  The  joint  meeting  of  Congress  resumes 
its  session.  The  two  Houses  separately  have  considered  and  deter 
mined  the  objection  submitted  by  the  member  from  the  State  of  New 
York  [Mr.  FIELD]  to  the  decision  of  the  Commission  upon  the  certifi 
cates  from  the  State  of  Florida.  The  Secretary  of  the  Senate  will  now 
read  the  decision  of  the  Senate. 

The  Secretary  of  the  Senate  read  as  follows  : 

Resolved,  That  the  decision  of  the  Commission  upon  the  electoral  vote  of  the  State  of 
Florida  stand  as  the  judgment  of  the  Senate,  the  objections  made  thereto  to  the  con 
trary  notwithstanding. 

The   PRESIDING  OFFICER.    The  Clerk  of  the   House  will  now 
read  the  decision  of  the  House. 
The  Clerk  of  the  House  read  as  follows  : 

Ordered,  That  the  counting  of  the  electoral  vote  from  the  State  of  Florida  shall  not 
proceed  in  conformity  with  the  decision  of  the  Electoral  Commission,  but  that  the  votes 
of  Wilkinson  Call,  James  E.  Yonge,  Robert  B.  Hilton,  and  Robert  Bullock  be  counted 
as  the  votes  of  the  State  of  Florida  for  President  and  Vice-President  of  the  United 
States. 

The  PRESIDING  OFFICER.  The  two  Houses  not  concurring  in  or 
dering  otherwise,  the  decision  of  the  Commission  stand,  unreversed, 
and  the  counting  will  now  proceed  in  conformity  with  the  decision  of 
the  Commission.  The  tellers  will  announce  the  vote  of  the  State  of 
Florida. 

Mr.  Senator  ALLISON,  (one  of  the  tellers.)  The  State  of  Florida 
gives  4  votes  for  Rutherford  B.  Hayes,  of  Ohio,  for  President,  and  4 
votes  for  William  A.  Wheeler,  of  New  York,  for  Yice-Presideut. 

UNDISPUTED   STATES. 

The  PRESIDING  OFFICER.  The  Chair  having  opened  the  certifi 
cate  of  the  State  of  Georgia,  the  tellers  will  read  the  same  in  the 


204  ELECTORAL    COUNT    OF    1877. 

presence  and  hearing  of  the  two  Houses.    A  corresponding  certificate 
received  by  mail  is  also  handed  to  the  tellers. 

Mr.  Eepreseutative  COOK  (one  of  the  tellers)  read  in  fall  the  certifi 
cate  of  the  electoral  vote  of  the  State  of  Georgia. 

The  PRESIDING  OFFICER.  Are  there  objections  to  the  certificate 
of  the  State  of  Georgia?  [A  pause.]  There  being  none,  the  vote  of 
that  State  will  be  couuted.  The  tellers  will  announce  the  vote. 

Mr.  Representative  STONE,  (one  of  the  tellers.)  The  State  of  Georgia 
casts  11  votes  for  Samuel  J.  Tilden,  of  New  York,  for  President  of  the 
United  States,  and  11  votes  for  Thomas  A.  Hendricks,  of  the  State  of 
Indiana,  for  Vice-President. 

The  PRESIDING  OFFICER.  The  Chair  having  opened  the  certifi 
cate  from  the  State  of  Illinois,  one  of  the  tellers  will  read  the  same  in 
the  presence  and  hearing  of  the  two  Houses.  A  corresponding  certifi 
cate  received  by  mail  is  also  handed  to  the  tellers. 

Mr.  Senator  ALLISON  (one  of  the  tellers)  read  the  certificate  of  the 
electoral  vote  of  the  State  of  Illinois. 

The  PRESIDING  OFFICER.  Are  there  objections  to  the  certifi 
cate  of  the  State  of  Illinois '?  If  none,  the  vote  will  be  counted.  Tiie 
tellers  will  announce  the  vote  of  that  State. 

Mr.  Senator  ALLISON,  (one  of  the  tellers.)  In  the  State  of  Illinois  21 
votes  were  cast  for  Rutherford  B.  Hayes,  of  Ohio,  for  President,  and  2L 
votes  for  William  A.  Wheeler,  of  New  York,  for  Vice-President. 

The  PRESIDING  OFFICER.  The  certificate  of  the  State  of  Indiana 
having  been  opened,  one  of  the  tellers  will  read  the  same  in  the  pres 
ence  and  hearing  of  the  two  Houses.  The  Chair  hands  to  the  tellers 
the  corresponding  certificate  received  by  mail. 

Mr.  Representative  STONE  (one  of  the  tellers)  read  the  certificate. 

The  PRESIDING  OFFICER.  Are  there  objections  to  the  certifi 
cate  of  the  State  of  Indiana  ?  There  being  none,  the  vote  of  that 
State  will  be  counted.  The  tellers  will  announce  the  vote  of  Indiana. 

Mr.  Representative  STONE,  (one  of  the  tellers.)  The  State  of  Indi 
ana  casts  15  votes  for  Samuel  J.  Tilden,  of  the  State  of  New  York,  for 
President  of  the  United  States,  and  15  votes  for  Thomas  A.  Hendricks, 
of  Indiana,  for  Vice-President  of  the  United  States. 

The  PRESIDING  OFFICER.  Having  opened  the  certificate  from 
the  State  of  Iowa,  the  Chair  directs  the  reading  of  the  same  by  the  tell 
ers  in  the  hearing  and  presence  of  the  two  Houses.  A  corresponding 
certificate  received  by  mail  is  also  submitted  to  the  tellers. 

Mr.  Senator  ALLISON  (one  of  the  tellers)  read  the  certificate. 

The  PRESIDING  OFFICER.  Are  there  objections  to  the  certificate 
of  the  State  of  Iowa  ?  If  there  be  none,  the  vote  of  that  State  will  be 
counted.  The  tellers  will  announce  the  vote  of  Iowa. 

Mr.  Senator  ALLISON,  (one  of  the  tellers.)  The  State  of  Iowa  casts 
11  votes  for  Rutherford  B.  Hayes,  of  Ohio,  for  President,  and  11  votes 
for  William  A.  Wheeler,  of  New  York,  for  Vice-President. 

The  PRESIDING  OFFICER.  The  certificate  from  the  State  of 
Kansas  having  been  opened,  it  will  now  be  read  by  one  of  the  tellers. 
A  corresponding  one  received  by  mail  is  also  submitted. 

Mr.  Senator  1NGALLS  (one  of  the  tellers)  read  the  certificate. 

The  PRESIDING  OFFICER.  Are  there  objections  to  the  certificate 
from  the  State  of  Kansas  ?  If  there  be  none,  the  vote  of  that  State 
will  be  counted.  The  tellers  will  announce  the  vote. 

Mr.  Senator  INGALLS,  (one  of  the  tellers.)  The  State  of  Kansas 
casts  5  votes  for  Rutherford  B.  Hayes,  of  Ohio,  for  President  of  the 


ELECTORAL    COUNT    OF    1877.  205 

United  States,  and  5  votes  for  William  A.  Wheeler,  of  New  York,  for 
Yice-President. 

The  PBESIDING  OFFICER.  Having  opened  the  certificate  from 
the  State  of  Kentucky  received  by  messenger,  the  Chair  hands  the  same 
to  the  tellers  to  be  read  in  the  presence  and  hearing  of  the  two  Houses. 
A  corresponding  certificate  received  by  mail  is  also  delivered  to  the 
tellers. 

Mr.  Representative  COOK  (one  of  the  tellers)  read  the  certificate. 

The  PRESIDING  OFFICER.  Are  there  objections  to  the  certificate 
from  the  State  of  Kentucky  ?  If  there  be  none,  the  vote  of  that  State 
will  be  counted.  It  will  be  announced  by  the  tellers. 

Mr.  Eepresentative  COOK,  (one  of  the  tellers.)  The  State  of  Ken 
tucky  casts  12  votes  for  Samuel  J.  Tilden,  of  New  York,  for  President, 
and  12  votes  for  Thomas  A.  Hendiicks,  of  Indiana,  for  Vice  President. 

LOUISIANA. 

The  PRESIDING  OFFICER.  The  Chair  opens  a  certificate  from 
the  State  of  Louisiana  received  by  mail,  no  corresponding  one  by  mes 
senger.  One  of  the  tellers  will  read  the  same  in  the  hearing  and  pres 
ence  of  the  two  Houses. 

Mr.  Senator  ALLISON  (one  of  the  tellers)  read  as  follows: 

CERTIFICATE  No.  1. 

THE  UNITED  STATES  OF  AMERICA, 
STATE  OF  LOUISIANA,  EXECUTIVE  DEPARTMENT, 

New  Orleans,  December  6,  1876. 

I,  William  Pitt  Kellogg,  governor  of  the  State  of  Louisiana,  hereby  certify,  pursuant 
to  the  laws  of  the  United  States,  that  at  a  general  election  duly  held  in  accordance  with 
law  in  the  State  of  Louisiana,  on  Tuesday,  the  seventh  day  of  November,  1876,  for 
electors  for  President  and  Vice-President  of  the  United  States,  the  following-named 
persons  were  duly  chosen  and  appointed  electors  of  President  and  Vice-President  of 
the  United  States  for  the  State  of  Louisiana  : 

William  Pitt  Kellogg,  for  the  State  at  large. 

J.  Henri  Burch,  for  the  State  at  large. 

Peter  Joseph,  for  the  fijrst  congressional  district. 

Lionel  A.  Sheldon,  for  the  second  congressional  district. 

Morris  Marks,  for  the  third  congressional  district. 

Aaron  B.  Levissee,  for  the  fourth  congressional  district. 

Orlando  H.  Brewster,  for  the  fifth  congressional  district. 

Oscar  Joffrion,  for  the  sixth  congressional  district. 

In  testimony  whereof  I  have  hereunto  affixed  my  signature  and  caused  the  seal  of 
the  State  to  be  attached,  at  the  city  of  New  Orleans,  this  sixth  day  of  December,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  seventy-six,  and  in  the  year  of  the 
Independence  of  the  United  States  of  America  the  one  hundred  and  first. 

WM.  P.  KELLOGG. 

By  the  governor : 

[SEAL.]    P.  G.  DESLONDE, 

Secretary  of  State. 

THE  UNITED  STATES  OF  AMERICA,  STATE  OF  LOUISIANA,  STATE-HOUSE, 

New  Orleans,  December  6,  1876. 

We,  the  electors  of  President  and  Vice-President  of  the  United  States  for  the  State  of 
Louisiana,  do  hereby  certify  that  on  this,  the  sixth  day  of  December,  in  the  year  of  our 
Lord  eighteen  hundred  and  seventy-six,  we  proceeded  to  vote  by  ballot  for  President 
of  the  United  States,  on  the  date  above ;  that  Rutherford  B.  Hayes,  of  the  State  of  Ohio, 
received  eight  votes  for  President  of  the  United  States,  being  all  the  votes  cast ;  and 
that  we  then  immediately  proceeded  to  vote  by  ballot  for  Vice-President  of  the  United 
States,  whereupon  William  A.  Wheeler,  of  the  State  of  New  York,  received  eight  votes 
for  Vice-President  of  the  United  States,  being  all  the  votes  cast. 

In  testimony  whereof  we,  said  electors,  have  hereunto  signed  our  names,  on  this 
the  first  Wednesday,  being  the  sixth  day,  of  December,  in  the  year  of  our  Lord  eighteen 


206  ELECTORAL    COUNT    OF    1877. 

hundred  and  seventy-six,  and  of  the  Independence  of  the  United  States  the  one  hundred 
and  first. 

WILLIAM  P.  KELLOGG. 

J.  HENRI  BURCH. 

PETER  JOSEPH. 

LIONEL  A.  SHELDON. 

MORRIS  MARKS. 

AARON  B.  LEVISSEE. 

ORLANDO  II.  BREWSTER. 

OSCAR  JOFFRION. 
UNITED  STATES  OF  AMERICA, 

State  of  Louisiana,  City  of  New  Orleans  ; 

Be  it  remembered,  that  on  this  Wednesday,  the  sixth  day  of  December,  A.  D.  eighteen 
hundred  and  seventy-six,  that  the  following-named  persons,  bavins?  been  duly  chosen 
and  appointed  by  the  people  of  the  State  of  Louisiana  electors  of  President  and  Vice- 
President  of  the  United  States,  according  to  the  certificate  of  William  P.  Kellogg, 
governor  of  the  State  of  Louisiana,  hereto  attached,  namely:  William  P.  Kellogg, 
elector  for  the  State  at  large;  J.  Henri  Burch,  elector  for  the  State  at  large;  Peter 
Joseph,  elector  for  the  first  congressional  district ;  Lionel  A.  Sheldon,  elector  for  the 
second  congressional  district ;  Morris  Marks,  elector  for  the  third  congressional  dis 
trict  ;  Oscar  Joffrion,  elector  for  the  sixth  congressional  district,  met  at  the  State-house, 
at  the  city  of  New  Orleans,  the  seat  of  government  of  the  State  of  Louisiana,  as  re 
quired  by  law,  on  the  first  Wednesday  of  December,  A.  D.  eighteen  hundred  and 
seventy-six,  being  the  sixth  day  of  said  month. 

The  certificate  of  the  governor  was  read,  and  the  following  persons  answered  to  their 
names :  William  P.  Kellogg,  J.  Henri  Burch,  Peter  Joseph,  Lionel  A.  Sheldon,  Morris 
Marks,  Oscar  Joffrion.  Not  answering :  Aaron  B.  Levissee  and  Orlando  H.  Brewster. 

On  motion  of  Peter  Joseph,  J.  Henri  Burch  was  elected  to  preside  ;  and  on  motion  of 
Oscar  Joffrion,  Morris  Marks  was  appointed  secretary. 

On  motion  of  Lionel  A.  Sheldon,  a  recess  was  taken  till  the  hour  of  three-thirty 
p.  m.,  when  the  electors  re-assembled. 

On  the  roll  being  called,  it  was  found  that  Aaron  B.  Levissee  and  Orlando  H.  Brew 
ster  were  not  present.  At  the  hour  of  four  p.  m.  the  said  Aaron  B.  Levissee  and  Orlando 
H.  Brewster  having  failed  to  attend,  the  electors  present  proceeded  to  supply  such 
vacancies  by  ballot,  in  accordance  with  the  statute  of  the  State  of  Louisiana  in  such 
case  made  and  provided,  which  is  in  words  and  figures  as  follows  : 

"  If  any  one  or  more  of  the  electors  chosen  by  the  people  shall  fail  from  any  cause 
whatever' to  attend  at  the  appointed  place  at  the  hour  of  four  p.  m.  of  the  day  pre 
scribed  for  their  meeting,  it  shall  be  the  duty  of  the  other  electors  immediately  to  pro 
ceed  by  ballot  to  supply  such  vacancy  or  vacancies." 

Lionel  A.  Sheldon  and  Peter  Joseph  were  appointed  tellers,  when,  after  balloting,  it 
was  found  that  Aaron  B.  Levissee  received  six  votes,  being  all  the  votes  cast,  to  supply 
the  vacancy  in  the  fourth  congressional  district  occasioned  by  the  failure  of  Aaron  B. 
Levissee  to' attend,  and  Orlando  H.  Brewster  received  six  votes,  being  all  the  votes  cast, 
to  supply  the  vacancy  in  the  fifth  congressional  district  occasioned  by  the  failure  of 
Orlando  H.  Brewster  to  attend.  The  said  Aaron  B.  Levissee  and  Orlando  H.  Brewster 
were  thereupon  declared  elected  to  supply  the  vacancies  in  the  fourth  and  fifth  con 
gressional  districts  respectively,  and  being  sent  for,  soon  after  appeared  and  were  in 
attendance  as  electors. 

The  said  electors  then  proceeded  to  vote  by  ballot  for  President  of  the  United  States, 
when  William  P.  Kellogg  and  Lionel  A.  Sheldon  were  appointed  tellers,  and  upon 
counting  the  ballots  for  President  of  the  United  States,  Rutherford  B.  Hayes,  of  the 
State  of  Ohio,  did  receive  eight  votes  for  President  of  the  United  States,  being  all  the 
votes  cast. 

The  said  electors  then  proceeded  to  vote  by  ballot  for  Vice-President  of  the  United 
States,  when  Peter  Joseph  and  Oscar  Joffrion  were  appointed  tellers,  and  upon  count 
ing  the  votes  for  Vice-President  of  the  United  States,  William  A.  Wheeler,  of  the  State 
of  New  York,  did  receive  eight  votes  for  Vice-President  of  the  United  States,  being  all 
the  votes  cast,  whereupon  the  said  electors  signed  three  certificates,  one  of  which  is 
hereto  attached,  which  certificates  are  herewith  placed  separately  in  envelopes  and 
sealed  up  carefully,  and  on  each  envelope  was  indorsed  that  "  The  within  contains  a 
list  of  all  the  votes  cast  by  the  electors  for  the  State  of  Louisiana  for  President  and 
Vice-President  of  the  United  States,"  one  of  which  is  given  to  the  person  appointed  to 
convey  the  vote  to  the  President  of  the  Senate  of  the  United  States,  and  another  in 
dorsed  in  the  same  way  is  put  in  the  post-office,  and  the  other  deposited  with  the  judge 
of  the  district  court  of  the  United  States  for  the  district  of  Louisiana. 

On  motion  of  Peter  Joseph,  the  electors  proceeded  to  appoint  a  person  to  take  charge 
of  and  deliver  to  the  President  of  the  Senate  at  the  seat  of  the  Government,  before 
the  first  Wednesday  in  January  next  ensuing,  one  of  said  certificates,  when  Thomas 
C.  Anderson  was  appointed  to  the  above  service,  and  said  electors  made  and  signed  a 
certificate  of  such  appointment  in  the  following  form: 


ELECTORAL    COUNT    OF    1877.  207 

UNITED  STATES  OF  AMERICA,  STATE  OF  LOUISIANA,  STATE-HOUSE, 

Neiv  Orleans,  Wednesday,  December  6,  1876. 

We,  the  undersigned,  electors  of  President  and  Vice-President  of  the  United  States 
for  the  State  of  Louisiana,  do  hereby  appoint  Thomas  C.  Anderson  to  take  charge  of 
and  deliver  to  the  President  of  the  Senate  of  the  United  States,  at  the  seat  of  Govern 
ment  at  Washington,  D.  C.,  before  the  first  Wednesday  in  January  next,  one  of  the 
certificates  of  the  votes  cast  by  the  undersigned  for  President  and  Vice-President  of 
the  United  States,  on  Wednesday,  the  sixth  day  of  December,  A.  D.  1876. 

In  testimony  whereof  we  have  hereunto  signed  our  names,  on  this'  sixth  day  of 
December,  in  the  year  of  our  Lord  eighteen  hundred  and  seventy-six,  and  of  the 
Independence  of  the  United  States  of  America  the  one  hundred  and  first. 

WILLIAM  P.  KELLOGG. 
J.  HENRI  BURCH. 
PETER  JOSEPH. 
LIONEL  A.  SHELDON. 
MORRIS  MARKS. 
A.  B.  LEVISSEE. 
O.  H.  BREWSTER. 
OSCAR  JOFFRION. 

UNITED  STATES  OF  AMERICA,  STATE  OF  LOUISIANA, 

OFFICE  SECRETARY  OF  STATE, 

New  Orleans,  December  6,  1876. 

I,  P.  G.  Deslonde,  secretary  of  state  of  the  State  of  Louisiana,  hereby  certify  that 
the  following  is  a  true  and  correct  extract  from  an  act  of  the  legislature  of  the  State 
of  Louisiana,  being  act  No.  one  hundred  and  ninety-three,  approved  October  thirtieth, 
eighteen  hundred  and  sixty-eight,  the  original  of  which  act  is  on  file  among  the  records 
of  my  office,  and  is  still  in  force  and  unrepealed : 

"SEC.  8.  Be  it  further  enacted,  <fc.,  That  if  any  one  or  more  of  the  electors  chosen  by 
the  people  shall  fail  from  any  cause  whatever  to  attend  at  the  appointed  place  at  the 
hour  of  four  p.  m.  of  the  day  prescribed  for  their  meeting,  it  shall  be  the  duty  of  the 
other  electors  immediately  to  proceed  by  ballot  to  supply  such  vacancy  or  vacancies." 
In  testimony  whereof  I  have  hereunto  set  my  hand  and  caused  the  seal  of  the  State 
to  be  affixed  this  sixth  day  of  December,  in  the  year  of  our  Lord  eighteen  hundred 
and  seveuty-six,  and  of  the  Independence  of  the  United  States  the  one  hundred  and 
first. 

[SEAL.]  P.  G.  DESLONDE, 

Secretary  of  State. 

UNITED  STATES  OF  AMERICA,  STATE  OF  LOUISIANA, 

OFFICE  SECRETARY  OF  STATE, 

New  Orleans,  December  6,  1876. 

I,  P.  G.  Deslonde,  secretary  of  state  for  the  State  of  Louisiana,  hereby  certify  that 
at  a  general  election  held  in  the  State  of  Louisiana,  on  Tuesday,  the  seventh  day  of 
November,  eighteen  hundred  and  seventy-six,  the  following-named  persons  were 
elected,  chosen,  and  appointed  electors  for  President  and  Vice-Presideut  of  the  United 
States,  as  appears  from  the  returns  of  said  election  now  on  file  in  my  office,  and  which 
have  been  duly  promulgated  according  to  law  by  the  legal  returning-officers  of  the 
State,  to  wit :  William  P.  Kellogg,  for  the  State  at  large ;  J.  Henri  Burch,  for  the 
State  at  large;  Peter  Joseph,  for  the  first  congressional  district;  Lionel  A.  Sheldon, 
for  the  second  congressional  district ;  Morris  Marks,  for  the  third  congressional  dis 
trict;  Aaron  B.  Levissee,  for  the  fourth  congressional  district;  Orlando  H.  Brewster, 
for  the  fifth  congressional  district ;  Oscar  Joifrion,  for  the  sixth  congressional  district. 
And  I  further  certify  that  the  names  appended  to  the  certificates  of  votes  cast  for 
President  of  the  United  States  and  for  Vice-President  of  the  United  States,  on  Wednes 
day,  the  sixth  day  of  December,  A.  D.  eighteen  hundred  and  seventy-six,  and  to  the 
proces-verbal  of  the  proceedings  of  said  electors  accompanying  said  certificates,  are  the 
true  and  proper  signatures  of  the  before-mentioned  persons  elected,  chosen,  and 
appointed  electors  of  President  and  Vice-Presideut  of  the  United  States  for  the  State 
of  Louisiana. 

In  testimony  whereof  I  have  hereunto  signed  my  name  and  caused  the  seal  of  the 
State  to  be  affixed  this  sixth  day  of  December,  in  the  year  of  our  Lord  eigbteen  hun 
dred  and  seventy-six,  and  of  the  Independence  of  the  United  States  the  one  hundred 
and  first. 

[SEAL.]  P.  G.  DESLONDE, 

Secretary  of  State. 

The  PRESIDING  OFFICER.  Having  opened  a  certificate  received 
by  messenger  from  the  same  State,  the  Chair  hands  it  to  the  tellers,  to 


208  ELECTORAL   COUNT    OF   1877. 

be  read  in  the  presence  and  hearing  of  the  two  Houses.     A  correspond 
ing  one  received  by  mail  is  also  handed  to  the  tellers. 
Mr.  Eepresentative  STONE  (one  of  the  tellers)  read  as  follows : 

CERTIFICATE  No.  2. 

UNITED  STATES  OF  AMERICA, 

State  of  Louisiana : 

This  is  to  certify  that  the  following  is  a  true  and  correct  list  of  the  names  of  the 
electors  of  the  President  and  Vice-President  of  the  United  States  for  the  next  ensuing 
regular  term  of  the  respective  offices  thereof,  being  electors  duly  and  legally  appointed 
by  and  for  the  State  of  Louisiana,  having  each  received  a  majority  of  the  votes  cast 
for  electors  at  the  election  in  the  State  of  Louisiana  held  in  accordance  with  law;  this 
certificate  being  furnished  as  directed  by  law,  by  the  executive  authority  of  said  State 
of  Louisiana. 

List  of  names  of  electors :  Robert  C.  Wickliffe,  John  McEnery,  Louis  St.  Martin, 
Feiix  P.  Poohe",  K.  A.  Cross,  Alcibiade  De  Blanc,  R.  G.  Cobb,  William  A.  Seay. 

In  witness  whereof  I  have  hereunto  signed  my  name  and  caused  the  great  seal  of 
the  State  of  Louisiana  to  be  affixed,  at  the  city  of  New  Orleans,  the  seat  of  govern 
ment  of  said  State,  on  this  6th  December,  1876,  being  the  first  Wednesday  in  said 
mouth  of  December,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and  seventy- 
six,  and  of  the  Independence  of  the  United  States  the  one  hundred  and  first. 

[SEAL.]  JOHN  McENERY, 

Governor  of  the  State  of  Louisiana. 


STATE  OF  LOUISIANA,  ss : 

We,  the  undersigned,  electors  of  President  and  Vice-President  of  the  United  States 
of  America  for  the  next  ensuing  regular  term  of  the  respective  offices  thereof,  being 
electors  duly  and  legally  appointed  by  and  for  the  State  of  Louisiana,  as  appears  by 
the  annexed  list  of  electors,  made,  certified,  and  delivered  to  us  by  the  direction  of  the 
executive  of  the  State,  having  met  and  convened  in  the  city  of  New  Orleans  and  the 
seat  of  government,  at  the  hall  of  house  of  representatives,  in  pursuance  of  the  laws 
of  the  United  States,  and  also  in  pursuance  of  the  laws  of  the  State  of  Louisiana,  on 
the  first  Wednesday,  the  sixth  day  of  December,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  seventy-six — 

Do  hereby  certify  that,  being  so  assembled  and  duly  organized,  we  proceeded  to  vote 
by  ballot,  and  balloted  first  for  such  President,  and  then  for  such  Vice-president,  by 
distinct  ballots. 

And  we  further  certify  that  the  following  are  two  distincts  lists ;  one  of  the  votes 
for  President,  and  the  other  of  the  votes  for  Vice-President. 

List  of  persons  voted  for  as  President,  icith  the  number  of  votes  for  each. 


Names  of  persons  voted  for. 

Number  of  votes. 

Samuel 

J.  Tilden,  of  the  State  of  New  York  

Eight  votes. 

List  of  all  persons  voted  for  as  Vice- President,  ivith  the  number  of  votes  for  each. 


Names  of  persons  voted  for. 

Number  of  votes. 

Thomas  A.  Hendricks,  of  the  State  of  Indiana  

Eight  votes. 

In  witness  whereof  we  have  hereunto  set  our  hands. 

Done  at  the  hall  of  the  house  of  representatives,  in  the  city  of  New  Orleans,  and 
State  of  Louisiana,  the  sixth  day  of  December,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  seventy-six,  and  of  the  United  States  of  America  the  one  hundred 
and  first. 

ROBERT  C.  WICKLIFFE. 

JOHN  McENERY. 

L.  ST.  MARTIN. 

F.  P.  POCHE\ 

ALCIBIADE  DE  BLANC. 

K.  A.  CROSS. 

R.  G.  COBB. 

WM.  A.  SEAY. 


ELECTORAL    COUNT    OF    1377.  209 

[Indorsement.] 

We  hereby  certify  that  the  lists  of  all  votes  of  the  State  of  Louisiana  given  for 
President,  and  of  all  the  votes  given  for  Vice-President,  are  contained  herein. 

EGBERT  C.  WICKLIFFE. 

JOHN  McENERY. 

L.  ST.  MARTIN. 

ALCIBIADE  DE  BLANC. 

F.  P.  POCHfi, 

R.  G.  COBB. 

WM.  A.  SEAY. 

K.  A.  CROSS. 
To  the  PRESIDENT  OF  THE  SENATE, 

At  the  seat  of  Government,  Washington,  District  of  Columbia. 

The  PRESIDING  OFFICER.  The  Chair  having  opened  another 
certificate  from  the  State  of  Louisiana,  received  by  messenger,  one  of 
the  tellers  will  read  the  same  in  the  presence  and  hearing  of  the  two 
Houses.  A  corresponding  certificate  received  by  mail  is  also  handed  to 
the  tellers. 

Mr.  Senator  INGALLS  (one  of  the  tellers)  read  as  follows : 

CERTIFICATE  No.  3. 

THE  UNITED  STATES  OF  AMERICA, 
STATE  OF  LOUISIANA,  EXECUTIVE  DEPARTMENT, 

New  Orleans,  December  6,  1876. 

I,  William  Pitt  Kellogg,  governor  of  the  State  of  Louisiana,  hereby  certify,  pursu 
ant  to  the  laws  of  the  United  States,  that,  at   a  general  election  duly  held  in  accord 
ance  with  law  in  the    State  of  Louisiana,  on  Tuesday,  the  seventh  day  of  Novem 
ber,  1876,  for  electors  for  President  and  Vice-President  of  the  United  States,  the  fol 
lowing-named  persons  were  duly  chosen  and  appointed  electors  of  President  and  Vice- 
President  of  the  United  States  for  the  State  of  Louisiana  : 
William  P.  Kellogg,  for  the  State  at  large. 
J.  Henri  Burch,  for  the  State  at  large. 
Peter  Joseph,  for  the  first  congressional  district. 
Lionel  A.  Sheldon,  for  the  second  congressional  district. 
Morris  Marks,  for  the  third  congressional  district. 
Aaron  B.  Levissee,  for  the  fourth  congressional  district. 
Orlando  H.  Brewster,  for  the  fifth  cong  'essional  district. 
Oscar  Joffrion,  for  the  sixth  congressional  district. 

In  testimony  whereof  I  have  hereunto  affixed  my  signature  and  caused  the  seal  of 
the  State  to  be  attached,  at  the  city  of  New  Orleans,  this  sixth  day  of  December,  in 
the  year  of  our  Lord  one  thousand  eight  hundred  and  seventy -six.  and  in  the  year  of 
the  Independence  of  the  United  States  of  America  the  one  hundred  and  first. 

WM.  P.  KELLOGG. 
By  the  governor : 
[SEAL.]        P.  G.  DESLONDE, 

Secretary  of  State. 


THE  UNITED  STATES  OF  AMERICA, 

STATE  OF  LOUISIANA,  STATE  HOUSE, 

New  Orleans,  December  6,  1876. 

We,  the  electors  of  President  and  Vice-President  of  the  United  States,  for  the  State  of 
Louisiana,  do  hereby  certify  that,  on  this  the  sixth  day  of  December,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  seventy-six,  we  proceeded  to  vote  by  ballot  for 
President  of  the  United  States,  on  the  date  above  ;  that  Rutherford  B.  Hayes,  of  the 
State  of  Ohio,  received  8  votes  for  President  of  the  United  States,  being  all  the  votes 
cast ;  and  that  we  then  immediately  proceeded  to  vote  by  ballot  for  Vice-President 
of  the  United  States,  whereupon  William  A.  Wheeler,  of  the  State  of  New  York,  re 
ceived  8  votes  for  Vice-President  of  the  United  States,  being  all  the  votes  cast. 

In  testimony  whereof  we,  said  electors,  have  hereunto  signed  our  names,  on  this  the 
first  Wednesday,  being  the  sixth  day  of  December,  in  the  year  of  our  Lord  eighteen 

14  E   0 


210  ELECTORAL    COUNT    OF    1877. 

hundred  and  seventy-six,  and  of  the  Independence  of  the  United  States  the  one  hun 
dred  and  first. 

WILLIAM  P.  KELLOGG. 

J.  HENRI  BURCH. 

PETER  JOSEPH. 

LIONEL  A.  SHELDON. 

MORRIS  MARKS. 

AARON  B.  LEVISSEE. 

ORLANDO  H.  BREWSTER. 

OSCAR  JOFFRION, 


UNITED  STATES  OP  AMERICA, 

/State  of  Louisiana,  City  of  New  Orleans  : 

Be  it  remembered  that,  on  this  Wednesday,  the  sixth  day  of  December,  A.  D.  eighteen 
hundred  and  seventy-six,  that  the  following-named  persons,  having  been  duly  chosen 
and  appointed  by  the  people  of  the  State  of  Louisiana  electors  of  President  and  Vice- 
President  of  the  United  States,  according  to  the  certificate  of  William  P.  Kellogg,  gov 
ernor  of  the  State  of  Louisiana,  hereto  attached,  namely,  William  P.  Kellogg,  elector 
for  the  State  at  large ;  J.  Henri  Burch,  elector  for  the  State  at  large  ;  Peter  Joseph, 
elector  for  the  first  congressional  district ;  Lionel  A.  Sheldon,  elector  for  the  second 
congressional  district ;  Morris  Marks,  elector  for  the  third  congressional  district ;  Oscar 
Joffrion,  elector  for  the  sixth  congressional  district,  met  at  the  State-house,  at  the  city 
of  New  Orleans,  the  seat  of  government  of  the  State  of  Louisiana,  as  required  by  law, 
on  the  first  Wednesday  of  December,  A.  D.  eighteen  hundred  and  seventy-six,  being 
the  sixth  day  of  said  month. 

The  certificate  of  the  governor  was  read,  and  the  following  persons  answered  to 
their  names :  William.  P.  Kellogg,  J.  Henri  Burch,  Peter  Joseph,  Lionel  A.  Sheldon, 
Morris  Marks,  Oscar  Joffrion.  Not  answering :  Aaron  B.  Levissee  and  Orlando  H. 
Brewster. 

On  motion  of  Peter  Joseph,  J.  Henri  Burch  was  elected  to  preside ;  and  on  motion 
of  Oscar  Joffrion,  Morris  Marks  was  appointed  secretary. 

On  motion  of  Lionel  A.  Sheldon,  a  recess  was  taken  till  the  hour  of  three-thirty 
p.  m.,  when  the  electors  re-assembled. 

On  the  roll  being  called,  it  was  found  that  Aaron  B.  Levissee  and  Orlando  H.  Brew 
ster  were  not  present.  At  the  hour  of  four  p.  m.,  the  said  Aaron  B.  Levissee  and  Or 
lando  H.  Brewster  having  failed  to  attend,  the  electors  present  proceeded  to  supply 
such  vacancies  by  ballot,  in  accordance  with  the  statute  of  the  State  of  Louisiana  in 
Buch  cases  made  and  provided  ;  which  is  in  words  and  figures  as  follows : 

"  If  any  one  or  more  of  the  electors  chosen  by  the  people  shall  fail  from  any  cause 
•whatever  to  attend  at  the  appointed  place  at  the  hour  of  four  p.  m.,  of  the  day  pre 
scribed  for  their  meeting,  it  shall  be  the  duty  of  the  other  electors  immediately  to  pro 
ceed  by  ballot  to  supply  such  vacancy  or  vacancies." 

Lionel  A.  Sheldon  and  Peter  Joseph  were  appointed  tellers,  when,  after  balloting,  it 
•was  found  that  Aaron  B.  Levissee  received  six  votes,  being  all  the  votes  cast,  to  supply 
the  vacancy  in  the  fourth  congressional  district  occasioned  by  the  failure  of  Aaron  B. 
Levissee  to  attend,  and  Orlando  H.  Brewster  received  six  votes,  being  all  the  votes 
cast,  to  supply  the  vacancy  in  the  fifth  congressional  district  occasioned  by  the  failure 
of  Orlando  H.  Brewster  to  attend.  The  said  Aaron  B.  Levissee  and  Orlando  H.  Brew 
ster  were  thereupon  declared  elected  to  supply  the  vacancies  in  the  fourth  and  fifth 
congressional  districts  respectively,  and  being  sent  for,  soon  after  appeared  and  were 
in  attendance  as  electors. 

The  said  electors  then  proceeded  to  vote  by  ballot  for  President  of  the  United  States, 
when  William  P.  Kellogg  and  Lionel  A.  Sheldon  were  appointed  tellers,  and  upon 
counting  the  ballots  for  President  of  the  United  States,  Rutherford  B.  Hayes,  of  the 
State  of  Ohio,  did  receive  8  votes  for  President  of  the  United  States,  being  all  the 
votes  cast. 

The  said  electors  then  proceeded  to  vote  by  ballot  for  Vice  President  of  the  United 
States,  when  Peter  Joseph  and  Oscar  Joffrion  were  appointed  tellers,  and  upon  count 
ing  the  votes  for  Vice-President  of  the  United  States,  William  A.  Wheeler,  of  the  State 
of  New  York,  did  receive  8  votes  for  Vice-President  of  the  United  States,  being  all  the 
votes  cast.  Whereupon  the  said  electors  signed  three  certificates,  one  of  which 
is  hereto  attached,  which  certificates  are  herewith  placed  separately  in  envelopes  and 
sealed  up  carefully,  and  on  each  envelope  was  indorsed  that  "  The  within  contains  a 
list  of  all  the  votes  cast  by  the  electors  for  the  State  of  Louisiana  for  President  and 
Vice-President  of  the  United  States,"  one  of  which  is  given  to  the  person  appointed  to 
convey  the  vote  to  the  President  of  the  Senate  of  the  United  States,  and  another  in 
dorsed  in  the  same  way  is  put  in  the  post-office,  and  the  other  deposited  with  the  judge 
of  the  district  c<)urt  of  the  United  States  for  the  district  of  Louisiana. 


ELECTORAL    COUNT    OF    1877.  211 

Oil  motion  of  Peter  Joseph,  the  electors  proceeded  to  appoint  a  person  to  take  charge 
-of  and  deliver  to  the  President  of  the  Senate,  at  the  seat  of  the  Government,  before  the 
first  Wednesday  in  January  next  ensuing,  one  of  said  certificates,  when  Thomas  C. 
Anderson  was  appointed  to  the  above  service,  and  said  electors  made  aud  signed  a  cer 
tificate  of  such  appointment  in  the  following  form  : 

STATE  OF  LOUISIANA,  STATE-HOUSE,  UNITED  STATES  OF  AMERICA, 

New  Orleans,  Wednesday,  December  6,  1876. 

We,  the  undersigned  electors  of  President  and  Vice- President  of  the  United  States, 
for  the  State  of  Louisiana,  do  hereby  appoint  Thomas  C.  Anderson  to  take  charge  of 
and  deliver  to  the  President  of  the  Senate  of  the  United  States,  at  the  seat  of  Govern 
ment  at  Washington,  D.  C.,  before  the  first  Wednesday  in  January  next,  one  of  the  cer 
tificates  of  the  votes  cast  by  the  undersigned  for  President  and  Vice-President  of  the 
United  States,  on  Wednesday,  the  sixth  day  of  December,  A.  D.  1876.  #&>* 

In  testimony  whereof  we  have  hereunto  signed  our  names  on  this  sixth  day 'of 
December,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and  seventy-six,  and 
of  the  Independence  of  the  United  States  of  America  the  one  hundred  and  first.  ^ 

WILLIAM  P.  KELLOGG. 
J.  HENRI  BURGH. 
PETER  JOSEPH. 
LIONEL  A.  SHELDON. 
MORRIS  MARKS. 
A.  B.  LEVISSEE. 
O.  H.  BREWSTER. 
OSCAR  JOFFRION. 


UNITED  STATES  OF  AMERICA,  STATE  OF  LOUISIANA, 

OFFICE  SECRETARY  OF  STATE, 

New  Orleans,  December  6,  1876. 

I,  P.  G.  Deslonde,  secretary  of  state  of  the  State  of  Louisiana,  hereby  certify  that 
the  following  is  a  true  and  correct  extract  from  an  act  of  the  legislature  of  the  State 
of  Louisiana,  being  act  No.  one  hundred  and  ninety-three,  approved  October  thirtieth, 
eighteen  hundred  and  sixty-eight,  the  original  of  which  act  is  on  file  among  the  records 
of  my  office,  and  is  still  in  force  and  unrepealed : 

"SEC.  8.  Be  it  further  enacted,  #c.,  That  if  any  one  or  more  of  the  electors  chosen  by 
the  people  shall  fail  from  any  cause  whatever  to  attend  at  the  appointed  place  at  the 
hour  of  four  p.  m.  of  the  day  prescribed  for  their  meeting,  it  shall  be  the  duty  of  the 
other  electors  immediately  to  proceed  by  ballot  to  supply  such  vacancy  or  vacancies." 
In  testimony  whereof  I  have  hereunto  set  my  hand  and  caused  the  seal  of  the  State 
to  be  affixed  this  sixth  day  of  December,  A.  D.  eighteen  hundred  and  seventy-six,  and 
of  the  Independence  of  the  United  States  the  one  hundred  and  first. 

[SEAL.]  P.  G.  DESLONDE, 

Secretary  of  State. 


UNITED  STATES  OF  AMERICA,  STATE  OF  LOUISIANA, 

OFFICE  SECRETARY  OF  STATE, 

New  Orleans,  December  6,  1876. 

I,  P.  G.  Deslonde,  secretary  of  state  for  the  State  of  Louisiana,  hereby  certify  that  at 
a  general  election  held  in  the  state  of  Louisiana,  on  Tuesday,  the  seventh  day  of  No 
vember,  eighteen  hundred  and  seventy-six,  the  folio  wing- named  persons  were  elected, 
chosen,  and  appointed  electors  for  President  and  Vice-President  of  the  United  States, 
as  appears  from  the  returns  of  said  election  now  on  file  in  my  office,  and  which  have 
been  duly  promulgated  according  to  law  by  the  legal  returning  officers  of  the  state,  to 
wit :  William  P.  Kellogg,  for  the  State  at  large ;  J.  Henri  Burch,  for  the  State  at 
large  ;  Peter  Joseph,  for  the  first  congressional  district ;  Lionel  A.  Sheldon,  for  the  sec 
ond  congressional  district ;  Morris  Marks,  for  the  third  congressional  district ;  Aaron 
B.  Levissee,  for  the  fourth  congressional  district ;  Orlando  H.  Brewster,  for  the  fifth 
congressional  district ;  Oscar  Joffrion,  for  the  sixth  congressional  district.  And  I  fur 
ther  certify  that  the  names  appended  to  the  certificates  of  votes  cast  for  President  of 
the  United  States  and  for  Vice-President  of  the  United  States,  on  Wednesday,  the 
sixth  day  of  December,  A.  D.  eighteen  hundred  and  seventy-six,  and  to  the  proces 
verbal  of  the  proceedings  of  said  electors  accompanying  said  certificate,  are  the  true 
and  proper  signatures  of  the  before-mentioned  persons  elected,  chosen,  and  appointed 
electors  of  President  and  Vice-Presideut  of  the  United  States  for  the  State  of  Louis 
iana. 


212  ELECTORAL    COUNT    OF    1577. 

In  testimony  whereof  I  have  hereunto  signed  iny  name  and  caused  the  seal  of  the 
State  to  be  affixed  this  sixth  day  of  December,  A.  D.  eighteen  hundred  and  seventy- 
six,  and  of  the  Independence  of  the  United  States  the  one  hundred  and  first. 

[SEAL.]  P.  G.  DESLONDE, 

Secretary  of  State. 

The  PEESIDJNG  OFFICER.  This  closes  the  reading  of  the  certifi 
cates  from  the  State  of  Louisiana.  Are  there  objections  to  the  certifi 
cates  which  have  been  read  ? 

Mr.  Senator  MCDONALD.  On  behalf  of  the  Senators  and  Representa 
tives  whose  names  are  subscribed  thereto,  I  submit  the  following  objec 
tions  to  the  counting  of  the  electoral  vote  of  the  State  of  Louisiana  as 
cast  for  Hayes  and  Wheeler. 

The  PRESIDING  OFFICER.  The  objections  to  counting  the  vote 
will  be  read  by  the  Secretary  of  the  Senate. 

The  Secretary  of  the  Senate  read  as  follows  : 

OBJECTION  No.  1. 

The  undersigned  Senators  and  Members  of  the  House  of  Representatives  of  the 
United  States  object  to  the  lists  of  the  names  of  electors  made  and  certified  by  Will 
iam  P.  Kellogg,  claiming  to  be,  but  who  was  not,  the  lawful  governor  of  the  State  of 
Louisiana,  and  to  the  electoral  votes  of  said  State,  signed  by  W.  P.  Kellogg,  J.  H. 
Burch,  Peter  Joseph,  L.  A.  Sheldon,  Morris  Marks,  A.  B.  Levissee,  O.  H.  Brewster,  and 
Oscar  Joffrion,  being  the  two  several  certificates,  the  first  and  third  presented  by  the 
President  of  the  Senate  to  the  two  Houses  of  Congress  in  joint  convention,  for  the 
reasons  following ; 

I. 

Because,  on  the  7th  day  of  November,  1876,  there  was  no  law,  joint  resolution,  or 
other  act  of  the  legislature  of  the  State  of  Louisiana  in  force  directing  the  manner  in 
which  electors  for  said  State  should  be  appointed. 

II. 

Because,  if  any  law  existed  in  the  State  of  Louisiana,  on  the  7th  day  of  November, 
1876,  directing  the  manner  of  the  appointment  of  electors,  it  was  an  act  of  the  legisla 
ture  which  directed  that  electors  should  be  appointed  by  the  people  of  the  State  in 
their  primary  capacity  at  an  election  to  be  held  on  a  day  certain,  at  particular  places, 
and  in  a  certain  way ;  and  the  people  of  the  State,  in  accordance  with  the  legislative 
direction,  exercised  the  power  vested  in  them  at  an  election  held  in  said  State  Novem 
ber  7,  1876,  in  pursuance  of  said  act  and  of  the  laws  of  the  United  States,  and  ap 
pointed  John  McEnery,  R.  C.  Wickliffe,  L.  St.  Martin,  F.  P.  Poch6,  A.  De  Blanc,  W.  A. 
Seay,  R.  G.  Cobb,  and  K.  A.  Cross  to  be  electors,  by  a  majority  for  each  of  six  thousand 
and  upward  of  all  the  votes  cast  by  qualified  voters  for  electors  at  said  election,  and 
said  electors  received  a  certificate  of  their  due  appointment  as  such  electors  from  John 
McEnery,  who  was  then  the  rightful  and  lawful  governor  of  said  State,  under  the  seal 
thereof;  and  thereupon  the  said  McEnery,  Wickliffe,  St.  Martin,  Poch6,  De  Blanc,  Seay, 
Cobb,  and  Cross  became  and  were  vested  with  the  exclusive  authority  of  electors  for 
the  State  of  Louisiana,  and  no  other  person  or  persons  had  or  could  have  such  author 
ity  or  power,  nor  was  it  within  the  legal  power  of  any  State  or  Federal  officer,  or  any 
other  person,  to  revoke  the  power  bestowed  on  the  said  McEnery,  Wickliffe,  St.  Martin, 
Poche",  De  Blanc,  Seay,  Cobb,  and  Cross,  or  to  appoint  other  electors  in  their  stead,  or 
to  impair  their  title  to  the  offices  to  which  the  people  had  appointed  them. 

III. 

Because  the  said  Kellogg,  Burch,  Joseph,  Sheldon,  Marks,  Levissee,  Brewster,  and  Jof 
frion  were  not,  nor  was  either  of  them,  duly  appointed  an  elector  by  the  State  of  Lou 
isiana  in  the  manner  directed  by  the  constitution  and  laws  of  said  State  and  of  the 
United  States,  and  the  lists  of  names  of  electors  made  and  certified  by  the  said  William 
P.  Kellogg,  claiming  to  be,  but  not  being,  governor  of  said  State,  were  false  in  fact,  and 
fraudulently  made  and  certified  by  said  Kellogg,  with  full  knowledge  at  the  time 
that  the  said  Kellogg,  Burch,  Joseph,  Sheldon,  Marks,  Levissee,  Brewster,  and  Joffrion 
were  not  duly  appointed  electors  by  the  qualified  voters  of  the  State,  and  without 
any  examination  of  the  returns  of  the  votes  cast  for  electors  as  required  by  the  laws 
of  the  State. 


ELECTORAL    COUNT    OF    1877.  213 

IV. 

Because  the  pretended  canvass  of  the  returns  of  said  election  for  electors  of  Presi 
dent  and  Vice-President  by  J.  Madison  Wells,  T.  C.  Anderson,  G.  Casanave,  and  Louis 
Kenner,  as  returning  officers  of  said  election,  was  without  jurisdiction  and  void,  for 
these  reasons : 

First.  The  statutes  of  Louisiana,  under  which  said  persons  claim  to  have  been  ap 
pointed  returning  officers,  and  to  have  derived  their  authority,  gave  them  no  jurisdic 
tion  to  make  the  returns,  or  to  canvass  and  compile  the  statement  of  votes  cast  for 
electors  of  President  and  Vice-President. 

Secondly.  Said  statutes,  if  construed  as  conferring  such  jurisdiction,  give  the  re 
turning  officers  power  to  appoint  the  electors,  and  are  void,  as  in  conflict  with  the  Con 
stitution,  which  requires  that  electors  shall  be  appointed  by  the  State. 

Thirdly.  Said  statutes,  in  so  far  as  they  attempt  to  confer  judicial  power,  and  to  give 
to  the  returning-officers  authority,  in  their  discretion,  to  exclude  the  statements  of 
votes,  and  to  punish  innocent  persons  without  trial,  by  depriving  them  of  their  legal 
right  of  suffrage,  are  in  conflict  with  the  constitution  of  the  State  of  Louisiana,  and 
are  anti-republican  and  in  conflict  with  the  Constitution  of  the  United  States,  in  so  far 
as  they  leave  it  to  the  discretion  of  the  returning-officers  to  determine  who  are  ap 
pointed  electors. 

Fourthly.  If  said  Louisiana  statutes  shall  be  held  valid,  they  conferred  no  jurisdic 
tion  on  said  Wells,  Anderson,  Casanave,  and  Kenner 'as  a  board  of  returniug-officers 
to  make  the  returns  of  said  election,  or  to  canvass  and  compile  the  statements  of  votes 
made  by  the  commissioners  of  said  election,  for  the  reason  that  they  constituted  but 
four  of  the  five  persons  to  whom  the  law  confided  those  duties ;  that  they  were  all  of 
the  same  political  party  ;  and  that  there  was  a  vacancy  in  said  board  of  returning-offi 
cers,  which  the  said  Wells,  Anderson,  Casanave,  and  Kenner  failed  and  refused  to  fill 
as  required  by  law. 

Fifthly.  Said  board  of  returning-officers  had  no  jurisdiction  to  exercise  judicial  func 
tions  and  reject  the  statement  of  the  votes  at  any  poll  or  voting-place,  unless  the 
foundation  for  such  jurisdiction  was  first  laid  as  required  by  the  statute,  which  the 
papers  and  records  before  said  board  of  returning-officers  show  was  not  done  to  such 
an  extent  as  to  change  the  result  of  the  election  as  shown  on  the  face  of  the  returns. 

Sixthly.  Said  returning-officers,  with  the  full  knowledge  that  a  true  and  correct  com 
pilation  of  the  official  statements  of  votes  legally  cast  November  7,  1876,  for  presiden 
tial  electors  in  the  State  of  Louisiana,  showed  the  following  result,  to  wit : 

/  Votes. 

John  McEnery  . .  83,723 

R.  C.  Wickliffe 83,859 

L.  St.  Martin 83,650 

F.  P.  Poch<S 83,474 

A.  De  Blanc 83,633 

W.  A.  Seay 83,812 

R.  G.  Cobb 83,530 

K.  A.  Cross 83,603 

W.  P.  Kellogg...  77,174 

J.  H.  Burch 77,162 

Peter  Joseph 74,913 

L.A.Sheldon  .„ 74,90$ 

Morris  Marks 75,240 

A.  B.  Levissee 75,395 

O.K.  Brewster 75,479 

Oscar  Jotfrion 75,618 

And  that  said  McEnery,  Wickliffe,  St.  Martin,  Poohe",  De  Blanc,  Seay,  Cobb,  and  Cross 
were  duly  and  lawfully  elected  electors,  illegally  and  fraudulently  changed,  altered, 
and  rejected  the  statements  of  votes  made  by  the  commissioners  of  election  and  the 
returns  of  supervisors  of  registration,  and  declared  the  following  to  be  the  state  of  the 
vote,  to  wit : 

John  McEnery  ..  70,508 

R.  C.  Wickliffe 70,509 

L.  St.  Martin 70,553 

F.  Poche-  70,335 

A.  De  Bianc:::::::;:::::::.:::: -  70  ge 

W.  A.  Seay 70,525 

R.G.  Cobb J0,423 

K.  A.  Cross 70,566 

W.  P.  Kellogg 75,135 

J.H.  Burch8 75' V?7, 

Peter  Joseph 74,014 


214  ELECTORAL    COUNT    OF    1877. 

L.  A.  Sheldon 74,027 

Morris  Marks 74,413 

A.  B.  Levissee 74,003 

O.  H.  Brewster 74,017 

Oscar  Joffrion 74,736 

And  the  said  returniug-ofncers  thereupon  falsely  and  fraudulently  certified  that  said 
Kellogg,  Burch,  Joseph,  Sheldon,  Marks,  Levissee,  Brewster,  and  Joffrion  were  duly 
elected  electors,  when  the  fact  was  that,  omitting  the  statements  of  votes  illegally 
withheld  by  supervisors,  those  before  the  returning-officers,  which  it  was  their  duty  to, 
but  which  they  did  not  canvass  and  compile,  showed  majorities  for  McEnery,  Wickliffe, 
St.  Martin,  Poch6,  De  Blanc,  Seay,  Cobb,  and  Cross,  ranging  from  three  thousand  four 
hundred  and  fifty-nine  to  six  thousand  four  hundred  and  five. 

Seventhly.  That  said  returning-officers,  before  making  any  declaration  of  the  vote  for 
electors,  offered  for  a  money  consideration  to  certify  and  declare  the  due  election  of  the 
persons  who,  according  to  the  face  of  the  returns,  received  a  majority  of  the  votes  and 
were  duly  and  properly  elected.  Failing  to  find  a  purchaser,  they  falsely,  corruptly,  and 
fraudulently  certified  and  declared  the  minority  candidates  elected,  after  having  first 
applied  for  a  reward  for  so  doing. 

Wherefore  the  undersigned  object  to  the  certificate  or  declaration  of  the  election  of 
electors  made  by  said  returning-officers  as  utterly  void  by  reason  of  the  fraud  and  cor 
ruption  of  said  board  of  re  turning-officers  in  thus  offering  said  certificate  or  declara 
tion  for  sale. 

V. 

The  undersigned  respectfully  object  to  counting  the  vote  cast  by  the  said  A.  B.  Levis 
see,  for  the  reason  that  the  State  of  Louisiana  was  forbidden  by  the  Constitution  of 
the  United  States  to  appoint  the  said  A.  B.  Levissee  an  elector,  because  he  was,  at  the 
time  of  the  appointment  of  the  electors  in  said  State,  to  wit,  on  the  7th  day  of  Novem 
ber,  1876,  and  for  a  number  of  days  previous  and  subsequent  thereto,  holding  an 
office  of  trust  or  profit  under  the  United  States,  to  wit,  the  office  of  commissioner  of  the 
United  States  circuit  court  for  the  district  of  Louisiana,  and  his  subsequent  appoint 
ment  by  the  electors  was  not  only  without  authority  of  law  and  void,  but  it  was  know 
ingly  and  fraudulently  made  for  an  illegal  and  fraudulent  purpose. 

VI. 

The  undersigned  especially  object  to  counting  the  vote  cast  by  the  said  O.  H.  Brew 
ster,  for  the  reason  that  the  State  of  Louisiana  was  forbidden  by  the  Constitution  of 
the  United  States  to  appoint  the  said  Brewster  an  elector,  because  he  was,  at  the  time 
of  the  appointment  of  electors  in  said  State,  to  wit,  on  the  7th  day  of  November,  1876, 
and  for  a  number  of  days  previous  and  subsequent  thereto,  holding  an  office  of  trust 
or  profit  under  the  United  States,  to  wit,  the  office  of  surveyor-general  of  the  land- 
office  of  the  land-district  of  the  State  of  Louisiana ;  and  any  subsequent  appointment 
of  the  said  Brewster  as  an  elector  by  the  other  electors  was  not  only  without  warrant 
of  law  and  void,  but  was  made  knowingly  and  fraudulently  for  an  illegal  and  fraudu 
lent  purpose. 

VII. 

The  undersigned  object  and  insist  that  under  no  circumstances  can  more  than  six  of 
the  eight  electoral  votes  cast  in  Louisiana  for  Rutherford  B.  Hayes  and  William  A. 
Wheeler  be  counted,  for  the  reason  that  at  least  two  of  the  persons  casting  such  votes, 
to  wit,  A.  B.  Levissee  and  O.  H.  Brewster,  were  not  appointed  electors  by  said  State; 
and  they  further  object,  especially  to  the  vote  given  and  cast  by  William  P.  Kellogg, 
one  of  the  pretended  electors  of  said  State  of  Louisiana,  because  the  certificate  exe 
cuted  by  himself  as  governor  of  that  State  to  himself  as  elector  of  that  State  is  void 
as  to  him  and  creates  no  presumption  and  is  no  evidence  in  his  own  favor  that  he  was 
duly  appointed  such  elector,  and  there  is  no  other  evidence  whatever  of  his  having 
been  appointed  an  elector  of  said  State.  And  they  further  object  to  the  said  William 
P.  Kellogg,  that  by  the  constitution  of  Louisiana  he  was  not  entitled  to  hold  both 
offices,  bat  was  disqualified  therefrom,  and  that  on  the  day  of  casting  the  vote  afore 
said,  and  on  the  day  of  the  election  for  electors,  and  before  and  after  those  days,  he 
continued  to  act  as  governor  of  the  State,  and  that  his  vote  as  elector  is  null  and  void. 

vii  r. 

Because  the  certified  lists  of  the  names  of  the  said  Kellogg,  Bnrch,  Joseph,  Sheldon, 
Marks,  Levissee,  Brewster,  and  Joffrion,  as  the  duly  appointed  electors  for  the  State  of 


ELECTORAL    COUNT    OF    1877.  215 

Louisiana  by  W.  P.  Kellogg,  claiming  to  be,  but  who  was  not,  governor  of  said  State, 
were  falsely,  fraudulently,  and  corruptly  made,  and  issued  as  part  of  a  conspiracy 
between  the  said  Kellogg  and  the  said  returning-officers  Wells,  Anderson,  Casanave, 
and  Kenner,  and  other  persons,  to  cheat  and  defraud  the  said  McEnery,  Wickliffe, 
St.  Martin,  Poche",  De  Blanc,  Seay,  Cobb,  and  Cross,  of  the  offices  to  which  they  had 
been  duly  appointed  as  aforesaid ,  and  to  defraud  the  State  of  Louisiana  of  her  right 
to  vote  for  President  and  Vice-President  according  to  her  own  wish,  as  legally  ex 
pressed  by  the  vote  of  their  people  at  the  election  aforesaid. 

For  which  reasons  the  said  lists  of  names  of  the  said  Kellogg,  Burch,  Joseph,  Shel 
don,  Marks,  Levissee,  Brewster,  and  Joffrion,  as  electors,  and  the  votes  cast  by  them, 
are  utterly  void,  in  support  of  which  reasons  the  undersigned  refer  to  the  Constitution 
and  laws  of  the  United  States  and  of  the  State  of  Louisiana,  and  among  other,  to  the 
evidence  taken  at  the  present  session  of  Congress  by  the  Committee  and  subcommit 
tees  on  Privileges  and  Elections  of  the  Senate,  the  Select  Committee  and  subcommit 
tees  of  the  House  of  Representatives  on  the  Recent  Election  in  the  State  of  Louisiana, 
and  the  Committee  of  the  House  of  Representatives  on  the  Powers,  Privileges,  and 
Duties  of  the  House  of  Representatives  in  Counting  the  Electoral  Vote,  together  with 
the  papers  and  documents  accompanying  said  evidence. 

ELI  SAULSBURY, 

j.  E.  MCDONALD, 

JOHN  W.  STEVENSON, 
LEWIS  V.  BOGY, 

Senators. 

DAVID  DUDLEY  FIELD, 
G.  A.  JENKS, 
R.  L.  GIBSON, 
J.  R.  TUCKER, 
WILL  M.  LEVY, 
E.  JNO.  ELLIS, 
WM.  R.  MORRISON, 

Representatives* 

The  PBESLDING  OFFICER.  Are  there  further  objections  to  the 
certificates  from  the  State  of  Louisiana  ? 

Mr.  Representative  GIBSON.  I  have  the  honor  to  offer  objections 
to  the  certificates  of  the  electoral  vote  of  the  State  of  Louisiana  signed 
bv  William  Pitt  Kellogg  on  behalf  of  the  State  of  Louisiana. 

The  PRESIDING  OFFICER.  The  Clerk  of  the  House  will  read  the 
objections  presented  by  the  member  from  the  State  of  Louisiana  (Mr. 
Gibson.) 

The  Clerk  of  the  House  read  as  follows : 

OBJECTION  No.  2. 

The  undersigned  Senators  and  members  of  the  House  of  Representatives  of  the 
United  States  object  to  the  certificates  and  electoral  votes  of  the  State  of  Louisiana, 
signed  by  W.  P.  Kellogg,  J.  H.  Burch,  Peter  Joseph,  L.  A.  Sheldon,  Morris  Marks,  A.  B. 
Levissee,  O.  H.  Brewster,  and  Oscar  Joffrion,  for  the  following  reasons: 

First.  The  government  of  the  State  of  Louisiana  as  administered  at  and  prior  to  the 
7th  day  of  November,  1876,  and  until  this  time,  was  and  is  not  republican  in  form. 

Second.  If  the  government  of  the  State  of  Louisiana  was  and  is  republican  in  form, 
there  was  no  canvass  of  the  votes  of  the  State  made  on  which  the  certificates  of  elec 
tion  of  the  above-named  alleged  electors  were  issued. 

Third.  Any  alleged  canvass  of  votes  on  which  the  certificate  of  election  of  said 
alleged  electors  is  claimed  to  be  founded  was  an  act  of  usurpation,  was  fraudulent 
and  void. 

Fourth.  The  votes  cast  in  the  electoral  college  of  said  State  by  Oscar  Joffrion,  W. 
P.  Kellogg,  J.  H.  Burch,  and  Morris  Marks  are  not  electoral  votes,  for  that  the  said 
Oscar  Joffrion,  W.  P.  Kellogg,  J.  H.  Burch,  and  Morris  Marks  are  and  were  ineligible 
by  the  laws  of  Louisiana,  are  and  were  disqualified  ;  for  by  the  constitution  of  Louisi 
ana  (sec.  117)  it  is  provided,  "No  person  shall  hold  or  exercise  at  the  same  time  more 
than  one  office  of  trust  or  profit,  except  that  of  justice  of  the  peace  or  notary  public." 
Whereas  on  and  prior  to  the  7th  day  of  November,  1876,  and  until  after  the  6th  day  of 
December,  1876,  W.  P.  Kellogg  was  acting  de  facto  governor  of  said  State;  Oscar  Joff 
rion  was  supervisor  of  registration  for  the  parish  of  Poiute  Conpde,  in  said  State ; 
Morris  Marks  was  a  district  attorney  for  one  of  the  districts  of  said  State,  and  canid- 
date  for  district  judge  and  was  elected  at  said  election ;  and  J.  H.  Burch  was  a  mem- 


216  ELECTORAL    COUNT    OF    1877. 

"her  of  the  senate  of  said  State,  also  a  member  of  the  board  of  control  of  the  State  pen 
itentiary,  administrator  of  the  deaf  and  dumb  asylum,  both  salaried  offices,  and  treas 
urer  of  the  school  board  of  the  parish  of  East  Baton  Rouge. 

Fifth.  In  addition  thereto,  said  Oscar  Joffrion  was  specially  disqualified  by  the 
thirteenth  section  of  the  act  of  the  legislature  of  said  State,  dated  24th  day  of  July, 
1874,  which  provides  that  no  supervisor  of  registration  shall  be  eligible  for  any  office 
at  any  election  when  said  supervisor  officiates,  and  the  said  Oscar  Joffrion,  at  the 
election  held  on  the  7th  day  of  November,  1876,  did  act  and  officiate  as  supervisor  of 
registration  for  the  parish  of  Pointe  Coupe'e,  in  said  State. 

In  support  hereof  inter  alia  there  is  herewith  submitted  the  testimony  taken  before 
the  special  committee  of  the  House  of  Representatives  to  investigate  the  election  in 
Louisiana;  also,  the  testimony  taken  before  the  Committee  on  Powers  and  Privileges 
of  the  House  of  Representatives;  also,  the  testimony  taken  before  the  Committee  on 
Privileges  and  Elections  of  the  Senate. 

ELI  SAULSBURY, 

j.  E.  MCDONALD, 

FRANCIS  KERNAN, 

Senators. 
G.  A.  JENKS, 
J.  R.  TUCKER, 
R.  L.  GIBSON. 
DAVID  DUDLEY  FIELD, 
WILL.  M.  LEVY, 
E.  JNO.  ELLIS, 

Representatives. 

The  PRESIDING  OFFICER.  Are  there  further  objections  to  the 
certificates  from  the  State  of  Louisiana  1 

Mr.  Eepresentative  WOOD,  of  New  York.  I  present,  on  behalf  of 
the  Senators  and  Representatives  who  have  signed  it,  a  further  ob 
jection. 

The  PRESIDING  OFFICER.  The  objection  submitted  will  be  read 
by  the  Clerk  of  the  House. 

The  Clerk  of  the  House  read  as  follows  : 

OBJECTION  No.  3. 

HOUSE  OF  REPRESENTATIVES, 
Washington,  D.  C.,  February  12,  1877. 

The  undersigned  Senators  and  Representatives  object  to  the  counting  of  the  votes 
of  O.  H.  Brewster,  A.  B.  Levissee,  W.  P.  Kellogg,  Oscar  Joffrion,  Peter  Joseph,  J.  H. 
Burch,  L.  A.  Sheldon,  and  Morris  Marks,  as  electors  for  the  State  of  Louisiana,  for  the 
reason  that  the  said  persons  were  not  appointed  electors  by  the  State  of  Louisiana  in 
the  manner  directed  by  its  legislature. 

M.  I.  SOUTHARD, 

Representative  from  the  State  of  Ohio. 
CHAS.  E.  HOOKER,  of  Mississippi. 
JOHN  W.  STEVENSON,  of  Kentucky. 
WM.  PINKNEY  WHYTE,  of  Maryland. 
FERNANDO  WOOD, 
Eepresentative  from  the  State  of  New  York. 
ERASTUS  WELLS, 

Representative  of  Missouri. 
A.  G.  EGBERT, 

Representative  of  Pennsylvania. 
R.  A.  DE  BOLT,  of  Missouri. 
R.  P.  BLAND,  of  Missouri. 

The  PRESIDING  OFFICER.  Are  there  further  objections  to  the 
certificates  from  the  State  of  Louisiana  ? 

Mr.  Senator  HOWE.  I  submit  some  concise  objections  to  counting 
the  vote  certified  here  by  John  McEnery  and  his  associates. 

The  PRESIDING  OFFICER.  The  objections  will  be  read  by  the 
Secretary  of  the  Senate. 


ELECTORAL   COUNT   OP   1^77.  217 

The  Secretary  of  the  Senate  read  as  follows  : 

OBJECTION  No.  4. 

The  undersigned  respectfully  object  to  the  counting  of  any  vote  for  President  and 
Vice-President  of  the  United  States  given  or  purported  to  have  been  given  by  John 
McEnery,  R.  C.  Wickliffe,  L.  St.  Martin,  F.  B.  Poohe",  A.  De  Blanc,  W.  A.  Seay,  R.  G. 
Cobb,  and  K.  A.  Cross,  of  Louisiana,  or  by  either  of  them,  for  the  reason  that  there  is 
no  evidence  that  either  of  said  persons  has  been  appointed  an  elector  of  said  State  in 
such  manner  as  the  legislature  thereof  has  directed  ;  and  for  the  further  reason  that 
there  is  evidence  conclusive  in  law  that  neither  of  said  persons  has  been  appointed  to 
be  an  elector  for  the  State  of  Louisiana  in  such  manner  as  the  legislature  thereof  has 
directed. 

They  respectfully  object  to  ths  reading,  the  recording,  or  acknowledging  of  any 
commission,  license,  certificate  of  appointment,  or  of  authentication  signed  or  purport 
ing  to  be  signed  by  John  McEnery  as  governor  of  the  State  of  Louisiana,  for  the 
reason  that  there  is  no  evidence  that  John  McEnery  is  now,  or  ever  was  at  any  time 
during  the  year  1876,  governor  of  the  State  of  Louisiana,  and  for  the  further  reason 
that  there  is  conclusive  evidence  that  William  P.  Kellogg  was,  during  the  whole  of 
the  year  1876,  and  for  several  years  prior  thereto,  governor  of  that  State  ;  was  recog 
nized  as  such  by  the  judicial  and  legislative  departments  of  the  government  of  that 
State  and  by  every  department  of  the  Government  of  the  United  States. 

T.  O.  HOWE. 

R.  J.  OGLESBY. 

JOHN  SHERMAN. 

J.  R.  WEST. 

S.  A.  HURLBUT. 

W.  TOWNSEND. 

CHARLES  H.  JOYCE. 

L.  DANFORD. 

WM.  W.  CRAPO. 

EUGENE  HALE. 

WILLIAM  LAWRENCE. 

The  PRESIDING  OFFICER.  Are  there  further  objections  to  the 
certificates  from  the  State  of  Louisiana  I  If  there  be  no  further  objec 
tions,  all  the  certificates  from  that  State,  and  the  papers  accompanying 
the  same,  together  with  the  objections  thereto,  will  now  be  submitted 
to  the  Electoral  Commission  for  its  judgment  and  decision.  The  Senate 
will  now  retire  to  their  Chamber. 

Accordingly  (at  four  o'clock  and  thirty-four  minutes  p.  in.)  the  Senate 
withdrew. 

ELECTORAL  COMMISSION. 

LOUISIANA. 

MONDAY,  February  12,  1877. 

The  Commission  met  at  half  past  two  o'clock  p.  m.  pursuant  to  ad 
journment. 

Present:  The  President,  and  Commissioners  Miller,  Field,  Strong, 
Edmunds,  Bradley,  Morton,  Frelinghuysen,  Bayard,  Payne,  Hunton, 
Abbott,  Garfield,  and  Hoar. 

On  motion  by  Mr.  Commissioner  HOAR,  the  Commission  took  a  re 
cess  until  four  o'clock  p.  m. 

The  Commission  re-assembled  at  four  o'clock  p.  m. 

The  Journal  of  Saturday's  proceedings  was  read  and  approved. 

At  four  o'clock  and  forty  minutes  p.  m.,  a  communication  from  the 
two  Houses  of  Congress  in  joint  session  was  presented  by  Mr.  GORHAM, 
Secretary  of  the  Senate,  and  read  as  follows : 

HALL  OF  THE  HOUSE  OF  REPRESENTATIVES, 

February  12,  1877. 

To  ihe  President  of  the  Commission  : 

More  than  one  return  or  paper  purporting  to  be  a  return  or  certificate  of  electoral 
votes  of  the  State  of  Louisana  having  been  received  and  this  day  opened  in  the 


218  ELECTORAL   COUNT   OF    1877. 

presence  of  the  two  Houses  of  Congress  and  read,  and  objections  thereto  having  been 
made,  the  said  returns,  with  all  accompanying  papers,  and  also  the  objections  thereto, 
are  herewith  submitted  to  the  judgment  and  decision  of  the  Commission,  as  provided 
by  law. 

T.  W.  FERRY, 
President  of  the  Senate. 

Mr.  Commissioner  FIELD.  I  move  that  the  certificates  and  papers 
accompanying  the  same,  and  the  objections  thereto,  be  printed. 

The  motion  was  agreed  to. 

The  PRESIDENT.     Who  represent  the  objectors  ! 

Mr.  Representative  FIELD.  Mr.  President,  Mr.  McDonald  of  the 
Senate  and  Mr.  Jenks  of  the  House  will  represent  the  objectors.  I 
understand  they  are  coming  now. 

Mr.  Commissioner  EDMUNDS.  The  objectors  to  which  certificate  I 
I  assume  that  there  are  several. 

Mr.  Representative  FIELD.    They  will  explain  for  themselves. 

Mr.  TRUMBULL.    There  are  three  certificates. 

The  PRESIDENT.    And  an  objection  to  each,  I  presume  ? 

Mr.  TRUMBULL.  Yes,  sir.  The  objections  to  the  first  and  third  are 
represented  by  Senator  McDonald  and  by  Mr.  Jenks  of  the  House  of 
Representatives. 

Mr.  EVARTS.  The  objections  to  the  second  certificate  will  be  repre 
sented  by  Mr.  Howe  of  the  Senate  and  Mr.  Hurlbut  of  the  House. 

Mr.  Commissioner  MILLER.  Will  the  gentlemen  be  prepared  to  go 
on  this  evening? 

Mr.  Commissioner  MORTON.  Senator  Thurman  sent  word  to  me 
that  he  would  not  be  able  to  be  here  to-day,  and  preferred  that  the  ar 
gument  be  not  commenced  until  to-morrow. 

The  PRESIDENT.  I  will  then,  with  the  consent  of  the  Commission, 
state  that  two  objectors  to  certificates  numbered  1  and  3,  if  I  am  cor 
rectly  informed,  may  be  heard  in  oral  argument  in  support  of  their  ob 
jections  and  to  advocate  the  validity  of  any  certificate  the  validity  of 
which  they  maintain.  In  like  manner  two  objectors  to  certificate  No.  2 — 
as  I  now  assume  it  to  be  without  having  looked  at  the  papers — will  also 
be  heard  under  like  circumstances  and  to  the  same  extent.  "  Under 
this  rule  not  more  than  four  persons  shall  speak,  and  neither  side  shall 
occupy  more  than  two  hours." 

Mr.  Commissioner  MORTON.  I  move  an  adjournment  to  10  o'clock 
to-morrow. 

Mr.  Commissioner  FIELD.    I  should  prefer  eleven. 

The  PRESIDENT.  I  will  put  the  longest  time  first.  The  motion  of 
Mr.  Justice  Field  is  that  the  Commission  adjourn  until  to-morrow  at 
eleven  o'clock  in  the  forenoon. 

The  motion  was  agreed  to;  there  being  on  a  division — ayes  8,  noes  3; 
and  (at  four  o'clock  and  forty -five  minutes  p.  m.)  the  Commission  ad 
journed  until  to-morrow  at  eleven  o'clock  a.  m. 

[It  is  understood  that  the  following  counsel  appear  : 
Hon.  John  A.  Campbell,  of  Louisiana, 
Hon.  Lymau  Trumbull,  of  Illinois, 


Hon.  Matt.  H.  Carpenter,  of  Wisconsin, 
Richard  T.  Merrick,  esq.,  of  Washington,  D.  C., 


In  opposition  to  certi 
ficates  Nos.  1  and  3. 


George  Hoadly,  esq.,  of  Ohio, 

Ashbel  Green,  esq.,  of  New  Jersey, 

Hon.  William  M.  Evarts,  of  New  York, 

Hon.  E.  W.  Stoughton,  of  New  York,     I  In    opposition    to    certificate 

Hon.  Stanley  Matthews,  of  Ohio,  j  No.  2.] 

Hon.  Samuel  Shellabarger,  of  Ohio, 


ELECTORAL    COUNT    OF    1877.  219 

TUESDAY,  February  13, 1877. 

The  Commission  met  at  eleven  o'clock  a.  m.  pursuant  to  adjournment. 

Present :  The  President,  and  Commissioners  Miller,  Field,  Strong, 
Bradley.  Edmunds,  Morton,  Frelinghuysen,  Bayard,  Payne,  Hunton, 
Abbott,  Garfield,  and  Hoar. 

The  various  objectors  to  the  certificates  from  Louisiana  and  the  re 
spective  counsel  were  also  present. 

The  Journal  of  yesterday  was  read  and  approved. 

The  PRESIDENT.  Three  certificates  arejbefore  the  Commission,  to 
each  of  which  there  are  objections.  For  my  own  convenience  I  have 
numbered  them  one,  two,  and  three.  Two  of  the  objectors  to  certificates 
numbered  one  and  three  will  now  be  heard  under  the  fourth  rule. 

Mr.  Commissioner  GARFIELD.  Are  the  certificates  numbered  in 
the  order  they  were  presented  to  the  two  Houses  ? 

The  PRESIDENT.  I  have  so  numbered  them,  as  I  am  assured  by 
the  Stenographer. 

Mr.  Commissioner  GARFIELD.  I  wish  to  understand  if  they  are  in 
the  chronological  order  of  their  presentation. 

The  PRESIDENT.  They  are.  Each  side  will  be  entitled  to  two 
hours.  Two  who  support  the  views  of  the  objectors  to  certificates 
numbered  one  and  three  will  be  heard,  and  two  of  the  objectors  who 
support  the  objections  to  certificate  number  two.  First  those  supporting 
the  objections  to  numbers  one  and  three  will  be  heard. 

Mr.  Senator  McDONALD.  Mr.  President,  as  the  Commission  is  not 
full,  I  would  prefer  to  wait  a  few  moments  to  see  whether  it  cannot  be 
filled  before  proceeding. 

The  PRESIDENT.  If  there  be  no  objection,  we  shall  wait  a  few 
moments.  We  cannot  wait  long,  I  suppose. 

Mr.  Senator  McDONALD.  If  a  member  of  the  Commission  is  absent, 
what  is  the  rule  in  reference  to  proceeding  ? 

The  PRESIDENT.  There  is  no  rule  on  the  subject;  but  the  law 
provides  for  cases  of  physical  inability  to  attend,  and  points  out  meas 
ures  for  filling  the  vacancy.  There  is  nothing  in  the  rules  on  the  sub 
ject. 

Mr.  Senator  McDONALD.  I  have  understood,  but  do  not  know  per 
sonally,  that  Senator  Thurman  has  been  ill  for  some  days,  at  least  not 
very  well  able  to  give  his  attention  to  business.  If  it  is  not  likely  that  he 
will  be  present  this  morning,  I  would  rather  some  action  should  be 
taken  in  regard  to  his  absence,  before  proceeding. 

Mr.  Commissioner  EDMUNDS.  Mr.  McDonold  mast  be  aware  that 
we  can  scarcely  assume  that  Judge  Thurmau  is  physically  unable  to 
be  present  and  proceed  to  notify  the  Senate  in  order  that  the  place  may 
be  filled,  without  some  sort  of  proof.  Undoubtedly,  I  presume,  if  Judge 
Thurman  thought  himself  unable  to  attend,  he  would  so  inform  the 
Commission  in  writing. 

Mr.  Senator  McDONALD.  I  should  judge  so ;  and,  therefore,  I  sup 
pose  if  he  is  able  he  will  be  here  in  a  short  time,  unless  the  Commission 
receives  a  message  from  him  to  the  contrary. 

Mr.  Com  missioner  EDM  UNDS.  It  does  not  appear  to  me  that  we  should 
be  justified  in  waiting  on  account  of  the  absence  of  a  single  member  of 
the  Commission  or  of  any  number  less  than  a  quorum,  in  the  present 
state  of  affairs.  We  have  only  reached  the  second  of  what  are  under 
stood  to  be  four  causes  submitted  to  us.  The  first  one  having  occupied 
nine  or  ten  days,  we  have  now  only  sixteen  days,  including  this  one, 
before  the  presidential  office  begins ;  so  that  it  appears  to  me  we 


220  ELECTORAL    COUNT    OF    1877. 

should  avoid  our  duty  under  the  statute  if  we  were  not  to  proceed.  Of 
course,  if  Senator  Thurman  be  ill,  we  ought  to  be  advised,  so  that  his 
place  may  be  filled;  but  without  any  evidence  of  that,  it  appears  to  me 
due  to  ail  parties  concerned  that  we  should  proceed,  as  we  have  done 
occasionally  when  one  or  more  gentlemen  may  have  been  temporarily 
absent. 

Mr.  Commissioner  MILLEE.  We  have  constantly  proceeded  in  the 
discharge  of  the  duties  of  this  Commission  with  members  of  it  absent  for 
the  time ;  it  is  no  reason  for  delaying  proceedings. 

Mr.  Commissioner  BAYARD.  I  have  just  sent  a  message  to  the  Sen 
ate  Committee  room  on  Private  Land-Claims,  of  which  Mr.  Thurman  is 
chairman,  to  ask  the  clerk  there  in  regard  to  the  probability  of  his  pres 
ence.  The  last  communication  he  made  was  to  Mr.  Commissioner  Mor 
ton  yesterday,  to  whom  he  sent  some  message  asking  that  the  argument 
might  not  proceed  yesterday  afternoon  in  his  absence.  From  that  I 
presume  he  expected  to  be  here  this  morning. 

The  PRESIDENT.  By  general  consent  we  can  wait  a  few  minutes 
until  the  messenger  returns  from  his  committee-room. 

Mr.  EVARTS.  Mr.  President,  allow  me  to  ask  the  attention  of  the 
Commission  to  certain  laws  of  Louisiana  which  are  not  included  in  the 
compilation  we  have  received  that  was  printed  under  the  direction  of 
the  Commission,  and  which  are  important  for  the  consideration  of  the 
principal  questions  of  law. 

The  PRESIDENT.  Would  it  be  convenient  for  you  to  make  a  note  of 
them  and  hand  it  to  us? 

Mr.  EVARTS.  I  simply  ask,  by  giving  a  note  to  the  Clerk,  that 
they  may  be  printed  in  season  for  to-morrow  morning. 

The  PRESIDENT.  I  take  it  all  the  members  of  the  Commission 
desire  the  laws  to  be  printed,  and  if  you  will  furnish  a  note  to  the  Sec 
retary,  any  omissions  will  be  supplied. 

Mr.  EVARTS.  We  supposed  it  was  proper  we  should  ask  the  con 
sent  of  the  Commission. 

The  PRESIDENT.  I  suppose  it  is  hardly  necessary  to  submit  it  to 
the  Commission. 

Mr.  EVARTS.  One  law  was  printed  last  night  since  the  compilation, 
but  the  other  it  seems  had  been  printed  and  was  omitted  from  the  com 
pilation  under  the  notion  that  it  was  repealed ;  but  we  still  desire  its 
use,  and  it  may  be  there  are  copies  of  it  already  in  print. 

The  PRESIDENT,  (after  the  expiration  of  five  minutes.)  Senator 
Thurman's  clerk  reports  that  Senator  Thurman  is  suffering  from  neu 
ralgia,  but  will  be  out  to-day.  Shall  the  business  of  the  Commission 
proceed  ?  [Putting  the  question.] 

The  question  was  determined  in  the  affirmative. 

The  PRESIDENT.  One  of  the  objectors  to  certificates  Nos.  1  and  3 
will  now  be  heard. 

Mr.  Senator  McDONALD.  Mr.  President  and  gentlemen  of  the 
Commission,  the  certificates  announced  by  the  President  as  first  under 
consideration  embrace  the  electoral  votes  cast  for  Hayes  for  President 
and  Wheeler  for  Vice-President. 

The  PRESIDENT.  You  may  not  only  support  the  objections,  but 
any  other  certificate  which  you  claim  to  be  valid  within  the  allotted 
time — two  hours  for  your  side. 

Mr.  Senator  McDONALD.  If  the  votes  contained  in  these  certifi 
cates  are  the  votes  provided  for  in  the  Constitution,  then  they  are  to  be 
counted.  To  constitute  them  the  votes  provided  for  in  the  Constitution, 
they  must  have  been  cast  by  electors  who  were  competent  and  who  had 


ELECTORAL    COUNT   OF    1877.  221 

been  appointed  electors  in  the  manner  prescribed  by  the  legislature  of 
the  State.  The  objections  that  we  make  to  these  votes  are — 

First.  That  the  legislature  did  not  provide  the  manner  of  the  appoint 
ment  of  the  electors  who  cast  them  ; 

Second.  That  they  were  fraudulently  returned  by  the  officers  intrusted 
with  the  canvass  and  return  of  the  votes  ; 

Third.  That  two  of  them  were  incompetent  under  the  Constitution 
of  the  United  States  ; 

Fourth.  That  others  of  them  were  disqualified  from  serving  or  acting 
by  the  constitution  and  laws  of  the  State  of  Louisiana ;  and 

Fifth.  That  at  the  time  of  their  appointment  the  State  of  Louisiana 
did  not  have  a  government  republican  in  form. 

With  respect  to  the  laws  of  the  State  authorizing  the  appointment 
of  electors,  I  shall  call  the  attention  of  the  Commission  to  the  statutes 
which  have  been  heretofore  enacted,  and  which  are  understood  to  stand 
still  upon  the  statute-book.  It  will  be  found  in  the  session  laws  of  1868 
that  a  special  law  was  enacted  for  the  appointment  of  presidential 
electors ;  and  that  this  special  law  was  re-enacted  in  the  revised  code 
of  1870,  and  it  will  be  found  at  page  550  of  that  revised  code.  It  is  also 
printed  in  one  of  the  compilations  of  laws  that  have  been  printed  under 
the  order  of  this  Commission,  at  page  93. 

Mr.  Commissioner  GAKFIELD.  Which  one,  the  first  or  the  second 
print  ?  We  have  had  two. 

Mr.  Senator  McDONALD.  I  am  not  able  to  determine,  but  the 
second,  I  think.  It  is  entitled  in  this  revision  "  Presidential  Electors, 
Session  Laws,  1868,  No.  193,"  Revised  Statutes  of  Louisiana  of  1870, 
page  550. 

Mr.  TKUMBULL.     It  is  the  last  publication  of  the  compilation. 

(Mr.  Commissioner  Thurman  appeared  and  took  his  seat,) 

Mr.  Senator  McDOKALD.  It  will  be  observed  that  this  special  law 
does  make  specific  provision  for  the  appointment  of  presidential  electors 
by  a  popular  vote.  It  also  provides  for  the  manner  of  the  return  and 
canvass  of  that  vote.  It  will  be  seen  by  section  2826  that — 

Immediately  after  the  receipt  of  the  return  from  each  parish,  or  on  the  fourth 
Monday  of  November,  if  the  returns  should  not  sooner  arrive,  the  governor,  in  the 
presence  of  the  secretary  of  state,  the  attorney-general,  a  district  judge  of  the  district 
in  which  the  seat  of  government  may  be  established,  or  any  two  of  them,  shall  exam 
ine  the  returns  and  ascertain  therefrom  the  persons  who  have  been  duly  elected 
electors. 

At  the  session  at  which  this  revision  was  adopted,  there  was  another 
act  passed.  It  is  also  published  in  one  of  these  compilations  at  page 
924. 

Mr.  Commissioner  ABBOTT.  That  is  in  the  compilation  without  a 
cover. 

Mr.  Senator  MCDONALD.  There  are  two  sets  of  compilations  with- 
out  covers  and  one  of  them  is  the  same  as  the  covered  pamphlet  to 
which  I  previously  referred ;  the  other  has  this  act  of  1870  ;  and  it  will 
be  necessary  to  obtain  the  proper  copy  in  order  to  follow  these  citations. 
Your  honors  will  see  by  the  first  section  of  ttrs  act  that  the  elections 
provided  for  in  it  are  styled  "  the  general  e»v«  i  ^ns  of  the  State."  Sec 
tion  35  specifically  provides  for  the  election  ox  presidential  electors. 
That  section  is  as  follows : 

That  in  every  year  in  which  an  election  shall  be  held  for  electors  of  President  and 
Vice-President  of  the  United  States,  such  election  shall  be  held  on  the  Tuesday  next 
after  the  first  Monday  in  the  month  of  November  in  such  year,  in  accordance  with  an 
act  of  the  Congress  of  the  United  States,  approved  January  23,  1845,  entitled  "An  act 
to  establish  a  uniform  time  for  holding  elections  for  electors  for  President  and  Vice- 


222  ELECTORAL    COUNT    OF    1877. 

President  in  all  of  the  States  of  the  Union,"  and  such  elections  shall  be  held  and  con 
ducted  and  returns  made  thereof  in  the  manner  and  form  prescribed  by  the  law  for 
general  elections. 

Not  merely  the  elections  shall  be  held  and  conducted  and  returns 
made,  but  the  returns  shall  also  conform  to  the  provisions  prescribed  in 
the  laws  for  general  elections.  The  repealing  section  of  this  act,  which 
is  the  eighty-fifth  section,  reads  as  follows : 

That  all  laws  or  parts  of  laws  contrary  to  the  provisions  of  this  act,  and  all  laws 
relating  to  the  same  subject-matter,  are  hereby  repealed,  and  this  act  shall  take  effect 
from  and  after  its  passage. 

It  was  approved  March  16,  1870  j  and  so  your  honors  will  see  that 
two  laws  covering  the  same  subject  seem  to  have  been  enacted  or  recog 
nized  at  the  same  session ;  the  special  law  of  1868  carried  forward  into 
the  code  of  1870  and  the  session  act  of  1870.  By  the  enacting  clause 
attached  to  the  code,  the  provisions  of  the  code  were  to  take  effect  on 
the  1st  day  of  April,  1870,  and  this  was  after  the  close  of  the  session  of 
1870,  at  which  this  general  law  was  passed.  And  to  meet  any  questions 
that  might  arise  out  of  a  conflict  between  the  session  act  of  1870  and  the 
provisions  embodied  in  the  code,  another  act  was  passed,  one  to  which 
the  gentleman  from  New  York  [Mr.  Evarts]  called  the  attention  of  the 
court. 

Mr.  Commissioner  BEADLEY.  When  you  speak  of  "  the  code,"  you 
refer  to  the  revised  statutes  ? 

Mr.  Senator  McDONALD.  Yes,  sir ;  it  is  called  in  Louisiana,  I  be 
lieve,  the  code. 

Mr.  Commissioner  BRADLEY.     No ;  the  code  is  a  different  thing. 

Mr.  Senator  McDONALD.     The  revised  statutes. 

Mr.  Commissioner  EDMUNDS.  Can  you  give  us  the  date  of  the  ap 
proval  of  the  revising  act? 

Mr.  Senator  McDONALD.  March  14 ;  and  to  take  effect  on  the  1st 
of  April. 

Mr.  Commissioner  EDMUNDS.  That  I  understood 5  but  I  did  not 
get  the  date  of  the  approval  before. 

Mr.  Senator  McDONALD.  It  will  be  found  in  the  revised  statutes. 
I  have  not  the  volume  here.  The  act  I  now  refer  to  is  an  act  printed 
this  morning  to  be  a  part  of  this  compilation  of  statutes  that  have  been 
printed  under  the  direction  of  the  Commission.  It  is  entitled  "An  act 
giving  precedence  in  authority  to  all  the  other  acts  and  joint  resolutions 
passed  by  the  general  assembly  at  this  session  over  the  acts  known  as 
the  Revision  of  the  Statutes  and  of  the  Civil  Code  and  Code  of  Practice, 
when  there  exists  any  conflict  in  the  provisions  of  said  acts  and  revisions." 
It  is  a  single  section,  and  is  as  follows: 

That  all  the  acts  and  resolutions  passed  during  the  present  session  of  the  general 
assembly  which  may  be  contrary  to  or  in  any  manner  in  conflict  with  the  acts  of  the 
present  session  known  as  the  "  revision  of  the  statutes  of  a  general  character/'  and  of 
the  Civil  Code  and  Code  of  Practice,  shall  have  precedence  of  said  revisions,  and  be 
held  as  the  law  in  opposition  thereto,  and  as  repealing  those  acts  so  far  as  they  may 
be  in  conflict  therewith. 

This  presents  a  question,  and  a  very  grave  one,  as  to  which  of  these 
acts  was  in  force  at  the  dose  of  the  session  of  the  legislature  of  1870, 
(and  upon  the  taking  effect  of  the  revised  statutes,)  and  upon  that  fact 
depend  very  important  questions  arising  hereafter.  If  the  session  laws 
of  1870  had  the  operation  which  the  legislature  enacting  those  revised 
statutes  expressly  determined  that  they  should  have,  and  repealed  the 
provisions  of  the  revised  statutes  wherever  there  was  a  conflict  between 
the  session  laws  and  the  revised  statutes — if  the  repealing  statute  has 


ELECTORAL    COUNT    OF    1877.  223 

this  effect,  then  the  special  law  providing  for  the  election  of  electors, 
first  enacted  in  1868  and  carried  forward  into  the  revised  statutes,  was 
thereby  repealed.  Ordinarily,  and  perhaps  almost  universally,  the  last 
expressed  will  of  the  legislature  must  stand ;  and  where  several  acts 
are  passed  at  the  same  session  of  the  legislature  and  they  are  in  such 
conflict  that  they  cannot  be  reconciled,  the  last  act  must  stand  and  the 
first  give  place.  But  this  presents  a  little  different  question  from  that. 
These  acts  embraced  in  the  revised  statutes  were  a  revision  of  laws  com 
piled  by  the  authority  of  the  legislature  and  to  take  effect  by  its  will, 
and  at  the  same  session  in  which  it  acted  upon  that  revision  it  was  pass 
ing  laws.  Its  session  acts  were  from  day  to  day  considered  and  passed 
by  it,  and  in  contemplation  that  there  might  be  conflicts  between  those 
session  acts  and  this  revision  of  laws  that  was  being  prepared  they  de 
clared  the  force  and  effect  of  their  session  acts  with  respect  to  those 
revised  statutes,  so  that  it  is  not  to  be  said  that  when  they  passed  this 
act  thus  restricting  the  operation  and  effect  of  the  revised  statutes,  yet, 
notwithstanding  the  clear  intent  and  purpose  of  the  legislature  in  so 
doing  that,  the  revised  statutes  contained  the  last  will  of  the  legislature, 
because  they  took  effect  in  April  at  a  later  period  than  the  passage  of 
this  law. 

1  have  not  time  to  elaborate  this  proposition,  and  can  but  state  it  for 
the  consideration  of  the  Commission.  But  if  it  has  the  effect  which  the 
will  of  the  legislature  designed  it  should  have,  then  the  act  of  1870  (and 
I  call  it  the  act  of  1870  to  distinguish  it  from  the  special  law  of  1868) 
went  upon  the  statute-book  as  the  election  law  of  the  State  of  Louisi 
ana,  and  provided  the  mode  and  manner  which  the  State  designed  to 
carry  into  effect  the  provisions  of  the  Constitution  with  reference  to  her 
right  and  authority  to  appoint  electors,  for  the  section  of  that  law  to 
which  I  have  called  your  honors' attention  fully  covers  this  question, 
and  in  point  of  fact  it  was  so  considered  by  the  authorities  in  the  State  of 
Louisiana ;  and  when  the  election  for  the  appointment  of  electors  in 
1872  took  place  it  was  conducted  under  the  session  act  of  1870,  both  as 
to  the  election  and  the  returns.  The  act  of  1868  carried  forward  into 
the  revised  statutes  was  ignored,  and  the  act  of  the  session  of  1870  was 
the  one  regarded  as  in  force,  and  so  regarded  until  the  20th  day  of  No 
vember,  1872,  when  another  act  was  passed  to  which  I  shall  call  your 
honors'  attention.  Your  honors  perhaps  know  the  fact  judicially  that 
at  that  time  the  legislature  of  Louisiana  was  not  in  session.  The  act 
had  been  passed  at  the  previous  session,  but  had  not  been  signed  by  the 
governor,  and  was  not  signed  by  him  until  the  20th  of  November,  1872. 
This  he  was  authorized  to  do  under  their  constitution.  The  law  took 
effect  from  the  date  of  his  signature.  This  act  is  found  on  page  96  of 
this  second  compilation  of  statutes.  That  is  entitled : 

An  act  to  regulate  the  conduct  and  to  maintain  the  freedom  and  purity  of  elections ; 
to  prescribe  the  mode  of  making  returns  thereof;  to  provide  for  the  election  of  return- 
ing-officers,  and  denning  their  powers  and  duties;  to  prescribe  the  mode  of  entering 
on  the  rolls  of  the  Senate  and  House  of  Representatives  ;  and  to  enforce  article  103  of 
the  constitution. 

The  first  section  declares  that  the  elections  therein  provided  for  shall 
be  styled  the  general  elections.  The  seventy -first  section,  which  is  the 
repealing  clause,  is  as  follows : 

That  this  act  shall  take  effect  from  and  after  its  passage,  and  that  all  others  on  the 
subject  of  election  laws  be,  and  the  same  are  hereby,  repealed. 

This  unquestionably  repealed  the  session  act  of  1870.  It  is  an  act 
upon  the  same  subject  throughout,  so  far  as  the  general  elections  of  the 
State  of  Louisiana  are  concerned,  but  it  omits  to  make  any  provision  for 


224  ELECTORAL    COUNT    OF    1877. 

the  appointment  of  electors.  Section  29  is  the  only  section  that  makes 
any  reference  to  the  subject  of  presidential  electors,  and  it  is  as  follows : 

That  in  every  year  in  which  an  election  shall  be  held  for  electors  of  President  and 
Vice-President  of  the  United  States,  such  election  shall  be  held  at  the  time  fixed  by 
act  of  Congress. 

&  But  it  fails  to  provide,  as  the  act  of  1870  did  in  the  section  that  ap 
plied  to  the  same  subject,  that  such  election  should  be  held  under  the 
provisions  of  this  act  or  that  the  canvass  and  return  should  be  under 
the  provisions  of  this  act.  Your  honors  will  see,  by  comparing  this 
section  with  the  one  I  have  already  quoted  in  the  session  acts  of  1870, 
that  while  it  refers  to  presidential  electors  and  their  appointment  it 
makes  no  provision,  as  the  other  act  does,  for  their  election  or  appoint 
ment. 

Mr.  Commissioner  MORTON.  Have  you  looked  at  the  thirty-second 
section  ? 

Mr.  Senator  McDONALD.  I  have  noted  the  thirty-second  section. 
It  is— 

That  the  provisions  of  this  act,  except  as  to  the  time  of  holding  elections,  shall 
apply  in  the  election  of  all  officers  whose  election  is  not  otherwise  provided  for. 

If  the  act  of  1868  stood  unaffected  by  the  legislation  of  1870,  then 
this  section  would  have  something  to  apply  to ;  but  if  the  session  laws 
of  1870  repealed  the  act  of  1868,  if  that  was  their  force  and  effect  both, 
in  reference  to  the  conflict  between  them  and  as  to  the  proper  construction 
of  the  repealing  act  passed  in  the  session  of  1870,  then  this  could  not 
be  held  to  apply;  for  there  can  be  no  question  but  what  the  act  of  1870 
in  toto  was  repealed  by  this  act  of  1872.  If  the  provisions  had  not 
been  such  as  to  bring  them  in  conflict,  the  repealing  clause  of  1872 
unquestionably  embraced  it. 

Again,  I  may  state  to  your  honors  that  the  authorities  of  Louisiana 
regarded  the  act  of  1872  and  the  amendments  subsequently  made  as  the 
only  laws  in  force  regulating  the  election  of  all  officers  and  of  all  persons; 
and  if  it  should  be  held  that  under  this  twenty-sixth  section  and  the 
reference  there  made  there  might  be  held  an  election  for  electors,  still  it 
leaves  this  difficulty  yet  unprovided  for,  that  there  is  not  anywhere  in 
the  act  of  1870  or  in  the  act  of  1872  or  its  amendments  any  provision 
whatever  for  filling  vacancies  in  the  electoral  college,  as  it  is  termed, 
except  by  election.  No  other  provision  exists  in  either  of  these  laws 
for  filling  vacancies  of  this  class  except  by  popular  election. 

I  will  simply  place  these  statutes  before  your  honors  for  your  due 
consideration,  and  shall  not  undertake  further  to  discuss  their  bearing 
at  present.  I  have  already  stated  that  the  election  of  1872  for  the  ap 
pointment  of  electors  took  place  under  the  session  acts  of  1870,  and 
that  the  election  of  1876  took  place  under  the  act  of  1872  and  the 
amendments  that  have  been  since  made.  So  far  as  a  construction  has 
been  given  to  these  statutes  by  the  authorities  of  the  State,  it  has  been  to 
hold  that  the  act  of  1870  took  the  place  of  all  other  laws  on  the  subject 
of  the  appointment  or  election  of  officers,  and  the  act  of  1872  took  its 
place  and  repealed  all  other  laws  on  the  subject — "  all  electionl  aws,"  to 
use  the  language  of  the  repealing  clause  ;  and  there  is  not  to  be  found 
in  the  act  of  1872  any  provision,  specific  or  otherwise,  providing  for 
the  election  of  presidential  electors ;  and  if  there  is  any  provision  that 
could  be  under  any  circumstances  made  to  embrace  that  subject,  then 
there  is  no  provision  whatever  for  filling  any  vacancies  that  may  exist  in 
the  electoral  college  except  by  popular  election. 

Mr.  Commissioner  THURMAN.  Were  there  any  vacancies  filled  in 
this  case  ? 


ELECTORAL    COUNT    OF    1877.  225 

Mr.  Senator  McDONALD.  Yes,  sir;  two  vacancies  were  filled  by 
electing  the  same  persons  who,  it  was  claimed,  had  been  elected  by  the 
popular  vote. 

Mr.  Commissioner  BRADLEY.  Why  do  you  say  "except  by  popu 
lar  election  ?  "  Is  there  a  section  that  provides  for  that  ? 

Mr.  Senator  McDONALD.  Yes,  sir  ;  section  24  is,  "All  elections  to 
be  held  in  this  State  to  fill  any  vacancies  shall  be  conducted,"  &c. 

Then,  as  the  fact  was  that  the  officers  in  charge  of  the  administra 
tion  of  the  laws  in  the  State  of  Louisiana,  with  respect  to  her  elections, 
did  hold  the  election  under  the  act  of  1872,  I  propose  to  consider  in 
what  manner  they  held  it,  for  we  charge  that  the  persons  who  have 
undertaken  to  cast  the  electoral  votes  now  under  consideration  were 
fraudulently  returned  by  the  officers  intrusted  with  the  canvass  of  the 
votes  cast  by  the  people.  In  considering  this  branch  of  the  subject  it 
will  be  only  necessary  for  me  to  examine  the  acts  and  conduct  of  those 
who  are  termed  "the  returning-officers  of  the  State  of  Louisiana." 
Their  powers  and  duties  are  defined  in  sections  3  and  26  of  the  act  of 
1872.  They  are  the  same  precisely  as  those  conferred  upon  similar  offi 
cers  by  the  law  of  the  session  of  1870.  First,-  however,  your  honors,  as 
to  the  constitution  of  this  board,  the  second  section  provides : 

That  five  persons,  to  be  elected  by  the  senate  from  all  political  parties,  shall  be  the 
returning-officers  for  all  elections  in  the  State,  a  majority  of  whom  shall  constitute  a 
quorum,  and  have  power  to  make  the  returns  of  all  elections.  In  case  of  any  vacancy 
by  death,  resignation,  or  otherwise,  by  either  of  the  board,  then  the  vacancy  shall  be 
filled  by  the  residue  of  the  board  of  returning-officers. 

Your  honors  will  see  that  the  board  herein  provided  consists  of 
five,  and  that  in  its  political  caste  it  shall  represent  all  the  political 
parties,  and  if  a  vacancy  occurs,  the  remaining  members  of  the  board 
shall  fill  it.  This  is  a  very  peculiar  statute,  a  very  singular  law.  Here 
a  board,  organized  with  powers  over  the  election-returns  of  all  elections, 
is  made  perpetual,  with  the  power  within  itself  to  continue  that  perpe 
tuity.  When  once  established,  the  board  has  gone  out  from  the  State 
authorities,  from  the  people,  from  the  popular  control,  into  the  hands  of 
these  men,  and  they  continue  on  and  on  and  on  forever. 

I  have  already  said  that  their  duties  were  prescribed  and  their  author 
ity  circumscribed  ;  and  you  honors  will  see  that  it  is  very  necessary  to 
circumscribe  such  authority.  The  sections  to  which  I  have  made  refer 
ence  have  been  under  review  before ;  they  are  not  here  to  be  considered 
for  the  first  time.  Such  has  been  the  condition  of  affairs  in  Louisiana, 
that  it  has  become  the  duty  on  former  occasions  of  Congress,  on  the  part 
of  the  Senate  and  on  the  part  of  the  House,  to  investigate  the  matter 
of  popular  elections  there  and  the  powers  of  this  board.  The  powers 
so  far  as  canvass  and  return  are  concerned,  I  have  already  stated,  as 
embraced  in  the  act  of  1872,  are  the  same  as  those  embraced  in  the  act 
of  1870. 

Now  let  us  see  what  construction  has  been  given  to  those  powers 
heretofore.  I  will  first  call  your  honors'  attention  to  the  report  made 
by  the  Senate  Committee  on  Privileges  and  Elections,  (Eeport  417  of 
the  Forty-second  Congress,  third  session,  under  date  of  February  10, 
1873,)  submitted  by  Senator  Morton,  the  chairman,  in  which  the  fol 
lowing  language  is  used : 

The  statute  of  Louisiana  authorizes  the  supervisors  of  registration  in  the  parishes, 
or  the  commissioners  of  election,  to  make  affidavit  in  regard  to  any  violence,  tumult, 
fraud,  or  bribery  by  which  a  fair  election  had  been  prevented,  which  shall  be  forwarded 
to  the  returning-board,  along  with  the  returns,  and  upon  which  the  returning- board 
may  reject  the  vote  of  a  poll  in  making  the  count ;  and  if  the  evidence  of  the  officers 
of  the  election  is  not  sufficient  to  satisfy  the  minds  of  the  returning-board  in  regard 
15  E  C 


226  ELECTORAL    COUNT    OF    1877. 

to  the  matter  charged,  they  are  authorized  to  send  for  persons  and  papers  and  takd 
further  testimony  upon  the  matter ;  but  they  have  no  authority  to  make  such  inves 
tigation  unless  the  foundation  is  first  laid  by  the  sworn  statements  of  the  officers  of 
the  election,  as  before  mentioned. 

That  report  was  made  to  the  Senate  of  the  United  States,  and  upon 
that  report  and  the  facts  therewith  connected  the  Senate  acted  in  1873 
upon  the  electoral  vote  of  that  State. 

In  the  House  of  Representatives  also  a  committee  report  was  made 
on  the  23d  of  February,  1875,  signed  by  honorables  George  F.  Hoar, 
William  A.  Wheeler,  and  W.  P.  Frye,  members  of  the  committee.  They 
quote  at  length  sections  3  and  26,  and  I  will  read  them  as  they  have 
quoted  them  : 

SEC.  3.  Be  it  further  enacted,  #c.  That  in  such  canvass  and  compilation  the  returning- 
officers  shall  observe  the  following  order:  They  shall  compile  first  the  statements  from 
all  the  polls  or  voting-places  at  which  there  shall  have  been  a  fair,  free,  and  peaceable 
registration  and  election.  Whenever,  from  any  poll  or  voting-place,  there  shall  be  re 
ceived  the  statement  of  any  supervisor  of  registration  or  commissioner  of  election,  in 
form  as  required  by  section  26  of  this  act,  on  affidavit  of  three  or  more  citizens,  of  any 
riot,  tumult,  acts  of  violence,  intimidation,  armed  disturbance,  bribery,  or  corrupt  in 
fluences,  which  prevented,  or  tended  to  prevent,  a  fair,  free,  and  peaceable  vote  of  all 
qualified  electors,  entitled  to  vote  at  such  poll  or  voting-place,  such  return  ing-officers 
shall  not  canvass,  count,  or  compile  the  statement  of  votes  from  such  poll  or  voting- 
places  until  the  statements  from  all  other  polls  or  voting-places  shall  have  been  can 
vassed  and  compiled.  The  returning  officers  shall  then  proceed  to  investigate  tha 
statements  of  riot,  tumult,  acts  of  violence,  intimidation,  armed  disturbance,  bribery, 
or  corrupt  influences  at  any  such  poll  or  voting-place;  and  if  from  the  evidence  of  such 
statement  they  shall  be  convinced  that  such  riot,  tumult,  acts  of  violence,  intimida 
tion,  armed  disturbance,  bribery,  or  corrupt  influences  did  not  materially  interfere  with 
the  purity  and  freedom  of  the  election  at  such  poll  or  voting-place,  or  did  not  prevent 
a  sufficient  number  of  qualified  voters  thereat  from  registering  or  voting  to  materially 
change  the  result  of  the  election,  then,  and  not  otherwise,  said  ret  urn  ing-officers 
shall  canvass  and  compile  the  vote  of  such  poll  or  voting-place  with  those  previously 
canvassed  and  compiled ;  but  if  said  returning-officers  shall  not  be  fully  satisfied 
thereof,  it  shall  be  their  duty  to  examine  further  testimony  in  regard  thereto,  and  to 
this  end  they  shall  have  power  to  send  for  persons  and  papers.  If,  after  such  exami 
nation,  the  said  returning-officers  shall  be  convinced  that  such  riot,  tumult,  acts  of, 
violence,  intimidation,  armed  disturbance,  bribery,  or  corrupt  influences  did  materially 
interfere  with  the  purity  and  freedom  of  the  election  at  such  poll  or  voting-place, 
or  did  prevent  a  sufficient  number  of  the  qualified  electors  thereat  from  registering  and 
voting  to  materially  change  the  result  of  the  election,  then  the  said  returning-orficera 
shall  not  canvass  or  compile  the  statement  of  the  votes  of  such  poll  or  voting-place, 
but  shall  exclude  it  from  their  returns :  Provided,  That  any  person  interested  in  said 
election  by  reason  of  being  a  candidate  for  office  shall  be  allowed  a  hearing  before  said 
returning-officers  upon  making  application  within  the  time  allowed  for  the  forwarding 
of  the  returns  of  said  election. 

There  is  their  authority;  there  is  the  direction  by  which  they  are  to 
be  guided;  and  section  26  provides  for  the  character  of  these  papers 
that  are  thus  to  assail  and  attack  these  polls  5  and  that  is  : 

SEC.  26.  Be  it  further  enacted,  $c.  That  in  any  parish,  precinct,  ward,  city,  or  town 
in  which,  during  the  time  of  registration  or  revision  of  registration,  or  on  any  day  of 
election,  there  shall  be  any  riot,  tumult,  acts  of  violence,  intimidation,  and  disturb 
ance,  bribery,  or  corrupt  influences  at  any  place  within  said  parish,  or  ar,  or  near  any 
poll  or  voting-place  or  place  of  registration,  or  revision  of  registration,  which  riot,  tu 
mult,  acts  of  violence,  intimidation,  and  disturbance,  bribery,  or  corrupt  influences 
shall  prevent,  or  tend  to  prevent,  a  fair,  free,  peaceable,  and  full  vote  of  all  the  qual 
ified  electors  of  said  parish,  precinct,  ward,  city,  or  town,  it  shall  be  the  duty  of  the 
commissioners  of  election,  if  such  riot,  tumult,  acts  of  violence,  intimidation  and 
disturbance,  bribery,  or  corrupt  influences  occur  on  the  day  of  election,  or  of  th« 
supervisor  of  registration  of  the  parish  if  they  occur  during  the  time  of  registration, 
or  revision  of  registration,  to  make  in  duplicate  and  under  oath  a  clear  and  full  state 
ment  of  all  the  facts  relating  thereto,  and  the  effect  produced  by  such  riot,  tumult, 
acts  of  violence,  intimidation,  and  disturbance,  bribery,  or  corrupt  influences,,  in  pre 
venting  a  fair,  free,  peaceable,  and  full  registration  or  election,  and  of  the  number  of 
qualified  electors  deterred  by  such  riots,  tumult,  acts  of  violence,  intimidation,  and 
disturbance,  bribery,  or  corrupt  influences  from  registering  or  voting,  which  statement 


ELECTORAL    COUNT    OF    1877  227 

shall  also  be  corroborated  under  oath  by  three  respectable  citizens,  qualified  electors  of 
the  parish. 

When  such  statement  is  made  by  a  commissioner  of  election  or  a  supervisor  of  regis 
tration,  he  shall  forward  it  in  duplicate  to  the  supervisor  of  registration  of  the  parish 
if  in  the  city  of  New  Orleans  to  the  secretary  of  state,  one  copy  of  which,  if  made  to 
the  supervisor  of  registration,  shall  be  forwarded  by  him  to  the  retorning-offloera  pro 
vided  for  in  section  2  of  this  act  when  he  makes  the  returns  of  elections  in  his 
parish.  His  copy  of  said  statement  shall  be  so  annexed  to  his  returns  of  elections  by 
paste,  wax,  or  some  adhesive  substance  that  the  same  can  be  kept  together,  and  the 
other  copy  the  supervisor  of  registration  shall  deliver  to  the  clerk  of  the  court  of  his 
parish  for  the  use  of  the  district  attorney. 

After  quoting  these  sections  as  I  have  read  them,  the  report  proceeds : 

Upon  this  statute  we  are  clearly  of  the  opinion  that  the  returuing-board  had  no  right 
to  do  anything  except  to  canvass  and  compile  the  returns  which  were  lawfully  made 
to  them  by  the  local  officers,  except  in  cases  where  they  were  accompanied  by  the  cer 
tificate  of  the  supervisor  or  commissioner  provided  in  the  third  section.  In  such  cases 
the  last  sentence  of  tbat  section  shows  that  it  was  expected  that  they  would  ordinarily 
exercise  the  grave  and  delicate  duty  of  investigating  charges  of  riot,  tumult,  bribery 
or  corruption  on  a  hearing  of  the  parties  interested  in  the  office.  It  never  could  have 
been  meant  that  this  board  of  its  own  motion,  sitting  in  New  Orleans,  at  a  distance 
from  the  place  of  voting,  and  without  notice,  could  decide  the  rights  of  persons  claim 
ing  to  be  elected. 

But  an  examination  of  the  law  will  clearly  disclose  that  such  was  its 
purpose  and  intent;  for  when  you  consider  the  second  section,  as  to 
what  these  officers  shall  do,  it  will  be  seen  that  their  primary  duty  is  to 
canvass  and  compile  the  votes  returned  to  them.  They  are  first  required 
to  take  an  oath  of  office  that  "  they  will  faithfully  and  diligently  per 
form  the  duties  of  a  returning-officer  as  prescribed  by  law;  that  they 
will  carefully  and  honestly  canvass  and  compile  the  statements  of  the 
votes,  and  make  a  true  and  correct  return  of  them,  so  help  them  God." 

Mr.  Commissioner  THURMAN.  Is  there  any  evidence  now  before  us 
that  they  threw  out  returns  that  were  not  accompanied  by  a  protest? 

Mr.  Senator  McDONALD.  I  shall  call  the  attention  of  the  Commis 
sion,  before  I  am  through,  to  what  I  claim,  to  be  evidence  on  that  sub 
ject. 

Within  ten  days  after  the  closing  of  the  election  said  returning-officers  shall  meet 
in  New  Orleans  to  canvass  and  compile  the  statements  of  votes  made  by  the  commis 
sioners  of  election,  and  make  returns  of  the  election  to  the  secretary  of  state. 

They  are  to>  canvass  and  compile  "  the  statements  of  votes  made  by 
the  commissioners  of  election,"  those  primary  officers  who  receive  the 
ballots  from  the  people,  and  then  to  make  a  sworn  statement  of  them. 

Mr.  Commissioner  MORTON.     What  section  do  you  read  that  from! 

By  Senator  McDONALD.  Section  2.  That  is  what  they  are  to  do; 
canvass  the  statements  of  the  votes  made  by  the  commissioners  of  election. 
Then,  when  they  have  made  this  canvass  according  to  law  and  followed 
the  law,  their  act  gives  a  prima  facie  right  to  the  party  receiving  a  certifi 
cate,  and  but  a  prima  facie  right  by  the  express  terms  of  the  statute 
itself. 

These  constructions  of  the  authority  of  the  returning-board  in  Louisi 
ana  have  been  affirmed  by  each  House  of  Congress  in  its  dealings  with 
the  popular  elections  there  ;  and  in  the  case  of  the  presidential  electors 
of  1872  the  vote  of  the  State  of  Louisiana  was  cast  out  and  not  counted 
because  there  had  been  a  failure  to  comply  with  the  law  of  the  State 
on  the  part  of  these  officers;  not  that  there  had  not  been  an  election, 
not  that  the  people  had  not  voted  there,  but  that  there  had  been  a  fail 
ure  on  the  part  of  those  intrusted,  as  it  is  termed,  with  the  "  machinery 
of  the  election  "  in  that  State  to  make  that  kind  of  return  that  gave 
faith  and  credit  to  their  acts.  (See  pages  396-407  Compilation  of  Pro 
ceedings  of  Counting  the  Electoral  Votes.) 

Of  the  votes  actually  cast  at  the  late  election  for  the  appointment  of 


228  ELECTORAL    COUNT    OP    1877. 

electors  in  Louisiana,  the  democratic  electors  received  majorities  ranging 
from  5,300  to  8,090;  on  the  face  of  the.  returns,  as  made  by  the  super 
visors  of  registration  to  the  board  of  returning-officers,  their  majorities 
ranged  from  3,450  to  6,405,  but  by  the  canvass  and  the  return  made  by 
the  returning-officers  majorities  were  certified  in  favor  of  the  republican 
electors  ranging  from  3,437  to  4,800.  To  produce,  this  result  sixty-nine 
polls  were  rejected,  embracing  twenty  two  parishes  in  whole  or  in  part. 

In  the  canvass  thus  made  by  the  returuing-offieers  there  were  actually 
frauds  committed  by  them  in  this,  that  they  failed  and  refused  to  can 
vass  and  compile  the  statements  of  votes  made  by  the  commissioners 
of  election,  and  pretended  to  consider  only  the  consolidated  statements 
made  by  the  supervisors  of  elections.  In  this  manner  the  parish  of 
Grant  was  rejected  entirely,  because  the  statement  of  votes  made  by 
the  commissioners  of  elections,  although  before  them,  had  not  been 
returned  by  the  supervisor  of  registration.  They  also  refused  for  the 
same  reasons  to  consider  2,914  votes  cast  for  the  democratic  electors 
and  651  votes  cast  for  the  republican  electors,  mainly  in  the  parishes  of 
East  Baton  Rouge  and  Orleans.  They  transposed  178  votes  from 
democratic  electors  cast  in  the  parish  of  Veruon  to  the  republican 
electors,  which  transposition  has  never  been  corrected.  They  rejected 
poll  No.  4  in  the  parish  of  Iberia,  in  which  were  cast  322  votes  for  the 
democratic  electors,  and  11  votes  for  the  republican  electors,  for  no 
other  alleged  cause  than  that  the  commissioners'  statement  did  not 
show  that  the  word  "voted"  had  been  written  or  stamped  on  the  cer 
tificates  of  registration  presented  by  the  voters.  They  rejected  polls 
1,  3,  and  10  in  the  parish  of  Veruon,  aggregating  179  votes  for  the 
democratic  electors  and  none  for  the  republican  electors,  upon  affidavits 
fraudulently  made  and  filed  after  they  had  closed  their  public  sessions, 
and  they  added  to  the  votes  as  returned  by  the  supervisors  of  registra 
tion  over  500  votes  to  five  of  the  eight  republican  electors  in  the  parish 
of  Concordia,  and  over  500  votes  in  the  parish  of  Natch itoches,  upon 
no  sufficient  proof  that  such  votes  had  been  actually  cast,  and  without 
the  knowledge  of  the  democratic  electors  interested  in  the  question. 

In  some  instances  polls  were  rejected  because,  from  the  necessities  of 
the  case,  commissioners  of  elections  at  such  polls  were  democrats,  the 
supervisors  of  election  not  being  able  to  find  qualified  republicans  to 
fill  such  positions. 

From  these  and  other  facts  of  a  like  nature,  it  is  charged  and  claimed 
that  the  action  of  the  board  of  returning-officers  was  so  corrupt  and 
fraudulent  as  to  destroy  all  faith  and  credit  in  their  canvass  and  return. 

Again,  in  rejecting  the  polls  the  board  of  returning-officers  acted 
without  lawful  authority,  there  being  but  few,  if  any,  cases  in  which  the 
returns  made  to  them  had  been  accompanied  by  any  proper  certificate 
or  statement  of  the  supervisors  of  registration  or  commissioners  of  elec 
tion,  as  provided  for  in  the  law  under  which  they  claimed  to  act,  con 
testing  the  fairness  of  the  registration  or  election,  but  arbitrarily,  and 
without  any  sufficient  foundation  being  laid  therefor  and  upon  false  and 
fraudulent  affidavits  manufactured  for  that  purpose,  rejected  such  polls 
on  charges  of  riot,  tumult,  bribery,  &c.,  without  any  proper  hearing  on 
the  part  of  the  parties  interested. 

The  election  laws  of  1870  and  1872  had  placed  under  control  of  the 
governor  of  the  State  all  the  machinery  of  election  and  vested  in  him 
an  authority  and  power  "  scarcely  exercised  by  any  sovereign  in  the 
world."  He  appointed  the  State  superintendent  of  registration  and  the 
supervisors  of  registration  in  each  parish  in  the  State,  and  they  in  turn 
fixed  the  polling-places  in  the  several  parishes  and  appointed  the  com- 


ELECTORAL    COUNT    OF    1877.  229 

missioners  or  judges  of  election,  who  received  the  ballots  of  the  people. 
All  of  these  appointees,  with  but  very  few  exceptions,  were  members 
of  the  republican  party,  and  in  this  instance  all  this  vast  power  was 
aided  by  Federal  officers,  civil  and  military,  and  particularly  by  the 
United  States  marshal  for  the  district  of  Louisiana,  who,  claiming  to 
act  under  the  instructions  from  the  Department  of  Justice,  increased 
the  number  of  his  deputies  to  over  eight  hundred,  and  distributed  them 
through  the  different  parishes  under  the  pretense  of  aiding  in  preserving 
order  and  protecting  the  purity  of  the  ballot-box.  All  of  these  com 
bined  official  forces  acted  in  unison  and  harmony  with  the  republican 
State  committee  in  conducting  the  canvass  and  in  controlling  the  elec 
tion. 

HEADQUARTERS  REPUBLICAN  PARTY  OF  LOUISIANA, 
ROOMS  JOINT  COMMITTEE  ON  CANVASSING  AND  REGISTRATION, 

MECHANICS'  INSTITUTE,  September  25,  1876. 

DEAR  SIR  :  It  is  well  known  to  this  committee  that,  from  examination  of  the  census 
of  1875,  the  republican  vote  in  your  parish  is  2,200  and  the  republican  majority  is  900. 
You  are  expected  to  register  and  vote  the  full  strength  of  the  republican  party  in 
your  parish. 

Your  recognition  by  the  next  State  administration  will  depend  upon  your  doing 
your  full  duty  in  the  premises,  and  you  will  not  be  held  to  have  done  your  full  duty 
unless  the  republican  registration  in  your  parish  reaches  2,200  and  the  republican  vote 
is  at  least  2,100. 

All  local  candidates  and  committees  are  directed  to  aid  you  to  the  utmost  in  obtain 
ing  the  result,  and  every  facility  is  and  will  be  afforded  you  ;  but  you  must  obtain 
the  results  called  for  herein  without  fail.  Once  obtained,  your  recognition  will  be 
ample  and  generous. 

Very  respectfully,  your  obedient  servant, 

D.  J.  M.  A.  JEWETT,  Secretary. 
SUPERVISOR  OF  REGISTRATION^ 

Parish  of  Assumption,  Louisiana. 

Notwithstanding  this  immense  power  wielded  for  the  purpose  of  pro 
curing  in  the  returns  to  be  made  a  majority  for  the  republican  electors 
and  republican  State  ticket,  the  local  returning-officers  were  compelled 
to  and  did  return  the  majorities  heretofore  stated  in  favor  of  the  demo 
cratic  electors.  It  was  then  that  the  duties  of  the  returning-officers, 
in  the  language  of  J.  Madison  Wells,  president  of  the  board,  "  aug 
mented  the  magnitude  of  the  destiny  of  the  two  great  parties,"  and,  by 
the  fraudulent  and  unlawful  means  already  charged,  reversed  the  pop 
ular  verdict,  and  fraudulently  issued  the  certificates,  which  are  the 
foundation  of  the  authority  for  the  vote  cast  for  Hayes  and  Wheeler, 
and  which  this  Commission  is  called  upon  to  pronounce  to  be  the  true 
and  lawful  vote  of  the  State  of  Louisiana. 

The  evidence  to  support  these  charges  of  fraud  and  illegality  on  the 
part  of  the  canvassiug-officers  of  Louisiana  has  already  been  taken  by 
the  Senate  of  the  United  States,  in  pursuance  of  the  resolution  adopted 
December  4, 1876,  requiring  the  Committee  on  Privileges  and  Elections, 
among  other  duties,  to  inquire  whether  the  appointment  of  electors,  or 
those  claiming  to  be  such,  in  any  of  the  States  had  been  made  either 
by  force,  fraud,  or  other  means,  otherwise  than  in  conformity  with  the 
Constitution  and  laws  of  the  United  States  and  the  laws  of  the  respect 
ive  States;  and  by  the  House  of  Eepresentatives  through  a  special 
committee  appointed  to  investigate  the  recent  election  and  the  action 
of  the  canvassing  or  returning  board  of  the  State  of  Louisiana  in  ref 
erence  thereto,  and  report  all  the  facts  essential  to  an  honest  return  of 
the  votes  received  by  the  electors  of  said  State  for  President  and  Vice- 
president  of  the  United  States. 

The  PRESIDENT.  I  do  not  know,  Mr.  McDonald,  what  the  arrange- 


230  ELECTORAL   COUNT    OF   1877. 

meut  between  you  arid  your  associate  is,  but  half  the  time  has  elapsed. 
One  hour  has  been  consumed. 

Mr.  Senator  McDONALD.  I  shall  not  take  up  his  time,  but  I  shall 
leave  him  to  present  in  extenso  these  questions.  I  will  only  occupy  a 
few  minutes  further. 

It  is  the  duty  of  this  Commission,  under  the  law  creating  it,  exercising 
for  that  purpose  all  the  powers  now  possessed  by  the  two  Houses  of  Congress 
acting  separately  or  together,  to  determine  and  decide  whether  any  and 
what  votes  from  the  State  of  Louisiana  are  the  votes  provided  for  by 
the  Constitution  of  the  United  States,  and  how  many  and  what  persons 
were  duly  appointed  electors  in  said  State,  and  it  may  therein  take  into 
view  such  petitions,  depositions,  and  other  papers,  if  any,  as  shall,  by 
the  Constitution  and  now  existing  laws,  be  competent  and  pertinent  in 
such  consideration. 

In  vesting  these  powers  in  this  Commission  Congress  created  a  judi 
cial,  and  not  a  clerical,  board. 

As  a  judicial  board,  this  Commission  is  not  bound  to  accept  as  "the 
votes  provided  for  in  the  Constitution  of  the  United  States"  such  as 
may  have  been  cast  by  persons  fraudulently  certified  as  electors  nor  to 
accept  them  as  duly  appointed  electors,  and  must  consider,  in  reaching 
its  determination,  such  proof  as  would  be  admissible  in  either  branch  of 
Congress  if  engaged  in  the  consideration  of  the  same  question  ;  and, 
therefore,  the  proofs  already  taken  by  either  of  said  Houses  with  respect 
to  these  questions  are  to  be  deemed  "depositions  and  other  papers  per 
tinent  in  such  consideration.'7 

If  these  proofs,  or  any  other  evidence  which  the  Commission  may 
properly  receive,  shall  establish  the  fact  that  the  electors  who  cast 
the  votes  in  question  had  been  appointed  by  fraud  or  other  means 
otherwise  than  in  conformity  with  the  Constitution  and  laws  of  the 
United  States  and  the  laws  of  the  State  of  Louisiana,  or  that  any 
of  them  were  incapable  of  being  chosen,  then  the  votes  cast  by  such 
must  be  rejected,  for  they  are  not  "the  votes  provided  for  in  the 
Constitution." 

Mr.  President  and  gentlemen  of  the  Commission,  may  I  in  conclu 
sion  conjure  you  to  meet  these  questions  on  their  merits? 

Say  that  the  charges  are  true  or  false. 

Here  are  charges  of  fraud  against  the  perpetration  of  which  every 
honest  instinct  of  our  nature  rebels — a  villainy  in  their  perpetration 
that  is  ringing  through  the  laud. 

Do  not,  by  closing  your  eyes  to  them,  exhibit  a  degree  of  judicial 
blindness  that  all  good  men  must  deprecate  and  the  whole  country 
condemn. 

Mr.  Commissioner  BAYAED.  I  should  like  to  ask  you  to  refer  to 
the  statute  of  Louisiana  providing  for  filling  vacancies  in  the  college 
of  electors,  recited  in  the  certificate  of  Mr.  Kellogg. 

Mr.  Senator  McDONALD.  That  is  the  act  of  1868. 

Mr.  TEUMBULL.  It  will  be  found  in  the  pamphlet  at  page  93. 

Mr.  Commissioner  HUNTON.  Allow  me  to  ask  a  question,  Mr. 
McDonald.  You  have  stated  that  the  electoral  vote  of  Louisiana  was 
discarded  in  1872  on  the  ground  that  there  was  no  regular  machinery 
for  counting  the  electoral  vote. 

Mr.  Senator  McDONALD.  No,  sir;  not  that;  but  that  there  had 
been  a  fraudulent  return  of  that  vote.  That  was  one  of  the  grounds 
pf  objection  made  at  the  time  the  certificates  were  opened.  It  does 
not  appear  upon  which  one  of  the  several  grounds  the  action  was 
based,  but  there  were  quite  a  number.  The  Senate  and  House  acted, 


ELECTORAL   COUNT    OF    1877.  231 

and  they  each  passed  resolutions  that  it  was  not  the  electoral  vote  of 
the  State. 

Mr.  Commissioner  HUNTON.  I  am  aware  of  that.  I  only  wanted  to 
ask  your  to  furnish  the  Commission  with  that  evidence. 

Mr.  Senator  McDONALD.  In  the  book  entitled  Presidential  Counts 
you  will  find  the  whole  of  it. 

Mr.  Representative  JENKS.  I  would  ask,  Mr.  President,  how  much 
time  I  have  ? 

Mr.  Commissioner  ABBOTT.  I  move,  if  Mr.  Jenks  desires  it,  that 
he  may  have  a  full  hour.  Some  ten  minutes  of  it,  I  think,  were  taken 
by  Senator  McDonald  and  interruptions  of  him,  and  there  are  many 
questions  to  be  discussed  here  which  are  of  importance. 

Mr.  Senator  McDONALD.  I  trust,  Mr.  President  and  gentlemen,  it 
may  be  so.  The  questions  put  to  me  necessarily  led  me  to  occupy  more 
time  than  I  intended. 

The  PRESID  ENT.  Are  you  satisfied,  Mr.  Jenks,  to  take  five  minutes 
in  addition  to  the  time  left  ? 

Mr.  Representative  JENKS.  I  prefer  a  full  hour ;  I  do  not  know  that 
I  shall  consume  it. 

The  PRESIDENT.  I  will  submit  the  question  to  the  Commission : 
Shall  Mr.  Jenks  have  an  hour  ? 

The  question  was  decided  in  the  affirmative. 

Mr.  Commissioner  ABBOTT.  And  of  course  the  same  time  will  be 
extended  to  the  other  side  if  they  wish  it. 

Mr.  Representative  JENKS.  Mr.  President  and  gentlemen  of  the 
Commission,  by  the  organic  act  under  which  this  tribunal  is  constituted, 
with  the  decision  that  has  been  rendered  thereon  and  adopted  by  the 
Houses,  the  principle  has  been  established  that  the  Houses  of  Congress 
shall  count  the  votes.  That  being  fixed  as  a  fact  from  which  to  start, 
the  inquiry  is,  what  is  implied  in  counting  the  votes?  Counting  any 
given  thing  implies  two  different  actions  of  the  mind ;  one  of  discrimina 
tion  or  determination  to  find  that  the  tiling  to  be  counted  is  generically 
of  the  kind  that  is  to  be  counted,  and  the  counting  an  act  of  enumera 
tion  or  finding  the  result  from  these  acts  of  determination.  To  throw 
out  either  word  from  the  sentence,  "  the  votes  shall  then  be  counted,77 
would  be  to  destroy  its  sense. 

Now  I  will  assume  that  the  Constitution  has  said  the  Houses  of  Con 
gress  shall  count  the  votes.  When  a  power  is  conferred  by  the  Consti 
tution,  every  power  that  is  necessarilylmplied  to  perform  that  power  is 
also  granted ;  and  when  a  power  is  granted  and  the  emergency  arises 
when  that  power  should  be  exercised,  the  execution  of  that  power  be 
comes  a  duty,  and  when  that  emergency  has  arisen,  the  implied  powers, 
whatever  are  necessary  to  discharge  that  duty,  are  granted ;  and  if  they 
are  a  necessary  implication  from  the  Constitution ,  they  are  as  much  a 
part  of  it  as  though  there  written ;  and  if  the  Constitution  has  written 
therein  that  they  have  the  power  to  intelligently  do  the  act,  neither 
Congress  nor  any  one  else  can  lawfully  deprive  them  of  that  power. 
Hence,  if  the  act  of  Congress  which  says  that  the  executive  certificate 
shall  be  the  only  evidence  received  contravenes  the  grant  of  power 
which  is  necessarily  implied  to  find  the  truth,  that  statute  is  a  simple 
nullity,  because  here  are  the  legislative  bodies  of  a  great  nation  ;  they 
are  required  to  attest  by  their  journals  a  fact  which  is  to  go  down 
through  all  history  as  the  truth  over  their  signatures,  and  no  power  on 
earth  can  say  that 'you  shall  put  upon  those  journals  that  which  you  and 
every  one  else  knows  to  be  false.  So  there  can  be  no  such  thing  as 
blinding  the  eyes.  If  Congress  had  passed  an  act  that  the  members  of 


232  ELECTORAL    COUNT    OF    1877. 

the  Senate  and  House  of  Representatives  with  bandages  over  their 
eyes,  under  the  superintendence  of  the  President  of  the  Senate,  band 
aged  in  a  like  manner,  should  count  the  votes,  you  would  say  that 
absurdity  cannot  be  tolerated  ;  and  the  same  fact  exists  here.  Truth  is 
the  moral  sunlight  of  the  world,  and  if  you  dare  cut  out  the  truth  from, 
the  physical  eye,  you  dare  from  the  moral  eye  or  the  mind's  eye;  but 
you  cannot  from  one  more  than  from  the  other  unless  you  propose  to 
defy  the  intelligent  judgment  of  the  world. 

Then,  this  being  the  duty  of  the  Houses,  to  count  the  votes,  and  the 
counting  implying  the  fact  that  there  must  be  an  intelligent  judgment 
and  an  accurate  enumeration,  no  power  can  deprive  the  Houses  of  the 
necessary  intelligence  to  do  that  duty. 

Then  I  wish  to  call  the  attention  of  the  Commission  to  another  dis 
tinction.  It  has  been  rather  assumed  that  this  is  a  judicial  tribunal.  I 
am  unable  to  concur  in  this  view.  It  is  essentially  legislative  to  deter 
mine  the  succession  of  the  Chief  Executive ;  nothing  more  and  nothing 
less.  A  merchant  turns  to  his  clerk  and  says  to  him,  "  Go  to  yon  pile 
of  goods  and  determine  which  are  the  calicoes  and  count  the  number  of 
webs."  It  is  not  a  judicial  act.  for  that  clerk  to  obey  the  order.  There 
are  no  parties  to  it.  The  merchant  is  the  owner;  he  is  to  do  it  for  him 
self,  and  not  another;  it  is  not  a  judicial  act  at  all.  The  United  States 
says  to  her  two  Houses  of  Congress,  "  All  certificates,  true  and  false, 
being  opened,  you  are  required  to  make  a  truthful  count  of  those  which 
are  genuine,  and  repudiate  those  which  are  false."  It  is  the  nation  doing 
it  for  herself.  It  is  not  parties. 

This  discussion  has  been  somewhat  depreciated  in  its  character,  I 
apprehend,  in  that  it  has  been  to  some  extent  assumed  that  this  is  a 
contest  between  parties.  It  is  forty-five  millions  of  people  speaking  for 
themselves  through  their  own  representatives,  and  saying  "you,  for  me, 
and  in  my  name  and  stead,  count  these  votes."  It  is  legislative  action, 
and  not  judicial,  but  it  must  be  truthful ;  and  it  was  conferred  upon  the 
legislative  power  from  the  very  fact  that  the  Senate  representing  the 
States,  the  Representatives  representing  the  people  of  the  whole  nation, 
the  question  of  succession  being  known  as  the'questiou  that  would  ulti 
mately  involve  the  greatest  danger  to  our  institutions,  and  that  there 
could  be  no  human  foresight  that  could  conceive  of  every  possible 
emergency  that  might  arise,  and  in  order  that  there  might  be  no  casus 
omissus,  it  was  put  into  the  hands  of  the  States  and  the  people,  intend 
ing  that  from  the  broad  view  of  the  legislator,  from  the  broad  range  of 
evidence  that  he  takes  into  view,  and  from  his  mode  of  thought,  he 
should  decide  upon  this  counting  on  principles  of  original  justice  with 
discretionary  application,  which  is  the  definition  given  by  Mr.  Burke  of 
legislative  power.  So  that  from  original  justice,  not  as  a  court  with 
discretionary  application,  intended  by  those  who  conferred  the  power 
upon  the  States  and  the  people,  you  are  to  count  this  vote,  not  for  can 
didates,  but  for  your  country,  and  count  it  truly.  There  should  be  no 
blinding  of  the  eyes  before  we  assume  to  count  it. 

With  these  preliminary  views,  we  will  proceed  to  consider  the  count 
of  the  votes.  Here  are  two  certificates  presented,  each  of  which  repre 
sents  eight  electors,  each  of  which  bears  the  seal  of  a  State,  each  of 
which  bears  the  signature  of  a  governor.  Shall  both  be  counted  ?  Shall 
either  ?  Or  shall  neither  ?  If  I  ask  whether  both  shall  not  be  counted, 
what  is  the  response  ?  The  response  is  in  the  language  of  the  Consti 
tution,  very  simple,  very  short.  Both  cannot  be  counted,  because  the 
Constitution  provides  that  a  number  of  electors  equal  to  the  whole 
number  of  Senators  and  Representatives  to  which  the  State  may  be  en- 


ELECTORAL   COUNT   OP    1877.  233 

titled  in  the  Congress,  only,  shall  be  appointed.  The  Constitution  at 
once  meets  you,  because  the  number  is  prescribed  therein.  You  imme 
diately  say,  "  Both  cannot  be  counted."  Then  that  is  disposed  of,  and 
disposed  of  because  the  Constitution  says  that  only  a  fixed  number 
shall  be  counted ;  but  the  Constitution  in  identically  the  same  clause 
fixes  the  other  qualifications.  It  fixes  as  to  the  manner  of  their  choos 
ing  and  as  to  the  qualifications  these  men  shall  have  who  shall  be 
chosen.  If  you  settle  it  peremptorily  and  speedily  when  the  Constitu 
tion  meets  you  in  reference  to  the  number,  have  you  a  right  on  some 
man's  certificate  to  say,  "  I  will  ponder  awhile  whether  I  will  recognize 
the  Constitution  as  to  manner  or  as  to  qualification?"  The  answer 
should  be  equally  prompt.  All  that  the  legislatures  of  the  States  direct 
is  the  manner,  with  the  qualification  that  no  person  holding  an  office  of 
trust  or  profit  under  the  United  States  shall  be  appointed  an  elector. 
Then  let  us  meet  the  question,  if  we  find  the  facts  to  show  a  violation  of 
the  provision  of  the  Constitution  as  to  manner  or  as  to  qualifications, 
with  the  same  promptness  with  which  we  would  meet  it  with  reference 
to  the  number. 

Then  let  us  proceed  to  the  count.  You  cannot  count  both,  because  the 
Constitution  limits  the  number.  Then  they  must  be  chosen  as  the  legis 
lature  directs.  They  are  not  both  genuine,  then,  is  the  conclusion  you 
come  to.  The  inquiry  would  be,  if  you  were  investigating  something  else 
and  found  some  real  and  some  false,  which  is  the  genuine?  And  the 
same  principle  you  would  apply  to  such  an  inquiry  should  be  applied 
here  now ;  which  is  genuine  ?  If  either  one  conforms  to  the  law  of  the 
land  in  all  essential  particulars,  that  is  genuine.  If  either  fails  to  con 
form  to  the  law  of  the  land  in  any  essential  particular,  that  is  false. 
Then  it  necessarily  involves  the  inquiry  as  to  which  conforms  to  the  law 
of  the  land.  If  either  does,  it  is  to  be  counted  ;  but  if  neither  does,  you 
cannot  count  either. 

Then,  what  are  the  provisions  of  the  law  of  the  land  ?  With  reference 
to  the  McEuery  certificate,  the  certificate  No.  2,  as  it  has  been  desig 
nated  by  the  Commission,  we  claim  and  are  prepared  to  prove  that  those 
electors  were  elected  in  the  manner  prescribed  by  the  State  of  Louisiana. 
Second,  we  are  prepared  to  prove  that  the  electors  that  are  certified  to 
by  Mr.  Kellogg  were  not  elected  in  conformity  to  the  laws  of  Louisiana. 
Will  you  accept  the  proof?  That  is  our  offer,  and  we  can  establish  it. 

Then,  if  we  establish  that  the  one  is  elected  according  to  the  legisla 
tive  provisions  of  the  State  of  Louisiana,  you  have  it  precisely  on  the 
same  principle  on  which  you  rule  that  both  shall  not  be  counted.  The 
constitutional  provision  is  identical  and  equally  imperative.  We  are 
also  prepared  to  prove  that,  in  pursuance  of  the  statutes  of  the  United 
States,  the  one  set,  the  McEuery  electors,  were  elected  on  the  7th  day  of 
November,  and  the  other,  the  Kellogg  electors,  were  not  elected  until 
the  6th  day  of  December;  so  that  affirmative  law,  in  addition  to  the 
Constitution,  will  be  in  favor  of  counting  certificate  No.  2.  We  are  also 
prepared  to  show  that  those  who  claim  under  certificate  No.  2  voted, 
exercised  their  right  of  office,  on  the  day  prescribed  by  law. 

Thus-,  in  every  essential  particular,  certificate  No.  2  is  in  precise  con 
formity  to  law.'  Certificates  Nos.  1  and  3  lack,  first,  the  qualification 
that  the  men  named  therein  were  not  elected  in  pursuance  of  the  mode 
prescribed  by  the  legislature,  and  they  were  not  elected  on  the  day  pre 
scribed  by  the  act  of  Congress.  It  would  seem,  if  these  tacts  are  estab 
lished,  that  certificate  No.  2  most  nearly  conforms ;  but  we  may  consider 
whether  it  is  sufficiently  evidenced  hereafter,  because  the  questions  of 
evidence  arise  even  after  the  real  merits  shall  have  been  established  j 


234  ELECTORAL    COUNT    OF    1877. 

but  if  we  establish  these  facts,  certificate  No.  2  is  that  which  most  nearly 
conforms  to  law,  and,  as  we  claim,  in  every  essential  particular. 

If  these  two  certificates  come  in  collision,  shall  the  provision  which 
says  the  executive  shall  certify  override  the  provision  of  the  Constitu 
tion  which  prescribes  the  mode  of  choice,  and  override  that  provision  of 
the  act  of  Congress  which  fixes  that  the  time  of  election  shall  be  on  a 
given  day,  the  7th  day  of  November  in  this  case?  It  seems  to  me  it 
ought  not,  and  if  the  formal  be  preferred  to  the  substantial,  it  ought  not 
to  be.  Then  suppose  the  element  of  fraud  enter  into  the  formal,  and  we 
propose  to  prove  that  the  certificate  as  signed  by  Governor  Kellogg  was 
procured  through  the  fraudulent  acts  of  a  returning-board.  But  it  may 
be  objected  that  we  have  no  right  to  inquire  into  that.  I  was  struck 
somewhat  with  the  argument  made  concerning  the  successive  steps  in 
an  election,  as  they  were  announced  a  day  or  two  since  by  one  of  the 
honorable  gentlemen,  and  the  peculiar  feature  which  marked  it  was  that 
he  stopped  just  at  the  place  that  suited  his  argument,  and  thereby  elimi 
nated  the  whole  power  of  the  United  States  Government.  He  stepped 
right  up  until  the  electors  have  cast  their  votes,  and  then  announced, 
"Then  the  thing  is  ended;"  then  every  avenue  of  truth  is  cut  off.  A 
State  may  do  what  she  pleases,  fraudulently,  and  the  United  States  can 
not  inquire  into  it.  Is  this  true  ?  Is  it  intended  that  the  Senate  and 
House  of  Representatives  of  the  United  States  shall  be  compelled  to 
certify  to  what  they  know  to  be  false,  and  transmit  it  into  history  in 
this  way  ?  It  does  not  seem  to  me  to  be  possible.  Has  the  State  of 
Louisiana,  or  Florida,  or  any  other  State,  the  right  to  put  in  the  food, 
that  we  all  must  eat,  poison,  and  require  us  to  eat  it?  It  seems  to  me 
we  have  some  say-so  in  such  a  matter.  The  thirty-seven  other  States 
have  an  interest,  as  well  as  Louisiana,  or  Florida,  or  any  single  State; 
and  the  United  States  Government,  until  the  votes  are  opened  in  the 
Houses,  has  no  opportunity  to  know  whether  it  is  food  or  poison.  If  a 
State  violates  the  Constitution  of  the  United  States  by  force,  we  call  a 
million  of  men  to  crush  her;  but  if  by  fraud,  we  are  to  take  the  poison 
and  let  the  nation  die.  Is  that  true  or  is  it  false  ?  It  is  not  true.  This 
nation  has  power  to  guard  against  fraud  as  she  has  against  force;  and 
•when  it  is  our  duty  to  count,  the  two  great  bodies,  representing  the 
States  and  representing  the  people,  have  a  right  to  say,  when  fraud  is 
injected  therein,  uWe  will  exclude  that,  and  accept  only  that  which  is 
honest  and  bonafide." 

But  suppose  the  certificate  of  the  governor  had  been  procured  by  a 
band  of  buccaneers  sailing  up  the  river  to  New  Orleans,  capturing  Gov 
ernor  Kellogg,  taking  him  on  board  their  ship,  and  forcing  him  to  sign 
his  name  to  that  certificate,  and  thus  perpetrating  it  upon  the  United 
States,  would  you  hesitate  a  moment  to  inquire  concerning  that  ?  If, 
instead  of  that,  a  band  of  more  insidious  scoundrels  deceive  him  and 
induce  him  to  sign  that  certificate,  does  that  render  it  more  sacred  ?  It 
seems  to  me  Mars,  the  god  of  war,  was  more  respectable  than  Mercury, 
the  god  of  thieves.  Insidious  villainy  does  not  commend  itself  to  us  as 
much  as  actual  force.  In  no  judicial  tribunal  nor  in  any  legislative 
tribunal  ought  it  to  be  accepted  as  worthy  of  any  more  sanctity.  But 
suppose,  in  addition  (and  this  we  expect  to  prove)  to  the  returniug- 
board  poisoning  these  returns,  that  the  governor  who  issued  the  certifi 
cate  was  himself  a  party  to  it;  does  the  fact  that  he  was  dishonest,  a 
member  of  the  same  band  of  conspirators,  render  it  more  sacred  than  if 
he  had  been  an  honest  man  ?  Can  he  by  his  own  villainy  sanctify  his 
villainous  act?  Can  he  take  advantage  of  it  himself  for  his  own 


ELECTORAL    COUNT    OF    1877  235 

aggrandizement  1  It  seems  to  me  these  propositions  need  no  argument ; 
heuce  I  merely  state  them. 

I  may  here  call  attention  to  the  only  explanation  I  know  of  giving 
any  sufficient  probability  by  which  to  account  for  the  "certificates"  1 
and  3,  as  found  in  the  evidence  as  taken  before  the  congressional  com 
mittee.  E  ich  menTber  of  the  returning-board  had  sworn  that  the  can 
vass  of  votes  on  which  they  promulgated  their  result  was  not  obtained 
earlier  than  eight  o'clock  in  the  evening  of  the  5th  of  December.  A 
newspaper  reporter  by  the  name  of  Smith,  investigating,  as  is  their 
wont,  around  the  State-house,  discovered  that  in  the  afternoon  of  the 
5th,  about  two  or  three  o'clock,  the  certificate  of  election  for  the  repub 
lican  electors  had  been  made  out ;  and  yet  the  returning-board  swore 
they  never  knew  nor  had  any  idea  until  after  they  had  finished  their 
counting  that  there  was  a  majority  for  one  side  or  the  other;  but  their 
certificates  were  already  prepared.  This  passed  into  the  newspapers, 
and  as  a  consequence  it  became  necessary  to  make  two  certificates,  and 
they  were  made,  we  say  the  second  set  as  well  as  the  first,  so  that  if  you 
have  difficulty  in  arriving  at  the  fact,  why  there  are  these  double  cer 
tificates.  That  is  the  only  explanation  I  find  in  the  evidence. 

But  I  will  proceed  with  the  facts,  for  it  was  not  my  intention  to  have 
entered  on  a  legal  discussion  at  all,  because  the  facts  are  sufficiently 
important  as  a  groundwork  for  future  action  to  be  laid  before  the  Com 
mission.  With  reference  to  the  facts,  the  first  fact  we  present  would  be 
this :  that  the  legislature  has  directed  that  the  electors  shall  be  ap 
pointed  by  a  popular  vote.  I  need  not  refer  to  the  statute  to  establish 
that ;  the  evidence  is  in  the  revised  statutes.  The  second  fact  is  that 
on  the  popular  vote  cast  in  that  State,  undisputed  by  any  one,  and  as 
proven  from  the  only  record-evidence  of  the  State,  there  is  a  majority 
of  between  6,000  and  9,000  in  favor  of  the  Tilden  electors,  an  average 
of  7,639, 1  believe,  depending  upon  which  you  compare  with  the  others; 
but  the  majority  is  not  less  than  6,000  and  it  is  not  in  excess  of  9,000. 
That  is  the  second  fact. 

Here  1  may  call  attention  to  the  only  mode  of  arriving  at  the  truth 
of  this  case  in  reference  to  this  point.  The  papers  that  pass  into  the 
hands  of  the  returning-board  are  only  ephemeral.  They  are  not  made 
records.  There  is  no  place  for  their  preservation.  They  pass  into  the 
hands  of  this  board,  and  where  they  go  from  that  no  one  knows  by  law. 
As  a  fact  they  distribute  themselves  pretty  miscellaneously ;  but  the 
law  provides  no  place  for  their  preservation,  and  they  are  only  intended 
for  the  temporary  purpose  of  a  canvass.  Then  from  the  returniug- 
board  there  is  no  record-evidence  or  mode  of  testing  the  veracity  of 
their  acts  ;  but  the  law  has  provided  a  record-evidence,  and  that  is  this: 
Every  commissioner  of  election  shall  file  his  statement  with  the  super 
visor  of  registration  in  duplicate.  The  supervisor  of  registration  shall 
make  out  his  statements  in  duplicate.  Of  those  duplicates  of  the  com 
missioners  of  election  and  supervisors  of  registration,  one  is  to  be  sent 
to  the  clerk  of  the  court  in  the  parish,  and  the  other  to  the  returniug- 
board.  That  of  the  returning-board  is  temporary ;  the  other  goes  as  a 
standing  muniment  in  evidence  of  title.  Then  from  these,  the  only 
muniments  of  title,  placed  on  record  in  that  State  with  the  several 
courts  of  record,  this  is  the  result;  but  the  result  was  changed  in  some 
way,  and  it  was  changed  so  that  a  certificate  was  given  by  Governor 
Kellogg ;  it  was  done  by  the  excluding  of  13,236  democratic  votes  and 
2,178  republican  votes,  a  difference  of  11,058. 

In  this  connection,  in  order  that  I  may  answer  the  question  suggested 
by  the  honorable  Senator  from  Ohio,  I  will  give  a  statement  of  the 


236  ELECTORAL    COUNT    OF    1877. 

different  parishes  and  the  facts  with  reference  to  them.  So  far  as 
protest  is  concerned,  it  has  already  been  elaborated  before  the  Commis 
sion  that  where  there  is  a  protest  filed,  if  the  law  be  constitutional, 
there  is  power  on  the  establishment  of  certain  facts  to  exclude  certain 
votes  or  certain  polls.  Now,  this  is  a  law  conferring  special  jurisdiction, 
and,  as  we  know,  it  must  receive  a  strict  construction.  If  there  be  any 
element  that  is  .necessary  to  give  this  jurisdiction  not  in  the  evidence 
before  it,  it  has  no  jurisdiction,  and  its  acts  so  far  as  this  extraordinary 
power  is  concerned  are  entirely  void.  In  order  to  obtain  jurisdiction 
there  must  be  a  protest  filed  by  the  supervisor  of  registration  if  there 
be  intimidation  or  fraud  during  the  period  of  registration  or  revision  of 
registration.  He  has  no  power  to  file  a  protest  with  reference  to  vio 
lence  or  anything  of  the  kind  on  election-day;  but  it  is  ouly  during  the 
registration  and  revision  of  registration  that  he  has  any  authority  to 
file  any  protest.  Then  the  commissioners  of  election  on  election  day 
may  file  protests  for  violence  on  election-day.  If  it  be  not  done  by  one 
of  these  parties,  there  is  no  power  to  inquire  concerning  it,  and  if 
inquiry  be  made  it  is  a  usurpation ;  and  in  addition  to  that  we  will 
prove  the  exercise  of  such  power  is  a  fraud  which  was  intentionally 
perpetrated  in  the  alleged  canvass  by  the  returning- board  of  Louisiana 
in  this  case. 

Of  these  protests  there  must  be  duplicates  ;  of  the  duplicates  one  is 
transmitted  to  the  returning-board,  the  other  filed  in  court.  That  filed 
in  court  is  placed  there  in  order  that  there  may  be  a  prosecution  by  the 
district  attorney  for  the  crime,  and  for  the  additional  purpose  that  the 
people  of  a  parish,  poll,  or  whatever  may  be  objected  to,  may  know 
what  is  charged  against  them,  in  order  that  they  may  stand  for  their 
rights  ;  because  it  is  not  possible  that  the  right  of  suffrage  of  the  people 
of  a  whole  parish  may  be  taken  from  them  by  the  inquisitorial  proceed 
ings  before  such  a  board  as  this,  and  of  which  they  never  had  notice, 
when  the  law  says  duplicates  shall  be  filed  in  the  courts.  Hence  if 
there  be  no  duplicate  filed  in  court  there  is  no  jurisdiction  ;  and  I  may 
now  state,  as  a  generality,  that  with  the  exception  of  the  parishes  of 
Bossier  and  Ooncordia  there  was  not  a  single  protest  filed  in  court  in 
the  State  of  Louisiana.  In  Concordia  there  was  not  a  single  vote 
thrown  out,  because  it  was  republican  in  all  its  polls.  In  Bossier  there 
were  some  one  hundred  votes  or  so  thrown  out,  because  there  were  demo 
cratic  polls  in  that  parish.  We  will  now  go  over  the  several  parishes. 

Here  it  may  be  necessary  to  explain  that  the  supervisor  of  registration 
is  to  receive  the  returns  of  the  commissioners  of  election,  and  within 
twenty- four  hours  of  the  date  of  their  receipt  send  them  by  mail,  sealed 
up,  to  the  returning-board.  He  has  no  more  power  or  discretion  con 
cerning  the  votes  that  are  cast,  their  reception  or  their  exclusion,  than 
has  the  mail-boy  to  determine  whether  the  letters  in  his  mail-bag  are 
such  as  should  be  carried  or  not — not  a  mite  of  discretion,  but  simply 
that  of  an  instrument  of  transmission  ;  nothing  more  arid  nothing  less. 
Although  the  constitution  of  the  State  requires  that  all  her  officers  shall 
be  citizens  of  the  State,  and  the  parish  officers  citizens  of  the  parish  in 
which  they  officiate  and  citizens  of  the  State,  F.  A.  Clover  was  ap 
pointed  a  supervisor  of  registration  for  East  Baton  Kouge,  being  a 
citizen  of  Mississippi,  holding  two  offices  in  the  State  of  Mississippi 
until  the  1st  of  January,  1876,  and  it  takes  one  year  to  acquire  a  resi 
dence  in  Louisiana.  After  that  he  carne  some  time  in  March  to  Louis 
iana,  and  engaged  as  a  runner,  or  in  the  techinal  parlance  of  that 
vicinity  he  became  a  roper-in  for  a  snake-show  ;  that  is,  a  caller-in  to  a 
gambling  tent  on  the  wharf.  He  continued  in  that  vocation  until  the 


ELECTORAL   COUNT    OF    1877.  237 

27th  of  August,  when  he  was  appointed  supervisor  of  East  Baton  Rouge, 
because  East  Baton  Kouge  it  was  known  was  becoming  strongly  demo 
cratic. 

Clubs  had  been  organized  there  in  which  there  were  from  five  hun 
dred  to  seven  hundred  colored  voters,  and  it  became  necessary  to  put 
this  parish  under  the  charge  of  a  particularly  appropriate  supervisor  of 
registration.  This  supervisor  of  registration  of  East  Baton  Rouge  filed 
no  protest  with  the  clerk  of  the  court;  none  is  found  on  file;  it  is  so  pro 
ven  by  the  testimony  as  taken  according  to  law,  because  we  say  that 
the  testimony  taken  by  Congress  is  a  part  of  this  record.  This  is  a  leg 
islative  tribunal  as  to  practice  in  proceeding.  The  law  says  you  shall 
receive  petitions,  depositions,  &c.,  as  provided  by  the  law  of  the  land. 
What  law  ?  The  law  with  reference  to  legislative  bodies  who  have  the 
counting  of  this  vote.  If  all  the  citizens  of  the  United  States  who  choose 
send  a  petition  in,  it  would  be  your  duty  to  receive  it  in  evidence,  giv 
ing  it  its  proper  weight.  If  the  different  Houses  of  Congress  have  taken 
testimony,  it  is  your  duty  to  receive  it,  because  by  the  law  of  the  land, 
through  all  time,  that  has  been  the  mode  of  taking  testimony  in  the 
several  Houses  of  Congress,  and  this  body  is  acting  with^the  powers 
and  under  the  obligations  substantially  as  though  it  were*  a  congress 
ional  ;body.  Then  the  supervisor  of  registration  of  East  Baton  Rouge 
threw  out  1,147  democratic  votes  and  47  republican  votes,  making  a 
change  of  1,100  in  that  parish. 

Mr.  Commissioner  THURMAN.  The  supervisor  of  registration,  not 
the  returning-board  ? 

Mr.  Representative  JENKS.  Not  the  board;  it  was  before  they  got 
to  the  board  that  this  roper-in  for  the  snake-show  did  this,  and  the  evi 
dence  was  before  the  returning-board  as  to  what  the  true  vote  was ; 
and  they,  with  that  fidelity  which  was  indicated  by  a  dispatch  sent  by 
their  attorney,  John  Ray,  that  by  throwing  out  five  parishes  the  State 
would  be  republican,  (and  this  was  one  of  them,)  accepted  his  act  and 
never  inquired  concerning  it.  Eleven  hundred  were  thrown  out  by  an 
officer  with  no  more  power  than  a  mail-carrier;  and  with  notice  to  the 
board  that  he  had  done  it,  with  the  actual  vote  placed  before  them, 
they  by  their  act  reply,  u  that  takes  that  much  burden  off  our  shoulders 
and  we  leave  it  so." 

After  the  supervisor  of  registration  had  thrown  out  1,100  votes,  that 
is,  1,100  of  a  difference,  the  board  then  took  two  polls,  12  and  14,  and 
at  poll  No.  12  threw  out  162  democratic  votes  and  4  republican  votes; 
at  poll  No.  14  they  threw  out  144  democratic  votes  and  6  republican 
votes  in  that  parish,  making  a  difference  of  1,396;  and  no  protest  filed 
in  court,  no  notice  to  a  single  citizen  of  East  Baton  Rouge,  and  yet  they 
were  being  disfranchised  by  the  thousand ;  and  this  purports  to  be  a 
free  government! 

The  next  is  West  Feliciana.  There  was  no  protest  filed  in  court  in 
that  parish.  There  were  1,010  democratic  votes  thrown  out  and  154 
republican  ;  no  protest  filed,  no  opportunity  for  the  citizens  to  know  the 
truth  ;  making  a  difference  of  856. 

In  East  Feliciaua  there  was  no  protest  filed  with  the  clerk  of  the 
court.  There  were  1,736  democratic  votes  thrown  out  and  1  republican, 
and  this  is  the  parish  over  which  they  rejoice  as  conclusive  evidence  of 
intimidation.  The  governor  of  the  State,  we  are  prepared  to  prove,  had 
notice  in  advance  that  the  colored  people  were  passing  into  the  demo 
cratic  party  in  large  masses.  The  supervisor  of  registration  it  was  first 
contemplated  should  not  go  there  at  all,  and  thereby  prevent  an  election. 
But  in  consequence  of  hoping  to  carry  two  members  of  the  legislature 


238  ELECTORAL    COUNT    OF    1877. 

he  was  instructed  to  go  back  and  did  go  back ;  but  there  were  no  repub 
lican  tickets  sent  there,  and  hence  there  was  but  1  republican  vote  cast. 
The  arrangement  was  made  to  keep  the  tickets  away;  they  did  not  go, 
and  the  consequence  of  it  was  I  republican  vote  and  1,736  democratic, 
and  that  was  intended  as  evidence  of  intimidation.  But  we  stand  on 
the  legal  proposition  that  there  was  no  protest  tiled,  and  being  without 
jurisdiction  the  act  of  throwing  out  was  usurpation. 

The  next  was  New  Orleans.  There  were  none  thrown  out  by  the 
board,  but  there  were  three  polls  thrown  out  by  the  supervisors  of 
registration,  these  mail-carriers.  There  were  993  democratic  votes 
thrown  out  and  346  republican  votes,  making  647  of  a  difference  in 
New  Orleans.  They  were  thrown  out  on  very  different  pretexts.  One 
was  thrown  out  because  for  the  single  elector  De  Blanc  it  was  uncer 
tain  on  the  commissioner's  statement  whether  the  number  of  votes  cast 
was  247  or  249 ;  that  is,  the  figure  7  was  not  made  with  sufficient  accu 
racy  by  the  commissioner  of  election  to  know  certainly  whether  it  was 
a  7  or  a  9 ;  and  because  the  supervisor  of  registration  could  not  decipher 
that  figure  he  threw  out  the  whole  poll;  and  although  that  fact  was 
called  to  the  attention  of  the  returning-board,  they  \vent  over  it,  and 
excluded  it  in  their  count.  If  this  is  not  an  abomination  that  a  great 
nation  is  not  bound  to  submit  to,  I  would  ask  you  what  you  would  call 
an  abomination  *? 

The  next  is  Claiborne.  There  was  no  protest  filed  of  any  kind  with 
the  board  or  elsewhere,  and  184  votes  were  thrown  out.  In  Caldwell 
there  was  no  protest  filed  whatever,  and  141  democratic  votes  were 
thrown  out  and  74  republican,  making  67  of  a  difference.  In  Frank 
lin  74  democratic  and  28  republican  votes  were  thrown  out,  a  differ 
ence  of  467  and  there  was  no  protest.  In  Catahoula  there  was  no 
protest  whatever,  and  97  democratic  votes  were  thrown  out  and  20 
republican,  making  77  of  a  difference.  In  Kichlaiid  there  was  no 
protest  filed  with  the  clerk  of  the  court,  and  there  was  no  protest 
filed,  either,  with  the  returning-board  until  the  30th  day  of  November. 
When  the  supervisor  of  registration  brought  in  his  returns,  instead  of 
sending  them  by  mail  he  carried  them,  and  that  brought  him  in  con 
nection  with  the  custom-house,  and  the  custom-house  was  in  need  of 
witnesses,  as  they  stated.  The  consequence  was  they  gave  this  super 
visor  of  registration  $150  to  pay  witnesses,  and  he  filed  a  protest  on 
the  30th  of  November  with  the  returning-board,  and  the  consequence 
was  that  they  excluded  770  democratic  votes  and  157  republican  votes, 
making  613  of  a  difference  in  majorities;  and  you  are  asked  to  sanction 
that.  The  supervisor  of  registration  received  $150  under  the  nominal 
pretext  of  searching  for  witnesses,  and  some  seventeen  days  after  he  has 
made  his  original  return  his  conscience  then  becomes  enlightened,  and 
he  files  a  protest  with  the  board,  but  not  in  court;  and  you  are  to  count 
the  votes  as  so  manipulated  and  say  it  is  right ! 

Mr.  Commissioner  TH  ITEM  AN.  Was  the  protest  in  regard  to  regis 
tration  ? 

Mr.  Eepresentative  JENKS.  The  protest  was  a  general  one,  that 
there  was  intimidation.  There  is  not  a  single  one  of  these  protests  that 
in  a  legal  tribunal  or  before  an  honest  board  comes  up  to  the  requisition 
of  the  law. 

Mr.  Commissioner  THUEMAN.  If  I  understood  your  statement  be 
fore,  the  supervisor  of  registration  has  no  duty  to  perform  in  protesting 
in  respect  to  the  election,  but  only  in  respect  to  registration. 

Mr.  Eepresentative  JENKS.  None  at  all  in  reference  to  election-day, 
but  during  the  period  of  registration  and  the  revision  of  registration. 


ELECTORAL    COUNT    OF    1877  239 

His  official  right  to  protest  began  on  the  28fch  of  August  and  terminated 
on  the  evening  before  election-day,  and  only  extends  to  such  acts  as  in 
terfered  with  registration  and  revision,  and  whenever  election-day 
comes  his  power  is  exhausted  and  the  commissioners  of  election  then 
make  the  protest.  That  is  the  way  the  law  divides  the  duty. 

The  next  parish  is  Morehouse.  There  was  no  protest  filed  of  any 
kind.  The  number  of  democratic  votes  thrown  out  by  the  board  was 
985,  of  republican  357,  making  a  difference  of  628.  In  Ouachita  Parish 
there  was  a  protest  filed  with  the  board,  but  not  in  court.  There  were 
1,517  democratic  votes  thrown  out  and  48  republican,  making  a  differ- 
ence  of  1,469.  In  Madison  there  were  63  votes  added  to  the  republican 
vote  as  returned  by  the  commissioners  of  election  to  the  supervisor  of 
registration.  That  was  an  act  of  extended  discretion,  I  presume. 
Whenever  a  vote  was  not  what  they  (the  board)  conceived  it  ought  to 
be,  they  assumed  the  right,  as  in  Veriion  Parish,  to  make  it  what  they 
thought  it  should  be ;  arid  if  this  be  republican  in  form,  how  will  you 
define  a  republic?  If  a  board  has  a  right  to  say  how  an  election  shall 
result  at  its  own  discretion,  without  regard  to  the  vote  actually  cast, 
how  are  you  to  define  what  a  republic  is  ? 

Then  in  Webster  there  was  no  protest  filed  whatever.  There  were 
436  democratic  votes  thrown  out  and  194  republican,  making  242  of  a 
difference.  In  Bossier  there  was  a  protest  by  the  supervisor  of  regis 
tration,  but  not  by  the  commissioners  of  election.  Bossier,  as  I  stated 
before,  and  Concordia  are  the  only  two  parishes  where  there  were  any 
protests  filed  with  the  clerks  of  the  courts.  Here  was  a  protest  filed  by 
the  supervisor  of  registration,  but  it  related  to  acts  of  violence  on  elec 
tion-day,  over  which  he  had  no  jurisdiction,  and  hence  that  action  was 
void.  The  number  thrown  out  there  against  the  democracy  was  342  of 
a  majority. 

In  Natchitoches  there  was  no  protest  of  any  kind.  The  number  of 
democratic  votes  thrown  out  was  343,  republican  7,  making  a  difference 
of  336.  No  protest  was  filed  whatever;  that  is,  no  protest  filed  with 
the  clerk  of  the  court.  There  was  a  protest  filed  with  the  board,  made 
after  the  election  by  the  supervisor  of  registration,  with  reference  to 
transactions  that  occurred  on  election-day  principally  and  after  the  time 
limited  by  law  for  him  to  make  protest. 

Here  it  is  claimed  the  statute  is  directory  as  to  the  time  of  the  pro 
test.  As  the  duty  of  the  supervisor  of  registration  is  a  simple  one,  he 
only  being  empowered  to  pack  up  the  statements  and  put  them  in  an 
envelope  and  mail  them,  he  has  but  twenty-four  hours  to  do  it,  and  the 
statute  required  that  he  should  send  them  from  the  place  where  they 
were  received  and  not  carry  them  in  person,  in  order  that  there  might 
not  be  a  comparison  of  results  at  the  capital,  as  there  was  in  this  case, 
and  then  go  to  cutting  and  fitting  to  match  results  as  they  might  desire. 
So  that  that  part  of  it  is  not  directory.  It  is  not  necessary  it  should  be 
so  considered ;  but  if  it  be  directory  and  they  violated  it  unnecessarily, 
that  is  presumptive  evidence  of  fraud. 

In  Yernou  there  was  no  protest  whatever.  They  took  jurisdiction 
without  evidence.  They  threw  out  178  democratic  votes  and  added  179 
to  the  republican  side — a  difference  of  357.  In  Iberia  there  was  no  pro 
test  and  333  democratic  and  11  republican  votes  were  thrown  out,  mak 
ing  a  difference  of  322.  The  reason  these  votes  were  thrown  out  was  that 
the  law  requires  that  when  the  voter  shall  have  voted  there  shall  be 
written  on  the  back  of  his  certificate  of  registration  "  voted.'"  In  the 
morning  the  officers  of  election  at  one  poll  did  not  write  on  the  back  of 
the  certificate  of  the  electors  "  voted  n  until  about  one  hundred  votes 


240  ELECTORAL    COUNT    OF    1877. 

had  been  cast.  After  that,  finding  it  was  their  duty  to  so  do,  tbey 
did  write  it.  This  fact  was  communicated  to  the  board,  and  the  upshot 
of  it  was  that  they  threw  out  the  whole  poll  because  it  gave  322  of  a 
democratic  majority. 

Then  in  La  Fayette  there  was  no  protest  filed  in  court.  Two  polls 
were  rejected  by  the  supervisor  of  registration.  The  number  thrown 
out  was  518  democratic  and  7  republican. 

'  v  In  La  Fourche  DO  protest  was  filed  in  court.  Two  polls  were  thrown 
out  by  the  supervisor  of  registration,  in  one  of  which  142  votes  were 
democratic  as  against  104  republican,  making  38  of  a  difference,  and 
in  the  other  127  of  a  difference  in  majorities  against  the  democratic 
electors. 

P3  In  Livingston  there  was  no  protest  filed  of  any  character.  The  demo 
cratic  majority  of  328  was  thrown  out.  In  Saint  Landry  there  was  no 
protest  filed,  and  poll  No.  9  was  thrown  out  with  a  democratic  majority 
of  82.  In  Tangipahoa  there  was  no  protest  filed  in  court.  Poll  No.  10 
was  not  compiled  ;  that  is,  it  was  thrown  out  by  the  supervisor  of  regis 
tration;  and  poll  No.  3  was  excluded,  making  76. 

There  is  a  coincidence  that  I  wish  to  call  attention  to  here.  If  acci 
dents  do  happen,  it  is  a  little  singular  that  they  always  happen  in  one 
direction ;  and  if  you  find  this  fact  to  exist  that  the  accidents  happen  in 
the  direction  that  the  person  who  occasions  their  happening  would  desire 
accidents  to  happen,  it  is  a  ground  for  suspicion  that  possibly  it  may  not 
have  been  au  accident.  Then  when  you  take  the  fact  into  consideration 
that  the  acting  governor  of  the  State  was  a  republican,  that  he  appoints 
the  State  supervisors  of  registration  and  he  also  appoints  every  super 
visor  of  registration  in  the  State,  the  supervisors  of  registration  appoint 
every  commissioner  of  elections  in  the  State,  (the  clerks  of  the  super 
visors  of  registration  were  usually  republicans,)  I  believe  there  were  one 
or  two  instances  in  which  there  were  exceptions — every  single  mistake 
that  was  made  happened  to  cut  just  one  way.  That  suggests  the  pos 
sibility  that  there  might  be  design  in  it  so  strong,  that  when  we  give 
some  additional  facts  which  we  will  state  directly,  it  seems  to  me  almost 
conclusive  of  design. 

But  it  is  probably  now  my  duty  to  answer  what  they  may  say.  I  have 
stated  that  there  were  no  protests  at  all  in  certain  cases.  That  is  evaded 
by  a  proposition  that  parties  in  interest  may  have  a  hearing  before 
the  board  under  the  provisions  of  the  third  section  of  the  act.  After 
stating  that  the  supervisor  of  registration  shall  file  protests,  &c.,  it 
proceeds : 

Provided,  That  any  person  interested  in  said  election  by  reason  of  being  a  candidate 
for  office  shall  be  allowed  a  hearing  before  said  returning-officers  upon  making  appli 
cation  within  the  time  allowed  for  the  forwarding  of  the  returns  of  said  election. 

That  provides  for  a  hearing.  This  tribunal  cannot  entertain  an  original 
pleading  between  parties,  because  if  it  did  it  would  be  clearly  and  wholly 
judicial.  If  the  claimant  of  an  office  has  a  right  to  come  before  this 
board  and  allege  that  he  was  elected,  of  course  his  opponent  has  a  right 
to  deny  that  allegation.  We  then  find  every  element  constituting  a 
court.  There  are  the  actor,  the  reus,  Va&judex,  full  judicial  characteristics 
in  all  particulars ;  and  yet  the  constitution  of  Louisiana  says  that  all 
judicial  powers  shall  be  vested  in  certain  courts,  and  that  none  shall  be 
exercised  by  any  other  authority.  So  it  is  not  possible  that  the  "  hear 
ing"  contemplated  was  that  certain  men  might  go  over  the  State  and 
file  protests,  as  they  did  in  this  case,  against  nearly  every  parish  in  the 
State ;  so  that  when  I  say  there  was  no  protest,  I  say  the  protest  by  the 
officers  who  claimed  to  have  been  elected  was  no  protest  at  all  as  eon- 


ELECTORAL    COUNT    OF    1877.  241 

tern  plated  by  this  act,  and  was  a  nullity  ;  and  if  you  count  the  others 
who  filed  no  protests  in  court,  and  throw  out  every  vote  that  was  thrown 
out  under  them,  and  say  that  this  general  protest  was  not  lawfully  filed — 
and  you  can  say  nothing  else  as  to  this  alleged  general  protest  as  I  un 
derstand  the  law — it  still  leaves  a  very  considerable  majority  in  favor  of 
the  McEnery  electors. 

I  have  gone  through  seriatim  the  statements  of  the  several  parishes. 
I  will  now  pass  to  more  general  evidence  of  fraud.  However,  there  is 
another  system  of  facts  which  it  is  my  duty  to  call  the  attention  of  the 
Commission  to,  in  order  that  there  may  be  a  full  opening.  There  are 
certain  persons  who  are  alleged  to  be  disqualified.  A.  B.  Levissee  and 
O.  H.  Brewster  are  disqualified  under  the  Constitution  of  the  United 
States.  We  will  prove  that  Levissee  was  a  commissioner  appointed  by 
a  circuit  court  of  the  United  States  holding  at  the  time  of  the  election. 
We  will  prove  that  Mr.  Brewster  was  surveyor  of  the  land-office  for  the 
land-district  of  Louisiana.  He  swears  himself  that  three  or  four  days 
after  the  election  he  wrote  a  letter  resigning  and  asking  that  it  might 
take  effect  as  of  the  4th  of  November.  This  letter  was  written  on  the 
10th  or  llth  of  November.  It  was  mailed  to  Washington  and  received 
at  Washington  on  the  18th.  On  the  23d  he  received  a  reply  accepting 
his  resignation  as  of  the  4th.  Hence  on  the  day  of  the  election  he  was 
disqualified  from  holding  this  office ;  and  as  we  decide  very  promptly 
when  the  number  is  limited  by  the  Constitution,  it  is  our  duty  to  decide 
equally  promptly  that  the  qualification  is  equally  as  binding  on  us, 

The  disqualification  of  the  Constitution  does  not  extend  to  the  offi 
cer  alone,  but  it  goes  down  and  pervades  the  whole  country.  The 
voter  who  casts  his  vote  for  a  disqualified  person  does  the  same  as 
though  he  cast  a  blank  vote,  for  he  is  as  much  bound  by  the  Constitu 
tion  as  is  the  officer  who  claims  to  be  elected.  It  pervades  all.  It  is 
the  supreme  fundamental  law,  reaching  every  citizen  from  the  lowest  to 
the  highest,  and  the  disqualification  made  it  equivalent  to  the  absolute 
not  voting  of  the  party  who  threw  a  vote  for  a  constitutionally  dis 
qualified  man. 

Then,  in  reference  to  the  other  officers,  we  find  that  J.  H.  Burch  was 
a  State  senator  of  the  State  of  Louisiana.  By  the  constitution  of  the 
State  of  Louisiana  it  is  provided  that  no  person  shall  hold  any  two 
offices  under  the  said  State  except  those  of  justice  of  the  peace  and 
notary  public.  Burch  was  a  State  senator,  we  will  prove,  prior  to  the 
election,  and  continues  so  up  to  this  day  by  virtue  of  the  holding  under 
which  he  held  before.  Then  the  disqualification  of  the  State  constitu 
tion  rendered  the  vote  of  the  citizen  as  to  this  Burch  the  same  as 
though  it  had  not  been  cast.  He  was  not  elected,  even  if  he  had  a 
majority  of  the  votes. 

Morris  Marks,  another  elector  in  certificates  Nos.  1  and  3,  was  dis 
trict  attorney  for  the  district  in  which  the  parish  of  Saint  James  is,  prior 
to  the  election  and  has  continued  to  hold  down  to  this  day.  He  is  dis 
qualified  by  the  State  constitution.  We  will  also  show  that  Oscar  Joff- 
riou  was  supervisor  of  registration  for  Point  Coupee  Parish.  He  is 
disqualified  by  the  constitution  of  the  State,  article  117,  and  he  is  also 
disqualified  by  express  enactment,  because  in  the  registration  law,  sec 
tion  13,  you  will  find  that  a  supervisor  of  registration  is  expressly  dis 
qualified  from  being  a  candidate  for  any  office  being  voted  for  during 
the  time  of  his  officiating  as  supervisor  of  registration.  The  language  is: 

That  no  supervisor  of  registration  appointed  under  this  act,  and  no  clerk  of  such 
supervisor  of  registration,  shall  be  eligible  for  any  office  at  any  election  when  said 
officers  officiate. 

16  E  C 


242  ELECTORAL    COUNT    OF    1677. 

So  that,  in  addition  to  the  constitutional  disqualification,  there  is  ex 
press  statutory  disqualification  with  reference  to  Joffrion,  and  we  will 
prove  that  he  was  acting  and  did  act  clear  through  this  election  as  su 
pervisor  of  registration  for  the  parish  of  Point  Coupee.  These  are 
disqualifications,  and  we  will  establish  all  of  them  by  affirmative 
evidence. 

Then  with  reference  to  actual  fraud  we  have  some  testimony  to 
offer,  to  which  I  will  call  your  attention  very  briefly  and  from  memory. 
In  the  first  instance  we  are  prepared  to  prove  that  prior  to  the  election 
those  who  had  the  conduct  of  the  campaign  on  behalf  of  the  republican 
party  alleged  in  advance  that,  no  difference  how  the  election  went  by 
the  people,  the  returning-board  would  make  it  all  right.  This  was  de 
clared  by  Mr.  Lewis  and  by  Judge  Dibble,  the  acting  attorney-general. 
Lewis  is  the  one  who  claims  to  have  been  elected  to  the  United  States 
Senate  by  the  late  legislature  created  by  virtue  of  the  action  of  this  re- 
turning-board.  We  will  show  that  in  addition  to  this,  prior  to  the  meet 
ing  of  the  returniug-board,  there  was  a  telegram  sent  by  John  Ray,  who 
was  attorney  for  the  returniug-board  and  went  through  all  of  its  ses 
sions,  public  and  private,  in  which  he  states: 

NEW  ORLEANS,  November  16,  1876. 
Hon.  J.  R.  WEST,  WasTiingttn,  D  C. : 

Returns  to  date  leave  us  majority,  throwing  out  five  parishes. 

JOHN  RAY. 

That  is  dated  on  the  16th  of  November,  before  the  returning-board 
met,  showing  that  the  attorney  that  they  selected  to  discharge  the 
functions  of  their  adviser  stated  in  advance  that  five  parishes  were  to 
be  thrown  out.  We  will  corroborate  that  by  predictions  coming  from, 
many  sources.  On  the  17th  of  November,  1876,  J.  E.  G.  Pitkin,  United 
States  marshal,  who  used  the  funds  of  the  Government  with  a  very 
generous  hand  in  reference  to  procuring  witnesses  to  upset  the  right  in 
that  State,  telegraphed  J.  R.  West  as  follows  : 

NEW  ORLEANS,  November  17,  1876. 
Hon.  J.  R.  WEST,  Washington,  D.  C. : 

Louisiana  is  safe.  Our  northern  friends  stand  firmly  by  us.  The  returuing-board 
will  hold  its  own. 

J.  R.  G.  PITKIN. 

Showing  that  there  was  no  reliance  upon  the  votes  of  the  people,  but 
their  hopes  concentrated  in  the  returuing-board.  Then  on  the  3d  of 
December,  prior  to  the  time  that  Governor  Wells  swears  he  knew  any 
thing  about  what  the  results  were,  we  have  the  following  telegram : 

NEW  ORLEANS,  December  3,  1876. 
Hon.  J.  R.  WEST,  Washington,  D.  C.  : 

Democratic  boast  entire  fallacy.  Have  northern  friends  on  way  North— answer 
telegram  of  this  morning;  also,  have  Senate  anticipate  House  in  sending  committee 
to  investigate  outrages.  Have  seen  Wells,  who  says,  "  Board  will  return  Hayes  sure. 
Have  no  fear." 

J.  R.  G.  PITKIN. 

And  Mr.  Pitkin  swore  before  the  congressional  committee  that  Wells 
did  tell  him  before  he  sent  the  telegram  that  the  board  would  return 
Hayes  sure,  to  have  no  fear. 

Then,  taking  these  predictions  and  taking  their  action,  we  will  add,  be 
sides,  to  many  other  things  that  I  have  not  time  to  recapitulate,  that  this 
board  offered  by  some  of  its  members  to  sell  the  result  in  that  State  to 
two  different  men,  to  one  for  a  consideration  of  $200,000,  to  another  ask 
ing  a  million.  The  price  was  changed  in  conformity  to  the  probabilities  of 


ELECTORAL    COUNT    OF    1877.  243 

the  purchase.  The  constant  succession  of  accidents  all  on  one  side  would 
be  sufficient  in  itself.  Then,  again,  the  attention  of  the  board  was  called 
to  the  fact  that  it  was  their  duty  to  till  the  board  to  deliver  themselves 
from  suspicion.  .  Every  one  felt  and  knew  that  prior  to  this  these  very 
men  had  been  found  guilty  of  doing  dishonest  acts  with  reference  to 
elections.  They  were  asked  to  fill  the  board.  The  law  was  laid  before 
them ;  they  admitted  it  was  the  law,  but  said  it  was  directory.  Assuming 
that  they  were  not  bound  to  obey  a  directory  law,  but  had  a  discretion 
to  regard  or  disregard  it  as  they  pleased,  they  interpreted  the  word  "  di 
rectory'7  as  discretionary  ;  they  used  their  discretion  to  exclude  any  per 
son  from  knowing  what  they  did  who  would  have  an  interest  in  contra 
dicting  any  false  assertion  which  they  might  make  or  dishonest  trick 
which  they  might  perform  with  reference  to  the  canvass  of  the  elec 
tion. 

Then  their  attention  was  called  to  the  fact  in  reference  to  making 
their  compilations  from  the  statements  of  the  votes.  They  made,  in 
violation  of  law,  their  compilations  from  the  supervisors  of  registration, 
and  thereby  threw  out  the  whole  parish  of  Grant,  and  excluded  the 
statements  which  were  not  returned  by  the  supervisors  of  registration, 
by  which  they  made  2,900  of  a  difference  in  their  action  in  favor  of  their 
own  party. 

Now,  is  a  great  nation  to  submit  to  all  this  ?  Must  forty-five  millions 
of  people  drink  from  a  foul  sink  the  ordure  that  flows  through  such  a 
fetid  sewer  ?  It  is  not  right.  Truth  should  be  admitted  to  shine  upon 
this.  You  cannot  erect  a  false  god  and  bow  down  to  it  and  worship  it, 
and  be  blameless.  Truth  ought  to  be  permitted  to  shine  upon  this 
transaction ;  and  if  truth  shine  upon  it,  but  one  single  result  can  pos 
sibly  be  attained.  The  wisest  of  men  or  the  strongest  of  men  cannot 
make  that  which  is  false  true.  Solomon,  the  wisest  of  men,  set  up  the 
false  god  Moloch,  and  in  the  glowing  arms  of  the  monster  children  wail 
ing  died ;  but  his  wisdom,  his  power,  and  his  glory  have  not  been  able 
to  efface  the  stain  or  to  prevent  posterity  ever  since  from  regarding  it 
as  pollution  on  his  name  and  his  character.  If  you  set  up  the  false  for 
the  true,  if  you  attempt  to  blind  the  eyes  of  a  mighty  nation,  and  to 
say  the  Senate  of  the  United  States  and  the  House  of  Eepresentatives 
of  the  United  States  shall  put  upon  their  journals  as  a  perpetual  memo 
rial  to  all  generations  that  which  they  know  to  be  false,  and  command 
all  to  bow  down  and  worship  it,  your  edict  will  be  vain ;  because  his 
tory  will  judge  and  will  know  the  truth.  We  ask  now  that  the  simple 
truth,  the  great  moral  light  of  the  universe,  may  be  permitted  to  shine 
upon  this  transaction,  to  clear  out  all  this  pollution,  and  to  let  our  coun 
try  be  free  from  the  disgrace  of  being  poisoned  by  the  act  of  this  vile 
returning-board. 

Mr.  Representative  HUELBUT.  Mr.  President  and  gentlemen  of  the 
Commission,  I  wish  my  mind  could  be  relieved  of  the  difference  of  opin 
ion  expressed  by  the  several  members  who  objected  in  advance  of  me, 
and  that  the  important  question  could  be  determined  either  as  claimed 
by  Senator  McDonald,  that  this  is  a  judicial  tribunal,  or  as  claimed  by 
Mr.  Jenks,  of  the  House,  that  it  is  a  legislative  tribunal.  If  indeed 
there  be  any  claim  of  special  and  peculiar  jurisdiction  belonging  to  this 
Commission,  it  comes  under  the  act  of  Congress.  The  judicial  power  is 
limited  by  the  Constitution,  and  you  certainly  possess  not  that.  The 
legislative  power  is  equally  limited  by  the  Constitution  to  Congress, 
and  you  certainly  possess  not  that.  I  apprehend  that  the  constitution 
of  this  Commission  is  as  a  means,  as  a  committee,  if  I  may  call  it  so, 
appointed  by  the  two  Houses,  as  a  convenience  to  them,  to  determine 


244  ELECTORAL    COUNT    OF    1877. 

upon  certain  questions  which  have  arisen  with  regard  to  this  presiden 
tial  election,  and  that  this  committee  or  this  Commission  is  bound  to 
pass  upon  these  questions  in  conformity  to  well-settled  and  regularly- 
established  law,  and  not  at  all  in  conformity  to  any  vague  suggestions 
of  matter  which  is  dehors  the  record,  which  is  not  among  the  things 
committed  to  you  by  the  President  of  the  Senate,  and  which  already, 
if  I  understand  the  decision  of  this  Commission,  is  barred  by  the  spirit 
and  reason  of  the  decision  made  in  the  Florida  case. 

I  am  here  in  the  discharge  of  the  duty  which  has  been  cast  upon  me, 
to  do  two  things:  first,  to  object  to  the  paper  known  as  No.  2,  the  Mc- 
Enery  certificate.  That  may  be  done,  as  I  understand  it,  in  two  ways : 
first,  by  showing  that  the  certificate  itself  is  not  good  ;  second,  by  show 
ing  that  McEnery  himself  is  not  governor.  That  is  an  attacking  pro 
cess  to  the  certificate  and  to  the  title  of  the  man  who  gives  it.  The 
attack  may  be  made  just  as  well  by  supporting  by  the  law  and  the  evi 
dence  the  existence  and  legal  effect  of  the  other  and  counter-certificate 
purporting  to  be  given  by  William  P.  Kellogg  as  governor,  and  the 
establishment  of  the  fact  to  the  satisfaction  of  this  Commission  and  of 
the  world  that  William  P.  Kellogg  was  at  the  time  the  certificate  was 
given  the  only  legal  and  recognized  governor  in  the  State  of  Louisiana. 
Fortunately,  there  is  an  abundance  of  proof  upon  that  question.  There 
is  no  governor  who  has  held  office  in  these  United  States  that  is  so 
abundantly  bolstered  up  by  proof  of  his  existence  as  governor,  not  only 
stricti  juris  by  the  fact  of  election,  but  by  the  fact  of  the  declaration  of 
that  election  by  the  only  legal  returning-officers  of  the  State,  by  the 
fact  of  the  counting  of  the  votes  by  the  only  legal  legislature  of  the 
State,  by  the  fact  of  the  entrance  into  office  under  that  count,  by  the 
fact  that  when  in  pursuance  of  the  system  which  prevails  in  that  most 
wretched  State  the  course  of  law,  sovereign  and  supreme  as  it  ought  to 
be  in  every  republican  government,  was  violently  overthrown,  when  in 
1874  rebellion  by  arms  was  inaugurated  and  civil  war  brought  into  the 
streets  of  the  capital  city,  armed  forces  organized  deliberately  to  over 
throw  it,  and  a  skirmish  which  bore  a  near  approach  to  the  dimensions 
of  a  battle  took  place,  the  avowed  object  being  to  overthrow  the  exist 
ing  government,  and  to  substitute  the  other  one,  of  which  this  man  Mc 
Enery  was  the  figure-head,  the  intervention  of  the  United  States  was 
asked  under  the  Constitution.  The  United  States  was  asked  to  lend 
her  strong  arm  to  sustain  the  right.  Which  was  the  government  to  be 
sustained  there  in  the  case  of  these  two  conflicting  governments,  was 
by  {he  act  of  1795  delegated  by  Congress  to  the  President  of  the  United 
States,  and  that  delegation  gives  until  his  decision. is  overthrown 
by  both  branches  of  Congress  absolute  validity  to*  his  recognition  on 
the  part  of  this  Government  in  determining  which  was  the  rightful 
government  of  the  State.  The  President  of  the  United  States  so  recog 
nized  it.  The  President  of  the  United  States  did  more  j  he  used  the 
military  arm  of  the  country,  put  down  the  rebellion  by  force  of  arms, 
by  conquest,  and  placed  Kellogg  back  again  in  the  seat  from  which  he 
had  been  deposed. 

This  is  not  the  end  of  the  record.  I  allude  to  these  facts  without  giv 
ing  the  dates,  which  I  will  do  hereafter  for  the  consideration  of  the  tri 
bunal.  It  does  not  end  here.  The  question  comes  up.  as  to  the  pro 
priety  of  the  President's  action,  in  the  Senate  of  the  United  States.  The 
Senate  of  the  United  States  adopted  eventually  a  resolution  offered  by 
Mr.  Anthony  in  terms  as  follows ;  I  quote  from  the  Senate  Journal  of 
1874->75,  page  475 : 

Resolved,  That  the  action  of  the  President  in  protecting  the  government  in  Louisiana, 


ELECTORAL    COUNT    OF    1877.  245 

of  which  W.  P.  Kellogg  is  the  executive,  and  the  people  of  that  State  against  domestic 
violence,  and  in  enforcing  the  laws  of  the  United  States  in  that  State,  is  approved. 

There  is  the  senatorial  recognition  of  the  determination  made  by  the 
President  of  the  IJnited  States,  under  the  power  delegated  to  him  in  the 
law  of  1795,  and  the  approval  of  his  action,  and  the  committal  of  one 
branch,  at  all  events,  of  Congress  to  the  validity  of  Kellogg's  tenure  of 
office. 

But  in  reading  through  that  record  I  find  a  still  more  pointed  action 
of  the  Senate,  because  the  negativing  of  a  proposition  sometimes,  which 
is  antagonistic  to  the  main  proposition,  adds  peculiar  vigor  and  force  to 
the  proposition  itself.  I  find,  that  resolution  being  pending,  Senator 
Thurmau  offered  an  amendment,  which  appears  on  page  473  of  the 
Journal,  that  nothing  in  that  resolution  should  be  considered  as  recog 
nizing  Kellogg  as  de  jure  governor  of  Louisiana ;  and  that  amendment 
was  rejected  by  the  vote  of  the  Senate. 

The  House  also  has  taken  some  action  on  this  matter.  The  committee 
of  the  House  known  as  the  Louisiana  Committee,  which  has  been  re 
ferred  to  by  Mr.  Jenks  in  his  argument,  reported  certain  resolutions, 
and  in  the  Journal  of  the  House  of  Representatives,  page  603,  of  the 
session  of  1874-'75,  this  resolution  appears : 

Resolved,  That  William  Pitt  Kellogg  be  recognized  as  the  governor  of  the  State  of 
Louisiana  until  the  end  of  the  term  of  office  fixed  by  the  constitution  of  that  State. 

That  resolution  was  adopted  by  a  vote  of  165  to  89.  The  same  com 
mittee,  of  which  Mr.  Hoar  and  Mr.  Wheeler  were  members,  were  anxious, 
as  all  true  men  ought  to  be,  to  put  an  end  to  the  bad  state  of  things 
which  confessedly  prevailed  there  in  Louisiana,  and  to  that  end  they 
undertook,  at  the  request  of  these  parties — John  McEuery,  this  con 
testing  governor,  being  one — to  make  an  award  which  was  to  be  carried 
out  by  certain  changes,  by  resignations  on  the  one  side  and  putting  men 
into  office  on  the  other,  in  the  legislature  of  that  State;  in  other  words, 
they  undertook  to  do  equity,  and  an  award  was  made  by  them,  and  in 
pursuance  of  that  award  the  legislature  of  Louisiana  passed  a  resolution 
by  which — I  am  quoting  from  memory — they  agreed  that  the  tenure  of 
office  of  William  Pitt  Kellogg  during  the  term  for  which  he  had  been 
elected  and  until  his  successor  should  be  appointed,  should  not  in  any 
way  be  interfered  with  by  that  legislature  of  the  State  of  Louisiana  in 
consideration  of  this  award. 

Now  I  will  come  back,  first,  to  the  question  of  his  election.  In  1872 
the  contest  was  between  John  McEnery  and  William  P.  Kellogg  for 
governor  of  the  State  of  Louisiana.  Governor  Warmoth,  who  under 
took  to  manipulate  more  things  than  he  could  carry,  endeavored  to  com 
plicate  the  matter  bj  breaking  up  the  legal  board  of  returning-officers, 
which  existed  under  the  act  of  1870,  and  create  a  board,  creatures  of  his 
own,  so  that  in  fact  at  that  election  of  1872  there  were  two  conflicting 
boards  of  returuing-officeis  of  election  of  the  State  of  Louisiana ;  one  of 
them  known  as  the  Lynch  board  and  the  other  as  the  Forman  board. 
The  supreme  court  of  the  State  of  Louisiana  has  settled  all  that  question. 
The  supreme  court  of  the  State  of  Louisiana,  in  25  Louisiana  Annual 
Reports,  in  the  case  of  The  State  ex  rel.  vs.  Wharton  et  al,  rendered  this 
decision ;  I  read  from  page  14 : 

It  is  therefore  ordered  and  adjudged  that  the  board  of  returning-officers  composed 
of  H.  C.  Warmoth,  F.  J.  Herron,  John  Lynch,  James  Longstreet,  and  Jacob  Hawkins 
was  the  legal  board  of  returning-officers 'of  elections  of  the  State  of  Louisiana. 

And  that  was  the  board  by  whose  certificate  of  election  Kellogg  de 
rived  his  title.  Now,  if  it  be\rue  that  William  P.  Kellogg  was  governor 


246  ELECTORAL    COUNT    OF    1877. 

of  the  State  of  Louisiana  on  the  6th  day  of  December,  1876,  it  is  mani 
festly  true  that  John  McEnery  was  not;  and  whatever  virtue  or  value 
in  the  way  of  evidence  this  Commission  may  attach  to  the  certificate  of 
a  governor  must  be  given  to  the  governor  who,  by  election,  recognition r 
and  all  other  steps  known  to  the  law,  was  at  the  time  the  actual  gov 
ernor,  and  not  to  a  mere  pretender  who  retired  from  that  contest,  of  his 
own  will,  in  1874  and  has  not  in  any  way  undertaken  to  assert  or  exercise 
any  possible  control  over  the  office  of  governor  of  that  State  from  that 
day  to  this. 

Again,  I  call  the  attention  of  the  Commission  to  the  peculiar  wording 
of  the  certificate  given  by  John  McEnery.  He  was  careful,  as  far  as  he 
could,  not  to  commit  himself  to  a  statement  of  any  essential  fact  appear 
ing  by  evidence : 

This  is  to  certify  that  the  following  is  a  true  and  correct  list  of  the  names  of  the 
electors  of  the  President  and  Vice-President  of  the  United  States  for  the  next  ensuing 
regular  term  of  the  respective  offices  thereof,  being  electors  duly  and  legally  appointed 
by  and  for  the  State  of  Louisiana,  having  each  received  a  majority  of  the  votes  cast 
for  electors  at  the  election  in  the  State  of  Louisiana,  held  in  accordance  with  law  ;  this 
certificate  being  furnished  as  directed  by  law,  by  the  executive  authority  of  said  State 
of  Louisiana. 

There  is  no  reference  there  to  any  source  known  to  the  laws  from 
which  he  derives  his  information ;  there  is  no  reference  there  to  any 
returns  appearing  on  file  in  his  office,  because  he  had  no  office ;  he  had 
no  returns;  he  had  no  secretary  of  state;  he  had  no  man  in  all  Louis 
iana  who  would  come  forward  and  verify  the  seal  of  the  State  and  the 
signature  of  the  governor  by  signing,  "  By  the  governor :  So-and-so,  sec 
retary  of  state." 

This  brings  me  to  consider,  in  the  line  of  argument  which  I  have 
marked  out  for  myself,  what  are  the  evidences  that  ordinarily  in  the 
regular  course  of  law  in  all  cases  of  election  come  up  before  a  canvass 
ing  or  determining  tribunal.  Does  any  one  contend  for  a  moment  that 
this  Commission  has  the  power,  the  authority,  or  the  means  or  time  to 
purge  the  election  in  Louisiana,  to  pass  through  the  whole  system  as  it 
was  displayed  there  on  the  7th  day  of  November,  to  examine  into  every 
poll,  or  even  to  read  that  mass  of  balderdash  under  the  name  of  evi 
dence  that  is  sent  up  here  and  half  yet  uuprinted  ?  Is  it  not  true  that 
this  Commission  is  exercising  to  a  certain  extent  a  political  and  not  a 
judicial  power,  that  you  are  exercising  it  as  all  determining  bodies  pass 
upon  elections,  not  upon  the  very  facts  that  may  have  taken  place  away 
down  to  the  remotest  poll  in  the  different  parishes,  but  upon  the  regular 
returns  of  the  officers  constituted  for  that  purpose  and  sent  forward  to 
you  1  In  other  words,  I  draw  very  clearly  in  my  own  mind  this  distinc 
tion — the  distinction  between  the  power  of  a  political  tribunal  to  deter 
mine  an  election  upon  the  apparent  right,  the  prima-facie  right,  as  it 
appears  upon  the  papers  that  are  sent  up,  and  the  right  of  a  judicial 
tribunal  when  two  parties  are  properly  before  it,  one  claiming  to  have 
been  veritably  elected  and  thjat  the  other  has  not  been.  In  that  case 
no  man  denies  that  the  judicial  tribunal,  if  clothed  by  law  with  that 
power,  can  pass  behind  the  returns  and  papers  and  inquire  into  the 
veritable  fact  of  the  case  and  determine  according  to  the  very  right. 
Now,  I  do  not  believe  that  either  by  any  fair  construction  of  the  law, 
or  by  any  proper  construction  of  the  powers  of  the  two  Houses  as  given 
by  the  Constitution,  there  exists  either  in  the  two  Houses  or  in  this  tri 
bunal  the  power  of  examining  into  the  very  right  as  if  you  were  a  court 
sitting  to-day  to  try  the  case  of  a  quo  icarranto  brought  by  one  candi 
date  for  the  presidency  against  another  in  occupation,  if  such  a  proceed- 


ELECTORAL    COUNT    OF    1877  247 

ing  be  known  to  the  laws,  on  which  I  confess  I  do  not  propose  to  give 
any  opinion. 

It  was  stated,  and  stated  correctly,  by  the  distinguished  counsel  who 
argued  another  cause  before  your  tribunal,  [Mr.  Matthews,]  that  an 
election  necessarily  consists  of  certain  steps  moving  forward.  It  does 
so  everywhere ;  in  all  States,  in  all  governments  where  elections  are  and 
where  they  involve  anything  larger  than  the  single  political  unit;  and, 
if  the  Commission  will  excuse  me,  I  will  endeavor  to  show  the  distinc 
tion  that  exists  under  the  laws  oT  Louisiana  in  their  mode  of  scrutiniz 
ing  their  elections  and  of  handling  elections  from  what  exists,  so  far  as 
I  know,  in  any  other  State  in  the  Union,  and  the  reasons  for  it. 

Where  you  have  a  community  in  which  general  education  is  diffused, 
in  which  there  is  a  general  desire  to  maintain  fair  dealing  and  support 
of  law,  as  prevails  fortunately  in  most  of  the  States  of  this  Union,  but 
not  in  Louisiana,  then  the  election  processes  begin  from  the  bottom  j 
they  commence  in  the  unit,  the  lowest  possible  subdivision  of  political 
power ;  the  people  themselves  are  trusted,  are  fit  to  be  trusted,  and 
ought  to  be  trusted  with  the  power  of  determining  in  those  little  local 
communities,  under  the  inspection  of  their  neighbors,  who  shall  be 
judges  of  their  elections.  And  so  you  have  and  can  have  judges  of 
election ;  and  from  that  base  the  election  processes  go  up  by  returns 
from  township  to  county,  from  county  to  district,  from  district  to  the 
State  canvassing-board ;  and  in  every  one  of  those  processes  the  sub 
ordinate  election  tribunals,  every  one  of  them,  have  and  exercise  the 
power  properly  meant  by  the  power  of  making  returns.  They  are  re- 
turning-officers;  and,  as  a  rule,  in  the  States  with  which  I  am  most 
acquainted,  the  State  board  of  canvassers  has  no  duty  to  perform  ex 
cepting  a  ministerial  one.  All  questions  of  eligibility  of  voters,  of  their 
right  to  vote,  and  all  those  matters,  are  in  such  communities  safely  in 
trusted  to  the  local  tribunals.  But  in  Louisiana  the  case  is  altogether 
different,  and  it  is  different  because  of  the  difference  of  the  population, 
the  difference  of  the  character  of  the  people.  The  laws  which  they 
have  there  are  as  good  laws  as  the  people  will  permit  themselves  to 
have.  All  laws  reflect  the  condition  of  society.  Thus  in  Louisiana 
the  election  processes,  instead  of  beginning  from  the  bottom  and  coming 
up,  begin  from  the  top.  There  is  not  in  that  community  that  diffused 
education — and  I  am  saying  these  things  with  no  uukiudness  to  that 
community,  but  as  a  matter  of  fact — there  is  not  that  diffused  educa 
tion,  above  all  things  there  is  not  that  reverence  for  law,  which  permits 
trusting  local  neighborhoods  with  this  power.  And  so,  in  recognition 
of  that  fact,  in  recognition  of  the  fact  that  by  the  processes  of  recon 
struction  a  vast  body  of  uneducated  men  had  been  suddenly  elevated 
to  the  position  of  citizenship  and  of  eligibility  to  office,  in  recognition 
of  the  fact  that  from  the  beginning  in  that  most  unfortunate  State  there 
has  been  armed,  deliberate  resistance  to  the  law,  there  has  been  delib 
erate,  settled,  persistent  resolution  to  crush  out  by  violence  and  force 
all  those  things,  no  matter  what  they  were,  which  stood  in  the  way  of 
the  party  that  sought  to  make  itself  dominant  by  force  when  it  was  not 
dominant  by  numbers,  the  legislature  commenced  in  1868  by  first  cre 
ating  a  sort  of  returniug-board,  consisting  of  the  governor  and  certain 
officers,  but  using  a  judge  for  the  purpose  of  determining  these  facts  of 
intimidation. 

This  Commission  is  acquainted  with  the  history  of  this  country,  and 
even  of  that  remote  part  of  it.  It  knows  as  part  of  the  current  history 
of  the  country  that  that  change  in  the  system  of  election  laws  in  the 
State  of  Louisiana  was  brought  about  by  the  murders,  the  assaults,  the 


248  ELECTORAL    COUNT    OF    1877. 

violent  breaking  into  the  regular  course  of  law  which  swept  that  State 
in  1868  and  compelled  the  legislature  which  sat  in  1868  to  undertake  to 
devise  some  remedy.  That  was  one  of  the  remedies  they  devised. 

But  that  did  not  answer ;  and  so,  in  1870,  the  legislature  of  the  State 
went  a  step  further,  and  they  took  all  the  power  of  making  returns  in 
any  sense  of  the  word  from  all  these  local  and  subordinate  ministers  of 
election,  and  they  did  not  allow  them  even  to  say  in  a  ward-district 
whether  a  police-justice  or  a  constable  had  been  elected,  the  lowest  form 
of  subdivision  in  that  State  being  these  precincts  or  polls  in  parishes. 
They  took  all  that  away,  and  took  away  any  power  on  the  part  of  the 
commissioners  of  election  even  to  pass  upon  the  right  of  a  voter  to  vote. 
They  gave  by  that  law  to  the  supervisor  of  registration  controlling 
power  to  determine  whether  or  not  a  man  was  a  legal  voter  in  a  parish, 
and  his  determination  once  made  bound  every  officer  of  the  election. 
There  was  positively  nothing  left  to  these  local  commissioners  of  election 
except  to  examine  and  determine  whether  the  man  who  offered  his  vote 
was  the  identical  man  registered  by  the  supervisor  of  registration.  That 
was  all.  So  their  office  became  simply  ministerial  and  clerical.  Their 
returns  were  no  longer  dignified  by  the  name  of  "  returns,"  but  dropped 
down  in  the  law  to  what  they  ought  to  be,  "  statements  of  votes." 
These  statements  of  votes  passed  up  to  the  supervisor,  who  is  also — 
Mr.  Jenks  has  stated  it  correctly  in  that  particular — deprived  of  any 
judicial  power  whatsoever.  He  is  simply  a  compiler  of  the  statements, 
and  is  bound  by  the  law  to  send  forward  his  compilation  and  all  the 
original  papers  he  receives— he  passes  no  judgment  on  them — to  the  re- 
turning-board  of  elections  for  the  State  of  Louisiana ;  and  the  entire 
power  and  faculty  all  over  the  State  of  giving  any  declaration  whatso 
ever  which  should  amount  to  prima-facie  evidence  on  which  the  governor 
could  commission  is  solely  and  exclusively  vested  in  this  State  board 
of  re  turn  ing-officers.  All  this  appears  from  the  very  terms  of  the  law 
itself,  and  if  it  were  worth  while  I  could  read  the  decision  of  the  supreme 
court  of  that  State  which  sustains,  as  it  could  not  help  sustaining,  the 
plain,  emphatic,  and  undeniable  words  of  the  law. 

Having  constituted  them  judges,  not  of  all  State  elections — that  is 
not  what  they  say,  but  they  make  them  the  final  judges  and  only 
tribunal  which  has  the  right  to  give  a  prima-facie  certificate  of  elec 
tion  for  all  elections  held  in  the  State — the  question  gravely  resolves 
itself  back  to  this:  whether  the  presidential  election  of  1876,  in  which 
certain  persons  were  chosen  as  electors,  was  an  election  held  within  the 
State  of  Louisiana.  If  it  was,  these  men  had  jurisdiction.  I  shall  not 
have  time  to  follow  all  the  points  that  have  been  made.  I  shall  leave 
that  to  be  done  far  more  ably  and  better  by  the  counsel.  Permit  me, 
however,  to  follow  this  one. 

There  is  another  consideration.  The  point  having  been  raised,  as  I 
understand,  by  the  objectors  on  the  other  side,  that  as  a  matter  of  fact 
there  exists  no  law  to-day  by  which  the  right  of  appointing  electors  in 
Louisiana  was  delegated  to  the  people,  that  is  a  question  to  be  deter 
mined  on  the  inspection  of  the  laws  themselves,  and  1  will  simply  read 
from  the  list  of  all  the  laws  on  this  point,  section  29  of  the  act  of  1872, 
though  I  believe  it  has  been  read  before: 

Be  it  further  enacted,  That  in  every  year  in  which  an  election  shall  be  held  for  elect 
ors  of  President  and  Vice-President  of  the  United  States,  such  election  shall  be  held 
at  the  time  fixed  by  act  of  Congress. 

The  presidential  election— that  is,  the  election  of  electors  by  the  peo 
ple — stands  in  Louisiana  upon  two  statutes;  not  one,  but  two.  There 
is  one  statute  in  the  revised  code — I  do  not  know  where  it  is  printed  in 


* 


ELECTORAL    COUNT    OF    1877.  249 

this  compilation — which  is  on  the  question  of  elections;  it  makes  the 
provision : 

SEC.  1410.  That  in  every  year  in  which  an  election  is  to  be  held  for  electors  of  Presi 
dent  and  Vice-President  of  the  United  States,  such  election  shall  be  held  on  the  Tuesday 
next  after  the  first  Monday  in  the  month  of  November;  and  such  election  shall  be 
held  and  conducted  in  the  same  manner  and  form  provided  by  law  for  general  and 
State  elections. 

That  is  the  general-election  law  under  the  revised  statutes. 

Mr.  Commissioner  ABBOTT.  Is  that  section  put  in  in  any  of  these 
compilations  that  we  have  ? 

Mr.  Representative  HURLBUT.  I  have  not  been  able  until  a  few- 
minutes  since  to  obtain  a  copy  of  the  compilations,  and  cannot  say. 

Mr.  Representative  HOAR.  It  is  on  the  ninety-fourth  and  ninety- 
fifth  pages  of  the  pamphlet  with  the  paper  cover. 

Mr.  Representative  HURLBUT.  Now  there  is  another  law  that  is  in 
the  revised  statutes  under  the  title  of  "Presidential  electors"  on  page 
551;  it  is  section  2823.  It  is  simply  a  repetition  of  section  1410  ;  and 
section  2824  proceeds  to  direct  the  manner  in  which  they  shall  vote,  and 
sections  2826  and  2827  and  others  relate  to  a  special  mode  of  return  pro 
vided  by  that  revision. 

Mr.  Commissioner  BRADLEY.  What  is  the  date  of  that  book  on  the 
title  page  1 

Mr.  Representative  HURLBUT.  This  volume  is  the  Revised  Statutes 
of  Louisiana  of  1870  that  I  am  quoting  from. 

I  apprehend  that  in  considering  the  effect  of  statutes  that  are  claimed 
to  repeal  the  one  or  the  other,  the  first  question  is  what  the  probable 
intent  and  meaning  of  the  legislature  was.  No  man  pretends  that  it  was 
the  probable  intent  and  meaning  of  the  legislature  of  Louisiana  at  any 
time,  that  it  was  their  purpose,  to  repeal  the  right  of  the  people  to  cast 
their  votes  for  electors  of  President  and  Vice-Presideut.  Why  ?  Be- 
catK^  it  is  inconsistent  with  the  actual  state  of  things  that  has  prevailed 
since\aat  time,  for  there  has  been  a  presidential  election  held  since  that, 
held  in  1872,  and  held  by  this  same  process  of  voting  by  the  people. 
There  has  been  a  presidential  election  held  in  187G,  and  held  in  the 
same  manner  and  by  the  same  process  of  ascertaining  the  choice  of  the 
people  in  this  matter  of  the  appointment  of  electors.  So  the  construc 
tion  to  be  derived  by  the  usage  of  the  Government  itself  is  against  the 
theory  of  repeal. 

Besides,  there  comes  in  another  great  principle  of  interpretation,  that 
subsequent  laws  repeal  only  so  much  of  the  preceding  law  as  is  incon 
sistent  with  the  one  to  be  enacted  ;  and  hence  it  has  been  held  in  prac 
tice  in  Louisiana,  and  undoubtedly  is  the  clear  law  of  the  case,  that  the 
repealing  act  of  1872  creating  this  returning-board  only  interfered  with 
the  act  in  regard  to  presidential  electors  so  far  as  to  do  away  with  the 
special  tribunal  provided  under  the  former  act.  and  to  submit  that  elec 
tion  as  all  other  elections  held  in  the  State  to  the  arbitrament  and  deter 
mination  of  this  board  of  returning-officers. 

Now,  I  may  perhaps  be  pardoned  in  saying  that  whatever  may  be  the 
amplitude  of"  the  power  committed  by  these  statutes  under  the  will  of 
the  people  of  Louisiana  to  this  board  of  returning-officers,  whatever  may 
be  the  peril  (and  I  can  see  it)  of  giving  so  large  a  jurisdiction  to  any 
board,  the  thing  which  was  behind  it,  the  cause  of  the  enactment,  is 
infinitely  worse  and  deserves  the  condemnation  of  every  man  who  loves 
his  country  or  believes  in  the  right  of  the  down-trodden  and  the  oppres 
sed  ;  for  I  say  here  from  some  knowledge  of  the  fact  and  close  investiga 
tion,  that  the" history  of  Louisiana  since  reconstruction  has  been  nothing 


250  ELECTORAL   COUNT    OF    1877 

more  nor  less  than  a  series  of  deliberate  attempts  to  overthrow  existing 
law  by  force.  The  old  Anglo-Saxon  method  by  which  existing  evils  are 
corrected  in  the  form  of  law  never  seems  to  have  entered  into  the  imagi 
nation  of  that  hot-headed,  rash,  and  impetuous  people.  They  have 
adopted  rather  the  Latin  form  that  their  neighborhood  to  Mexico  brings 
about,  sending  pronunciamientos  of  revolution  followed  up  by  confisca 
tion  and  forced  loans  on  the  commerce  and  interests  of  the  country  to 
support  an  illegal  and  irregular  armed  force  in  breaking  down  that 
which  the  Constitution  and  the  laws  have  given  to  the  people  of  that 
State  5  and  therefore  the  board,  with  all  its  powers,  came  into  existence. 

The  mode  in  which  that  board  may  have  discharged  its  duties,  the 
detail,  if  you  please, -of  the  various  steps  which  it  took  to  acquaint 
itself  with  the  condition  of  the  various  parishes,  all  these  things  are 
evidence  aliunde,  outside ;  and  the  simple  and  direct  proposition  is  made 
by  the  objectors  upon  the  other  side  that  this  Commission  shall  resolve 
itself  into  a  tribunal  to  try  the  question  who  did  vote'and  who  did  not 
vote  yonder  at  every  poll  in  Louisiana.  You  cannot  rest  upon  ex  parte 
testimony  taken  by  a  congressional  commission  ;  for  although  I  have 
the  honor  to  be  a  member  of  one  branch  of  Congress,  my  experience 
is  that,  of  all  tribunals  or  pretended  tribunals  that  ever  were  gotten  up 
by  the  ingenuity  of  man  for  the  purpose  of  inquiring  into  political 
questions,  there  is  not  any  so  likely  to  be  unfair  and  to  do  injustice  as 
a  congressional  committee.  It  is  necessarily  so.  Look  at  the  time. 
Does  this  Commission  expect  to  read  several  thousand  pages  of  the 
results  of 9 the  so-called  investigation  held  by  the  committee  of  which  I 
had  the  honor  to  be  a  member,  down  in  Louisiana?  There  are  only 
four  thousand  pages  printed.  The  other  three  thousand  will  be  printed 
when  your  printer  gets  money  enough.  You  cannot  read  intelligently 
the  mass  that  is  there  within  the  time  that  lies  between  now  and  the 
4th  of  March.  You  cannot  take  the  synopsis  of  any  gentleman  as  the 
existing  fact  in  the  case.  You  have  no  right  to  do  so.  If  you  under 
take  to  try,  you  must  try  by  law,  and.  as  the  law  prescribes.  This  tri 
bunal,  at  all  events,  it  is  to  be  trusted  and  believed,  will  not  suffer  itself 
to  be  the  mere  vehicle  of  wholesale  and  continuous  slander  against  men, 
and  giving  them  no  opportunity  for  rebuttal  or  explanation. 

So  much  for  the  idea  of  opening  up  this  entire  matter,  passing  into 
the  reasons  which  guided  the  returning-board,  passing  behind  their 
judgment  as  given  and  recorded  under  the  forms  of  law  in  pursuance 
of  the  constitution  of  their  State  and  the  power  granted  to  them  by 
this  legislature.  You  are  asked  to  pass  behind  all  that  and  inquire. 
.Well,  if  you  undertake  to  do  that,  you  will  do  what  the  supreme  court 
of  the  State  of  Louisiana  has  declined  to  do ;  for  the  supreme  court  of 
that  State  has  decided— I  read  from  the  case  of  Collin  vs.  Kuoblock,  25 
Louisiana  Annual  Reports,  page  265  : 

The  returns  made  by  a  legal  State  board  and  officially  promulgated — 

Mr.  Commissioner  HOAR.     When  was  that  decision  given  ? 
Mr.  Representative  HURLBUT.     In  March,  1873. 

To  determine  tbe  validity  of  a  commission,  they  cannot,  under  this  act,  go  beyond 
the  returns  and  report  of  the  legal  returning-officers  for  all  the  elections  of  the  State. 
The  returns  made  by  a  legal  State  board  and  officially  promulgated  by  that  board  as 
the  general  returning-officers  for  the  State  at  large,  coustitute  the  basis  upon  which 
the  governor  is  authorized  to  issue  commissions.  These  returns  are,  by  the  act  of  16th 
March,  1870,  made  "  prima  facie  evidence  in  all  courts  of  justice  and  before  all  civil 
officers  until  set  aside  after  a  contest  according  to  law  of  the  right  of  any  person 
named  therein  to  hold  and  exercise  the  office  to  which  he  shall  by  such  return  be  de 
clared  elected." 


ELECTORAL    COUNT   OP    1877.  251 

Mr.  Commissioner  EDMUNDS.  What  was  the  nature  of  that  ac 
tion  ? 

•  Mr.  Representative  HURLBUT.    An  action  under  their  statute  for 
intrusion  into  office. 

Mr.  Commissioner  ABBOTT.  Was  it  not,  therefore,  in  the  nature  of 
a  quo  warranto  f 

Mr.  Representative  HURLBUT.  It  is  a  modified  form  of  quo  ivar- 
ranto. 

Mr.  Commissioner  ABBOTT.     Who  gave  the  opinion  there  ? 

Mr.  Representative  HURLBUT.  The  opinion  was  given  by  Judge 
Taliaferro.  The  same  opinion  is  repeated  in  other  cases  which  I  do  not 
desire  now  to  take  up  the  time  of  the  Commission  in  quoting,  as  a 
reference  to  them  will  be  printed. 

Mr.  Commissioner  STRONG.  Has  that  case  reference  to  an  election 
conducted  under  the  act  of  1870  or  under  the  act  of  1872? 

Mr.  Representative  HURLBUT.  This  is  a  case  in  which  they  decide, 
as  of  course  they  had  to  do,  that  the  election  of  November,  1872,  was 
governed  by  the  law  of  1870,  a  proposition  which  seems  so  self-evident 
that  I  hardly  thought  it  would  require  the  decision  of  a  court,  inasmuch 
as  an  act  approved  fourteen  days  after  an  election  takes  place  could  not, 
I  think,  anywhere  outside  of  Louisiana,  be  claimed  to  have  anything  to 
do  with  the  election  that  took  place  fourteen  days  before. 

Thus  the  supreme  court  of  the  State  itself,  as  regards  its  own  local 
elections,  has  decided  that  the  returns  made  by  this  board  and  required 
by  the  law  to  be  filed  with  the  secretary  of  state,  and  also  required  to  be 
promulgated  by  publication  in  the  newspapers,  are  the  evidence  on  which 
the  governor  gives  commissions  to  all  officers  of  the  State,  and  that  those 
returns  and  declarations  are  prima  facie  evidence  which  can  only  be  gone 
behind  in  a  judicial  trial  touching  the  right  to  hold  and  enjoy  office.  I 
apprehend  that  the  case  here  is  somewhat  analogous  to  that.  I  appre 
hend  that  this  Commission  is  not  sitting,  nor  can  it  sit,  as  a  judicial  tri 
bunal,  to  try  which  of  the  two  gentlemen  named  for  President  has 
actually  been  elected,  which  is  entitled  to  hold  and  enjoy  the  office. 
You  are  not  sitting  as  a  judicial  tribunal  for  that;  you  are  sitting  to 
determine  what,  on  the  regular  mode  of  authorization  established  by 
each  State  according  to  its  own  act  and  pleasure  under  a  delegated 
right  in  the  Constitution,  appears.  Is  there  any  end  to  the  inquiry  if 
the  other  view  be  taken  ?  Is  there  any  possibility  of  ever  deciding  this 
question  of  the  presidential  election  that  occurred  last  fall  ?  la  it  not 
manifestly  not  only  contrary  to  law,  but  impossible  in  fact,  that  this 
immense  mass  of  allegations  pro  and  con  can  be  gone  into?  Where  are 
you  to  stop  ? 

My  friend,  Mr.  Jeuks,  I  recollect,  was  very  pointed  in  his  remarks 
about  an  innocent  person  of  the  name  of  Clover,  who  acted  as  super 
visor  of  the  parish  of  East  Baton  Rouge;  and,  in  order  to  show  that 
Mr.  Tilden  got  the  votes  of  Louisiana,  he  proposed  to  this  Commission, 
as  a  matter  of  proof,  that  this  man  once  kept  a  snake-show,  or  was  a 
roper-iu  for  a  snake  show,  as  he  called  him.  Will  the  Commission 
inform  me  whether  that  is  a  fraversable  fact  that  we  can  take  issue 
with?  If  so,  every  other  allegation  connected  with  this  matter,  all 
these  points  that  are  made,  some  under  the  law,  some  under  a  miscon 
ception  of  the  law,  require  evidence;  they  are  to  be  sustained  by  testi 
mony  pro  and  con,  and  I  confess  that  on  deliberate  study  of  the  law 
which  organized  this  Commission  I  do  not  know  any  means  that  this 
Commission  has  of  testimony  on  these  questions,  or  to  compel  its  pro 
duction,  or  to  judge  of  its  validity. 


252  ELECTORAL    COUNT    OF    1877. 

Now,  all  this  is  simply  a  repetition — and  I  am  glad  of  it — on  a  mod 
ified  and  far  more  respectable  scale  before  this  tribunal,  of  the  utter 
ances  with  which  we  have  been  favored  for  the  last  four  weeks  in  direct 
prejudginent  of  the  whole  question  that  is  submitted  to  this  tribunal : 
and  I  deeply  regret  that  the  echo  of  those  utterances,  bad  enough  and 
ill  enough  even  in  the  license  of  debate  in  deliberative  bodies,  should 
come  within  this  hall  whose  memories  are  all  sanctified  by  adherence  to 
great  principles  of  justice,  and  most  of  all  I  regret  that  the  speech  of 
my  distinguished  friend  from  Pennsylvania  [Mr.  Jenksj  should  have 
closed  with  a  style  of  warning  to  this  Commission  that  amounted  to  an 
implied  menace.  That  sort  of  thing  may  do  yonder  in  Louisiana,  where 
the  physical  force  and  organized  deviltry  of  a  whole  race  are  on  the  one 
side,  and  God  and  the  law  and  a  clear  majority  of  humble  American 
citizens  are  on  the  other;  but  it  is  infinitely  bad" taste  that  here,  catch 
ing  his  inspiration  from  his  clients,  he  should  venture  to  attempt  to  bull 
doze  this  Commission.  I  pray  you,  gentlemen,  to  do  simply  what  I  know 
you  will  do,  and  what  you  need  no  prayers  from  me  to  do,  pa<?s  upon  this 
question,  not  in  obedience  to  any  popular  clamor  got  up  by  self-interest 
and  repeated  time  after  time  by  a  ribald  press,  but  determine  this  ques 
tion  on  your  oaths  according  to  the  tenor  of  the  Constitution  and  the 
law,  and  the  event  will  justify  the  confidence  that  all  sound  and  well- 
judging  men  repose  in  the  integrity  and  the  stern  purpose  of  duty  of 
the  Commission  itself. 

Mr.  Senator  HOWE.  Mr.  President  and  gentlemen  of  the  Commis 
sion  :  I  am  somewhat  mortified,  I  confess,  coming  to  the  discharge  of 
the  duty 'which  has  been  assigned  me,  of  saying  something  in  support 
of  objection  No.  4,  to  find  how  very  small  a  thing  it  is  in  comparison 
with  this  volume  of  objections  which  has  been  urged  on  the  other  side. 
It  is  a  very  small  piece  of  paper  to  put  in  here.  1  feel  bound  to  say  of 
it  as,  I  believe,  Mercutio  said  of  his  sword-cut,  that  it  really  is  not  as 
capacious  as  a  well,  but  I  am  inclined  to  think  "  'twill  serve."  We  re 
spectfully  object  that  you  shall  not  count  the  votes  for  President  and 
Vice-President  of  the  United  States  tendered  here  by  John  McEnery 
and  Eobert  C.  Wickliff'e  and  by  their  associates,  any  of  them,  for  this 
reason,  to  begin  with  :  You  have  no  evidence  before  you,  none  whatever, 
that  either  of  those  was  ever  appointed  as  directed  by  the  legislature 
of  Louisiana  to  vote  for  President  and  Yice-President  of  the  United 
States.  You  ought  to  have  some  evidence  before  you  receive  those 
votes,  ought  you  not  ?  The  statute — not  of  Louisiana,  but  the  statute 
of  the  United  States — commands  that  you  should  seek  for  and  should 
find  their  authority  so  to  vote,  certified  to  you  by  the  governor  of  that 
State.  Can  you  dispense  with  that  evidence,  substitute  anything  else 
for  it?  It  is  conceded  all  about  me  on  all  these  papers  that  no  man 
can  have  his  vote  counted  for  President  and  Vice-President  of  the 
United  States  unless  his  right  so  to  vote  is  certified  by  the  governor  of 
the  State.  Those  gentlemen  who  urge  you  to  accept  the  votes  tendered 
here  by  McEnery  and  Wickliffe  do  not  seek  to  derogate  from  the 
authority  of  the  statute  of  the  United  States  nor  to  dodge  it  at  all ; 
their  effort  is,  you  find,  to  elevate  John  McEnery  himself  to  the  dignity 
of  governor  of  Louisiana ;  and  so  you  find  him  certifying,  as  governor 
of  that  State,  to  the  authority  of  that  board  of  electors  at  the  head  of 
which  you  find  his  own  name.  There  is  a  practical  difficulty  which  im 
perils  the  success  of  that  effort,  and  it  is  this  :  John  McEnery  was  not 
in  November  last,  he  never  was,  governor  of  Louisiana.  How  do  we 
know  that?  Simply  because  we  are  rational  beings,  and,  as  such,  we 
are  bound  to  know  it.  We  may  be  ignorant  of  a  great  many  things  in 


ELECTORAL    COUNT    OF    1877.  253 

this  world,  and  we  are,  God  knows  ;  but  there  is  one  thing  of  which  we 
are  not  permitted  to  be  ignorant.  We  are  bound  to  know  who  is  the 
governor  of  a  State  in  this  Union  ;  and  being  bound  to  know  that  no 
State  can  have  more  than  one  governor,  when  we  come  to  know  who 
that  man  is,  then  we  know  that  all  the  rest  of  God's  beings  are  not. 

But  I  do  not  content  myself  merely  with  the  proposition  that  we  are 
bound  to  take,  as  I  believe  the  lawyers  say,  judicial  notice  of  who  is 
the  governor  of  a  State  j  a  sort  of  notice  that  every  man  must  take, 
no  matter  whether  he  be  judge,  or  statesman,  or  citizen,  a  lighterman 
on  the  Atlantic  coast  or  a  lumberman  in  the  forests  of  Michigan.  I  say 
we  are  not  only  bound  to  take  this  sort  of  notice,  but  every  one  of  you 
sitting  there  has  helped  to  give  notice,  has  served  notice  on  the  world 
that  John  McEnery  was  not  governor  of  Louisiana  and  that  William 
Pitt  Kellogg  was.  So  many  of  you  as  occupy  seats  there  and  who  be 
long  to  the  Senate  of  the  United  States  have  often  seen  this  signature 
of  John  McEnery  attached  to  the  credentials  of  some  aspiring  citizen 
of  that  State  knocking  for  admission  to  the  Senate ;  but  you  never 
have  opened  your  doors  to  any  such  demand.  So  many  of  you  as  belong 
to  the  other  House  of  this  National  Legislature  have  seen  that  same 
name  appended  to  the  credentials  of  those  who  asked  to  be  admitted 
to  the  deliberations  of  that  body,  and  you  have  uniformly  turned  them, 
away  and  said,  "  We  do  not  know  you,  John  McEuery."  I  do  not  know 
that  in  the  character  of  governor  he  has  ever  appeared  before  the  Su 
preme  Court  of  the  United  States ;  but  another  man  has  appeared  be 
fore  that  court,  has  been  impleaded  before  it  as  the  governor  of  Louisi 
ana,  and  judgment  has  been  given  in  that  court  upon  the  issue  there 
formed.  The  justices  of  that  court  will  remember  the  case  to  which  I 
refer.  I  think  it  is  the  Board  of  Liquidation  vs.  McGomb.  So  that  you 
have  all  in  your  several  capacities  been  called  upon  directly  to  pass 
judgment  upon  this  pretended  governor  and  have  all  given  judgment 
against  him.  When  a  committee  of  one  House  of  Congress  went  to 
Louisiana  a  few  years  ago  and  undertook  to  compose  that  State  by  com 
piling  a  government  for  it,  no  such  calico  as  John  McEnery  got  into  that 
patch- work ;  another  man  was  recognized  as  the  governor  then  and 
there. 

And  yet  that  man  comes  here  again,  now  in  these  last  days,  and 
undertakes  to  certify  to  the  right  of  men  to  vote  for  President  and 
Vice-President  of  the  United  States  in  the  name  of  Louisiana.  I  have 
heard  something  said  here  in  this  presence  this  morning  about  fraud 
and  corruption.  Do  you  know,  have  you  heard,  of  any  indication  of 
fraud  anywhere  or  in  anybody  so  bald  and  palpable  as  this  of  John 
McEnery's  attempting  to  pass  himself  off,  not  only  upon  this  high  Com 
mission,  but  upon  the  nation  itself,  as  governor  of  Louisiana  I  Very 
cunning  men,  I  know,  sometimes  attempt  to  pass  and  do  pass  upon  busi 
ness  men  spurious  notes  as  genuine,  and  you  take  it  as  the  trick  of  a 
knave,  to  be  sure,  but  of  a  smart  knave.  What  would  you  say  of  a  man 
who  should  bring  to  a  bank  of  issue  a  note  pretending  that  it  was  man 
ufactured  on  its  own  plates,  but  which  had  actually  been  stamped 
"  counterfeit"  by  half  the  receiving  tellers  in  the  United  States,  and  offer 
that  as  genuine  to  the  bank  from  which  it  purported  to  be  issued? 
You  would  not  say  that  was  the  effort  of  a  smart  knave,  would  you? 
But  here  this  man  comes  again,  this  man  whose  pretentious,  as  I  say, 
have  been  repudiated  just  as  often  as  they  have  been  thrust  forward; 
he  comes  in  here  once  more,  once  again,  with  all  the  sprightliuess  and 
vivacity  with  which  a  half  eagle  is  thrown  out  that  has  just  come  from 
the  mint.  "Here  we  come  again,  sirs,"  he  says,  "Governor  John  Me- 


254  ELECTORAL    COUNT    OF    1877. 

Enery,  of  Louisiana."  No,  Mr.  President,  no;  I  think  I  will  not  spend 
more  time  on  Mr.  John  McEnery. 

I  said  you  have  determined  that  another  man  was  governor  of  L  uis- 
iana,  William  Pitt  Kellogg.  For  good  or  for  ill,  for  four  years  past, 
William  Pitt  Kellogg  has  presided  over  that  State  as  its  governor, 
recognized  as  such  both  by  the  legislative  and  judicial  departments  of 
that  State,  recognized  expressly  as  such  by  the  Senate  of  the  United 
States,  more  than  once  by  the  Senate,  recognized  expressly  as  such  by 
the  House  of  ^Representatives  when  the  pretensions  of  both  men,  Kellogg 
and  McEnery,  were  before  the  House,  one  certifying  that  Spencer  was 
entitled  to  a  seat,  and  another  certifying  that  Morey  was  entitled  to  a 
seat.  This  House  of  Bepresentatives  said  :  "  We  know  Kellogg;  we  do 
not  know  McEnery  5  therefore  Morey  shall  take  his  seat  in  the  House 
and  Spencer  must  stand  back."  The  President  more  than  once  has 
recognized  him.  He  is  the  man  who  has  signed  the  enactments  of  the 
legislature  of  Louisiana,  or  he  has  refused  to  sign  them.  If  he  has 
approved  them,  they  became  laws;  if  he  has  vetoed  them,  they  did  not 
become  laws  unless  passed  in  spite  of  his  veto.  He  has  granted  pardons 
or  he  has  refused  to  grant  pardons;  and  almost  ten  millions  of  the 
bonds  of  Louisiana  bearing  his  signature  are  afloat  to-day  in  the  money- 
markets  of  the  world.  Kellogg,  I  think,  will  pass  here,  as  elsewhere 
through  creation,  as  the  governor  of  Louisiana  in  November  last;  and 
he  tells  you  who  were  the  constituted  electors  of  that  State,  appointed  in 
accordance  with  the  directions  of  the  legislature,  to  vote  for  that  State 
in  the  choice  of  a  President  and  Vice-President.  Do  you  want  more 
evidence  ?  Can  you  contradict  that?  That  is  the  very  evidence  which 
our  statute  tells  you  to  look  for,  and  all  it  tells  you  to  look  for. 

I  know  the  Constitution  says  that  each  State  shall  appoint  a  pre 
scribed  number  of  electors  in  any  such  way  as  the  legislature  of  the 
State  shall  direct,  and  perhaps  you  may  feel  authorized  to  go  a  little 
back  of  this  certificate  of  the  governor  of  a  State  in  order  to  see  whether 
he  has  acted  in  accord  with  the  direction  of  the  legislature  or  has  not. 
In  other  words,  even  if  the  statute  of  the  United  States  does  not  have 
respect  to  the  authority  of  the  legislature  as  clearly  as  it  ought,  you  are 
bound  to  keep  your  eyes  upon  the  legislature  of  the  State  and  see  what 
it  has  done,  see  if  it  has  told  the  governor  he  may  say  what  he  has  said 
or  if  he  has  said  something  which  the  legislature  did  not  permit  him  to 
say.  If  you  feel  called  upon  to  make  that  inquiry,  just  one  step  behind 
the  certificate  of  the  governor  you  will  find  that  certain  officers  created 
by  the  laws  of  Louisiana  for  canvassing  the  vote  given  by  the  people  of 
that  State  at  the  election  in  November  last,  declared  that  those  people 
voted,  a  majority  of  them,  for  the  electoral  ticket  headed  by  Kellogg  and 
Burch,  and  a  minority  of  them,  alone,  voted  for  the  ticket  headed  by 
McEnery  and  Wickliife.  You  find  that  board  by  the  law  of  that  State 
directly  instructed  to  canvass  the  votes  given  at  all  elections  and  to 
declare  the  result  of  them.  "  The  returning-officers  of  the  State,"  they 
are  called,  and  the  statute  of  the  State  tells  you  in  the  most  unqualified 
terms  that  their  determination,  when  made  and  promulgated,  isprima 
facie  evidence  of  the  right  of  every  man  to  hold  office  whose  right  is  so 
determined  by  their  certificate;  and  if  the  statute  had  not  said  so,  you 
know  such  would  have  been  the  effect  of  their  certificate  and  is  in  law 
the  effect  of  every  such  certificate  given  by  every  similar  board  in  every 
State  we  have  in  the  Union. 

Will  you  then  go  further  than  this  in  that  direction  1  The  gorernor 
of  the  State  has  told  you  who  were  the  electors  of  the  State,  and  going 
back  you  find  he  has  spoken  upon  the  authority  of  the  returniiig-officers 


ELECTORAL   COUNT    OF   1877.  255 

of  that  State,  the  only  tribunal  known  to  its  laws  which  can  inform  the 
executive  by  authority  what  has  been  the  result  of  an  election.  Will 
you  go  further  back "?  I  heard  you  just  now  rather  affectionately  invited 
to  go  back  further  still.  I  think  it  was  intimated  that  if  you  would  go 
still  further  back,  behind  the  certificate  of  the  governor,  and  behind  the 
certificate  of  the  returniug-officers,  some  impressive  testimony  would  be 
laid  before  you.  I  am  aware,  and  I  ought  to  say  in  passing,  out  of  respect 
to  those  who  have  urged  that  view,  that  objections  are  taken  to  the  legal 
character  of  this  board  as  it  was  constituted  in  November.  I  thought 
to  spend  some  time  on  those  objections.  I  had  really  taken  the  trouble 
to  look  into  some  law-books  and  read  some  adjudications,  and  thought  I 
would  offer  to  this  Commission  some  authorities  on  the  subject;  but  I 
shall  spare  myself  any  such  labor  and  you  any  such  infliction.  I  see  those 
who  are  to  follow  me  and  I  know  they  will  suffer  no  jot,  no  tittle  of  the 
law  to  fail.  If  they  do,  it  is  because  they  have  lest  their  grip,  for  they 
have  been  masters  of  the  law  for  many  years.  I  think  I  may  be  saved 
some  trouble  by  letting  the  counsel  in  this  case  do  the  very  easy  thing, 
as  I  think  it  is,  of  giving  you  the  constitutional  view  of  that  returning- 
board. 

I  said  that  I  had  heard  you  rather  earnestly  entreated  to  open  these 
seals  which  are  claimed  to  close  in  the  certificate  of  the  returning-offi- 
cers  and  the  certificate  of  the  governor  of  the  State,  to  break  those 
seals,  and  to  go  back  and  listen  to  what  can  be  proved  to  you  if  you 
will  be  good  enough  to  listen  not  only  to  what  all  the  lawyers  in  the 
United  States  may  urge,  but  to  what  all  the  citizens  of  Louisiana  may 
see  fit  to  swear.  I  do  not  undertake  to  tell  you  by  authority  precisely 
what  you  would  find  if  you  were  to  throw  those  doors  wide  open.  I 
think  I  can  give  you  a  lively  hint  of  what  you  will  find.  I  have  myself 
been  making,  under  the  instructions  of  the  Senate  of  the  United  States, 
some  inquiries  in  that  direction. 

The  gentleman  from  Illinois  [Mr.  Hurlbut]  who  just  addressed  you  was 
pleased  to  say  that,  judging  from  his  experience,  a  legislative  investiga 
tion  was  the  poorest  instrumentality  he  knew  of  for  arriving  at  the 
truth.  If  I  might  be  allowed  to  refer  to  my  own  very  limited  expe 
rience,  it  would  not  corroborate  that  of  the  gentleman  to  whom  I  have 
just  referred.  A  committee  of  the  Senate  went  to  Louisiana.  It  repre 
sented  both  political  opinions  which  are  found  in  that  body,  and  they 
went  there  instructed  to  ascertain,  if  they  could,  whether  the  right  of 
suffrage  in  that  State  had  been  abridged  in  any  way  either  by  fraud  or 
by  force,  either  by  excluding  votes  from  the  ballot-box  or  by  refusing  to 
count  the  votes  illegally  after  they  had  been  deposited  in  the  ballot-box. 
We  did  investigate  these  questions  so  far  as  a  portion  of  the  State  was 
concerned ;  we  spent  all  the  time  we  had  and  all  the  money  the  two 
Houses  would  furnish  us,  not  by  way  of  an  ex  parte  inquiry,  by  any 
manner  of  means.  We  took  up  parish  after  parish;  and  when  we  had 
entered  upon  the  examination  of  one  parish  we  did  not  quit  that  until 
we  supposed  we  had  every  fact  concerning  it  which  witnesses  could 
establish  before  us,  not  witnesses  called  on  one  side,  but  called  on  both 
sides.  I  know  that  one  political  opinion  was  represented  by  the  larger 
number  of  members  on  that  committee;  but  I  believe  that  when  that 
committee  closed  its  labors  a  majority  of  the  witnesses  who  had  been 
sworn  in  that  whole  examination — I  do  not  assert  this  as  a  fact,  but  I 
believe  that  a  majority  of  those  who  had  been  sworn  had  been  called 
by  the  minority  of  that  committee. 

The  first  parish  of  which  we  made  inquiry  happened  to  be  the  parish 
of  Ouachita,  which  is  on  the  river  of  that  name  almost  classic  in  our  his- 


256  ELECTORAL    COUNT    OF    1877. 

tory.  It  was?  upoti  that  river,  I  believe,  that  Blennerhassett  and  Burr 
made  their  purchase  of  the  Baron  de  Bastrop,  whose  appellation  gives 
name  to  the  shire  town  of  the  adjoining  parish;  and  I  think  I  shall  ven 
ture  to  tell  the  Commission  something  of  what  we  discovered  touching 
the  election  in  Ouachita  Parish. 

You  have  heard  it  said  here,  that  those  returning-officers  did  not 
count  the  votes  which  were  actually  cast  by  the  voters  of  Louisiana  at 
the  last  election,  did  not  canvass  them  at  all,  rejected  some  from  their 
count.  How  do  you  know  that?  Louisiana  has  not  told  you  that. 
They  say  they  will  prove  it  to  you  if  you  will  be  good  enough  to  step 
behind  both  the  certificate  of  the  governor  and  the  certificate  of  the 
returning-officers.  Possibly ;  'but  as  yet  you  do  not  know  that.  Coun 
sel  say  it  is  so.  I  agree  with  them,  it  is  so;  but  then  it  is  not  Louisiana 
tells  you;  it  is  only  what  we  tell  you.  You  are  good  enough  to  hear  us 
argue  ;  I  trust  you  will  be  altogether  too  good  to  hear  us  testify.  Per 
haps  we  are  entitled  to  some  consideration  while  we  are  merely  reason 
ing;  when  we  come  to  state  facts,  to  very  little.  But  while  you  are  told 
that  these  returning-officers  rejected  votes  that  were  cast,  you  may  have 
been  told,  you  can  be  if  you  open  the  statutes  of  that  State,  that  that 
board  was  not  only  authorized  to  reject  such  votes  upon  certain  condi 
tions,  but  that  the  statute  expressly  commanded  it.  It  is  said  here  that 
certain  steps  must  be  taken  by  the  commissioners  of  election  or  by  the 
parish  supervisors  in  order  to  give  to  that  tribunal  jurisdiction  to  reject 
votes.  I  wanted  to  speak  upon  that,  but  I  leave  that  to  those  who  shall 
come  after  me. 

They  did  reject  certain  votes.  I  concede  it.  The  statute  told  them 
in  express  terms  that  if  they  were  convinced  there  was  not  in  a  given 
parish  or  in  a  given  precinct  within  a  parish  a  fair  election,  that  either 
fraud  or  force  was  employed  so  as  materially  to  change  the  result  of  the 
election,  they  should  exclude  from  count  the  vote  of  that  precinct  or  of 
that  parish.  They  did  reject  portions  or  the  whole  of  twenty-two  par 
ishes.  Portions  or  the  whole  of  seventeen  parishes  were  rejected  upon 
the  ground  of  intimidation,  which  these  returning-officers  said  they 
found  satisfactorily  proved  to  them. 

I  have  noticed  in  certain  quarters  a  disposition  to  ridicule  this  idea 
that  voters  can  be  induced  by  intimidation  and  fear  to  withhold  the  vote 
they  want  to  give,  much  less  made  to  give  the  vote  they  do  not  want  to 
give ;  and  it  does  seem  a  little  incredible  to  a  free  citizen  of  the  United 
States  in  the  habit  of  opening  his  mouth  and  lifting  his  hand  on  all 
occasions  freely,  to  believe  that  such  results  can  be  wrought  by  intimi 
dation.  After  all,  in  the  light  of  history,  no  such  incredulity  becomes 
us.  We  know  that  Henry  of  Navarre  and  his  cousin  the  Prince  of 
Cond6  were,  through  intimidation,  induced  to  abjure  the  Protestant 
faith.  We  know  that  Galileo  on  his  knees  promised,  under  the  influ 
ence  of  fear,  that  he  never  again  would  teach  the  doctrine  of  the  earth's 
motion.  And  we  know  that  one  of  the  chiefest  of  the  apostles,  moved 
by  fear,  swore  that  he  never  knew  his  own  Master,  that  Saviour  whom 
we  all  make  believe  now  to  adore.  If  great  soldiers  and  great  scientists 
and  great  apostles  can  be  forced  by  fear  to  abjure  cherished  convictions, 
are  we  permitted  to  doubt  that  the  poor  and  ignorant  freed  man  of 
Louisiana  may  be  compelled  by  fear,  either  to  withhold  his  vote  from 
the  ballot-box  or  to  put  a  vote  therein  which  he  does  not  choose  to  put 
in? 

Then  again,  this  theory  is  assailed  by  those  who  speak  on  behalf  of 
Louisiana  and  say  that  Louisiana  is  occupied  by  respectable  men,  by 
Christian  men,  men  who  pray  and  who  hear  prayer,  men  who  acknowl- 


ELECTORAL    COUNT    OF    1877.  257 

edge  their  relations  to  other  men  and  who  acknowledge  their  obligations 
not  only  to  this  world  but  their  relations  to  that  world  which  is  to  come. 
They  say  it  is  a  foul  libel  on  the  fair  name  of  Louisiana  to  say  any  such 
thing ;  that  Louisiana  would  not  permit  force  or  intimidation  to  be  em 
ployed.  Would  she  not?  Are  we  sure  of  that?  Was  not  force,  was 
not  fraud  ever  employed  in  the  history  of  the  world  by  men  as  white,  by 
men  as  chivalrous,  by  men  as  decent,  by  men  as  Christian  as  any  who 
occupy  Louisiana  to-day  ? 

It  is  not  two  hundred  years  since  Louis  XIV  was  induced  to  revoke 
that  edict,  the  Edict  of  Nantes,  which  for  something  like  a  hundred  years 
had  performed  the  part  in  the  constitution  of  the  French  Empire  which 
we  humbly  hope  the  fourteenth  amendment  will  perform  yet  for  the 
people  of  the  United  States,  even  the  blacks  of  the  United  States.  I 
say  he  revoked  that  edict,  and  by  that  revocation  he  let  loose  the  iron 
hand  of  persecution,  not  on  black  men,  but  white  men  and  white 
women  5  that  iron  hand  which  drove  out  of  France  or  slaughtered  in 
France  more  than  half  a  million  of  Huguenots.  Do  you  think  they 
were  monsters  who  came  to  that  act?  The  charming  Madame  de  Se- 
vigue  clapped  her  hands  in  approval  of  that  act  of  revocation.  Bossuet, 
the  most  eloquent  preacher  of  his  time  I  suppose,  applauded  it,  and 
churches  stooped  to  render  thanks  to  the  mistress  of  the  king,  through 
whose  influence  it  was  believed  that  revocation  was  obtained.  Has  hu 
manity  changed  so  radically  and  utterly  since  then  ! 

I  need  not  go  outside  of  Louisiana  for  an  illustration  ;  the  known  his 
tory  of  Louisiana.  All  remember  the  14th  of  September,  1874.  Louis 
iana  then  had  a  government  as  regular,  as  well  recognized,  as  well 
known  to  all  the  people  of  the  United  States  as  New  York  has  to-day, 
and  as  respectably  filled,  I  may  say,  in  all  its  departments.  An  armed 
band  of  men  took  possession  of  the  streets  of  New  Orleans,  the  capital 
of  the  State;  in  a  moment,  almost  in  the  twinkling  of  an  eye,  suddenly 
drove  the  constituted  governor  of  the  State  from  his  seat,  and  would  have 
driven  him  out  of  existence  had  he  not  found  protection.  I  know  they 
say  that  Kellogg  was  only  a  make-believe  governor.  Who  says  that? 
Whoever  says  it  in  Louisiana  or  outside  of  Louisiana  is  disloyal  to  thelaw 
of  Louisiana.  All  the  authority  there  was  in  Louisiana  said  that  Kellogg 
was  governor.  If  he  was  not  the  lawful  as  well  as  the  de  facto  governor 
of  Louisiana,  there  was  some  tribunal  in  the  land  which  could  declare 
by  authority  who  was.  That  tribunal  was  not  the  White  League  with 
arms  in  their  hands  to  drive  him  from  his  office  ;  there  should  have  been 
an  inquisition  found  of  some  kind,  1  think,  before  the  white-leaguers  of 
New  Orleans  went  for  him. 

I  was  about  to  call  attention  to  what  took  place  in  January  last.  It 
was  only  a  repetition  of  the  same  thing.  I  must  pass  over  it.  I  wanted 
to  say  something  to  you  about  what  took  place  in  the  single  parish 
of  Ouachita  at  the  last  election,  and  I  must  be  very  brief.  Let  me  in 
troduce  Ouachita  Parish  to  you.  In  1868  that  parish  gave  for  the  re 
publican  candidate  for  governor  1,418  votes,  and  for  the  democratic 
candidate  but  347.  There  was  a  republican  majority  of  1,071.  In  1870 
there  was  a  republican  majority  of  798.  In  1872  there  was  a  republican 
majority  of  798,  precisely  the  same  figures  as  two  years  before.  In  1874, 
but  two  years  ago,  there  was  a  republican  majority  in  the  parish  of  927. 
In  1876  there  were  2,392  colored  voters  registered,  and  there  were  992 
white  voters  registered;  and  in  November  last  that  parish  returned  to 
its  supervisor  1,865  democratic  votes  to  793  republican  votes,  giving  a 
democratic  majority  of  1,072,  where  two  years  ago  there  was  a  repub 
lican  majority  of  927.  There  are  men  uncharitable  enough  in  the  world 
17  EC 


258  ELECTORAL    COUNT    OF    1877. 

to  believe  that  intimidation  was  employed  to  produce  that  result.  There 
are  men,  on  the  contrary,  who  say  that  intimidation  was  not  employed 
at  all ;  it  was  mere  solicitation,  it  was  artifice,  persuasion,  bargaining, 
and  the  like.  But  the  campaign  in  Louisiana  started  out  early  in  June, 
started  out  with  a  circular  issued  by  Mr.  Patton,  chairman  of  the  dem 
ocratic  State  committee,  in  which  he  said — a  confidential  circular,  it  is 
said,  and  it  was  so  marked ;  it  is  denied  that  it  was  intended  to  be  con 
fidential  $  the  fact  is  it  did  not  get  to  the  public  until  some  time  in  Au 
gust,  through  the  columns  of  a  republican  newspaper — in  that  circular 
Mr.  Patton  informed  his  friends  of  various  things,  and  this  among  others, 
that  the  negro  could  not  be  reasoned  with,  but  he  could  be  impressed. 
I  do  not  use  his  language;  it  has  been  often  quoted;  but  one  of  the 
methods  he  recommended  for  impressing  the  negro  was  that  they  should 
not  only  organize  themselves  into  clubs,  but  that  they  should  mount 
their  clubs,  and  as  frequently  as  possible  they  should  make  processions 
mounted  in  order  to  make  a  demonstration  of  their  strength. 

During  the  months  of  July  and  August,  the  evidence  shows  that  .the 
white  people  of  Ouachita  Parish  were  organized  into  clubs,  mounted 
clubs,  and  they  did  better  than  the  instructions  of  the  chairman  of  the 
democratic  central  committee.  They  not  only  mounted  the  clubs,  but 
they  armed  them.  The  republican  party  was  also  organized  into  clubs, 
not  mounted  and  not  armed  ;  into  such  political  clubs  as  are  organized 
all  over  the  country.  So  in  that  way,  during  the  month  of  August,  the 
organization  of  both  parties  was  completed.  On  the  30th  of  August,  an 
event  took  place  in  that  parish  which  gave  a  material  coloring  to  the 
election  in  that  parish.  On  the  30th  of  August,  Bernard  H.  Dinkgrave, 
a  white  man,  a  cultivated  man,  a  native  Louisianian,  a  man  against 
whose  character  no  one  has  breathed  a  word  except  that  the  chairman  of 
the  democratic  committee  for  Ouachita  Parish  said  that  he  was  a  vio 
lent  partisan — Bernard  H.  Dinkgrave  was  shot  down,  about  four  o'clock 
in  the  afternoon,  going  from  his  office  in  Monroe  to  his  house  just  out 
side  of  the  town.  It  is  said  that  that  was  not  done  for  political  effect. 
It  has  been  suggested  that  the  death  grew  out  of  a  difficulty  he  had  in 
1870  with  a  man  by  the  name  of  Wemberly,  or  it  grew  out  of  an  arrest 
that  he  made  two  years  before,  when  he  was  sheriff  of  Ouachita  Parish, 
of  a  man  by  the  name  of  Allen. 

Upon  that  single  point  a  great  deal  of  evidence  was  taken.  I  must 
content  myself  with  saying  that,  weighing  the  evidence  as  carefully  as 
I  could,  I  have  no  more  doubt  that  Bernard  H.  Dinkgrave  was  killed 
for  political  effect  than  I  have  that  he  was  killed  at  all.  But  no  mat 
ter  whether  he  was  killed  for  political  effect  or  not,  his  death  had 
a  political  effect.  The  people  of  Ouachita  Parish,  the  colored  people  at 
all  events,  believed  that  he  was  killed  for  political  effect.  Eepublican 
effort  was  paralyzed  at  once.  Another  republican  meeting  was  not  held 
in  the  parish  until  some  time  in  October,  and  after  troops  had  been 
stationed  at  Monroe ;  and  no  meeting  I  think  was  held  by  the  republican 
party  afterward,  unless  troops  of  the  United  States  were  near  the  place 
of  meeting. 

I  ought  to  have  preceded  this  allusion  to  the  death  of  Dinkgrave  by  giv 
ing  an  idea  of  the  state  of  the  canvass  on  the  19th  of  August.  1  read 
from  the  Vienna  Sentinel  a  letter  directed  to  that  newspaper  by  the 
editor,  written  from  Monroe,  in  this  parish  of  Ouachita : 

Politics  in  Ouachita  are  gaining  more  attention  than  at  any  previous  election  since 
1860.  In  fact  every  man,  woman,  and  child  seems  to  have  his  or  her  whole  soul  in  the 
contest.  This  is  encouraging,  and  a  good  sign  of  state  of  hope  in  the  democratic  mind 
is  that  there  are,  or  rather  were,  numerous  candidates  for  parish  offices.  I  say  were, 
because  they  are  now  reduced  to  one  candidate  for  each  office,  the  democrats  having 


ELECTOKAL    COUNT    OF    1877.  259 

held  their  parifih  nominating  convention  on  Saturday  last.  If  the  democrats  are  hope 
ful  in  this  parish,  they  have  good  cause  to  be  so.  While  they  present  an  unbroken, 
front  and  an  admirable  organization,  the  radicals  are  wavering,  disheartened,  and 
scared.  There  are  a  few  bold,  empty-headed  orators  among  the  latter  who  either  have 
not  sense  enough  to  appreciate  the  situation  or  are  willing  to  draw  us  on  to  any  ex 
tremes  in  order  that  their  elevation  may  be  secured.  It  is  human  nature  to  admire 
boldness,  but  when  boldness  is  united  to  rascality  it  is  Louisiana's  nature  to  deal  sum 
marily  with  it.  These  inflammatory  spouters,  demagogues  in  the  truest  sense  of  the 
word,  are  using  their  best  efforts  to  instill  bad  principles  into  the  minds  of  the  colored 
people,  and  seem  to  be  anxious  to  precipitate  a  violent  conflict  between  the  two  races. 
Nothing  could  be  further  removed  from  the  wishes  of  the  whites  of  this  community; 
but  if  anything  of  the  kind  should  come  about,  there  is  a  stern  resolve  that  the  fool 
ish  cat's-paw,  the  negro,  shall  not  be  the  only  sufferer.  The  promoters  of  these  mur 
derous  principles  are  well  known  and  well  watched,  and  the  halter  for  their  necks  is 
already  greased. 

That  was  written  on  the  8th  of  August,  and  it  appeared  in  the  Sen 
tinel  on  the  19th.  It  appeared  in  Monroe  on  the  2Ist.  A  witness  swore 
that  up  to  this  time  only  three  republicans  had  taken  part  in  the  can 
vass  in  that  parish.  One  was  this  Bernard  H.  Dinkgrave;  one  was  his 
nephew,  John  H.  Dinkgrave  ;  one  was  George  B.  Hamlet,  a  colored  man 
and  sheriff  of  the  parish.  On  the  30th  of  August  following  this  publi 
cation  in  this  newspaper,  Dinkgrave,  one  of  the  three,  was  assassinated; 
Hamlet  fled  to  New  Orleans;  and  no  further  attempts  were  made  to  or 
ganize  or  to  rally  the  republican  party  in  that  parish  until  in  October 
following.  On  the  10th  of  October  another  tragic  event  occurred.  I 
have  got  to  pass  over  a  multitude.  I  have  here  among  my  papers  a 
schedule  of  eighty-odd  different  outrages  committed  upon  persons  or 
property,  including,  I  think,  five  murders ;  I  do  not  know  the  number 
of  whippings ;  I  do  not  know  the  number  of  robbings ;  I  must  pass  over 
all  these  ;  but  on  the  10th  of  October  another  event  occurred. 

Eaton  Logwood,  in  the  broad  daylight,  was  visited  by  a  party  of 
mounted  men,  was  shot,  severely  wounded.  His  brother-in  law  at  the 
same  place  and  at  the  same  time  was  shot  dead.  Either  from  the  in 
fluence  of  these  visitations,  where  red-handed  murder  traveled  at  noon 
day,  or  under  the  influence  of  the  barbecues  and  the  speeches  to  which 
we  are  referred  on  the  other  side,  there  was  a  very  marked  effect  pro 
duced  upon  the  colored  population  of  Ouachita  Parish.  A  great  num 
ber  of  them  had  been  induced  up  to  that  time  to  join  democratic  clubs. 
Great  numbers  of  them  had  not  been  induced  to  join  democratic  clubs 
even  up  to  that  time ;  but  a  letter  I  wanted  to  refer  to,  but  must  pass 
by,  written  to  one  of  the  organs  of  the  party  in  New  Orleans,  and  writ 
ten  from  Monroe  later  in  October,  spoke  quite  hopefully  of  the  result ; 
said  they  could  not  calculate  it  accurately;  it  was  liable  to  a  great 
many  contingencies  and  accidents  ;  but  that  already  a  great  many  col 
ored  men  had  joined  their  clubs  and  they  were  inclined  to  think  would 
stick.  But  two  difficulties  were  still  in  the  way.  There  were  still  a 
great  many  colored  men  who  had  not  joined  their  clubs,  and  there  was 
not  absolute  certainty  that  those  who  had  joined  would  stick.  For 
these  or  other  reasons  a  demonstration  seemed  to  be  thought  neces 
sary,  and  that  demonstration  was  made  on  the  Saturday  night  before 
the  election,  which  took  place  on  Tuesday. 

On  that  night  the  house  of  one  Abraham  Williams  was  visited  by  a  party 
of  mounted  disguised  men,  and  he  was  taken  from  his  bed  and  his  house, 
and  he  was  stripped,  and  he  was  whipped  brutally.  He  was  a  man  sixty 
years  old.  The  house  of  his  son  was  visited  the  same  night  and  unques 
tionably  by  the  same  party.  He  was  sleeping  in  a  cotton-field,  not  dar 
ing  to  sleep  under  his  own  roof,  and  not  finding  him  his  wife  was  taken 
out  of  the  house  and  she  was  whipped.  The  house  of  Willis  Frazier 
was  visited  on  the  same  night  and  undoubtedly  by  the  same  party  of 


260  ELECTORAL    COUNT    OF    1877. 

men,  mounted  men,  disguised  men,  and  he  was  taken  ont  from  bis  house 
and  he  was  whipped  brutally.  The  house  of  Randall  Driver  was  visited, 
and  he  had  been  admonished  over  and  over  again  by  democrats  that  he 
was  exposing  himself  to  peril.  Oa  this  night  his  house  was  visited  and 
he  was  taken  out  and  whipped.  The  house  of  Henry  Pinkston  was  vis 
ited  and  he  was  killed,  and  his  child  was  killed,  and  his  wife  was  nearly 
killed. 

I  see  that  I  cannot  stop  to  dwell  upon  any  one  of  these  cases.  I  can 
speak  of  the  effects  produced  in  a  moment.  While  speeches  and  barbe 
cues  were  the  order  of  the  day,  Willis  Frazier,  Alexander  Williams, 
Abraham  Williams,  Henry  Pinkston,  and  Eandall  Driver  had  not  joined 
democratic  clubs.  The  Tuesday  after  they  were  whipped  three  of  these 
men  went  submissively  to  the  polls  and  voted  the  democratic  ticket. 
Henry  Pinkston  did  not  go  to  the  polls  on  that  day  ;  he  had  settled  his 
accounts  with  the  world.  Randall  Driver  did  go  to  the  polls.  Whipped 
till  he  could  not  stand,  he  had  his  wife  anoint  his  body,  his  sores,  with 
kerosene  oil  and  lay  him  out  before  the  fire  on  a  cot,  and  there  he  lay 
till  morning,  and  then  he  told  his  wile  to  help  him  on  to  a  chair;  he 
told  his  wife  to  help  him  on  with  his  clothes ;  he  told  his  wife  to  help 
him  to  his  stick  ;  and  when  she  asked  him  where  he  was  going  he  said 
he  was  going  to  Monroe  to  vote  "  dat n  ticket  if  it  took  him  three  days 
to  get  there,  and  he  started,  and  he  did  get  to  Monroe.  He  reached  it 
in  the  afternoon  of  Tuesday,  and  he  did  vote  the  republican  ticket,  and 
he  was  the  only  man  visited  that  night  who  did.  Knowing  that  they 
could  not  vote  at  any  other  polls  than  those  in  Monroe,  the  negroes,  so 
many  of  them  as  had  not  been  forced  into  democratic  clubs,  made  up 
their  minds  to  make  their  way  to  Monroe,  and  to  vote  there;  and 
against  that  poor  privilege  there  was  an  organized  effort  made.  The 
mayor  of  the  town  issued  a  proclamation  to  those  who  had  come  in  to 
leave,  and  rifle-clubs  picketed  the  highways  leading  into  the  city  of 
Monroe  to  keep  men  who  had  not  come  in  from  coming  in. 

The  election  was  held,  and  the  next  step  was  to  get  affidavits  that 
the  election  had  been  fair. 

Mr.  Commissioner  PAl^NE.  Mr.  Howe,  before  you  pass  to  that  point, 
will  you  be  good  enough  to  say  whether  the  facts  you  have  narrated 
were  found  to  be  such  by  the  united  report  of  the  committee,  or  was 
there  a  difference  of  opinion  ? 

Mr.  Senator  HOWE.  There  has  been  no  report  of  the  committee.  I 
am  stating  the  impressions  the  evidence  made  on  my  mind — evidence 
not  introduced  by  one  party  only.  In  this  very  parish  of  Ouachita,  I 
think  forty-eight  witnesses  were  sworn  on  the  part  of  the  republicans 
and  forty-nine  witnesses  were  sworn  on  the  part  of  the  democrats. 

But  these  are  my  views  of  the  testimony,  that  I  am  giving  you,  and 
nobody  else's.  I  have  only  spoken,  and  briefly  spoken,  of  some  very 
few  of  the  incidents  which  transpired  in  a  single  parish.  I  shall  not 
allude  to  any  other  parish ;  but  I  want  to  submit  to  the  Commission 
one  table  which  I  think  is  quite  suggestive  of  what  would  be  ascertained 
if  there  was  a  careful  examination  made  of  every  parish,  as  was  made 
of  this  one  and  of  several  other  parishes. 

There  are  seventeen  parishes,  as  I  remarked  to  the  Commission,  from 
which  votes  were  excluded  upon  the  ground  of  intimidation.  In  those 
seventeen  parishes  there  was  a  white  vote  registered  of  20,320 ;  there 
was  a  colored  vote  registered  of  27,269.  The  colored  registration  was 
in  a  majority  in  those  seventeen  parishes,  in  which  the  returning-onlcers 
said  intimidation  was  employed,  of  6,949.  In  the  other  forty  parishes 
of  the  State  there  was  a  colored  registration  of  87,899  and  a  white  regis- 


ELECTORAL    COUNT    OF    1877.  261 

tration  of  72,034,  leaving  a  colored  majority  of  15,965.  In.  those  forty 
parishes  where  no  intimidation  is  alleged  the  result  of  the  vote  I  give 
you.  Kellogg's  vote  in  those  forty  parishes  was  65,747  and  McEuery's 
vote  was  59,392.  Where  intimidation  is  not  alleged,  in  forty  parishes, 
a  colored  registration  of  15,965  majority  yields  a  republican  majority  on 
the  vote  of  over  6,000 ;  but  in  the  seventeen  parishes  where  intimidation 
is  alleged  the  result  is  very  different.  One  would  suppose  that,  if  a 
colored  registered  majority  of  15,000,  where  the  election  is  fair,  yields  a 
republican  majority  of  nearly  7,000,  a  colored  registered  majority  of 
6,949  would  yield  some  republican  majority.  On  the  contrary,  in  those 
seventeen  parishes  21,123  votes  were  returned  for  the  democratic  ticket 
and  but  10,970  for  the  republican  ticket,  making  a  democratic  majority 
of  10,153  in  the  seventeen  parishes. 

I  see  that  I  have  exceeded  my  time. 

The  PRESIDENT.  There  were  seven  minutes  extended  to  Mr.  Jenks 
and  I  proposed  to  extend  the  same  to  you,  so  that  you  have  a  minute  or 
two  more.  When  the  tiuie  is  extended  to  one  side,  I  always  extend  it 
to  the  other. 

Mr.  Senator  HOWE.  I  will  occupy  that  minute  in  stating  that  I  am 
clear  upon  the  point  that  in  those  parishes  where  you  hear  so  much 
complaint  that  votes  were  rejected  from  the  count,  notwithstanding  the 
rejection  the  democratic  ticket  has  a  larger  comparative  vote  in  those 
parishes  than  it  had  in  the  same  parishes  two  years  ago. 

I  close  with  one  other  reflection.  I  remember,  and  you  have  not 
forgotten,  how  you  were  invoked  just  now  to  exert  all  the  authority 
you  have  or  could  find  to  save  the  nation  from  drinking  waters  from 
these  filthy  pools  which  it  is  said  are  concocted  there  by  the  political 
tricksters  who  manage  politics  in  Louisiana.  I  make  no  such  appeal 
to  this  Commission.  I  ask  this  Commission  to  listen  to  the  lawful 
voice  of  Louisiana  as  it  would  listen  to  the  lawful  voice  of  any  other 
State.  Give  weight  to  it.  Hear  it.  There  is  more  than  one  foul  stream 
to  be  found  in  the  State  of  Louisiana.  That  to  which  you  have  been 
pointed  may  be  dirty.  Coming  right  from  that  State,  I  know  of  other  and 
larger  streams  which  are  not  merely  dirty,  but  are  very  bloody.  I  would 
be  glad  if  in  this  tribunal  or  in  any  there  was  power  to  say  that  only 
pure  water  should  run  anywhere  ;  but  the  power  does  not  reside  in  any 
human  tribunal.  I  want  your  streams  all  purified  as  soon  as  it  can  be 
done.  If  you  can  aid  in  that  direction,  cleanse  the  bloody  before  you 
attempt  the  muddy  streams. 

The  PRESIDENT.  Who  are  the  counsel  in  support  of  the  objection 
to  certificates  Nos.  1  and  3? 

Mr.  CAMPBELL.     Mr.  Carpenter,  Mr.  Trumbull,  and  myself. 

The  PRESIDENT.  Who  are  the  counsel  in  support  of  the  objection 
to  certificate  No.  2  ? 

Mr.  EYAETS.     Mr.  Stoughton,  Mr.  Shellabarger,  and  myself. 

The  PRESIDENT.    Three  on  each  side. 

Mr.  CAMPBELL.  I  would  ask,  may  the  Commission  please,  that  the 
time  be  extended.  I  understand  that  there  is  an  allowance  of  three 
hours.  I  would  ask  permission  that  the  time  be  extended  to  six  hours 
for  either  side,  and  I  would  state  the  reason 

Mr.  PRESIDENT.  Excuse  me  a  moment.  By  the  rule  the  allow 
ance  is  two  hours  on  each  side. 

Mr.  CAMPBELL.  We  ask  for  six  hours  on  a  side,  twelve  hours  in 
all.  The  Commission  must  perceive  that  on  the  objections  which  have 
been  presented,  probably  every  question  that  can  ever  arise  under  the 
existing  laws  of  the  United  States  and  its  present  Constitution  will 


262  ELECTORAL    COUNT    OF    1877. 

come  up  for  the  examination  of  this  Commission.  It  comprehends 
nearly  everything  that  can  probably  take  place  in  a  presidential  elec 
tion  and  be  the  cause  of  any  question.  Under  such  circumstances  it 
seems  to  me  that  a  full  and  frank  discussion  ought  to  be  permitted  and 
&  sufficient  time  allowed  in  order  that  that  discussion  may  be  made. 

The  PRESIDENT.  Would  not  four  hours  on  a  side  possibly  answer 
your  purpose  I 

Mr.  CAMPBELL.    My  friends  think  not. 

Mr.  EVARTS.  On  our  part,  Mr.  President,  we  had  supposed  that 
the  instruction  given  to  counsel  already  by  the  determination  of  the 
Commission  as  announced  upon  the  discussions  heretofore  had  in  the 
Florida  case  had  greatly  reduced  the  possible  area  of  discussion ;  that 
the  principal  and  preliminary  considerations  common  to  all  the  cases 
in  the  nature  of  the  reach  and  effect  of  evidence  had  already  been 
passed  upon;  and  that  we  certainly  should  have  no  occasion  to  ask 
more  than  the  time  of  an  hour  for  each  counsel.  We  shall  submit  to 
your  honors'  direction  in  that  regard. 

Mr.  CARPENTER.  The  court  will  pardon  a  suggestion.  The  great 
difficulty  in  arguing  this  case  is  to  determine  in  the  first  place  what 
statute  law  was  in  force  when  the  election  was  held  in  Louisiana.  That 
requires  an  examination  of  a  great  many  statutes  and  is  a  question  of 
great  intricacy.  Then  the  other  questions  arising  in  the  case  are,  as  we 
understand  them,  totally  different  from  the  questions  arising  in  the  Flor 
ida  case.  Of  course  the  learned  counsel  on  the  other  side  will  not  be 
compelled  to  speak  six  hours;  it  is  only  permission,  not  compulsion;  and 
if  they  do  not  think  it  necessary,  of  course  they  will  not  avail  them 
selves  of  the  privilege.  But  regarding  this  as  the  most  important  case 
ever  heard  in  this  country,  regarding  it  as  a  case  in  which  the  attempt 
is  made  to  disfranchise  10,000  legal  voters  of  a  State,  we  submit  that  to 
ask  twelve  hours'  hearing  on  10,000  disfranchisements  is  not  an  unrea 
sonable  request. 

Mr.  Commissioner  ABBOTT.  Mr.  President,  I  move  you  that  the 
time  be  extended  to  six  hours  on  each  side,  as  desired.  I  think  it  is  very 
much  more  important  that  we  should  have  all  these  questions,  which 
are  so  numerous  and  so  very  important,  discussed  fully  than  to  short 
en  the  time  and  not  have  all  the  light  there  is  on  them  that  can  possibly 
be  given. 

The  PRESIDENT.  The  motion  submitted  by  Judge  Abbott  is  that 
the  time  for  discussion  be  extended  to  six  hours  on  a  side. 

Mr.  Commissioner  G  ARFIELD.  I  move  to  amend  by  making  it  four 
hours  on  each  side. 

The  PRESIDENT.  Do  you  move  to  strike  out  "six"  and  insert 
"four?" 

Mr.  Commissioner  G  ARFIELD.    Yes,  sir. 

Mr.  Commissioner  HOAR.  Mr.  President,  the  questions  of  the  char 
acter  to  which  Mr.  Carpenter  alluded,  of  the  existing  laws  of  the  State 
of  Louisiana,  can  certainly  be  discussed  with  great  convenience  upon 
printed  briefs.  Counsel  have  the  fullest  opportunity  to  submit  printed 
briefs  in  addition  to  their  oral  arguments.  It  does  not  seem  to  me  that 
there  is  any  case  made  for  any  extension  whatever. 

Mr.  CARPENTER.  Pardon  me  a  suggestion.  If  this  court  could 
hear  on  printed  briefs  and  settle  that  question  so  that  we  should 
know 

Mr.  Commissioner  HOAR.  I  do  not  think  counsel  should  take  part 
in  the  discussions  of  the  tribunal  after  they  have  been  heard. 


ELECTORAL    COUNT   OF   1877.  263 

The  PRESIDENT.  I  presume  not.  The  matter  is  now  between 
members  of  the  tribunal. 

Mr.  Commissioner  EDMUNDS.  I  move  that  this  Commission  take  a 
recess  for  thirty  minutes, 

Mr.  Commissioner  ABBOTT.  I  think  we  can  afford  to  sit  here  later 
at  night  for  the  purpose  of  having  this  matter  fairly  and  fully  dis 
cussed. 

The  PRESIDENT.  Mr.  Edmunds  moves  that  the  Commission  take 
a  recess  for  thirty  miautes.  I  must  regard  that  as  preceding  the  other 
question,  as  it  may  be  for  the  purpose  of  consultation.  The  question  is 
on  the  motion  that  there  be  a  recess  for  thirty  minutes. 

Mr.  Commissioner  EDMUNDS.  I  will  say  until  half  past  four  ;  that 
will  be  three-quarters  of  an  hour. 

Mr.  Commissioner  FIELD.    I  ask  for  the  yeas  and  nays. 

The  yeas  and  nays  were  ordered  ;  and  being  taken,  resulted — yeas 
11,  nays  4 ;  as  follows  : 

Those  who  voted  in  the  affirmative  were :  Messrs.  Bayard,  Bradley, 
Clifford,  Edmunds,  Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton, 
Strong,  and  Thurman — 11. 

Those  who  voted  in  the  negative  were :  Messrs.  Abbott,  Field,  Hun- 
ton,  and  Payne — 4. 

So  the  motion  was  agreed  to ;  and  the  Commission  (at  three  o'clock 
and  forty-seven  minutes  p.  m.)  took  a  recess  until  four  o'clock  and 
thirty  minutes  p.  m. 

The  Commission  re-assembled  at  four  o'clock  and  thirty  minutes  p.  m. 

The  PRESIDENT.  The  Commission  has  decided  to  allow  four  and 
a  half  hours  for  argument  on  each  side.  The  Commission  has  also 
voted  to  continue  the  session  to-night  until  nine  o'clock. 

Mr.  Commissioner  STRONG.  I  move  that  the  recess  be  continued 
half  an  hour  longer. 

The  motion  was  agreed  to ;  and  (at  four  o'clock  and  thirty-five  min 
utes)  the  Commission  took  a  recess  until  five  o'clock  and  five  minutes 
p.  m. 

The  Commission  re-assembled  at  five  o'clock  and  five  minutes  p.  m. 

Mr.  CARPENTER.  If  the  court  please,  of  the  four  and  a  half  hours' 
time  assigned  to  each  side,  if  the  court  will  permit  it,  we  ask  indul 
gence  to  be  allowed  to  make  an  argument  for  an  hour  or  so  upon  these 
laws  and  upon  the  general  question  which  the  case  involves  before 
offering  our  evidence ;  of  course  with  the  distinct  understanding  that 
we  are  not  closing  the  case,  but  that  we  are  opening  preparatory  to 
offering  our  proof. 

The  PRESIDENT.  Occupying  a  portion  of  the  four  hours  and  a 
half! 

Mr.  CARPENTER.  Whatever  time  we  take  of  course  to  come  out 
of  our  four  hours  and  a  half. 

The  PRESIDENT.  I  see  no  objection  to  that.  If  no  objection  be 
made,  that  may  be  understood. 

Mr.  CARPENTER.  Mr.  President,  and  gentlemen  of  the  Electoral 
Commission  :  Permit  me  to  state  in  the  outset  why  I  appear  here.  It  is 
not  because  Mr.  Tilden  was  my  choice  for  President;  nor  is  my  judgment 
in  this  case  at  all  affected  by  friendship  for  him  as  a  man,  for  I  have  not 
the  honor  of  a  personal  acquaintance  with  him.  I  voted  against  him  on 
the  7th  of  November  last,  and  if  this  tribunal  could  order  a  new  election 
I  should  vote  against  him  again ;  believing  as  I  do  that  the  accession 
of  the  democratic  party  to  power  at  this  time  would  be  the  greatest 
calamity  that  could  befall  our  country,  except  one,  and  that  one  greater 


264  ELECTORAL    COUNT   OF   1877. 

calamity  would  be  to  keep  them  out  by  falsehood  and  fraud.  I  appear 
here  professionally,  to  assert,  and  if  possible,  establish  the  rights  of  ten 
thousand  legal  voters  of  Louisiana,  who,  without  accusation  or  proof, 
indictment  or  trial,  notice  or  hearing,  have  been  disfranchised  by  four 
persons  incorporated  with  perpetual  succession,  under  the  name  and 
style  of  "The  returning-board  of  Louisiana.77  I  appear,  also,  in  the 
interest  of  the  next  republican  candidate  for  President,  whoever  he  may 
be,  to  insist  that  this  tribunal  shall  settle  principles  by  which,  if  we 
carry  Wisconsin  for  him  by  10,000  majority,  as  I  hope  we  may,  no  can- 
vassing-board,  by  fraud,  or  induced  by  bribery,  shall  be  able  to  throw 
the  vote  of  that  State  against  him  and  against  the  voice  and  will  of 
our  people. 

I  beg  your  honors  to  pause  a  moment  and  consider  the  lesson  to  be 
taught  to  the  politicians  of  this  country  by  this  day's  work.  This  is  no 
ordinary  occasion,  no  ordinary  tribunal,  no  ordinary  cause.  An  emer 
gency  has  arisen  which  has  induced  Congress  to  create  a  tribunal  never 
before  known  in  this  country ;  a  tribunal  composed  of  whatever  is  most 
distinguished  for  integrity,  for  learning,  for  judicial  and  legislative 
experience,  to  conduct  the  nation  through  a  great  crisis.  Your  decision 
will  stand  as  a  landmark  in  the  history  of  this  country.  Prior  to  the 
election  in  November  last  the  question  was,  who  ought  to  be  elected. 
That  was  purely  a  political  question,  and  every  voter  was  bound  to  sup 
port  the  candidate  whose  election  would,  in  his  judgment,  best  promote 
the  public  good.  Since  the  election  the  question  has  been,  not  who 
ought  to  be  elected,  but  who  in  fact  was  elected ;  and  that  is  the  ques 
tion  the  determination  of  which  you  are  to  aid.  Before  that  election 
no  honest  man  could  have  supported  the  candidate  he  thought  ought 
not  to  be  elected.  Since  that  election  no  honest  man  can  refuse  his 
support  to  the  one  he  believes  to  have  been  elected.  And  you  have  all 
taken  an  oath  to  decide  the  matters  submitted  to  you — not  according 
to  your  political  preferences,  nor  in  the  interest  of  any  political  party — 
but  impartially  and  according  to  the  Constitution  and  laws. 

The  case,  as  we  offer  to  establish  it,  by  evidence  entirely  satisfactory 
in  the  popular  sense  and  conlusive  in  the  legal  sense,  is  this:  At  the 
general  election  in  the  State  of  Louisiana  on  the  7th  day  of  November 
last,  the  Tilden  electors  received  of  the  votes  cast  for  electors  about 
8,000  majority.  This  is  conceded.  The  questions  upon  which  the  case 
must  turn  arise  out  of  proceedings  subsequent  to  the  election.  By  the 
general  election  law  of  that  State,  (clearly  unconstitutional,  but  at  pres 
ent  concede  its  validity — not  applicable  to  this  election,  as  we  shall 
contend  hereafter,  but  at  present  concede  its  applicability,  so  as  to  state 
the  case  most  strongly  against  ourselves,)  it  is  provided  that  whenever  the 
return  from  any  poll  or  voting-place  shall  be  accompanied  by  a  certain 
statement,  in  the  form  provided  by  the  act,  supported  by  the  oaths  of 
three  citizens,  that  riot,  violence,  intimidation,  bribery,  &c.,  materially 
affected  the  result  at  such  poll  or  voting-place,  the  returning-board  may 
inquire  into  the  facts,  and  if  they  find  it  so,  they  may  exclude  all  the 
votes  given  at  such  poll  or  voting-place.  But  the  fact  is,  as  we  will 
prove  by  the  returns  themselves,  that  not  a  single  return  was  accom 
panied  by  this  statement,  Avhich  alone  confers  upon  the  returning-board 
the  jurisdiction  to  exclude  votes.  The  reason  is  obvious.  There  was  no 
riot,  intimidation,  tumult,  or  bribery  at  the  election  in  question.  The 
election  machinery  was  in  the  hands  of  republicans.  The  State  ad 
ministration  was  republican.  Every  sheriff',  every  deputy  sheriff,  every 
constable,  every  police-officer,  every  supervisor  of  registration,  and  every 
commissioner  of  election,  and  many  thousand  special  officers  appointed 


ELECTORAL    COUNT    OF   1877.  265 

and  charged  with  the  duty  of  guarding  the  freedom  and  purity  of  the 
election — every  one  was  a  republican  appointee.  And  back  of  them 
stood  the  Federal  administration  and  the  Army  and  Navy  of  the  United 
States.  Yet,  not  an  arrest  was  made  throughout  the  State  for  riot,  in 
timidation,  or  bribery  committed  on  that  day.  And  it  is  not  alleged 
that  even  a  knock-down  occurred  in  the  State  on  that  day.  But  the  re- 
turning-board,  without  the  semblance  of  jurisdiction,  threw  out  abou.t 
10,000  Tilden  votes,  and  declared  the  Hayes  electors  elected  by  about 
2,000  majority.  We  shall  oifer  to  prove  that  this  proceeding  of  the  re- 
turning-board  was  not  erroneous  merely,  not  the  result  of  inadvertence 
or  mistake,  or  error  of  judgment ;  but  that  it  was  willful,  fraudulent, 
and  corrupt. 

Again,  we  shall  offer  to  prove  that  of  the  Hayes  electors  thus  fraudu 
lently  declared  to  have  been  elected,  two,  Brewster  and  Levissee,  were 
on  the  day  of  the  election  holding  offices  of  trust  and  profit  under  the  Gov 
ernment  of  the  United  States.  The  Constitution  of  the  United  States, 
Art.  II,  sec.  1,  provides  that — 

No  Senator,  or  Representative,  or  person  holding  an  office  of  trust  or  profit,  under  the 
United  States,  shall  be  appointed  an  elector. 

Another  of  the  Hayes  electors  was  William  Pitt  Kellogg,  governor  of 
the  State,  both  on  election-day  and  on  the  6th  day  of  December  when 
he  sat  in  the  electoral  college  and  cast  a  vote  for  Mr.  Hayes;  and  three 
others,  both  on  election-day  and  when  they  voted  in  the  electoral  college, 
were  holding  other  salaried  offices  under  the  State  government.  The 
constitution  of  the  State  of  Louisiana,  Art.  147,  declares — 

No  person  shall  at  the  same  time  hold  more  than  one  office,  except  that  of  justice  of 
the  peace  and  notary  public. 

Therefore,  if  electors  are  to  be  considered  as  Federal  officers,  two  of  the 
Hayes  electors  in  this  college  were  constitutionally  incapable  of  being 
electors;  and  if  they  are  State  officers,  then  four  others  were  constitu 
tionally  incapable  of  being  electors. 

And  William  Pitt  Kellogg,  as  govern  or,  certified  that  he, himself,  Brew 
ster,  Levissee,  and  associates,  had  been  duly  appointed  electors ;  and 
they  met  on  the  appointed  day  as  an  electoral  college  and  cast  their 
votes  for  Mr.  Hayes.  The  Tilden  electors,  McEnery  and  others,  who 
received  a  majority  of  the  votes  cast  at  the  election,  but  were  counted 
out  by  the  returning-board  and  were  refused  a  certificate  by  the  gov 
ernor,  met  on  the  same  day  and  cast  their  votes  for  Mr.  Tilden.  Both 
bodies,  each  claiming  to  be  the  electoral  college  of  that  State,  have  cer 
tified  their  proceedings  to  the  President  of  the  Senate  as  required  by 
the  constitution. 

This  being  the  case,  the  two  Houses  of  Congress,  whose  duty  it  is  to 
count  the  votes  for  President  and  Vice-Presideut,  and  who  must  ascer 
tain  which  are  the  electoral  votes  of  that  State  before  they  can  be 
counted,  find  themselves  confronted  with  several  important  questions : 

(1.)  Whether  the  Hayes  electors,  who  were  not  elected,  but  were 
counted  in ;  or  the  Tilden  electors,  who  were  elected,  but  were  counted 
out,  constitute  the  legal  electoral  college  of  that  State ; 

(2.)  And  in  case  the  Hayes  electoral  college  is  held  to  have  a  better 
title,  founded  upon  false  certificates  without  votes,  than  the  Tilden  col 
lege  with  the  votes  but  without  certificates;  whether  Levissee  and 
Brewster,  two  electors  in  the  Hayes  college,  were  duly  appointed  ;  and 

(3.)  Whether  conceding  that  the  Hayes  electors  were  not  duly  ap 
pointed,  and  that  Levissee  and  Brewster  were  incapable  of  appointment, 


266  ELECTORAL   COUNT    OF    1^77. 

yet  having  received  tbe  official  certificates  of  election,  and  having  in  fact 
acted — whether  their  votes  should  be  counted,  upon  the  principle  that 
the  acts  of  officers  de  facto  but  not  dejure  are  binding  upon  the  public 
and  third  persons? 

The  two  Houses  have  referred  these  questions  to  this  Commission  for 
an  opinion,  after  which  the  two  Houses  must  pass  finally  upon  the 
matter. 

The  importance  of  the  opinion  you  shall  give  upon  these  questions 
cannot  be  exaggerated.  If  you  shall  say  of  the  Hayes  electors,  for  in 
stance,  that  although  they  were  actually  defeated  by  the  people  by  eight 
thousand  majority,  and  although  two  of  them  were  forbidden  by  the 
Constitution  of  the  United  States  to  be  electors,  and  four  others  were 
so  forbidden  by  the  constitution  of  the  State,  yet  having  been  counted 
in  by  fraud,  and  having  in  fact  acted,  although  in  violation  of  express 
constitutional  provision,  State  and  Federal,  they  were  duly  appointed, 
and  their  votes  must  be  accepted,  you  will  thereby  declare  that  a  fraud 
is  as  good  as  a  majority  and  that  the  Constitution  of  the  Union  and  of 
every  State  may  be  violated  in  the  methods  of  a  presidential  election 
without  affecting  the  result;  and  you  might  as  well  write  out  a  fall 
license  for  the  perpetration  of  all  the  frauds  which  ingenuity  can  sug 
gest  or  self-interest  induce. 

Since  the  last  election  the  democrats  have  been  and  now  are  in  posses 
sion  of  Florida.  Say  to  them,  by  your  decision  in  this  case,  that  no  matter 
what  frauds  are  committed  by  a  canvassing-board,  this  high  tribunal  will 
take  no  notice  of  them,  and  if  you  cannot,  neither  can  the  two  Houses  of 
Congress,  for  you  have  all  the  power  of  each  House  and  of  both  Houses  in 
that  behalf;  and  if  the  democratic  returning  and  certifying  officers  of 
that  State  do  not,  in  the  next  campaign,  certify  10,000  democratic 
majority,  without  regard  to  the  fact,  it  will  be  because  they  have  not 
profited  by  the  lesson  you  will  have  taught  them.  If  a  governor  can 
certify  that  an  elector  has  been  duly  appointed  who  did  not  receive  a 
vote,  and  that,  upon  the  certificate  of  a  returning-board,  bribed  or 
coerced  to  certify  a  falsehood — a  falsehood  known  to  both  Houses  of 
Congress  from  investigations  carried  on  through  their  respective  com 
mittees — a  falsehood  boasted  of  by  its  perpetrators  and  known  of  all 
men,  who  is  so  hopeful  as  to  believe  that  there  ever  will  be  another 
President  elected  by  anything  but  fraud  !  Why  go  through  with  all 
the  tremendous  labor  of  a  political  campaign ;  why  send  your  orators 
upon  the  stump,  and  spend  thousands  of  dollars  in  circulating  documents 
to  convince  the  people  that  a  certain  candidate  ought  to  be  elected, 
when  you,  with  a  third  of  that  money,  can  bribe  a  canvassing-board.  and 
carry  an  election  without  a  vote? 

Your  honors  will  see  I  am  not  overstating  the  case  contended  for  by 
our  opponents.  The  fraud  mentioned  would  be  greater  in  degree,  but 
not  different  in  character,  from  the  one  which  is  now  before  you  for  con 
sideration,  and  I  ought  to  apologize  for  saying,  for  your  approval.  You 
are  expected  to  say  to  the  politicians  and  caucus  managers  of  the  coun 
try,  "No  matter  what  frauds  you  commit,  no  matter  how  glaring  and 
damnable,  we  see  nothing;"  as  the  German  colonel,  when  he  went  with 
a  regiment  from  Illinois  into  Alabama  said  to  the  boys,  "  Now,  boys,  I 
shuts  my  eyes;  I  opens  them  at  three  o'clock;"  so  this  tribunal  is  ex 
pected  to  shut  its  eyes  to  all  the  frauds  committed  in  the  canvass  of 
these  votes  by  which  I  will  show  your  honors,  not  by  declamation  and 
assertion,  but  by  argument  which  in  any  court  of  justice  could  not  be 
gainsaid,  that  this  result  was  reached ;  disfranchisement  was  imposed 
upon  10,000  legal  voters  by  a  tribunal  which  had  no  jurisdiction  to  ex- 


ELECTORAL    COUNT    OF    Ib77.  267 

elude  a  vote ;  if  tbese  things  can  be  done  in  the  green  tree,  what  may 
we  not  expect  to  see  in  the  dry  9  If  in  the  centennial  year  only  of  the 
life  of  our  nation  such  frauds  can  pass  un whipped  of  justice,  and  not 
only  pass  unwbipped,  but  win  the  prizes,  what  may  we  not  expect  when 
the  degeneracy  of  this  nation  shall  come? 

I. 

The  first  questions  naturally  suggested  by  this  discussion  are,  what 
is  the  character  of  this  tribunal,  and  what  is  the  nature  of  the  powers 
conferred  upon  it  ? 

The  Constitution  of  the  United  States  embodies  the  American  concep 
tion  of  a  republic.  It  creates  a  government  to  exercise  the  powers  of 
sovereignty  as  to  certain  enumerated  subjects.  It  proceeds  upon  the 
fundamental  idea  that  the  rights,  privileges,  and  liberties  of  the  people 
caB  only  be  secured  against  encroachment  on  the  part  of  those  charged 
with  the  execution  of  governmental  powers  by  a  careful  separation  of 
legislative,  executive,  and  judicial  powers,  and  a  distribution  of  such 
powers  among  three  great,  equal,  and  co-ordinate  departments.  The  leg 
islative  power  is  vested  in  the  Congress,  the  executive  power  is  vested 
in  the  President,  and  the  judicial  power  is  vested  in  one  Supreme  Court, 
and  in  such  inferior  courts  as  the  Congress  may  from  time  to  time 
ordain  and  establish.  "The  judges,  both  of  the  Supreme  and  inferior 
courts,  shall  hold  their  offices  during  good  behavior,  and  shall,  at  stated 
times,  receive  for  their  services,  a  stated  compensation,  which  shall  not 
be  diminished  during  their  continuance  in  office." — Const.,  article  3, 
sec.  1. 

It  is  well  settled  that  "the  judicial  power"  cannot  be  vested  elsewhere 
than  in  courts  composed  of  judges  holding  their  offices  during  good  be 
havior. 

It  is  therefore  certain  that  no  part  of  "the  judicial  power"  can  be 
vested  in  a  tribunal  organized  as  this  tribunal  is.  No  tribunal  created 
by  act  of  Congress,  whose  decisions  are  subject  to  review  except  by 
other  judicial  courts  of  superior  jurisdiction,  can  be  considered  as  judi 
cial  courts.  The  Court  of  Claims,  as  originally  constituted,  could  render 
judgments  so  called ;  but  such  judgments  were*submitted  to  the  approval 
and  ultimate  action  of  Congress.  For  this  reason,  the  Supreme  Court 
of  the  United  States  held  that  no  appeal  would  lie  from  the  decisions  of 
that  court  to  the  Supreme  Court  of  the  United  States. — Gordon  vs.  The 
United  States,  2  Wall.,  501. 

After  this  decision,  Congress  remodeled  that  court,  and  gave  con 
clusive  effect  to  its  judgments;  since  which  appeals  have  been  enter 
tained  by  the  Supreme  Court. 

In  The  United  States  vs.  Ferriera,  13  How.,  40,  acts  of  Congress  had 
conferred  upon  the  district  judge  of  the  United  States  for  Florida 
authority  to  adjudicate  upon  certain  claims  arising  under  the  treaty 
with  Spain;  which  claims,  when  adjudicated  by  him,  should  be  paid,  if 
the  Secretary  of  the  Treasury  should,  on  a  report  of  the  evidence,  deem  it 
equitable.  The  court,  by  Taney,  C.  J.,  say : 

The  powers  conferred  by  tbese  acts  of  Congress  upon  the  judge  as  well  as  the  Sec 
retary  are,  it  is  true,  judicial  in  their  nature,  for  judgment  and  discretion  must  be  exer 
cised  by  both  of  them.  But  it  is  nothing  more  than  the  power  ordinarily  given  by  law 
to  a  commissioner  appointed  to  adjust  claims  to  lands  or  money  under  a  treaty,  or  spe 
cial  powers  to  inquire  into  or  decide  any  other  particular  class  of  controversies  in 
which  the  public  or  individuals  may  be  concerned.  A  power  of  that  description  may 
constitutionally  be  conferred  on  a  Secretary  as  well  as  on  a  commissioner.  But  it  is  not 
judicial  in  either  case  in  the  sense  in  which  'judicial  power  is  granted  by  the  Constitu 
tion  to  the  courts  of  the  United  States. 


268  ELECTORAL    COUNT    OF    1877. 

See  also  Hayburn's  case,  2  Ball.,  405. 

It  is  therefore  plain  that  "the  judicial  power"  could  not  be  vested  in 
this  tribunal,  and  it  is  equally  clear  that  the  bill  organizing  this  tri 
bunal  does  not  pretend  to  clothe  it  with  such  power,  because  the  decis 
ion,  so  called,  which  this  tribunal  may  render  is  submitted  to  the  ap 
proval  of  and  may  be  reversed  by  the  two  Houses  of  Congress. 

What,  then,  is  this  tribunal  ?  It  is,  we  submit,  a  mere  legislative 
commission,  exercising  political  power  pertaining  to  the  jurisdiction  of 
Congress.  Congress  finds  itself  charged  with  the  duty  of  ascertaining 
who,  if  any  one,  has  been  elected  President  of  the  United  States,  by  the 
votes  cast  in  the  several  electoral  colleges  on  the  6th  of  December  last. 
And  to  aid  it  in  the  performance  of  this  duty,  the  exercise  of  this 
political  power,  it  has  created  this  commission  to  investigate  and  decide 
and  report  to  the  two  Houses  of  Congress  upon  certain  matters  embraced 
in  the  performance  of  that  duty ;  and  the  bill  creating  this  commission 
provides  that  its  report  shall  be  made  to  the  two  Houses,  and  shall  be 
conclusive,  unless  reversed  by  the  Houses  themselves. 

There  is  no  doubt  of  the  power  of  both  Houses  of  Congress  by  law, 
or  perhaps  by  a  joint  resolution,  to  create  a  commission  to  investigate 
and  report  upon  any  subject  falling  within  the  scope  of  ordinary  legisla 
tion,  or  relating  to  the  performance  of  any  duty  cast  upon  Congress  by 
the  Constitution.  Similar  parliamentary  commissions  have  frequently 
been  ordered  in  England;  sometimes  raised  by  the  Houses  themselves, 
and  sometimes  authorized  by  statute  and  appointed  by  the  Crown. 

For  instance,  by  statute  15  and  16  Viet.,  chap.  57,  a  commission  was 
authorized,  which  was  appointed  by  the  Crown  to  inquire  into  alleged 
corrupt  practices  in  elections  of  members  of  the  House  of  Commons ; 
which  commission  was  authorized  by  the  statute  to  send  for  persons 
and  papers,  administer  oaths,  examine  witnesses,  &c.  And  false  swear 
ing  before  such  commission  would  have  been  perjury  under  the  laws  of 
Great  Britain.  This  commission  made  report,  which  became  the  founda 
tion  for  legislation  upon  that  important  subject. — May's  Parl.  Prac.,  p. 
593. 

The  Constitution,  amendment  XII,  provides,  in  regard  to  the  votes 
given  in  the  several  electoral  colleges,  that  they  shall  be  certified  and 
returned  to  the  President  of  the  Senate,  and  then  provides  as  follows  : 

The  President  of  the  Senate  shall,  in  the  presence  of  the  Senate  and  House  of  Rep 
resentatives,  open  all  the  certificates,  AND  THE  VOTES  SHALL  THEN  BE  COUNTED. 

But  by  whom  the  votes  shall  be  counted  the  Constitution  does  not 
declare.  Most  of  the  powers  conferred  by  the  Constitution  of  the  United 
States  are  vested  in  some  designated  department  or  officer.  Other  pow 
ers  are  conferred  upon  the  United  States  generally.  For  instance, 
article  4,  section  4,  provides  as  follows : 

The  United  States  shall  guarantee  to  every  State  in  this  Union  a  republican  form  of 
government,  and  shall  protect  each  of  them  against  invasion,  and,  on  application  of 
the  legislature,  or  of  the  executive,  (when  the  legislature  cannot  "be  convened,)  against 
domestic  violence. 

The  last  clause  of  the  legislative  article  confers  upon  Congress  the 
power — 

To  make  all  laws  which  may  bo  necessary  and  proper  for  carrying  into  execution 
the  foregoing  powers,  and  all  other  powers  vested  by  this  Constitution  in  the  Govern 
ment  of  the  United  States,  or  in  any  department  or  officer  thereof. 

Congress  has  provided  by  law  for  the  execution  by  the  President  of 
the  power  as  to  protection  against  domestic  violence. 


ELECTORAL    COUNT    OF    1877.  269 

The  constitutionality  of  the  bill  creating  this  Commission  may  be  con 
sidered  upon  one  or  the  other  of  two  grounds. 

(1.)  If  the  power  to  count  the  votes  is  vested  in  the  two  Houses  of 
Congress,  thea  this  Commission  is  a  proper  instrumentality  for  making 
the  investigation  necessary  to  enable  the  two  Houses  intelligently  to 
execute  the  power.  If,  on  the  other  hand,  the  case  is  to  be  treated  as 
one  of  power  granted  generally,  that  is,  without  designation  as  to  who 
shall  count  the  votes,  then  it  falls  within  the  power  of  Congress  to  make 
laws  for  its  execution,  as  a  power  vested  by  the  Constitution  in  the  Gov 
ernment  of  the  United  States,  or  in  some  department  or  officer  thereof. 
If  the  latter  is  the  true  view  of  the  Constitution,  then  Congress  might 
pass  a  law  creating  a  commission  or  court,  to  be  appointed  by  the  Pres 
ident,  to  count  the  votes,  and  leave  the  matter  entirely  to  such  court  or 
commission. 

But,  evidently,  the  bill  proceeds  upon  the  theory  that  the  votes  are 
to  be  counted  by  the  two  Houses  of  Congress,  because  by  the  bill  power 
is  reserved  to  the  two  Houses  to  set  aside  the  report,  called  the  decision, 
to  be  made  by  this  Commission.  And,  considering  the  matter  in  this 
light,  it  is  manifest  that  Congress  may  impose  upon  the  Commission 
such  duties,  that  is,  order  it  to  investigate  such  questions — as  it  may  see 
fit.  It  may  direct  the  Commission  to  report  what  is  the  prima  facie 
right  of  candidates  upon  certain  papers,  or  it  may  direct  this  Commis 
sion  to  ascertain  and  report  upon  the  de  jure  right  of  the  several  candi 
dates. 

What  duty,  then,  does  the  law  creating  this  tribunal  impose  upon  it  ? 
The  law  declares  that  you  shall — 

(1.)  a  By  a  majority  of  votes  decide  whether  any  and  what  votes 
from  such  State  are  the  votes  provided  for  by  the  Constitution  of  the 
United  States ;  and 

(2.)  "  How  many  arid  what  persons  were  duly  appointed  electors  in 
such  State.'' 

And  to  enable  you  to  perform  this  duty,  the  act  clothes  you  with  all 
the  powers  of  the  two  Houses  of  Congress.  What  this  means  may  be 
inferred  from  the  fact  that  the  two  Houses  of  Congress  in  the  last  count 
of  presidential  votes  concurred  in  deciding  that  the  electoral  vote  of 
the  Louisiana  college  ought  to  be  excluded,  because  the  votes  cast  at 
the  popular  election  for  electors  had  not  been  canvassed  according  to 
the  laws  of  that  State ;  thus  going  behind  a  regular  certificate  of  the 
governor  that  the  electors  had  been  duly  appointed,  and  a  regular  return 
of  the  votes  cast  by  said  college.  This  is  at  least  a  construction  by  the 
two  Houses  themselves  of  their  power  to  go  behind  the  certificate  of  the 
governor  to  ascertain  whether  the  electors  were  duly  appointed.  It  will 
be  said  that  this  was  under  the  22d  joint  rule  of  the  two  Houses.  It 
seems  now  to  be  a  matter  of  dispute  between  the  two  Houses  whether 
or  not  that  rule  is  now  in  force ;  but  whether  it  is  or  not,  is  wholly  im 
material.  Either  House,  or  the  two  Houses,  may  regulate  practice  in 
the  exercise  of  their  constitutional  authority  ;  but  neither,  nor  both,  can 
add  to  that  authority  by  rules  of  their  own.  If  this  joint  rule  added 
to  the  Constitution,  it  was  void  ;  if  it  took  from  the  Constitution,  it  was 
void ;  if  it  did  neither,  it  was  useless.  And  the  concurrent  aetion  of 
both  Houses  of  Congress  in  rejecting  the  vote  of  Louisiana  four  years 
ago  must  be  regarded  as  a  declaration  by  them  of  their  power  in  the 
premises,  and  that  power  they  have  conferred  upon  this  tribunal. 

This  tribunal  has  been  created  to  meet  a  great  national  emergency. 
The  public  welfare  and  business  interests  alike  require  a  speedy,  final, 
and  satisfactory  settlement  of  the  presidential  question.  The  people 


270  ELECTORAL    COUNT    OF    1877. 

will  be  content  with,  and  the  rival  candidates  will  acquiesce  in,  any 
determination  of  the  question  founded  upon  the  full  merits  of  the  case. 
But  no  one  will  be  content  with,  no  candidate  will  acquiesce  in,  a  deter 
mination  of  this  great  question  which  ignores  the  merits  and  rests  upon 
technicalities  or  false  certificates. 

It  is  a  total  error  to  suppose  that  this  tribunal  can  make  any  decision 
which,  in  the  judicial  sense  of  that  term,  can  settle  this  question.  And 
it  is  an  equal  error  to  suppose  that  Congress  has  pretended  to  clothe 
this  tribunal  with  any  such  power.  On  the  contrary,  section  6  of  this 
bill  reserves  to  the  defeated  candidate  the  right — if  any  such  right  now 
exists  by  law — to  prosecute  a  writ  of  quo  warranto  against  the  candidate 
who  may  be  counted  in. 

Mr.  Commissioner  BEADLEY.  Mr.  Carpenter,  I  do  not  think  there 
is  a  difference  of  opinion  in  the  Commission  on  that  subject.  I  have 
not  heard  any.  It  has  been  universally  considered,  so  far  as  I  am  in 
formed,  that  the  powers  of  this  Commission  extend  so  far,  and  so  far 
only,  as  the  powers  of  the  two  Houses  of  Congress  extend. 

Mr.  CAEPENTEE.  In  other  words,  then,  it  is  agreed  on  all  hands 
that  the  powers  of  this  Commission  are  political  powers ;  they  are  legis 
lative  powers  delegated  by  the  two  Houses  to  this  Commission.  Your 
honors  would  have  relieved  yourselves  from  the  infliction  of  the  last 
twenty  minutes  if  that  had  been  announced  to  me  a  little  earlier. 

Mr.  Commissioner  HOAE.  I  do  not  understand  that  Judge  BRAD 
LEY  announces  the  proposition  you  have  stated  as  the  opinion  of  the 
Commission. 

Mr.  CAEPENTEE.  The  proposition  is  so  self-evident,  so  thor 
oughly  fortified  by  the  Constitution,  that  I  will  stop  with  the  mere 
suggestion  which  Judge  BEADLEY  has  made  on  the  subject.  It  is 
perfectly  certain  that  this  tribunal  is  exercising  some  power,  or  else  we 
should  not  be  wasting  all  these  candles  here  to-night,  the  property  of 
the  United  States.  If  its  power  is  not  judicial — and  that  is  conceded — 
nobody  will  claim  that  it  is  executive.  Then  it  must  be  legislative. 

Mr/Commissioner  GAEFIELD.  Do  you  hold  that  we  can  pass  a  bill, 
that  we  can  legislate  I 

Mr.  CAEPENTEE..  No  ;  I  do  not.  I  do  not  hold  that  one  of  the 
standing  committees  of  the  Senate  or  House  could  pass  a  bill.  But  I 
do  say  that  when  the  Judiciary  Committee  of  the  Senate,  for  instance, 
is  instructed  to  inquire  into  and  report  upon  a  given  subject,  and  has 
power  to  send  for  persons  and  papers,  and  examine  witnesses,  that 
committee,  in  doing  so,  is  exercising  the  delegated  power  of  the 
Senate  in  that  behalf.  That  is  what  I  maintain.  Therefore  I  say 
that  this  Commission,  sitting  here  under  this  act  of  Congress,  is  exercis 
ing  a  delegated  political  power,  and  that  its  jurisdiction  is  precisely 
what,  and  its  duty  exactly  that  which  the  law  of  its  creation  prescribes. 
In  other  words,  I  contend  this  Commission  is  merely  a  legislative  com 
mittee  of  investigation,  and  it  is  bound  to  inquire  into  and  report  upon 
the  matters  which  have  been  submitted  to  its  determination  by  the  act 
of  Congress  under  which  it  is  sitting. 

This  brings  me  back  to  consider  the  precise  duties  imposed  upon  this 
Commission,  and  the  methods  by  which  it  may  investigate  the  subject. 

I  turn  now  to  the  text  of  the  act  creating  this  tribunal.  The  papers 
are  to  be  sent  to  the  Commission,  "  which  shall  proceed  to  consider  the 
same,  with  the  same  powers,  if  any,  now  possessed  for  that  purpose  by 
the  two  Houses,  acting  separately  or  together,  and,  by  a  majority  of 
votes,  decide  whether  any  and  what  votes  from  each  State  are  the 
votes  provided  for  by  the  Constitution  of  the  United  States,  and  how 


ELECTORAL    COUNT    OP    1677.  .  271 

many  and  what  persons  were  duly  appointed  electors  in  such  State." 
The  duty  imposed  on  this  Commission  is  to  decide,  not  how  many  and 
what  electors  have  a  prima  facie  title,  not  how  many  and  what  electors 
appear  from  certain  papers  and  certificates  to  have  been  appointed, 
but  "how  many  and  what  persons  were  duly  appointed  electors  in  such 
State.'7  That  is  precisely  the  duty  of  the  common-law  courts  in  trying 
a  case  commenced  by  information  in  the  nature  of  quo  warranto.  I  con 
cede  that  you  are  not  trying  a  quo  warranto  ;  1  concede  that  your 
decision  will  not  bind  either  party  who  may  be  defeated  by  your  deter 
mination  from  maintaining  his  quo  warranto.  Nevertheless,  considering 
the  public  necessities — considering  the  evils  to  result  from  a  further 
contest  over  this  presidential  question,  Congress  has  seen  fit  to  direct 
you  to  investigate  and  decide — that  is,  report,  for  there  can  be  no  decision 
in  the  judicial  sense  of  that  term — "how  many  and  what  persons  were 
duly  appointed  electors  in  such  State.77  And  for  this  purpose  you  are 
clothed  with  all  the  power  possessed  by  the  two  Houses  of  Congress.  If 
you  cannot  go  to  the  bottom  of  this  subject  it  is  bottomless,  and  there 
is  no  power  to  defeat  the  greatest  fraud  ever  attempted  in  our  political 
history. 

To  investigate  this  subject  you  have  the  powers  of  the  two  Houses  of 
Congress.     What  are  those  powers ;  or,  in  other  words,  what  methods 
of  investigation  may  legislative  bodies  adopt?     Sir  George  Cornwal 
Lewis,  in  his  work  entitled   "  Methods  and  Reasonings  in  Politics/7 
says : 

The  subject  of  judicial  evidence  has  been  treated  by  jurists  with  more  or  less  full 
ness  since  jurisprudence  became  a  science;  but  it  has,  perhaps,  been  elaborated  in 
more  detail,  and  has  received  a  more  systematic  form,  in  England  than  in  any  other 
country.  This  has  been  owing  to  peculiarities  in  the  procedure  of  our  courts  of  com 
mon  law,  which  need  not  be  here  noticed.  With  respect  to  our  present  subject,  the 
most  important  rule  of  evidence  in  the  law  of  England  is  that  which  prescribes  the 
exclusion  of  hearsay  testimony ;  that  is  to  say,  of  statements  of  fact  made  by  the  wit 
ness,  not  from  his  own  observation  but  from  the  observation  of  others. 

*•***#*# 

In  judicial  proceedings,  therefore,  where  the  facts  are  determined,  not  by  official 
agents  of  the  Government,  but  by  the  testimony  of  witnesses  taken  casually  from  the 
midst  of  the  community,  the  general  principle  is  recognized  by  our  law  that  the  witness 
must  speak  to  an  event  which  occurred  under  his  notice,  and  within  the  reach  of  his 
senses. 

*#*###» 

The  process  of  ascertaining  facts  for  legislative  purposes  is  not,  in  general,  so  formal, 
or  subject  to  such  strict  rules  of  evidence  as  the  procedure  of  executive  departments, 
whether  administrative  or  judicial.    Petitions,  complaints,  remonstrances,  statements  of 
grievances,  are  presented  to  a  legislature,  or,  if  it  consist  of  a  deliberative  body,  individ 
ual  members  of  that  body  may  represent  facts  upon  their  own  authority.    It  may  then 
either  proceed  at  once  to  legislate  '.upon  the  faith  of  such  suggestions,  or  it  may  take 
them  as  raising  merely  a  presumption,  and  may  institute  an  inquiry  of  its  own.     It 
may  call  for  papers,  accounts,  correspondence,  and  other  documents  ;  it  may  likewise, 
by  proper  means,  examine  witnesses,  and  thus  ascertain,  by  original  testimony,  the 
facts  bearing  upon  the  subject  under  consideration. 

Upon  this  authority,  I  assert  that  the  testimony  taken  by  the  com 
mittees  of  the  two  Houses  of  Congress  upon  this  subject  is  before  you, 
and  should  be  considered  in  this  inquiry ;  and  that  you  can  proceed  in 
the  methods  usual  in  legislative  bodies,  and  act  upon  any  information 
which  would  authorize  a  legislative  body  to  act.  It  is  not  expected,  as 
the  law  creating  this  tribunal  clearly  shows,  that  you  are  to  proceed 
only  in  the  judicial  method  of  investigating  facts,  by  examination  of 
witnesses,  &c. 

Four  years  ago  the  subject  of  the  electoral  vote  of  the  State  of  Lou 
isiana  was  referred  by  the  Senate  to  a  committee.  The  committee 
reported,  although  the  governor  had  certified  in  regular  form  that  the 
electors  were  duly  appointed,  and  they  had  met  on  the  proper  day  and 


272  ELECTORAL    COUNT    OF    1877. 

cast  their  votes  for  President  and  Vice-President,  that  the  votes  cast  at 
the  election  for  the  electors  had  not  been  canvassed  according  to  law ; 
and  the  two  Houses  of  Congress,  without  further  investigation,  each  by 
itself,  the  Senate  by  the  vote  of  every  republican  Senator,  and  the  House 
without  a  division,  decided  to  reject  the  electoral  vote  of  that  State. 

At  this  point  let  me  refer  to  the  remedy  of  quo  warranto,  touching  the 
matter  in  question. 

It  has  been  settled  in  England  for  more  than  one  hundred  years,  and 
is  perfectly  well  settled  in  this  country,  that  information  in  the  nature 
of  quo  icarranto  is  in  its  nature  a  civil  proceeding,  and  must  be  so  clas 
sified  in  the  distribution  of  cases  between  courts  of  civil  and  courts  of 
criminal  jurisdiction.  Eex  vs.  Francis,  2  D.  &  E.  484.  In  State  Bank 
vs.  The  State,  1  Blackford,  272,  the  court  said:  "We  have  no  need  of 
resorting  to  the  general  doctrine  or  information,  for  a  quo  warranto  on 
information  is  a  criminal  proceeding  only  in  name  and  in  form ;  in  its 
nature  it  is  purely  a  civil  proceeding."  Citing  2  Kid  on  Corpo.,  439 ;  King 
vs.  Francis,  2  T.  E.,  484.  "  The  proceeding  by  information  in  the  nature 
of  a  quo  icarranto  is  essentially  a  civil  proceeding,  and  the  pleadings  in  it 
are  as  much  subject  to  amendment  as  they  are  in  ordinary  civil  actions. 
It  is  criminal  only  in  form.'7  (State  of  Florida  vs.  Gleason,  14  Flor.,  109.) 

In  Brison  vs.  Lingo,  26  Mo.,  496,  the  supreme  court  said :  "  The  inquiry 
arises,  is  this  a  criminal  case  ?  For  a  great  while  it  has  been  applied 
to  the  simple  purpose  of  trying  civil  right,  and  regarded  as  a  remedy  to 
try  the  right  to  office."  The  court  held  it  was  a  civil  case.  See  also 
State  vs.  Kupfurle,  44  Mo.,  154.  "A  proceeding  by  quo  warranto  is  not  a 
criminal  proceeding."  Eusniinger  vs.  Peo.,  47  111.,  384.  In  Common 
wealth  vs.  Browne,  1  S.  &  E.,  382,  it  was  held  that  "  an  information  in  the 
nature  of  a  quo  warranto,  although  a  criminal  proceeding  inform,  is  in 
substance  but  a  civil  one,  and  is  therefore  not  within  the  prohibition  of 
the  tenth  article  of  the  constitution  of  Pennsylvania.'7  In  State  ex  rel. 
Bashford  vs.  Barstow,  4  Wis.,  467,  the  attorney-general,  after  some 
proceedings,  filed  a  formal  discontinuance  on  the  part  of  the  State,  but 
the  court  held  the  suit  must  proceed  as  between  the  relator  and  the 
defendant,  and  the  court  proceeded  and  rendered  judgment  in  favor  of 
the  relator;  and  he  thereupon  entered  into  and  held  the  office  for  the 
balance  of  the  term. 

The  Constitution  of  the  United  States,  article  3,  section  2,  declares 
that  the  judicial  power  of  the  United  States  "  shall  extend  to  all  cases 
arising  under  this  Constitution,  the  laws  of  the  United  States,  and 
treaties  made  under  their  authority,"  &c.  A  contest  between  Mr.  Tildeu, 
if  he  shall  be  counted  out,  and  Mr.  Hayes,  if  he  shall  be  counted  in, 
touching  the  right  to  exercise  the  office  of  President,  would  undoubtedly 
be  a  case  arising  under  the  Constitution  and  laws  of  the  United  States. 

Now  let  us  see  whether  any  court  has  jurisdiction  to  try  the  case. 

The  act  of  Congress  March  3,  1875,  18  Statutes  at  Large,  part  3,  pro 
vides  as  follows : 

That  the  circuit  courts  of  the  United  States  shall  have  original  cognizance,  concur 
rent  with  the  courts  of  the  several  States,  of  all  suits  of  a  civil  nature  at  common  law  or 
in  equity,  where  the  matter  in  dispute  exceeds,  exclusive  of  costs,  the  sum  or  value  of 
five  hundred  dollars,  and  arising  under  the  Constitution  or  laws  of  the  United  States, 
or  treaties  made,  or  which  shall  be  made,  under  their  authority,  &c. 

It  is  well  settled  that  where  the  title  to  an  office  is  in  dispute,  the 
amount  involved,  for  the  purpose  of  jurisdiction,  is  the  salary  of  the 
office.  (U.  S.  vs.  Addison,  22  How.,  174.) 

It  is  true  the  act  of  Congress  quoted  above  says  nothing  about  writ 
or  information  of  quo  warranlo.  But  when  an  act  of  Congress  confers 


ELECTORAL    COUNT    OF    1877.  273 

upon  a  circuit  court  jurisdiction  of  a  case  or  controversy,  the  power  of 
the  court  to  issue  the  proper  writ,  or  entertain  the  proper  proceedings 
to  bring  the  case  or  controversy  Before  the  court,  cannot  be  questioned. 
It  is  well  settled  that  in  proceedings  by  quo  warranto  the  court  will 
ascertain  the  right  to  the  office,  and  go  through  all  forms,  fictions,  cer 
tificates  of  cauvassing-boards  and  commissions  of  office,  to  ascertain 
that  right. 

People  vs.  Van  Slyck,  4  Cow.,  297. 
People  vs.  Ferquson.  3  Coiv.*  102. 
Jeter  vs.  State,  1  McCord,  233. 
People  vs.  Vail,  20  Wend.,  12. 
Bashford  vs.  Barstow,  4  Wis  ,  567. 
Hill  vs.  State,  1  Ala.,  (N.  8.,)  559. 

As  a  determination  of  this  question  by  this  tribunal  based  upon  the 
broad  merits  of  the  case  would  give  peace.to  the  country,  and  set  the  ob 
structed  wheels  of  enterprise  once  more  in  motion,  so,  on  the  other 
hand,  a  narrow  and  technical  decision  which  would  throw  tjie  question 
into  a  judicial  controversy,  to  continue  for  months,  would  be  a  calamity 
to  the  country,  and  raise  a  doubt  as  to  the  efficiency  of  free  institutions. 

This  is  undoubtedly  the  reason  why  Congress  has  directed  this  Commis 
sion  to  inquire  into  the  ultimate,  final  fact  as  a  court  of  law  would  do  on 
a  quo  warranto — reserving  to  itself,  however,  the  right  to  adopt  or  re 
ject  such  conclusion  in  the  final  counting  of  votes,  which  is  to  be  done 
by  the  two  Houses  themselves  after  this  Commission  shall  have  per 
formed  its  functions.  The  duty  cast  upon  this  Commission  to  inquire 
and  decide — that  is,  report — what  persons  were  "duly  appointed  elect 
ors"  can  be  performed  in  no  way  but  by  an  inquiry  into  the  ultimate 
fact;  that  is,  the  legality  of  such  appointment.  This  commission  must 
take  judicial  notice  of  the  laws  of  Louisiana.  (Pennington  vs.  Gibson, 
16  How.,  65.)  It  must,  therefore,  ascertain  whether  any  law  of  that  State 
directs  the  manner  in  which  electors  shall  be  appointed;  whether  such 
State  law  is  in  accordance  with  the  constitution  of  that  State,  and 
whether,  in  fact,  the  electors  were  appointed  according  to  such  law. 
Without  this  it  is  impossible  to  say  whether  or  not  they  were  duly 
appointed. 

II. 

I  come  now  to  another  question  which  I  think  is  one  of  considerable 
difficulty,  and  that  is  to  ascertain  what  was  the  statute  law  of  Louisi 
ana  on  the  7th  day  of  November  last.  It  very  rarely  happens  that  in 
investigating  a  case  you  are  unable  to  find  out  what  the  statute  is.  There 
may  be  differences  about  the  meaning  of  a  statute,  but  you  can  gener 
ally  ascertain  what  statute  was  in  force ;  but  anything  that  comes  from 
Louisiana  is  full  of  difficulty  to  a  lawyer ;  that  is,  everything  that  has 
come  up  from  it  except  my  honorable  friend  on  the  left  here,  [Mr.  Camp 
bell.] 

The  legislature  of  the  State  of  Louisiana,  October  19,  1868,  (Laws 
1868,  p.  218,)  passed  a  general  election  law  for  the  election  of  governor, 
lieutenant-governor,  members  of  the  legislature,  and  other  State  and 
parish  officers. 

Section  32  of  that  act  is  as  follows,  (page  223  :) 

SEC.  32.  Re  it  further  enacted,  <fc.,  That  in  every  year  in  which  an  election  shall  be 
held  for  electors  of  President  and  Vice-President  of  the  United  States,  such  election 
shall  be  held  on  the  Tuesday  next  after  the  first  Monday  in  the  month  of  November, 
18  EC 


274  ELECTORAL    COUNT    OF    1877. 

in  accordance  with  an  act  of  the  Congress  of  the  United  States,  approved  January 
twenty-three,  one  thousand  eight  hundred  and  forty-five,  entitled  "An  act  to  establish 
a  uniform  time  for  holding  elections  for  electors  of  President  and  Vice-President  in  all 
States  of  the  Union."  And  such  elections  shall  be  held  and  conducted  in  the  manner 
and  form  provided  by  law  for  general  State  elections. 

SEC.  33.  Be  it  further  enacted,  #c.,  That  the  foregoing  provisions,  except  as  to  time 
and  place  of  holding  elections,  shall  apply  to  the  election  of  all  officers  whose  election 
is  not  otherwise  provided  for. 

Eleven  days  afterward,  October  30, 1868,  the  legislature  proceeded  to, 
and  "  otherwise  provided  for,"  the  election  of  presidential  electors,  thus 
taking  that  election  out  of  the  operation  of  the  general  election  law. 
The  latter  act  is  a  complete  regulation  of  presidential  electors,  and  is  as 
follows : 

No.  193. — An  act  relative  to  presidential  electors. 

SECTION  1.  Beit  enacted  by  the  senate  and  house  of  representatives  of  the  State  of  Louisi 
ana  in  general  assembly  convened,  That  in  every  year  in  which  an  election  is  to  be  held 
for  electors  of  President  aud  Vice-President  of  the  United  States,  such  election  shall 
be  held  on  Tuesday  next  after  the  first  Monday  in  the  month  of  November  in  such 
year,  in  accordance  with  an  act  of  the  Congress  of  the  United  States  approved  January 
twenty-three,  eighteen  hundred  and  forty-five,  entitled  "An  act  to  establish  a  uniform 
time  for  holding  elections  for  electors  of  President  and  Vice-President  in  all  of  the  States 
of  the  Union,"  and  such  elections  shall  be  held  aud  conducted  in  the  manner  and  form 
provided  by  law  for  general  State  elections. 

SEC.  2.  Be  it  further  enacted,  #c.,  That  every  qualified  voter  in  the  State  shall  vote  for 
seven  persons,  as  follows:  Two  persons  shall  be  selected  from  the  State  at  large,  and 
one  person  shall  be  chosen  from  each  congressional  district  in  this  State  ;  aud  in  case 
any  ticket  shall  contain  two  or  more  names  of  persons  residing  in  the  same  district 
(except  the  two  chosen  from  the  State  at  large)  the  first  of  such  names  only  shall  be 
considered  as  duly  voted  for. 

SEC.  3.  Be  it  further  enacted,  #c.,  That  no  person  shall  be  an  elector  who  is  not  a 
qualified  voter  in  the  district  for  which  he  is  chosen,  or  in  case  of  being  elected  for  the 
State  at  large,  then  <  f  some  parish  of  the  State. 

SEC.  4.  Be  it  further  enacled,  <$-c.,  That  immediately  after  the  receipt  of  a  return  from 
each  parish,  or  on  the  fourth  Monday  of  November,  if  the  returns  shall  not  sooner  ar 
rive,  the  governor,  in  presence  of  the  secretary  of  state,  the  attorney  general,  a  dis 
trict  judge  of  the  district  in  which  the  seat  of  government  may  be  established,  or  any 
two  of  them,  shall  examine  the  returns  and  ascertain  therefrom  the  several  persons 
who  have  been  duly  elected  electors. 

SEC.  5.  Be  it  further  enacted,  $c.,  That  one  of  the  returns  from  each  parish,  indorsed 
by  the  governor,  shall  be  placed  on  tile  and  preserved  among  the  archives  of  the  secre 
tary  of  state. 

SEC.  6.  Be  it  further  enacted,  #c.,  That  the  names  of  the  persons  selected,  together 
with  a  copy  of  the  returns  from  the  several  parishes,  shall  forthwith  be  published  in 
the  newspaper  or  papers  in  which  the  laws  of  the  State  may  be  directed  to  be  pub 
lished. 

SEC.  7.  Be  it  further  enacted,  $c.,  That  the  electors  shall  meet  at  the  seat  of  govern 
ment  on  the  day  appointed  for  their  meeting  by  the  act  of  Congress,  (the  first  Wednes 
day  in  December,)  and  shall  then  and  there  proceed  to  execute  the  duties  and  services 
enjoined  upon  them  by  the  Constitution  of  the  United  States,  in  the  manner  therein 
prescribed. 

SEC.  8.  Be  it  further  enacted,  #c.,  That  if  any  one  or  more  of  the  electors  chosen  by 
the  people  shall  fail  from  any  cause  whatever,  to  appear  at  the  appointed  place  at  the 
hour  of  four  p.  in.,  of  the  day  prescribed  for  their  meeting,  it  shall  be  the  duty  of  the 
other  electors  immediately  to  proceed  by  ballot  to  supply  such  vacancy  or  vacancies. 

SEC.  9,  Be  it  further  enacted,  $c.,  That  each  elector  shall  receive  the  same  daily  com 
pensation  and  allowance  which  at  that  tin.e  shall  be  allowed  by  law  to  the  members  of 
the  general  assembly,  to  be  paid  by  the  treasurer  of  the  State  on  warrants  signed  by 
the  governor. 

SEC.  10.  Be  it  further  enacted,  $c.,  That  all  laws  conflicting  herewith  be,  and  the  same 
are  hereby  repealed  ;  that  this  act  shall  take  effect  from  and  after  its  passage. 

March  1C,  1870,  the  legislature  passed  another  election  law.     Laws  of 
1870,  p.  145-161. 
Section  35,  page  150  of  this  act,  reads  as  follows : 

SEC.  35.  Beit  further  enacted,  #c.,  That  in  every  year  in  which  an  election  shall  be 
held  for  the  electors  of  President  and  Vice-President  of  the  United  States,  such  election 


ELECTORAL    COUNT    OF    1877.  275 

shall  be  held  on  the  Tuesday  next  after  the  first  Monday  in  the  month  of  November,  in 
accordance  with  the  act  of  the  Congress  of  the  United  States  approved  January  twenty- 
third,  one  thousand  eight  hundred  and  forty-live,  entitled  "An  act  to  establish  a  uniform 
time  for  holding  election  for  electors  of  President  and  Vice-President  in  all  States  of 
the  Union,"  and  such  election  shall  be  held  and  conducted  and  returns  made  thereof 
in  the  manner  and  form  prescribed  by  law  for  the  general  elections. 

Section  38  of  this  act  is  as  follows: 

SEC.  38.  Be  it  further  enacted,  <fc.,  That  the  provisions  of  this  act,  except  as  to  the 
time  of  holding  elections,  shall  apply  in  the  election  of  all  officers  whose  election  is  not 
otherwise  provided  for. 

The  last  section  of  said  act  is  as  follows : 

SEC.  85.  Beit  further  enacted,  ^c.,  That  all  laws  or  parts  of  law  contrary  to  the  pro 
visions  of  this  act  and  all  laws  relating  to  the  same  subject-matter  are  hereby  repealed, 
and  this  act  shall  take  effect  from  and  after  the  passage. 

KEVISED  STATUTES,  1870. 

This  revision  took  effect  April  1,  1870.  It  contains  a  general  election- 
law,  differing  materially  from  the  act  of  1870,  and  made  no  provisions 
for  a  returning- board,  and  this  revision  also  re-enacted  the  special  act 
of  1868. 

Section  1410  of  the  revision  is  as  follows  : 

SEC.  1410.  In  every  year  in  which  an  election  shall  be  held  for  electors  of  President 
and  Vice-President  of  the  United  States,  such  election  shall  be  held  on  the  Tuesday 
next  after  the  first  Monday  in  the  month  of  November,  in  accordance  with  an  act  of 
Congress  of  the  United  States  approved  January  13th,  1845,  entitled  "  An  act  to  estab- 
lish  a  uniform  time  for  holding  elections  for  electors  of  President  and  Vice-President 
in  all  States  of  the  Union,"  and  such  elections  shall  be  held  and  conducted  in  the 
manner  and  form  provided  by  law  for  general  State  elections. 

Sections  2823-2832  of  the  revision  are  the  same  in  substance  as  the 
act  of  1868.  Section  2826  of  the  revision  in  relation  to  the  canvass  of 
votes  given  for  presidential  electors  is  as  follows : 

SKC.  2826.  Immediately  after  the  receipt  of  a  return  from  each  parish,  or  on  the 
fourth  Monday  of  November  if  the  returns  should  not  sooner  arrive,  the  governor,  in 
presence  of  the  secretary  of  state,  the  attorney-general,  a  district  judge  of  the  dis 
trict  in  which  the  seat  of  government  may  be  established,  or  any  two  of  them,  shall 
examine  the  returns  and  ascertain  therefrom  the  persons  who  have  been  duly  elected 
electors. 

Section  3990  of  the  revision  repealed  all  former  laws  or  parts  of  laws 
on  the  same  subject-matter  covered  by  the  revision,  with  certain  excep 
tions  not  material  here. 

THE  ACT  OF  1872. 

November  20, 1872,  the  legislature  passed  another  general  election-law 
which  was  in  force  at  the  last  November  election.  Sections  1,  29.  32, 
and  71  are  as  follows : 

SEC.  1.  Be  it  further  enacted,  That  all  elections  for  State,  parish,  and  judicial  officers 
members  of  the  general  assembly,  and  for  members  of  Congress,  shall  be  held  on  the 
first  (Tuesday  after  the  first)  Monday  in  November;  and  said  election  shall  be  styled 
the  general  elections.  They  shall  be  held  in  the  manner  and  form  and  subject  to  the 
regulations  hereafter  prescribed,  and  no  other. 

By  constitutional  amendment,  1874,  the  day  for  holding  general  elec 
tions  was  changed  from  the  first  Monday  to  the  first  Tuesday  following 
the  first  Monday  in  November. 

SEC.  29.  Be  it  further  enacted,  $c.,  That  in  every  year  in  which  an  election  shall  be 
held  for  electors  of  President  and  Vice-President  of  the  United  States,  such  election 
shall  be  held  at  the  time  fixed  by  act  of  Congress. 


276  ELECTORAL    COUNT    OF    1877. 

SEC.  32.  Be  it  further  enacted,  #c.,  That  the  provisions  of  this  act,  except  as  to  the 
time  of  holding  elections,  shall  apply  in  the  election  of  all  officers  whose  election  is 
not  otherwise  provided  for. 

SEC.  71.  Be  it  further  enacted,  #c.,  That  this  act  shall  take  effect  from  and  after  its 
passage,  and  that  all  others  on  the  subject  of  election-laws  be  and  the  same  are  hereby 
repealed. 

Whether  the  election-law  of  1870  was  repealed  by  the  revision,  or 
whether  it  remained  in  force  after  April  1, 1870,  when  the  revision  took 
effect,  depends  upon  the  effect  to  be  given  to  several  acts  of  the  legis 
lature  enacted  at  the  session  of  1870. 

On  the  28th  February,  1870,  the  following  act  was  passed  : 

No.  50.  An  act  giving  precedence  in  authority  to  all  the  other  acts  and  joint  resolu 
tions  passed  by  the  general  assembly  at  this  session  over  the  acts  known  as 
"The  Revision  of  the  Statutes  and  of  the  Civil  Code  and  Code  of  Practice"  when 
there  exists  any  conflict  in  the  provisions  of  said  acts  and  revisions. 

SECTION  1.  Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  State  of 
Louisiana  in  general  assembly  convened,  That  all  the  acts  and  joint  resolutions  passed 
during  the  present  session  of  the  general  assembly  which  may  be  contrary  to  or  in  any 
manner  conflict  with  the  acts  of  the  present  session  known  as  "Revision  of  the  Statutes 
of  a  general  character,  and  of  the  Civil  Code  and  Code  of  Practice,"  shall  have  prece 
dence  of  said  revisions,  and  be  held  as  the  law  in  opposition  thereto,  and  as  repealing 
those  acts  so  far  as  they  may  be  in  opposition  or  conflict. — Promulgated  March  20,  1870. 

On  the  14th  March,  1870,  the  revision  was  passed,  and  by  its  terms 
was  to  go  into  effect  April  1,  1870. 

On  the  16th  March,  1870,  the  election  law  was  passed,  to  take  effect 
from  its  passage. 

The  question  is  whether  after  the  1st  April  the  revision  repealed  the 
election-law  of  1870,  or  whether  the  election-law  of  1870,  by  .virtue  of 
the  act  of  February  28,  1870,  remained  in  force  notwithstanding  the 
revision,  and  nullified  the  general  election-law  contained  in  the  revision. 
The  general  rule  is  that  an  act  passed  to  take  effect  on  a  future  day, 
has  on  that  day  the  same  effect  as  though  it  had  been  passed  on  that 
day.  "A  law  speaks  from  the  time  of  its  going  into  effect."  Rice  vs. 
Ruddiman,  10  Mich.,  125;  Peo.  vs.  Johnson,  6  Gal.,  673;  Arthur  vs. 
Franklin,  16  Ohio,  N.  S.,  193  ;  Lyner  vs.  Stale,  8  Ind.,  490;  Supervisors 
vs.  Ready,  34  111.,  293;  Charless  vs.  Lamberson,  1  Clarke,  (Iowa,)  435; 
Price  vs.  Hopkins,  13  Mich.,  318. 

Mr.  Commissioner  HOAE.  Mr.  Carpenter,  do  I  understand  you  to 
claim  that,  if  an  act  is  passed  on  the  1st  of  April  to  take  effect  on  the 
1st  of  May,  and  on  the  15th  of  April  an  act  is  passed  repealing  that 
altogether,  still  on  the  1st  of  May  the  repealing  act  itself  would  be 
repealed  ? 

Mr.  CARPENTER.  I  do  not  claim  so ;  I  do  not  think  so.  This  is 
not  that  case.  The  Revised  Statutes  were  not  repealed  before  they  took 
effect,  unless  pro  tanto  by  the  inconsistent  and  conflicting  provisions  of 
the  general  election-law  of  1870.  Treating  the  revision  as  having  been 
passed  April  1,  1870,  the  time  when  by  its  own  terms  it  was  to  take 
effect,  it  repealed  the  election-law  of  1870,  and  also  repealed  all  prior 
acts  denying  to  it  the  full  force  and  effect  which  would  otherwise  attach 
to  it  as  a  law.  And  this  I  believe  to  be  the  sound  view  of  the  subject. 

But  if  it  is  competent  for  the  legislature  to  provide  that  of  two  acts 
thereafter  to  be  passed  the  first  shall  repeal  the  second,  then  the  revis 
ion  taking  effect  April  1,  1870,  was  subordinated  to  the  election-law  of 
March  16,  1870. 

It  is  not  very  material  to  this  case  which  view  of  this  matter  shall  be 
taken  by  the  court.  It  is  certain  that  the  act  of  1868,  re-enacted  in  the 
revision,'  was  or  it  was  not  in  force  at  the  last  election. 


ELECTORAL    COUNT    OF    1877.  277 

I  shall  present  the  case  first  upon  the  ground  that  the  act  of  1868  was 
in  force,  as  I  incline  to  that  opinion. 

1.  Assuming  the  act  of  1868  (re-enacted  in  the  revision  of  1870)  as  in 
force,  it  is  not  pretended  that  the  votes  given  for  electors  at  the  last 
election  in  that  State  have  ever  been  canvassed  as  required  by  this  act. 
It  is  evident  that  the  canvass  which  was  made,  and  which  resulted  in 
the  exclusion  of  over  10,000  votes  in  favor  of  the  Tilden  electors,  was 
not  only  unauthorized  by  this  act,  but  in  direct  violation  of  its  express 
provisions. 

By  this  law,  section  2826,  revised  statutes,  it  is  provided  that — 

Immediately  after  the  receipt  of  a  return  from  each  parish,  or  on  the  fourth  Monday  of 
November,  if  the  returns  should  not  sooner  arrive,  the  governor,  in  the  presence  of 'the 
secretary  of  state,  the  attorney-general,  a  district  judge  of  the  district  in  which  the 
seat  of  government  may  be  established,  or  any  two  of  them,  shall  examine  the  returns 
and  ascertain  therefrom  the  persons  who  have  been  duly  elected  electors. 

SEC.  2827.  One  of  the  returns  from  each  parish,  indorsed  by  the  governor,  shall  be 
placed  on  file  and  preserved  among  the  archives  of  the  secretary  of  state. 

SEC.  2828.  The  names  of  persons  elected,  together  with  a  copy  of  the  returns  from 
the  several  parishes,  shall  forthwith  be  published  in  the  newspaper  or  papers  in  which 
the  laws  of  the  State  may  be  directed  to  be  published. 

Under  this  law,  no  returns  whatever  could  be  excluded.  The  result 
must  be  ascertained  from  all  the  returns  "from  each  parish."  No  judi 
cial  power,  and  no  discretion,  is  conferred  by  this  act;  the  duty  is  purely 
mathematical.  The  returns  from  each  parish  are  to  be  preserved  among 
the  archives  of  the  secretary  of  state.  It  will  not  be  pretended  that  if 
this  law  was  in  force  the  election  was  conducted  and  returned  according 
to  its  provisions.  If  the  election  law  of  1868,  as  re-enacted  in  the  revis 
ion  of  April  1,  1870,  was  not  repealed  by  the  act  of  March  16, 1870,  then 
it  certainly  was  in  force  at  the  time  of  the  election,  unless  repealed  by 
the  act  of  1872.  The  history  of  this  act  of  1872  is  well  known.  In  the 
early  part  of  1872  the  legislature  passed  this  bill  and  sent  it  to  Governor 
Warmoth  for  his  approval.  He  neither  approved  nor  vetoed  the  bill 
during  ths  session  of  the  legislature.  But  after  the  presidential  and 
the  State  elections  of  November,  1872,  when  Governor  Warmoth  was 
engaged  in  a  contest  with  Judge  Durell,  months  after  the  adjournment 
of  the  legislature  which  passed  the  bill,  and  after  Judge  Durell,  in  the 
circuit  court  of  the  United  States,  had  tied  up  the  canvass  of  those  elec 
tions,  Governor  Warmoth,  as  the  only  means  of  counteracting  the 
usurpations  of  a  Federal  judge,  took  this  act  of  1872  from  his  pocket, 
and  gave  it  his  approval,  and  caused  it  to  be  promulgated  as  a  law  of 
the  State. 

The  repealing  clause  contained  in  this  act  is  very  sweeping  in  terms, 
but  was  evidently  intended  to  repeal  only  the  general  election  laws  of 
the  State.  An  examination  of  these  statutes  will  show  that  the  legisla 
ture  always  treated  the  election  of  electors  as  a  matter  distinct  from  the 
general  elections  of  the  State. 

In  1868  the  legislature,  on  the  19th  of  October,  passed  an  act  entitled 
"An  act  relative  to  elections  in  the  State  of  Louisiana,'7  &c.,  and  on  the 
30th  day  of  the  same  month  passed  another  act  entitled  "An  act  rela 
tive  to  presidential  electors;"  and  both  were  published  in  the  session 
laws  of  that  year  as  distinct  and  independent  acts. 

In  the  Revised  Statutes  of  1870  the  general  election  law  of  the  State  is 
published  under  the  head  "Elections,"  on  pages  272-282.  Under  the 
head  of  "  Presidential  electors,"  on  pages  550-553,  is  re-enacted  the  act 
of  1868. 

Here  the  intention  is  manifest  to  treat  the  two  elections  as  distinct, 
and  they  are  regulated  by  different  provisions.  The  election  of  State 


278  ELECTORAL    COUNT    OF    1877, 

officers  under  the  authority  of  the  State  constitution  and  the  election 
of  electors  under  the  authority  of  the  Constitution  and  laws  of  the 
United  States  are  treated  in  the  laws  of  Louisiana  as  distinct  sub 
jects,  and,  notwithstanding  the  repealing  clause  of  the  act  of  1872  is 
very  broad,  it  is  evident  from  the  whole  act  that  it  was  only  intended 
to  repeal  all  laws  relating  to  general  elections  under  State  authority.  It 
is  a  well  established  rule  for  the  interpretation  of  statutes,  that,  for  the 
purpose  of  ascertaining  the  intention  of  the  legislature  in  any  particu 
lar  part  of  the  act,  the  whole  act  must  be  considered ;  and  if  the  gen 
eral  intention  manifested  by  the  whole  act  is  clear,  such  intention  will 
enable  the  court  to  control  the  language  of  other  parts  of  the  act. — 

See  Blanchard  vs.  Sprague,  3  Sumner,  279. 

In  doubtful  cases  a  court  should  compare  all  the  parts  of  a  statute,  and  different  statutes 
in  pan  materia,  to  ascertain  the  intention  of  the  legislature. — The  Elizabeth,  1  Paine,  10. 

Words  which,  standing  alone  in  an  act  of  Congress,  may  properly  be  understood  to 
pass  a  benefical  interest  in  land,  will  not  be  regarded  as  having  that  effect  if  the  con 
text  shows  that  they  were  not  intended  to  1)6  so  used. — Rice  vs.  Railroad  Company,  1  Black,  358. 

That  the  act  of  1872  was  intended  as  a  regulation  only  of  the  election 
for  State  officers,  and  the  repeal  of  former  laws  upon  that  subject  is 
manifest  from  the  first  section  of  that  act. 

SECTION  1.  That  all  elections  for  State, parish,  and.  judicial  officers,  members  of  the  gen 
eral  assembly,  and  for  members  of  Congress,  shall  be  held  on  the  first  Monday  in 
November,  and  said  election  shall  be  styled  the  general  elections.  They  shall  be  held  in 
the  manner  and  form  and  subject  to  the  regulations  hereinafter  prescribed,  and  in  no 
other. 

Presidential  electors  are  not  State  officers.  As  between  the  Union 
and  the  States,  to  determine  whether  an  officer  is  a  Federal  or  State 
officer,  we  have  only  to  determine  whether  the  office  is  created  by  the 
Constitution  and  laws  of  the  Union  or  the  constitution  and  laws  of  a 
State.  Senators  are  elected  by  the  legislatures  of  the  States,  but  the 
office  of  Senator  is  created  by  the  Constitution  of  the  United  States, 
and  nobody  doubts  that  a  Senator  is  an  officer  of  the  United  States  and 
not  of  the  State  which  elects  him.  The  office  of  elector  is  created  by 
the  Constitution  of  the  United  States.  The  office  is  therefore  a  Federal 
office,  and  the  fact  that  a  State  may  fill  the  office  by  appointment  does 
not  change  the  character  of  the  office.  Suppose  an  amendment  of  the 
Constitution  to  be  adopted  to-morrow,  providing  that,  in  addition  to  the 
present  number,  each  State  might  appoint  an  additional  judge  of  the 
Supreme  Court  of  the  United  States;  would  it  be  pretended  that  a 
judge  thus  appointed  was  any  less  an  officer  of  the  United  States  than 
those  appointed  by  the  President  ?  The  effect  of  the  Constitution  is 
simply  this:  It  establishes  an  office  and  authorizes  a  State  to  till  it. 
The  only  power  possessed  by  the  State  in  regard  to  the  electoral  college 
for  each  State  is  the  power  of  appointment ;  but  in  what  manner  the 
duties  of  the  office  shall  be  performed,  when  the  electors  shall  meet,  and 
how  they  shall  vote,  the  manner  and  order  of  their  proceedings,  the 
authentication  of  their  action,  and  how  to  make  return  to  the  General 
Government,  whether  they  shall  give  bonds  or  take  oaths  and  receive 
compensation,  and  indeed  all  things  concerning  the  office  except  the 
filling  of  the  office,  are  subjects  of  Federal  regulation  ;  subjects  over 
which  the  State  has  no  control  whatever. 

Mr.  Commissioner  EDMUNDS.  The  Constitution  says  that  the 
President  shall  commission  all  officers  of  the  United  States.  You  would 
not  contend,  I  suppose,  that  an  elector,  in  order  to  exercise  the  func 
tions  of  his  office,  should  be  commissioned  by  the  President. 

Mr.  CARE'ENTER.  The  Constitution,  as  I  recollect,  says  he  £hall 
commission  all  officers  except  otherwise  provided. 


ELECTORAL    COUNT    OF    1877.  279 

Mr.  Commissioner  EDMUNDS.     I  do  not  remember  that  phrase. 

Mr.  CARPENTER.  I  think  it  is  there;  if  it  is  not,  it  onght  to  be. 
At  all  events,  I  do  not  undertake  to  decide  that  question  now.  The 
mere  fact  that  the  President  had  not  issued  a  commission  certainly 
could  not  determine  that  he  ought  not  to  have  issued  it,  nor  could  it 
determine  that  these  are  not  Federal  officers,  because  a  judge  of  the 
Supreme  Court  might  go  on  the  bench  and  sit  here  twenty  years  and 
not  have  a  commission ;  and  yet  he  might  be  an  excellent  de  facto 
judge. 

Mr.  Commissioner  ABBOTT.  A  great  many  officers  under  the  Fed 
eral  Constitution  have  no  commission  from  the  President. 

Mr.  CARPENTER.  I  think  the  only  provision  for  the  President's 
commissioning  an  officer  is  in  the  case  of  a  vacancy  happening  during 
the  recess  of  the  Senate,  when  he  issues  a  commission  to  expire  at  the 
time  provided  in  the  Constitution.  He  has  authority,  "  by  and  with 
the  advice  and  consent  of  the  Senate,  to  make  treaties." 

Mr.  Commissioner  GARFIELD.  Mr.  Carpenter,  please  read  the  last 
clause  of  section  3  of  article  2. 

Mr.  CARPENTER.  It  does  provide  that  he  "  shall  commission  all 
the  officers  of  the  United  States."  I  had  forgotten  that  provision,  and 
know  as  a  matter  of  fact  that  he  does  not  do  it.  There  is  an  act  of  Con 
gress  providing  that  the  officers  of  the  internal  revenue  shall  be  com 
missioned  by  the  Secretary  of  the  Treasury,  and  that  is  the  practice 
to-day. 

I  wish  now  to  present  the  view  of  the  case  and  what  I  think  are  the 
results,  if  we  hold  that  the  act  of  1868  embodied  in  the  revision  was 
lepealed  by  the  former  act  of  March  16,  1870. 

Mr.  Commissioner  HUNTON.  Mr.  Carpenter,  let  me  call  your  atten 
tion  to  this  clause : 

He  shall  have  power,  by  and  with  the  advice  and  consent  of  the  Senate,  to  make 
treaties,  provided  two-thirds  of  the  Senators  present  concur ;  and  he  shall  nominate, 
and,  by  and  with  the  advice  and  consent  of  the  Senate,  shall  appoint  ambassadors, 
other  public  ministers,  and  consuls,  judges  of  the  Supreme  Court,  and  all  other  officers 
of  the  United  Stites,  whose  appointmsnts  are  nob  horeia  oth^rwisa  provided  for,  &c. 

That  is  as  you  stated  at  first,  as  I  understand. 

Mr.  EVARTS.     That  is  appointment,  not  commission. 

Mr.  CARPENTER.  Upon  the  question  whether  the  act  of  1872  was 
intended  to  repeal  the  act  of  1868,  let  me  call  attention  to  what  was 
referred  to  by  Mr.  Jenks  this  morning.  Under  the  act  of  1872,  if  that  is 
the  only  act  which  was  in  force,  there  is  no  provision  whatever  for  fill 
ing  any  vacancy  in  the  electoral  college  except  by  a  popular  election. 

Mr.  Commissioner  HOAR.  Is  there  any  provision  for  electing  elect 
ors  at  all  except  that  sentence  which  simply  speaks  of  the  time ! 

Mr.  CARPENTER.  '  That  is  all. 

Mr.  Commissioner  HOAR.     No  provision  for  the  manner  of  election  I 

Mr.  CARPENTER.  None  whatever,  nor  for  a  canvass,  nor  for  a  re 
turn,  nor  whether  the  electors  shall  be  elected  on  a  general  ticket  or 
from  the  congressional  districts,  nor  anything  on  the  subject.  So  then, 
if  the  act  of  1868  was  not  in  force,  there  was  no  provision  whatever  in 
force  on  the  7th  day  of  November  last. 

Mr.  Commissioner  THURMAN.  Did  the  act  of  1872  repeal  the  act 
of  1870? 

Mr.  CARPENTER.  Certainly,  if  it  was  in  force  down  to  that  time. 
If  it  was  not  repealed  by  the  revision  of  the  1st  of  April,  1870,  it  cer 
tainly  was  repealed  by  the  act  of  1872  in  the  broadest  and  most  unequivo 
cal  terms ;  and,  besides,  the  provisions  of  the  act  regulated  the  same 


280  ELECTORAL    COUNT    OF    1877. 

subject;  they  were  both  election  statutes  ;  and  the  repealing  clause  of 
the  act  of  1872  repeals  all  other  election  laws. 

Mr.  Commissioner  ABBOTT.  What  do  you  make  of  the  second  sec 
tion  of  the  act  of  1872,  that  the  returuing-board  shall  be  the  returning- 
officers  for  all  elections  in  the  State? 

Mr.  CARPENTER.  I  am  aware  of  that  section  and  I  answer:  That 
provision  I  understand  to  be  limited ;  the  general  language  employed 
there  is  limited  by  the  whole  tenor  of  the  act,  which  on  its  face  shows, 
I  think,  that  it  was  intended  to  apply  to  nothing  but  the  election  of 
State  officers.  It  is  well  settled  that  where  the  intention  of  the  legisla 
ture  is  manifest  by  the  whole  act  to  be  a  certain  way,  that  will  author 
ize  a  court  to  control  the  express  language  of  other  provisions  in  conflict. 
You  are  to  reach  the  general  intention  of  the  legislature,  and  for  that 
purpose  courts  are  often  compelled  to  disregard  language  employed  in 
particular  sections. 

But  another  thing  follows,  if  your  honors  take  that  view  of  the  case, 
and  hold  that  these  officers  are  returning-officers  for  all  elections.  Then, 
the  other  provision,  that  the  election  to  till  all  vacancies  shall  be  by  the 
people,  certainly  includes  the  vacancy  which  has  been  filled  by  that  same 
election,  does  it  not?  If  one  section  applies  to  all  the  officers  elected 
in  the  State,  including  electors,  then  certainly  the  provision  in  regard 
to  filling  vacancies  of  all  officers  applies  equally,  and  strikes  out  two  of 
the  votes  given  by  this  electoral  college. 

Again,  the  act  of  1872  contains  no  direction  in  regard  to  the  manner 
of  appointing  electors.  It  does  not  declare,  nor  does  any  other  law  of 
the  State,  except  that  of  1868,  whether  the  electors  shall  be  chosen  by 
the  people,  elected  by  the  legislature,  or  appointed  by  the  governor. 
The  act  of  1868  is  a  specific  and  complete  regulation  of  the  whole  sub 
ject,  and  provides  for  the  election  of  electors  by  a  popular  vote;  and 
provides  that,  in  case  of  the  absence  of  any  of  the  electors,  the  other 
electors  may  supply  their  place  by  ballot;  that  two  electors  shall  be 
elected  at  large,  and  one  from  each  congressional  district ;  and  provides 
how  the  votes  given  shall  be  canvassed  and  certified.  The  act  of  1872 
contains  no  provision  upon  any  of  these  subjects,  and  only  refers  to 
electors  for  the  purpose  of  fixing  the  time  for  the  appointment — a  pro 
vision  wholly  useless,  because  Congress,  and  not  the  State,  must  fix 
the  time  for  making  such  appointment.  All  that  the  State  can  do  is  to 
direct,  by  its  legislature,  the  manner  in  which,  and  not  the  time  at 
which,  the  appointment  shall  be  made,  when  the  time  arrives  for  mak 
ing  it  as  provided  by  Congress. 

It  is  not  to  be  supposed  that  the  legislature,  in  the  act  of  1872,  in 
tended  to  strike  down  the  only  act  regulating  the  manner  for  appointing 
presidential  electors,  without  making  any  other  provision  covering  the 
subject. 

Again,  the  act  of  Congress  (Kev.  Stats.,  p.  21,  sec.  133)  provides  as 
follows : 

SEC.  133.  Each  State  may,  Tyy  laui,  provide  for  the  filling  of  any  vacancies  which 
may  occur  in  its  college  of  electors  when  such  college  meets  to  give  its  electoral  vote. 

The  act  of  1868  provides  that,  when  the  electoral  college  meets,  if 
any  elector  is  absent,  his  place  may  be  filled  by  the  electors  present, 
they  voting  by  ballot.  But  the  act  of  1872  provides,  (sec.  24:) 

That  all  elections  to  be  held  in  this  State  to  fill  arty  vacancies  shall  be  conducted  and 
managed,  and  returns  thereof  shall  be  made,  in  the  same  manner  as  is  provided  for  gen 
eral  elections. 

Now,  if  the  act  of  1872  be  construed  as  repealing  the  act  of  1868,  in 


ELECTORAL    COUNT    OF    1877.  281 

regard  to  the  election  and  returns  for  election  of  electors,  then,  beyond 
question,  a  vacancy  in  the  electoral  college  would  be  one  of  the  vacan 
cies  provided  for  in  the  section  last  quoted ;  and  such  vacancy  could  only 
be  filled  by  a  popular  election. 

In  the  case  at  bar,  when  the  electoral  college  in  Louisiana  convened, 
it  was  found  that  two  of  the  electors  were  holding  offices  of  "  honor  or 
trust"  under  the  United  States  at  the  time  of  the  election,  and  there 
fore  the  election  as  to  them  was  void  under  the  provisions  of  the  Con 
stitution  of  the  United  States.  We  contend  here  that  this  was  not  a 
vacancy,  but  was  a  case  falling  within  section  134  of  the  Revised  Stat 
utes  of  the  United  States ;  in  other  words,  as  to  them  there  had  been 
a  failure  to  make  a  choice,  and  no  law  of  the  State,  not  even  the  law  of 
1868,  provided  for  appointment  to  fill  their  places.  But  the  electoral 
college  treated  the  case  as  one  of  vacancy,  and  proceeded  by  election 
to  fill  the  places  deemed  vacant.  Treating  this  as  a  case  of"  vacancy, 
and  not  a  case  of  a  failure  to  elect,  it  was  a  regular  proceeding  under 
the  act  of  1868,  but  utterly  void  if  that  act  was  repealed  by  the  act  of 
1872  ;  because  the  language  in  the  act  of  1872,  in  regard  to  filling  va 
cancies,  is  as  broad  as  other  parts  of  the  act  in  regard  to  the  election 
of  officers.  And  it  is  impossible  for  this  tribunal  to  hold  that  the  act 
of  1872  repealed  the  act  of  1868  in  regard  to  the  election  of  electors, 
but  that  the  section  last  quoted  did  not  repeal  the  section  in  the  act  of 
1868,  which  authorized  a  different  method  of  filling  a  vacancy  in  the 
particular  case. 

Mr.  Commissioner  THURMAN.  Was  the  act  of  1868  repealed  by  the 
act  of  1870  ! 

Mr.  CARPENTER.  Undoubtedly.  The  election  law  of  1870,  if  that 
took  effect,  repealed  the  act  of  1868. 

Mr.  Commissioner  BRADLEY.  Is  there  anything  in  the  revised 
statutes  of  1870  on  this  subject  that  was  not  taken  from  the  act  of 
1868  ? 

Mr.  CARPENTER.     No,  sir;  it  merely  re-enacts  it. 

Mr.  Commissioner  BRADLEY.  Then  the  question  of  Judge  THUR- 
MAN  amounts  also  to  the  question  whether  the  revised  statutes  took 
effect. 

Mr.  CARPENTER.  Certainly ;  it  all  depends  on  that  question. 
The  act  of  1870,  if  that  was  the  law  after  the  revision  took  effect  on 
the  1st  of  April,  unquestionably  repealed  the  revision  as  to  this  subject, 
because  the  revision  embodied  precisely  the  act  of  1868. 

Mr.  Commissioner  BRADLEY.     There  is  no  express  repeal  of  either. 

Mr.  CARPENTER.  No,  sir ;  except  the  repealing  clause  in  the  act  of 
1870,  and  in  the  act  of  1872,  repealing  all  prior  laws  on  the  same  sub 
ject.  Now  let  us  assume  for  a  moment  that  the  act  of  1868  was  in  force. 
That  act  was  a  complete  regulation  of  the  whole  subject  of  electing  pres 
idential  electors.  It  provided  how  they  should  be  elected,  that  is,  at 
a  popular  election  ;  it  provided  who  should  be  voters  at  that  election ; 
it  provided  who  should  be  elected — two  at  large,  and  the  others  elected 
from  the  different  congressional  districts  of  the  State ;  it  provided  the 
entire  machinery  of  the  election,  and  then  provided — and  the  provision 
is  to  be  found  in  section  2826  of  tbe  revision  identical  in  language : 

Immediately  after  the  receipt  of  a  return  from  each  parish,  or  on  the  fourth  Monday 
of  November,  if  the  returns  should  not  sooner  arrive,  the  governor,  in  the  presence  of 
the  secretary  of  state,  the  attorney-general,  a  district  judge  of  the  district  in  which  the 
seat  of  government  may  be  established,  or  any  two  of  them,  shall  examine  the  returns, 
and  ascertain  therefrom  the  persons  who  have  been  duly  elected  electors. 

SEC.  2827.  One  of  the  returns  from  each  parish,  indorsed  by  the  governor,  shall  be 
placed  on  tile  and  preserved  among  the  archives  of  the  secretary  of  state. 


282  ELECTORAL    COUNT    OF    1877. 

SEC.  2828.  The  names  of  the  persons  elected,  together  with  a  copy  of  the  returns 
from  the  several  parishes,  shall  forthwith  be  published  in  the  newspaper  or  papers  in 
which  the  laws  of  the  State  may  be  directed  to  be  published. 

The  law  of  1868  contains  no  provision  about  a  canvassing-board 
except  what  I  have  read.  The  governor  must  open  the  returns  from 
each  parish,  and  in  the  presence  named  they  must  then  be  counted,  and 
the  returns  from  the  parishes  must  then  be  deposited  in  the  office  of  the 
secretary  of  state  to  remain  a  permanent  record.  No  one  will  pretend  that 
under  that  act  there  was  any  jurisdiction  or  discretion  about  excluding 
any  votes.  That  never  has  been  pretended,  and  it  will  not  be  now.  If 
the  act  of  1868  was  in  force  at  the  last  election,  it  is  not  pretended  that 
there  has  ever  been  any  canvass  of  the  votes  of  that  election  according 
to  that  statute.  They  did  not  attempt  it.  They  acted  upon  the  theory 
that  the  other  law  was  in  force.  So  that  if  your  honors  say  that  the  act 
of  1868  was  in  force  because  embodied  in  the  revision  taking  effect  April 
1,  and  therefore  repealed  the  former  act  of  the  16th  of  March,  1870,  the 
case  now  is  precisely  in  the  attitude  in  which  it  was  four  years  ago. 

Four  years  ago  there  came  up  from  Louisiana  a  regular  certificate  of 
its  governor  that  so  many  persons  had  been  duly  appointed  electors  for 
the  State;  but  the  Senate,  acting  upon  the  theory  which  I  maintain  is 
the  true  and  proper  one,  raised  a  committee  in  advance  to  examine  into 
the  facts  about  the  election  of  that  college.  They  sent  for  witnesses, 
brought  them  here  in  large  numbers,  made  an  examination,  and  the 
committee  made  a  report  not  expressing  an  opinion  as  to  whether  such 
votes  should  or  should  not  be  excluded,  but  stating  the  fact  that  there 
had  never  been  a  canvass  of  those  votes  by  any  person  authorized  to 
canvass  them,  and  submitting  the  question  whether  the  vote  of  that 
State  should  be  counted  or  not.  The  two  Houses,  acting  separately, 
each  House  for  itself,  decided  that  they  should  be  excluded. 

Now,  let  me  ask  this  Commission  whether  it  will  to-day  decide  that 
Congress  violated  its  constitutional  duty  or  usurped  power  in  holding 
that  the  vote  should  not  be  counted  four  years  ago.  That  the  two 
Houses  went  back  of  the  certificate  is  certain.  That  they  went  back 
and  condemned  the  vote  on  account  of  infirmities  in  the  election  is  cer 
tain.  If  they  could  do  so  because  the  votes  had  not  been  canvassed, 
can  they  not  because  they  had  been  falsely  canvassed  ?  If  they  could 
do  it  for  neglect,  can  it  not  be  done  for  fraud  ?  And  will  this  tribu 
nal  here  and  now  declare  that  the  action  of  both  Houses  of  Congress 
in  excluding  that  vote  was  an  outrage  upon  the  people  of  Louisiana? 
That  must  be  the  conclusion,  if  you  are  to  hold  that  you  cannot  go  back 
of  the  governor's  certificate.  The  two  Houses  did  go  back  of  it;  and 
they  have  clothed  you  with  all  the  power  that  they  then  possessed  or 
now  possess  or  ever  will  possess  under  the  present  Constitution. 

Mr.  Commissioner  THCTRMAN.  I  understand  you  to  say  that  the 
provision  of  the  revised  statutes  is  precisely  the  same  as  that  of  the 
act  of  1868. 

Mr.  CARPENTER.  Identically ;  so  that  the  act  of  1868,  which  is 
clearly  repealed  by  the  election-law  of  1870,  if  that  is  in  force,  was 
continued  by  virtue  of  re-enactment  in  the  revision.  If  the  revision  is 
to  be  treated  as  an  act  passed  on  the  day  when  it  took  effect,  it  repealed 
the  act  of  March  16,  1870. 

Mr.  Commissioner  BRADLEY.  When  the  revision  was  made  there 
was  no  other  statute  but  the  act  of  1868  in  force,  and  the  revisers  merely 
took  that  statute  and  put  it  into  the  revision. 

Mr.  CARPENTER.     Certainly;  it  is  copied  word  for  word. 

It  is  clear  that  if  the  election-law  of  March  16,  1870,  survived  the  ef- 


ELECTORAL    COUNT    OF    1877.  283 

feet  of  the  revised  statutes,  April  1,  1870,  then  the  act  of  1868  was  re 
pealed,  and  there  was  no  law  in  force  in  that  State  at  the  last  election 
directing  the  manner  of  appointing  presidential  electors. 

It  is  very  clear  that  the  election-law  of  1870  repealed  the  act  of  1888. 

The  act  of  1870,  after  providing  a  method  of  holding,  conducting,  and 
returning  the  general  elections  of  the  State,  provided,  in  section  35,  that 
the  election  for  electors  should  be  held  on  the  day  fixed  by  the  act  of 
Congress,  and  provided  as  follows :  "  and  such  elections  shall  be  held 
and  conducted,  and  returns  made  thereof,  in  the  manner  and  form  pre 
scribed  by  laiv  for  the  general  elections." 

And  the  last  section  of  the  act  provided  as  follows  : 

That  all  laws  or  parts  of  laws  contrary  to  the  provisions  of  this  act,  and  all  laws  re 
lating  to  the  same  subject-matter,  are  hereby  repealed,  and  that  this  act  shall  take  effect 
from  and  after  its  passage. 

The  special  act  of  186S  was,  by  implication,  in  part  at  least,  repealed 
by  the  3oth  section  of  this  act,  which  made  different  provision  for  hold 
ing,  conducting,  and  returning  the  election.  But,  even  conceding  that 
the  portion  of  the  act  of  1868  which  declared  who  should  be  voters  and 
who  should  be  voted  for,  might  have  stood  ivith  the  35th  section  of  this 
act,  and  therefore  not  have  been  repealed  by  this  section,  it  is  impossible 
to  hold  that  any  part  of  the  act  of  Io68  escaped  the  effect  of  the  repeal 
ing  clause  of  this  act  of  1870,  because  it  is  evident  that  the  35th  section 
of  the  act  of  1870  and  the  act  of  1868  were  "  laics  relating  to  the  same  sub 
ject-matter." 

About  all  that  I  am  willing  to  assert  positively  in  regard  to  the  act  of 
1868,  is,  that  it  either  was  or  it  was  not  in  force  at  the  last  election.  If 
it  was  tlie  whole  electoral  vote  must  be  excluded,  as  it  was  four  years  ago, 
because  there  has  been  no  canvass  of  the  votes,  and  no  electors  duly  ap 
pointed.  If  it  was  not  in  force,  then  there  was  no  law  of  the  State  di 
recting  the  manner  in  which  electors  should  be  appointed,  and  the  whole 
college  must  go  down  for  that  reason.  Because  it  is  evident  that  if  a 
State  has  omitted  through  its  legislature  to  provide  the  manner  in  which 
electors  shall  be  appointed,  or,  having  made  such  provision,  repeals  it 
and  makes  no  other,  no  constitutional  appointment  can  be  made  by  such 
State. 

And  if  this  were  otherwise,  still  the  two  votes  given  by  the  two  persons 
elected  by  the  electoral  college  to  fill  the  supposed  vacancies  must  be  ex 
cluded,  because  there  was  no  law  of  the  State  authorizing  the  filling  of 
a  vacancy  otherwise  than  by  a  popular  election. 

fc?"  Is  the  order  of  the  court  to  proceed  till  nine  o'clock  inflexible,  un 
changeable,  for  health  or  sickuess,  or  anything  else  ? 

The  PRESIDENT.     There  is  no  qualification. 

Mr.  CARPENTER.  I  am  really  unable  by  this  candle  light  to  read 
rny  brief  and  refer  to  these  statutes. 

The  PRESIDENT.  There  was  no  qualification  made  in  the  private 
consultation.  I  was  instructed  to  make  the  announcement  which  I  did 
make,  and  I  have  no  authority  to  qualify  it. 

Mr.  CARPENTER.  Uave  I  authority  to  ask  the  court  to  indulge  me 
till  to  morrow  morning? 

The  PRESIDENT.  Certainly  you  have  authority  to  ask  them,  and 
I  will  submit  it  to  the  Commission. 

Mr.  CARPENTER.     I  make  that  request. 

The  PRESIDENT.     What  is  the  request? 

Mr.  CARPENTER.  That  I  be  excused  until  to-morrow  morning.  It 
is  now  half  past  six  o'clock. 


284  ELECTORAL    COUNT    OF    1877. 

Mr.  Commissioner  MILLER.  Mr.  Carpenter,  how  much  time  do  you 
propose  to  take  !  You  have  spoken  an  hour  and  ten  minutes. 

Mr.  CARPENTER.     I  meant  to  go  up  to  two  hours. 

Mr.  Commissioner  MILLER.  Cannot  some  other  gentleman  go  on  ! 
We  are  ready  to  sit  here. 

The  PRESIDENT.  I  will  submit  the  question  to  the  Commission. 
Mr.  Carpenter  asks  that  he  be  excused  until  to-morrow  morning,  which, 
in  effect,  is  an  adjournment.  Are  you  ready  for  the  question  ? 

Mr.  Commissioner  EDMUNDS.  That  is,  that  the  proceedings  be  sus 
pended,  it'  I  correctly  understand. 

The  PRESIDENT.  That  proceedings  be  suspended  until  to-morrow 
morning. 

Mr.  Commissioner  FIELD.  Mr.  Carpenter,  how  early  are  you  willing 
to  come  in  the  morning  ?  because  we  may  perhaps  make  up  in  the  mom- 
ing  the  time  now  lost. 

Mr.  CARPENTER.     Any  time  after  six  o'clock. 

The  PRESIDENT.  Shall  the  proceedings  be  suspended  until  the 
opening  of  the  session  to-morrow  morning  ?  [Putting  the  question.] 

Mr.  Commissioner  EDMUNDS.     I  call  for  the  yeas  and  nays. 

Mr.  Commissioner  PAYNE.  I  move  that  the  Commission  adjourn 
until  ten  o'clock  to-morrow  morning. 

The  PRESIDENT.  I  doubt  whether  I  ought  to  put  that ;  this  is  in 
the  midst  of  a  vote. 

Mr.  Commissioner  STRONG.  I  should  like  to  inquire,  Mr.  Carpenter, 
whether  you  are  understood  as  saying  you  are  sick  1? 

Mr.  CARPENTER.  I  am  sick,  and  sick  from  this  smoke.  I  could  sit 
here  for  several  nights  and  not  be  sick  ;  but  speaking  here  and  inhaling 
the  smoke  of  these  candles  really  makes  me  ill. 

The  PRESIDENT.  The  question  is  whether  the  proceedings  shall 
be  suspended  until  to-morrow  morning  at  the  opening  of  the  session, 
upon  which  the  yeas  and  nays  are  called  for. 

Mr.  Commissioner  HOAR.    Has  any  hour  been  named  ? 

Mr.  Commissioner  ABBOTT.     I  would  suggest  ten  o'clock. 

Other  MEMBERS.    Ten  o'clock. 

The  PRESIDENT.  Ten  o'clock  is  suggested.  It  is  moved  that  pro 
ceedings  be  suspended  until  ten  o'clock  to-morrow. 

The  yeas  and  nays  being  called,  the  result  was  as  follows  : 

Those  voting  in  the  affirmative  were  Messrs.  Abbott,  Bayard,  Brad 
ley,  Clifford,  Field,  Hunton,  Payne,  and  Thurman — 8. 

Those  voting  in  the  negative  were  Messrs.  Edmunds,  Frelinghuysen, 
Hoar,  Miller,  and  Strong — 5. 

The  Commission  thereupon  (at  six  o'clock  and  thirty-five  minutes 
p.  m.)  adjourned  until  to-morrow  at  ten  o'clock  a.  in. 

WEDNESDAY,  FEBRUARY  14,  1877. 

The  Commission  met  at  10  o'clock  a.  m.,  pursuant  to  adjournment,  all 
the  members  being  present. 

The  respective  counsel  appearing  in  the  Louisiana  case  were  also  pres 
ent. 

The  Journal  of  yesterday  was  read  and  approved. 

The  PRESIDENT.     Proceed  with  your  argument,  Mr.  Carpenter. 

Mr.  CARPENTER.  May  it  please  your  honors,  before  resuming  my 
argument,  I  desire  to  make  my  grateful  acknowledgment  to  the  Com 
mission  for  their  kindness  in  excusing  me  last  night.  The  currents  of 
atmosphere  in  this  chamber,  like  the  currents  of  authority,  proceed  from 


ELECTORAL    COUNT    OF    1877.  285 

the  bench  toward  the  bar  with  overwhelming  force,  and  I  presume 
your  honors  sitting  against  the  wall  were  not  aware  of  it;  but  the  air 
in  the  chamber  at  this  point  was  absolutely  stifling,  and  it  would  have 
been  impossible  for  me  to  stand  on  niy  feet  twenty  minutes  more. 

Recurring  for  a  moment  to  the  question  put  me  by  Senator  EDMUNDS 
in  that  part  of  my  argument  in  which  I  attempted  to  show  that  electors 
were  Federal  and  not  State  officers,  as  to  whether  they  were  commis 
sioned  by  the  President,  the  Constitution  provides  that  the  President 
"shall  nominate,  and,  by  and  with  the  ad  vice  and  consent  of  the  Senate, 
shall  appoint  embassadors,  other  public  ministers,  and  consuls,  judges 
of  the  Supreme  Court,  and  all  other  officers  of  the  United  States,  whose 
appointments  are  not  herein  otherwise  provided  for,  and  which  shall  be 
established  by  law  ;  but  the  Congress  may  by  law  vest  the  appointment 
of  such  inferior  officers,  as  they  think  proper,  in  the  President  alone,  in 
the  courts  of  law,  or  in  the  heads  of  Departments." 

The  construction  put  upon  this  provision  has  always  been  that  those 
officers  who  were  appointed  by  the  President  must  be  commissioned  by 
him  ;  those  officers  appointed  by  the  heads  of  Departments  are  com 
missioned  by  such  heads  of  Departments.  For  instance,  all  the  post 
masters  after  the  first  grade,  which  are  not  required  to  be  confirmed  by 
the  Senate,  are  commissioned  by  the  Postmaster-General.  So  all  the 
officers  of  internal  revenue  are  appointed  by  the  Secretary  of  the 
Treasury  and  commissioned  by  him.  The  appointment  of  electors  is  to 
be  by  the  State,  and  they  are  not  confirmed  by  the  Senate ;  therefore 
they  are  not  commissioned  by  the  President.  Senators  are  not  commis 
sioned  by  the  President ;  and  although  Senators  are  not  civil  officers 
within  that  clause  of  the  Constitution  relating  to  impeachment,  yet  in  a 
broader  sense,  distributing  offices  between  the  Government  of  the  United 
States  and  the  State,  nobody  would  claim  that  a  Senator  was  a  State 
officer;  he  is  an  officer  of  the  United  States ;  he  is  a  Senator  of  the 
United  States,  not  a  Senator  of  the  State  from  which  he  is  elected.  He 
is  elected  to  fill  an  office  created  by  the  Constitution  of  the  United 
States,  and  he  is  a  Senator  of  the  United  States,  and  not  of  the  State 
which  elects  him. 

Mr.  Commissioner  EDMUNDS.  But  is  the  true  meaning  of  the  clause 
that  the  President  shall  commission  all  the  officers  of  the  United  States, 
that  he  shall  commission  all  officers  of  the  United  States  who  are 
appointed  by  him  ? 

Mr.  CARPENTER.  Certainly ;  and  that  has  been  the  uniform  prac 
tice  of  the  Government.  Nobody  would  deny  that  officers  under  the 
Internal  Revenue  Department  are  officers  of  the  United  States.  They 
have  been  indicted  as  such,  and  are  in  the  States-prison  as  such  to-day, 
any  number  of  them,  under  statutes  punishing  officers  of  the  United 
States ;  and  yet  they  are  not  commissioned  by  the  President,  but  by 
the  Secretary  of  the  Treasury. 

Mr.  Commissioner  GARFIELD.  Mr.  Carpenter,  are  there  not  two 
grades,  one  called  officers  proper  and  the  other  inferior  officers  f  The 
President  commissions  all  officers;  but  the  heads  of  Departments  or 
courts  may  appoint  inferior  officers. 

Mr.  CARPENTER.  There  is  no  such  distinction  in  the  Constitution 
whatever. 

Mr.  Commissioner  GARFIELD.  I  think  you  will  find  the  language  is 
that  such  inferior  officers  as  Congress  may  direct  may  be  appointed  by 
the  heads  of  Departments  or  by  the  courts. 

Mr.  CARPENTER.  I  see  the  point  now,  which  I  did  not  before,  be 
cause  I  did  not  distinctly  hear  the  inquiry.  The  question  is  not  whether 


286  ELECTORAL    COUNT    OF    1877. 

the  inan  is  an  inferior  or  a  superior  officer;  the  question  is  whether  he 
is  an  officer  of  the  United  States;  and  the  clause  which  requires  the 
President  to  commission  is  that  he  shall  "  commission  all  officers  of  the 
United  States."  An  inferior  officer  is  an  officer,  is  he  not  *?  He  would 
not  be  an  inferior  officer  if  he  was  not  an  officer.  That  clause  of  the 
Constitution  is  that  the  President  shall  commission  all  officers,  which 
would,  of  course,  include  the  inferior  as  well  as  the  superior.  But  the 
interpretation  always  put  upon  it  has  been  that  the  President  must  com 
mission  those  officers  who  are  nominated  by  him  and  appointed  by  and 
with  the  advice  and  consent  of  the  Senate,  and  none  others. 

Now  I  will  proceed  with  the  argument  at  the  point  where  I  stopped 
last  night. 

III. 

Although  we  are  entirely  confident  that  the  vote  of  Louisiana  must 
be  excluded  for  the  reasons  before  given,  yet  should  the  court  differ 
with  us  in  regard  to  the  objections  before  made,  and  hold  that  the  act 
of  1872  repealed  the  act  of  1868  and  is  itself  a  complete  regulation  of 
the  subject  of  appointment  of  electors,  still  we  submit  that  the  rejec 
tion  of  over  10,000  Tilden  votes  by  the  ret  urn  ing- board  under  the  pro 
visions  of  the  act  of  1872  was  wholly  unauthorized  by  that  act,  and  void. 
This  brings  us  to  consider  the  act  of  1872  according  to  its  own  provisions 
in  regard  to  the  jurisdiction  and  powers  of  the  returning-board.  Sec 
tion  3  of  this  act  is  as  follows : 

SEC.  3.  Be  it  further  tnacted,  #c.,  That  in  such  canvass  and  compilation  the  returning- 
officers  shall  observe  the  following  order:  They  shall  compile  first  the  statements  from 
all  polls  or  voting-places  at  which  there  shall  have  been  a  fair,  free,  and  peaceable  reg 
istration  and  election.  Whenever  from  any  poll  or  voting-place  there  shall  be  received 
the  statement  of  any  supervisor  or  registration  or  commissioner  of  election  in  form  as 
required  by  section  twenty-six  of  this  act,  on  affidavit  of  three  or  more  citizens,  of  any  riot, 
.  tumult,  acts  of  violence,  intimidation,  armed  disturbance,  bribery,  or  corrupt  influences, 
which  prevented  or  tended  to  prevent  a  fair,  free,  and  peaceable  vote  of  all  qualified  elect 
ors  entitled  to  vote  at  such  poll  or  voting-place,  such  returniug-officers  shall  not  canvass, 
count,  or  compile  the  statements  of  votes  from  such  poll  or  voting-place  until  the 
statements  from  all  other  polls  or  voting-places  shall  have  been  canvassed  and  com 
piled.  The  returning-officers  shall  then  proceed  to  investigate  the  statements  of  riot, 
tumult,  acts  of  violence,  intimidation,  armed  disturbance,  bribery,  or  corrupt  influ 
ences  at  any  such  poll  or  voting-place ;  and  if  from  the  evidence  of  such  statement 
they  shall  be  convinced  that  such  riot,  tumult,  acts  of  violence,  intimidation,  armed 
disturbance,  bribery,  or  corrupt  influences  did  not  materially  interfere  with  the 
purity  and  freedom  of  the  election  at  such  poll  or  voting-place,  or  did  not  prevent  a 
sufficient  number  of  qualified  voters  thereat  from  registering  or  voting  to  materially 
change  the  results  of  the  election,  then,  and  not  otherwise,  said  returning-officers 
shall  canvass  and  compile  the  vote  of  such  poll  or  voting-place  with  those  previously 
canvassed  and  compiled ;  but  if  said  returning-officers  shall  not  be  fully  satisfied 
thereof,  it  shall  be  their  duty  to  examine  further  testimony  in  regard  thereto,  and  to 
this  end  they  shall  have  power  to  send  for  persons  and  papers.  If,  after  such  exami 
nation,  the  said  returning-officers  shall  be  convinced  that  said  riot,  tumult,  acts  of 
violence,  intimidation,  armed  disturbance,  bribery,  or  corrupt  influences  did  materially 
interfere  with  the  purity  and  freedom  of  the  election  at  such  poll  or  voting-place,  or 
did  prevent  a  sufficient  number  of  the  qualified  electors  thereat  from  registering  and 
voting  to  materially  change  the  result  of  the  election,  then  the  said  returning-officers 
shall  not  canvass  or  compile  the  statement  of  the  votes  of  such  poll  br  voting-place, 
but  shall  exclude  it  from  their  returns  :  Provided,  That  any  person  interested  in  said 
election  by  reason  of  being  a  candidate  for  office  shall  be  allowed  a  hearing  before 
said  returning-officers  upon  making  application  within  the  time  allowed  for  the  for 
warding  of  the  returns  of  said  election. 

Section  26  of  this  act  is  as  follows : 

SEC.  26.  Be  it  further  enacted,  #c.,  That  in  any  parish,  precinct,  ward,  city  ,or  town,  in 
which,  during. the  time  of  registration  or  revision  of  registration,  or  on  any  day  of  elec 
tion,  there  shall  be  any  riot,  tumult,  acts  of  violence,  intimidation,  and  disturbance,  bri 
bery  or  corrupt  influences,  at  any  place  within  said  parish,  or  at  or  near  any  poll  or  voting- 


ELECTORAL    COUNT    OF    1877.  287 

place,  or  place  of  registration  or  revision  of  registration,  which  riot,  tumult,  acts  of  vio 
lence,  intimidation  and  disturbance,  bribery  or  corrupt  influences,  shall  prevent,  or  tend 
to  prevent,  a  fair,  free,  peaceable,  and  full  vote  of  all  the  qualified  electors  of  said  parish, 
precinct,  ward,  city,  or  town,  it  shall  be  the  duty  of  the  commissioners  of  election,  if  such 
riot,  tumult,  acts  of  violence,  intimidation  and  disturbance,  bribery  or  corrupt  influences, 
occur  on  the  day  of  election,  or  of  the  supervision  of  registration  of  the  parish,  if  they 
occur  during  the  time  of  registration  or  revision  of  registration,  to  make  in  duplicate 
and  under  oath  a  clear  and  full  statement  of  all  the  facts  relating  thereto,  and  of  the  effect 
produced  by  such  riot,  tumult,  acts  of  violence,  intimidation  and  disturbance,  bribery  or 
corrupt  influences,  in  preventing  a  fair,  free,  peaceable,  and  full  registration  or  elec 
tion,  and  of  the  number  of  qualified  electors  deterred  by  such  riots,  tumults,  acts  of 
violence,  intimidation  and  disturbance,  bribery  or  corrupt  influences,  from  registering 
or  voting,  which  statement  shall  also  be  corroborated  under  oath  by  three  respectable 
citizens,  qualified  electors  of  the  parish.  When  such  statement  is  made  by  a  commis 
sioner  of  election  or  a  supervisor  of  registration,  he  shall  forward  it  in  duplicate  to 
the  supervisor  of  registration  of  the  parish,  if  in  the  city  of  New  Orleans,  to  the  secre 
tary  of  state,  one  copy  of  which,  if  made  to  the  supervisor  of  registration,  shall  be 
forwarded  by  him  to  the  returuing-ofncers  provided  for  in  section  2  of  this  act  when 
he  makes  the  returns  of  election  in  his  parish.  His  copy  of  said  statement  shall  be  so 
annexed  to  his  returns  of  elections,  by  paste,  wax,  or  some  adhesive  substance,  that 
the  same  can  be  kept  together,  and  the  other  copy  the  supervisor  of  registration  shall 
deliver  to  the  clerk  of  the  court  of  his  parish  for  the  use  of  the  district  attorney. 

We  contend  that  the  action  of  the  returning-board  in  excluding  from 
their  canvass  over  10,000  votes  for  the  Tilden  electors  was  void  eveni' 
the  provisions  of  this  act  repeal  the  act  of  1868,  and  were  applicable  to  this 
election,  for  the  following  reasons : 

1.  The  Constitution  of  the  United  States  provides  that  "  each  State 
shall  appoint,  in  such  manner  as  the  legislature  thereof  may  direct,  a 
number  of  electors,  equal  to  the  whole  number,"  &c. 

When  the  Constitution  refers  to  a  State,  it  refers,  of  course,  to  a  State 
of  the  Union — a  community  organized  under  a  State  constitution  re 
publican  in  form.  When  the  Constitution  of  the  United  States  was 
adopted,  the  States  were  communities  organized  according  to  the  Ameri 
can  idea  of  republics.  One  of  the  most  important  and  essential  feat 
ures  of  a  republican  government,  according  to  the  American  idea,  is  a 
separation  of  legislative,  judicial,  and  executive  functions,  and  a  distri 
bution  of  powers  among  separate  and  distinct  departments.  One  of 
the  duties  imposed  upon  the  Federal  Government  is  to  guarantee  to 
every  State  in  this  Union  a  republican  form  of  government.  And,  of 
course,  in  admitting  new  States,  it  is  the  duty  of  Congress  to  see  that 
such  is  the  form  of  their  government.  As  it  is  the  duty  of  the  United 
States  to  guarantee — that  is,  see  to  it  that  every  State  has  a  republican 
form  of  government — it  follows  that  the  government  of  every  State,  its 
form,  structure,  and  powers,  must  constantly  be  in  the  Federal  mind. 
And  the  provisions  of  the  Constitution  that  each  State  shall  appoint 
electors  must  be  construed  to  mean  that  such  State,  according  to  the 
provisions  of  its  own  constitution,  shall  appoint  electors.  No  State 
could  delegate  this  power  to  another  State  or  to  a  foreign  prince  or 
power,  or  to  individuals,  by  name  or  classifying  designation.  It  is  only 
the  State — the  constitutional  republican  State — a  State  of  the  Union 
under  its  written  republican  form  of  government,  proceeding  according 
to  its  constitution,  which  constitution  is  constantly  subject  to  Federal 
supervision,  that  can  appoint  an  elector.  In  other  words,  when  the 
Constitution  provides  that  each  State  shall  appoint  electors,  it  means,  of 
course,  that  it  shall  appoint  them  according  to  its  own  constitution  and 
laws.  And  what  its  laics  may  be  must  be  determined  by  its  own  con 
stitution,  which,  on  the  admission  of  the  State,  has  been  approved  by 
Congress;  and  which,  in  all  its  mutations  by  amendments,  continues  to 
enjoy  the  approval  of  Congress  as  a  republican  form  of  government. 
And  when  the  Constitution  of  the  United  States  declares  that  "each 


288  ELECTORAL    COUNT    OF    1877. 

State  shall  appoint,  in  such  manner  as  the  legislature  thereof  may  direct, 
a  number  of  electors,"  &c.,  it  does  in  substance  provide  that  the  State 
shall  prescribe  a  manner  for  such  appointment  in  accordance  with  its 
own  constitution.  The  Federal  Government  knows  that  any  act  of  a 
State  legislature  i  n  violation  of  its  own  constitution  is  void.  In  yet  other 
words,  the  Constitution  of  the  United  States  provides  that  the  State, 
in  providing  for  the  manner  of  appointment  of  electors,  shall  proceed 
according  to  the  provisions  of  its  own  constitution.  Therefore,  if  it 
can  be  shown  that  the  manner  provided  by  the  legislature  for  the  ap 
pointment  of  electors  by  a  State  is  in  contravention  of  its  own  consti 
tution,  such  appointment  is  void  under  the  Constitution  of  the  United 
States. 

Now  let  us  examine  the  constitution  of  Louisiana,  to  ascertain 
whether  the  provisions  of  the  act  of  1872 — if  the  same  are  applicable 
to  the  election  of  electors — is  in  conformity  to  or  in  contravention  of 
the  State  constitution. 

The  constitution  of  Louisiana  provides,  title  4,  article  73,  as  follows: 

ART.  73.  The  judicial  power  shall  be  vested  in  a  supreme  court,  in  district  courts, 
in  parish  courts,  and  in  justices  of  the  peace. 

And  then,  after  defining  the  jurisdiction  of  the  several  courts  above 
mentioned,  article  94  provides  as  follows: 

ART.  94.  No  judicial  powers,  except  as  committing  magistrates  in  criminal  cases, 
shall  be  conferred  on  any  officers  other  than  those  mentioned  in  this  title,  except  such 
as  may  be  necessary  in  towns  and  cities ;  aud  the  judicial  powers  of  such  officers  shall 
not  extend  further  than  the  coguizance  of  cases  arising  under  the  police  regulations 
of  towns  and  cities  in  the  State.  In  any  case,  when  such  officers  shall  assume  juris 
diction  over  other  matters  than  those  which  may  arise  under  police  regulations  or  under 
their  jurisdiction  as  committing  magistrates,  they  shall  be  liable  to  an  action  of  dam 
ages  in  favor  of  the  party  injured  or  his  heirs,  and  a  verdict  in  favor  of  the  party 
injured  shall  ipso  facto  operate  a  vacation  of  the  office  of  said  officer. 

Thus  it  will  be  seen  that  the  constitution  of  the  State  not  only  by 
affirmative  provisions  vests  the  whole  judicial  power  of  the  State  in 
certain  designated  tribunals  or  magistrates,  but,  by  negative  provisions, 
forbids  the  exercise  of  any  judicial  power  by  others. 

The  sections  quoted  from  the  act  of  1872  undoubtedly  pretend  to 
vest  judicial  powers  in  the  returning-board.  The  highest  penalty 
that  can  be  inflicted  upon  an  American  citizen  for  crime  is  disfranchise- 
nient.  The  elective  franchise  is  not  merely  a  right  to  deposit  a  ballot 
in  a  ballot-box,  but  it  is  a  right  to  have  such  ballot  counted,  estimated, 
and  made  effectual  in  determining  the  result  of  an  election. 

The  fifteenth  amendment  of  the  Constitution  provides  that  "the  right  of 
citizens  of  the  United  States  to  vote  shall  not  be  denied  or  abridged  by 
the  United  States  or  by  any  State  on  account  of  race,  color,  or  previous 
condition  of  servitude." 

What  would  be  said  of  the  law  of  a  Southern  State  which  should 
provide  that  the  vote  of  a  colored  citizen  should  be  received  and  depos 
ited  in  the  ballot-box,  but  that  it  should  not  be  canvassed  or  returned? 
Manifestly,  such  provision  would  be  in  contravention  of  this  amend 
ment.  Hence  it  follows  that  a  provision  of  law  which  authorizes  a  can- 
vassing-board  to  exclude  from  its  return  any  votes  legally  cast  is  a 
disfranchisement  of  the  voters  casting  such  votes.  This  infliction 
can  only  be  visited  upon  the  voters  by  an  exercise  of  judicial  power. 
Consequently,  any  statute  which  authorizes  the  returning-board  to 
exclude  such  votes  authorized  such  board  to  exercise  judicial  power, 
and  is  void  under  the  quoted  provisions  of  the  State  constitution. 

Again,  it  is  contrary  to  the  first  principles  of  natural  justice  that  one 
man  should  be  punished  for  crimes  committed  by  another.  By  the  pro- 


ELECTORAL    COUNT    OF    1877.  289 

visions  above  quoted  from  this  act  it  is  provided  in  effect  that  the  votes 
cast  by  a  thousand  honest  men  in  a  certain  parish  may  be  excluded 
from  the  canvass  in  consequence  of  violence,  intimidation,  or  bribery 
committed  by  a  thousand  other  men.  A  law  which  should  provide 
that  any  voter  who  had  been  guilty  of  violence,  intimidation,  or  bribery 
in  an  election  should  on  conviction  thereof  be  forever  disfranchised 
vould  be  constitutional.  But  before  such  disfranchisement  can  be 
visited  upon  any  voter  he  must  be  tried  and  convicted,  according  to  the 
forms  of  law,  in  a  tribunal  possessing  judicial  power  to  try  for  the  crime 
and  declare  the  punishment.  But  by  this  act  the  full  and  extreme 
effect  of  judicial  condemnation — that  is,  disfranchisement— may  in 
effect  be  inflicted  by  a  returning-board  before  whom  the  voter  is  not 
summoned  to  appear,  has  no  hearing,  but  is  condemned  without  appear 
ance  or  hearing.  A  law  which  provides  for  such  consequences  in  sue  h 
case  is  not  only  in  opposition  to  the  constitution  of  Louisiana,  anti- 
republicau,  opposed  to  natural  justice,  but  it  is  too  outrageous  and 
abominable  to  be  tolerated  in  any  civilized  country. 

2.  But  even  conceding  the  constitutionality  of  the  sections  above 
quoted  from  the  act  of  1872,  they  do  not  pretend  to  confer  this  extraor 
dinary  power  upon  the  returning-board  except  when  a  case  is  made  under 
the  twenty-sixth  section  of  the  act;  that  is  when,  accompanying  the 
return  from  the  precinct,  there  is  a  statement  made  showing  the  facts 
relating  to  the  alleged  "  riot,  tumult,  acts  of  violence,  intimidation  and 
disturbance,  bribery  or  corrupt  influences,  and  the  effect  produced  there 
by  in  preventing  a  fair,  free,  and  peaceable  and  fall  election,  and  of  the 
number  of  qualified  electors  deterred  thereby ;  said  statement  to  be 
corroborated  by  three  qualified  electors  of  the  parish." 

It  is  well  settled  that  whenever  a  judicial  court  exercises  a  special  and 
statutory  power  outside  of  and  apart  from  its  general  jurisdiction,  it 
must  appear,  in  order  to  sustain  its  jurisdiction,  that  it  was  acting  in  a 
case  clearly  within  the  statute  and  that  it  strictly  pursued  the  statute. 

In  Thatcher  vs.  Powell,  6  Wheaton,  119,  the  court,  by  Marshall,  C.  J., 
says : 

In  summary  proceedings,  when  a  court  exercises  an  extraordinary  power  under  a 
special  statute  prescribing  its  course,  we  think  that  course  ought  to  be  exactly  observed, 
and  those  facts  especially  which  give  jurisdiction  ought  to  appear,  in  order  to  show 
that  its  proceedings  are  coramjudice.  Without  this  act  of  assembly  the  order  for  sale 
would  have  been  totally  void.  This  act  gives  the  power  only  on  a  report  to  be  made 
by  the  sheriff.  This  report  gives  the  court  jurisdiction,  and  without  it  the  court  is  as 
powerless  as  if  the  act  had  nerer  passed. 

It  is  too  well  settled  to  require  citation  of  authorities  in  its  support, 
that  when  a  judicial  court  is  proceeding  under  statutory  provisions 
apart  from  the  common  law,  or  when  a  special  tribunal  or  magistrate  is 
exercising  a  special  statutory  jurisdiction,  it  must  appear  that  the  case 
was  strictly  within  the  statutory  provision,  and  that  the  course  pursued 
was  exactly  in  conformity  with  the  statute  conferring  the  authority  : 

Justices'  courts,  not  proceeding  according  to  the  course  of  common  law,  are  con 
fined  strictly  to  the  authority  given  them  ;  they  can  take  nothing  by  implication  but 
must  show  the  power  expressly  given  them  in  every  instance.1'  3  Burr,  1366  ;  3  Term  Rep., 
444;  Str.,1256;  2  Ld.  Rayrn.,  1144;  Salk.,  406 ;  Jones  vs.  Reed,  1  Johns.  Cas.,  20;  Wells 
vs.  Newkirk,  1  Johns.  Cas.,  228;  Powers  vs.  People,  4  Johns.  Cas.,  292;  Bloom  vs.  Bur- 
dick,  1  Hill,  330  ;  Adkins  vs.  Brewer,  3  Co  wen,  206. 

In  Walker  vs.  Turner,  9  Wheaton,  541,  it  was  held  that  when  a  mag 
istrate  was  pursuing  special  authority,  it  was  "  essential  to  the  validity 
of  his  judgment  and  of  the  proceedings  under  it  that  the  record  should 
19  E  C 


290  ELECTORAL    COUNT    OF    1877. 

sbow  that  he  acted  upon  a  case  which  the  law  submitted  to  his  jurisdic 
tion.*' 

Now  it  is  submitted,  and  we  offer  to  prove,  that  not  in  a  single  case 
in  which  the  returniug-board  excluded  the  vote  of  a  parish  was  the 
foundation  laid  for  such  exercise  of  its  authority. 

To  show  this,  let  us  refer  to  the  machinery  of  elections  in  that  State. 

The  method  of  holding  the  elections  and  making  returns  according 
to  law  is  as  follows : 

The  polling-place  is  presided  over  by  three  commissioners  of  election, 
appointed  by  the  supervisor  of  registration  for  the  parish,  who  is  ap 
pointed  by  the  governor.  After  the  balloting  is  concluded,  the  com 
missioners  count  the  ballots,  make  two  statements  of  the  result,  and 
deliver  one  statement,  together  with  the  ballot-box  containing  all  the 
ballots,  to  the  clerk  of  the  district  court  of  the  parish,  and  the  other 
statement  to  the  supervisor  of  registration,  together  with  the  tally- 
sheets,  list  of  voters,  &c.  The  supervisor  for  the  parish  is  required, 
within  twenty-four  hours  after  the  receipt  of  all  the  statements  and 
papers  from  the  different  polling-places,  to  consolidate  such  returns  or 
statements,  to  be  certified  as  correct  by  the  clerk  of  the  district  court, 
and  forward  the  same,  with  the  originals  received  by  him,  to  the  State 
returning-board  ;  such  statement  and  papers  "  to  be  inclosed  in  an 
envelope  of  strong  paper  or  cloth,  securely  sealed,  and  forwarded  by 
mail." 

Section  43  makes  it  the  duty  of  the  supervisor  to  forward  with  his 
statement  "  a  copy  of  any  statement  as  to  violence  or  disturbance, 
bribery  or  corruption,  or  other  offenses  specified  in  section  26  of  this 
act,  if  any  there  be,  together  with  all  memoranda  and  tally-lists  used 
in  making  the  count  and  statement  of  the  votes.'7 

Section  26  provides  that  the  supervisors'  copy  of  such  statement 
"  shall  be  so  annexed  to  his  returns  of  elections  by  paste,  wax,  or  some 
adhesive  substance,  that  the  same  can  be  kept  together,  and  the  other 
copy  the  supervisor  of  registration  shall  deliver  to  the  clerk  of  the  court 
of  his  parish  for  the  use  of  the  district  attorney.'' 

Section  26  also  provides  what  the  statement  in  relation  to  riots, 
intimidations,  &CM  shall  be ;  that  it  shall  be  made  in  duplicate  and 
under  oath  ;  and  that  it  shall  be — 

(1)  "A  clear  and  full  statement  of  all  the  facts  relating  thereto; 

(2)  "And  of  the  effect  produced  by  such  riot,  tumult,  acts  of  violence, 
intimidation,  and  disturbance,  bribery  or  corrupt  influences  in  prevent 
ing  a  fair,  free,  peaceable,  and  full  registration  or  election; 

(3)  "And  of  the  number  of  qualified  electors  deterred  by  such  riots, 
tumult,  &c.,  from  registering  or  voting; 

(4)  "  Which  statement  shall  also  be  corroborated  under  oath  by  three 
respectable  citizens,  qualified  electors  of  the  parish."    And  this  section 
26  also  provides  that  the  supervisor  shall  forward  this  statement  with 
his  return. 

The  only  authority  pretended  to  be  conferred  by  the  act  of  1872  upon 
the  retnrning-board  to  exclude  any  return  or  statement  of  votes  which 
comes  within  their  power  to  canvass  is  in  section  3  of  the  act,  and  is  as 
follows : 

Whenever,  from  any  poll  or  voting-place,  there  f>hall  be  received  the  statement  of 
any  supervisor  of  registration  or  commissioner  of  election,  in  form  as  required  by  sec 
tion  26  of  this  act,  on  affidavit  of  three  or  more  citizens,  of  any  riot,  tumult,  acts  of 
violence,  intimidation,  armed  disturbance,  bribery,  or  corrupt  influences  which  pre 
vented,  or  tended  to  prevent,  a  fair,  free,  and  peaceable  vote  of  all  qualified  electors 
entitled  to  vote  at  such  poll  or  voting-place,  such  returniug-officers  shall  not  canvass, 
count,  or  compile  the  statements  of  votes  from  such  poll  or  voting-place  until  the 


ELECTORAL   COUNT   OF    1877.  291 

statements  from  all  other  polls  or  voting-places  shall  have  been  canvassed  and  com 
piled.  The  returning-officers  shall  then  proceed  to  investigate  the  statements  of  riot, 
tumult,  acts  of  violence,  intimidation,  armed  disturbance,  bribery,  or  corrupt  influ 
ences  at  any  such  poll  or  voting-place  ;  and  if  from  the  evidence  of  such  statement 
they  shall  be  convinced  that  such  riot,  tumult,  acts  of  violence,  intimidation,  armed 
disturbance,  bribery,  or  corrupt  influences  did  not  materially  interfere  with  the  purity 
and  freedom  of  the  election  at  such  poll  or  voting-place,  or  did  not  prevent  a  sufficient 
number  of  qualified  voters  thereat  from  registering  or  voting  to  materially  change  the 
results  of  the  election,  then,  and  not  otherwise,  said  returning-officers  shall  canvass 
and  compile  the  vote  of  such  poll  or  voting-place  with  those  previously  canvassed  and 
compiled ;  but  if  said  returning-officers  shall  not  be  fully  satisfied  thereof,  it  shall  be 
their  duty  to  examine  further  testimony  in  regard  thereto,  and  to  this  end  they  shall 
have  power  to  send  for  persons  and  papers.  If  after  such  examination  the  said 
returning-officers  shall  be  convinced  that  such  riot,  tumult,  acts  of  violence,  intimida 
tion,  armed  disturbance,  bribery,  or  corrupt  influences  did  materially  interfere  with 
the  purity  and  freedom  of  the  election  at  such  poll  or  voting-place,  or  did  prevent  a 
sufficient  number  of  the  qualified  electors  thereat  from  registering  and  voting  to  ma 
terially  change  the  result  of  the  election,  then  the  said  returuing-officers  shall  not 
canvass  or  compile  the  statement  of  the  votes  of  such  poll  or  voting-place,  but  shall 
exclude  it  from  their  returns :  Provided,  That  any  person  interested  in  said  election  by 
reason  of  being  a  candidate  for  office  shall  be  allowed  a  hearing  before  said  returuing- 
officers  upon  making  application  within  the  time  allowed  for  the  forwarding  of  the 
returns  of  said  election. 

Thus  it  will  be  seen  that  the  jurisdiction  of  the  returning-board  to 
pass  upon  this  subject  at  all  is  made  to  depend  upon  the  jurisdictionai 
fact  that  the  return  which  the  board  receives  from  the  parish  supervisor 
is  not  only  accompanied  with  but  attached  to  the  statement  provided  for 
in  the  twenty-sixth  section  of  the  act  in  regard  to  riots,  intimidation, 
&c.  If  such  return  is  not  accompanied  by  such  statement,  supported 
by  the  affidavit  of  three  electors,  in  regard  to  riots,  &c.,  the  returning- 
board  is  not  authorized  even  by  this  act  to  examine  at  all  into  the  sub 
ject,  much  less  exclude  any  votes.  And  the  principle  of  law,  universally 
recognized,  that  a  statutory  tribunal,  as  distinguished  from  a  judicial 
court  of  general  jurisdiction,  can  only  act  upon  a  case  clearly  within  its 
jurisdiction,  and  must  strictly  pursue  the  methods  directed  by  the 
statute  in  exercising  such  jurisdiction,  applies  in  its  full  force  to  the 
returning-board  acting  under  this  act  of  1872. 

If  we  are  right  in  this  position,  it  is  conclusive  against  the  validity  of 
the  action  of  the  refcurning-board  in  excluding  over  10,000  votes  given 
for  the  Tilden  electors ;  because  the  foundation  for  the  exercise  of  this 
power  by  the  returning-board  was  not  established  in  regard  to  a  single 
parish  the  votes  of  which  were  excluded  by  the  board.  And  we  are 
supported  upon  this  point  by  two  very  high  authorities,  sitting  members 
of  this  Commission. 

I  refer  you  to  the  discussion  in  the  Senate  on  the  resolution  to  admit 
Mr.  Pinehback  to  a  seat  in  that  body  from  Louisiana  5  especially  to  the 
very  able  speeches  of  the  Senator  from  Vermont,  [Mr.  Edmunds,]  where 
precisely  the  doctrine  I  am  claiming  here  is  enibrced  with  that  clear 
ness  and  eloquence  of  which  he  is  master  and  I  only  an  humble  and  hope 
less  imitator.  I  refer  you  to  the  fountain  of  this  doctrine.  I  refer  you 
to  his  speeches  upon  it",  which  make  it  as  clear  as  the  sun  at  noonday. 

Again,  I  refer  you  to  the  reports  of  committees  on  the  condition  of 
the  South,  second  session  of  the  Forty-third  Congress,  pages  21  to  29,  a 
report  signed  by  Hon.  George  F.  Hoar,  Hon.  W.  A.  Wheeler,  a£candi- 
date  for  Vice-President  at  the  last  election,  and  Hon.  William  P.  Frye, 
the  distinguished  Representative  from  the  State  of  Maine.  From  this 
very  able  report  I  will  read  a  few  pertinent  extracts. 

Speaking  of  affairs  in  Louisiana,  after  quoting  sections  3  and  26  from 
the  act  of  1872,  which  I  have  read,  they  say  : 

Upcn  this  statute  we  are  all  clear'y  of  opinion  that  the  returning-boarl  had  no  right 


292  ELECTORAL    COUNT    OF    1877. 

to  do  anything  except  to  canvass  and  compile  the  returns  which  were  lawfully  made 
to  them  by  the  local  officers,  except  in  cases  where  they  were  accompanied  by  the  cer 
tificates  of  the  supervisor  or  commissioner  provided  in  the  third  section.  In  such  cases, 
the  last  sentence  of  that  section  shows  that  it  was  expected  that  they  would  ordina 
rily  exercise  the  grave  and  delicate  duty  of  investigating  charges  of  riot,  tumult, 
bribery,  or  corruption  on  a  hearing  of  the  parties  interested  in  the  office.  It  never 
could  have  been  meant  that  this  board,  of  its  own  notion,  sitting  in  New  Orleans,  at  a 
distance  from  the  place  of  voting,  and  without  notice,  could  decide  the  right  of  persons 
claiming  to  be  elected. 

The  board  took  a  different  view  of  its  powers,  and  proceeded  to  throw  out  the  votes 
from  many  polls  where  they  found  intimidation  and  violence  to  have  existed.  The 
result  was  to  defeat  persons  whom  on  the  returns  they  should  have  declared  elected, 
and  to  elect  persons  who  should  not  have  been  declared  elected. 

Now  let  us  see  for  a  moment  what  is  that  statement  provided  for  by 
the  twenty-sixth  section  which  must  come  up  within  twenty-four  hours, 
embalmed  in  wax  or  paste  or  some  other  adhesive  substance,  to  the 
returning-board.  The  third  section  says  that  when  they  receive  a  state 
ment  in  the  form  prescribed  by  the  twenty-sixth  section  they  may  pro 
ceed.  Now  let  us  turn  to  the  twenty-sixth  section  and  see  what  must 
be  shown.  That  must  be — 

A  clear  and  full  statement  of  all  the  facts  relating  thereto — 
That  is,  relating  to  the  riot,  tumult,  &c. — 

and  of  the  effect  produced  by  such  riot,  tumult,  acts  of  violence,  intimidation  and  dis 
turbance,  bribery,  or  corrupt  influences  in  preventing  a  fair,  free,  peaceable,  and  full 
registration  or  election,  and  of  the  number  of  qualified  electors  deterred  by  such  riots, 
tumult,  &c.,  from  registering  or  voting;  which  statement  shall  also  be  corroborated 
under  oath  by  three  respectable  citizens,  qualified  electors  of  the  parish. 

We  will  show  this  Commission  that  not  a  single  parish  sent  up  any 
such  statement  with  its  return,  verified  by  the  affidavit  of  three  persons. 
In  other  words,  we  will  show  affirmatively  that  this  statutory  tribunal 
had.  no  jurisdiction  to  exclude  a  vote,  but  that,  in  violation  of  the  very 
statute  they  were  pretending  to  proceed  under,  they  excluded  10,000 
votes  given  for  the  Tilden  electors.  This  we  are  prepared  to  show,  and 
show  by  record  testimony.  And  this  brings  the  present  case  within  the 
opinion  of  the  committee  just  read. 

But  our  opponents  say,  in  substance,  "  Yes ;  that  is  all  true.'7  My 
honorable  friend,  Judge  Howe,  who  opened,  this  case  on  the  other  side, 
did  not  pretend  that  there  had  not  been  frauds.  He  said  there  had,  but 
he  said  there  had  been  blood  also.  In  other  words,  one  crime  was  to  be 
offset  by  another.  If  the  plaintiff's  witnesses  commit  perjury,  the  defend 
ant  is  authorized  to  have  his  witnesses  commit  perjury !  That  is  the 
argument.  Now  let  me  show  how  this  was  condemned  by  the  report  of 
the  committee  from  which  I  have  just  read  : 

The  returning-board  claims  that  in  this  proceeding  they  acted  under  an  honest  belief 
that  they  were  right  in  their  construction  of  the  law,  and  that  they  were  giving  effect 
to  the  trne  will  of  a  majority  of  the  people  of  Louisiana,  and  that  in  their  construction 
they  followed  the  precedent  set  by  the  democratic  or  fusion  returning-board  of  1872. 
We  believe  they  did  follow  such  a  precedent.  We  have  no  doubt  that  they  believed 
they  were  defending  the  people  of  Louisiana  against  a  fraud  on  their  constitutional 
rights.  But  there  is  no  more  dangerous  form  of  self-delusion  than  that  which  induces 
men  in  high  places  of  public  trust  to  violate  law  to  redress  or  prevent  what  they  deem 
public  wrongs. 

We  are  not  prepared  to  declare  without  further  examination  how  many  persons  ob 
tained  aprwiafacie  title  to  seats  in  the  legislature  through  this  wrongful  action.  In 
some  of  the  cases  there  were  defects  either  of  form  or  substance  in  the  returns  them 
selves,  which,  the  board  claimed,  required  their  rejection  without  regard  to  the  evi 
dence  of  intimidation. 

But  the  method  adopted  to  set  right  this  wrong  was  totally  objectionable. 

Then  they  proceed  to  consider  why  it  was  objectionable,  giving  the 
reasons  among  others  which  I  have  now  given,  and  they  proceed : 
We  do  not  overlook  the  causes  which  tend  to  excite  deep  feelings  of  discontent  in 


ELECTORAL    COUNT    OF    1877.  293 

the  white  native  population  of  Louisiana.    There  has  been  great  maladministration!  ; 

Eublic  funds  have  been  wasted,  public  credit  impaired,  and  taxation  is  heavy.     These 
icts  combine  with  the  general  prostration  of  business  through  the  country,  and  with 
the  diversion  of  business  from  New  Orleans  by  reason  of  the  construction  of  railroads 
northerly  from  Texas,  to  create  gloom  and  discontent. 
It  is  further  said— 

Passing  on — 

that  this  is  a  question  which  concerns  the  people  of  Louisiana  alone,  and  that  they 
should  be  left  to  fight  out  the  question  among  themselves.  But  this  is  an  erroneous 
view,  both  of  the  rights  and  duties  of  the  people  of  the  United  States  under  the  Con 
stitution.  They  have  an  interest  in  the  question  whether  Senators  and  Representatives 
for  Louisiana,  thrust  into  their  seats  by  illegal  means,  shall  sit  in  Congress  to  make 
laws  for  them,  and  whether  electors,  gaining  their  office  in  like  manner,  shall  turn  the 
scale  in  the  choice  of  a  President  of  the  United  States.  The  President  and  Congress 
are  bound  to  recognize  and,  if  need  be,  to  support  the  true  government  of  Louisiana 
against  all  usurpers ;  and  the  American  people  will  abandon  their  rights  and  flinch 
from  the  performance  of  their  duties  when  they  leave  these  questions  to  be  settled 
either  by  the  mob  or  the  assassin. 

Again  : 

The  American  people  are  now  brought  face  to  face  with  this  condition  of  things.  In 
the  State  of  Louisiana  there  is  a  governor  in  office — 

"  In  office."    A  man  who  gets  into  land  or  office  by  forcible  entry  and 
»    detainer  is  nevertheless  in. 

In  the  State  of  Louisiana  there  is  a  governor  in  office  who  owes  his  seat  to  the  inter 
ference  of  the  national  power,  which  has  recognized  his  title  to  his  office,  not  by  reason 
of  any  ascertainment  of  the  facts  by  legal  process,  but  has  based  its  action  solely  on 
the  illegal  order  of  a  judge.  In  the  same  State  there  is  a  legislature  one  branch  of 
which  derives  its  authority  partly  from  the  same  order,  the  other  being  organized  by 
a  majority  who  have  been  established  in  power  by  another  interference  of  the  National 
Government,  and  which  majority  derives  its  title,  not  from  any  legal  ascertainment  of 
the  facts,  but  from^the  certificates  of  a  returning-board  which  has  misconceived  and 
exceeded  its  legal  authority.  It  is  not  strange  that  the  republicans  of  Louisiana  should 
delude  themselves  by  any  plausible  views  of  laws  which  will  enable  them  to  occupy 
the  places  which  they  believe  the  will  of  a  majority  of  the  legal  voters  of  the  State,  if 
free  from  violence  and  intimidation,  would  award  to  them.  It  is  not  strange  that  the 
democrats  of  Louisiana  should  believe  the  whole  State  government  a  usurpation,  should 
give  it  no  credit  for  its  best  acts,  should  seek  to  embarrass,  and  thwart,  and  resist  it 
to  the  extent  of  their  power,  and  should  be  unwilling  to  wait  for  the  slow  but  sure 
operation  of  lawful  remedies  to  cure  whatever  evil  really  belongs  to  it. 

This  report  expresses  the  deliberate  judgment  of  its  signers:  Mr. 
Hoar,  a  member  of  this  commission ;  Mr.  Wheeler,  candidate  for  Yice- 
President,  and  Mr.  JFrye.  Will  not  Mr.  Wheeler  be  astonished  if  he  shall 
find  himself  counted  in  as  Vice-President  in  violation  of  the  principles 
thus  solemnly  declared  by  him  when  he  was  a  disinterested  and  impar 
tial  judge  in*the  matter  ?  Will  not  the  American  people  think  this  is 
remarkable,  especially  if  it  shall  be  done  by  the  casting  vote  of  his  col 
league  on  the  committee,  [Mr.  Hoar,]  the  author,  I  suppose,  of  the  re 
port  from  which  I  have  read  2 

This. report  is  clear  and  full  authority  in  support  of  the  proposition  I 
am  maintaining,  that  even  under  the  election  law  of  1872  the  returuing- 
board  had  no  authority  to  exclude  votes,  unless  a  case  was  made  before 
them  under  the  third  and  twenty-sixth  sections,  upon  which  their  juris 
diction  depends. 

IV. 

It  only  remains  to  apply  these  principles-tb  the  case  before  us. 
This  tribunal  is  required  to  report  upon  two  questions: 


294  ELECTORAL    COUNT    OF    1877. 

1.  How  many  and  what  persons  were  duly  appointed  electors  in  this 
State;  and 

2.  Which  are  the  electoral  votes  which  ought  to  be  counted. 

Your  finding  will  be  like  a  special  verdict,  and  after  receiving  your 
report,  the  two  Houses  may  agree  with  you  upon  one  proposition  and 
disagree  upon  the  other. 

First.  Were  the  Hayes  electors  duly  appointed  %  W"e  contend  they 
were  not,  for  the  following  reasons: 

1.  If  the  act  of  1868  was  in  force  at  the  last  election,  then  there  has 
been  no  canvass  of  the  votes  according  to  its  provisions,  and  there  is  no 
power,  under  that  act,  for  the  canvassers  to  exclude  or  reject  votes  un 
der  any  circumstances  or  for  any  reason.    Therefore,  on  the  facts  offered 
to  be  established  by  evidence,  it  is  certain  that  the  Hayes  electors  were 
defeated  by  about  8,000  majority. 

2.  If  the  act  of  1868  was  not  in  force,  there  was  no  law  of  that  State 
in  force  at  the  last  election  directing  the  manner  in  which  electors  should 
be  appointed  ;  therefore  none  could  be  appointed. 

3.  If  the  Commission  shall  be  of  opinion  that  the  act  of  1868  was 
not  in  force,  then  it  is  agreed  that  the  act  of  1872  is  the  only  election- 
law  of  that  State  which  was  in  force  at  the  last  election.    And  if  you 
shall  be  of  opinion  that  this  act  did  cover  the  election  of  electors,  which 
we  deny,  yet  the  action  of  the  returning-board  in  excluding  over  10,000 
votes  given  against  the  Hayes  electors  was  coram  nonjudice  and  abso 
lutely  void  ;  and  therefore  the  Hayes  electors  were  not  duly  appointed. 

It  will  be  claimed  that  the  certificate  of  Governor  Kellogg  is  conclu 
sive.  But  it  is  certain  that  it  is  not  conclusive  as  to  his  own  appoint 
ment,  therefore  the  Commission  must  go  back  of  that  certificate  at 
least  as  to  his  appointment. 

It  is  well  settled  by  the  English  cases  that  the  king,  although  he  is 
the  fountain  of  honor  and  of  office,  cannot  himself  exercise  an  office 
to  which  he  might  make  an  appointment.  An  appointment  is  like  any 
other  grant,  and  the  same  person  cannot  be  grantor  and  grantee. 
Therefore  an  officer  possessing  the  power  of  appointment  cannot  ap 
point  himself,  and  a  pretended  appointment  is  void  in  such  case. 

(7  Bacon  Abr.,  title  "  Offices  and  officers,"  p.  281;  State  0s.  Hoyt,  2 
Oregon,  246  ;  Peo.  vs.  Thomas,  33  Barb.  N.  Y.,  287.) 

A  sheriff  cannot  certify  an  excuse  for  his  neglect,  but  must  make  his 
affidavit.  (Rex  vs.  Bolton,  Anstruther,  79.) 

This  rests  upon  the  general  principle  of  law  that  no  officer  can  exer 
cise  the  functions  of  his  office  for  his  individual  benefit.  And  whenever 
a  sheriff  is  compelled  to  rely  upon  his  own  return,  made  upon  process 
issued  in  a  cause  between  other  parties,  such  return  is  only  prima  facie 
evidence.  (2  Greenleaf's  Ev.,  sec.  585.) 

A  distinction  between  the  power  of  an  officer  to  appoint  himself  to 
another  office  and  his  power  to  issue  a  certificate  which  is  conclusive 
evidence  of  such  appointment  is  too  nice  to  be  substantial.  Therefore 
to  show  that  Kellogg  was  duly  appointed  elector,  resort  must  be  had  to 
other  evidence  of  the  fact.  At  least  resort  may  be  had  to  other  evidence 
to  show  that  he  was  not  duly  appointed.  The  certificate  of  the.  governor 
is  the  only  evidence  prescribed  by  act  of  Congress,  and  when,  as  in 
this  instance,  it  is  unavailing,  inquiry  may  be  made  into  the  fact  so 
certified.  What  is  that  fact?  Why,  that  Kellogg  was  duly  appointed 
an  elector.  It  is  not  contended  by  our  opponents  there  is  any  law 
authorizing  the  appointment  except  by  general  election.  Therefore,  if 
the  act  of  1872  be  held  to  cover  this  election,  the  question  is  whether 
Kellogg  was  elected  at  that  election.  This  is  the  fact  to  be  established, 


ELECTORAL    COUNT    OF    1877;  295 

and  the  fact  that  may  be  controverted.  This  brings  us  to  consider 
what  evidence,  back  of  the  governor's  certificate,  must  be  resorted  to 
to  establish  or  controvert  this  fact. 

It  will  be  said  that  the  return  of  the  canvassing  or  returning  board 
is  the  next  evidence  to  be  considered,  and  is  conclusive. 

I  have  already  shown  that  the  action  of  this  board  is  void  in  reject 
ing  votes,  unless  a  case  was  made  in  each  instance  according  to  section 
26  of  the  election-law  of  1872,  and  that  no  such  case  was  made  in 
regard  to  any  parish  where  the  vote  was  excluded. 

It  would  not  be  pretended  that  a  decision  of  the  Supreme  Court  of 
the  United  States  would  be  of  any  avail  unless  accompanied  by  and 
attached  to  the  complete  record  of  the  cause  in  which  such  decision 
was  made.  Without  such  full  authenticated  record  it  would  not  appear 
that  the  court  had  jurisdiction.  It  would  be  monstrous  to  hold  that 
stronger  presumption  exists  in  favor  of  a  statutory  tribunal  than  in 
relation  to  the  Supreme  Court  of  the  United  States.  And  it  is  sub 
mitted  that,  to  make  the  certificate  of  the  returning-board  evidence  at 
all,  it  must  be  shown  that  returns  were  made  by  the  supervisors  of 
registration,  what  these  returns  were,  and,  if  the  board  rejected  any 
such  returns,  that  a  case  was  made  giving  the  board  jurisdiction  in  that 
behall 

We  submit  at  Uast  that  it  may  be  shown  affirmatively  that  such 
returning-board  did  not  give  effect  to  the  votes  as  cast,  and  that  no 
case  was  shown  before  them  giving  them  jurisdiction  to  reject  votes. 

It  will  be  borne  in  mind  that  this  is  not  a  case  of  accident,  inadvert 
ence,  mistake,  or  error  on  the  part  of  the  returning-board,  but  a  case 
of  intentional,  willful  malfeasance — a  positive,  actual  fraud,  committed 
in  pursuance  of  a  conspiracy  formed  before  the  election  was  held.  The 
fathers  of  the  common  law,  the  elementary  writers,  and  the  adjudicated 
cases,  declare  that  u  fraud  vitiates  everything."  By  this  is  meant  that 
everything — the  most  solemn  judgment,  temporal  or  ecclesiastical — 
is  void,  of  which  fraud  is  an  element.  Therefore,  when  the  governor's 
certificate  is  found  unavailing  to  conclude  inquiry  as  to  his  own  appoint 
ment,  and  the  certificate  of  the  returning-board  is  relied  upon,  we  meet 
that  with  the  offer  to  prove  that  it  is  not  only  false  in  fact,  but  that  it 
was  made  fraudulently  and  corruptly ;  that  it  is  not  the  result  of  error 
merely,  but  the  fruit  of  rank  fraud.  The  doctrine  now  contended  for 
should  be  expressed  thus :  "Fraud  triumphs  over  everything,  and  espe 
cially  it  paralyzes  every  instrumentality  designed  for  its  correction." 

I  submit  with  entire  confidence  that,  at  the  very  least,  you  must  hold 
that  Kellogg's  certificate  of  his  own  appointment  is  only  prima  facie 
evidence  of  it  and  may  be  controverted ;  and  that  when,  to  establish 
his  due  appointment,  resort  is  had  to  the  certificate  of  the  returuing- 
board,  we  may  impeach  it  for  fraud  and  show  it  to  be  false  in  fact. 

Again,  and  apart  from  our  offer  to  impeach  it  for  fraud,  upon  what 
ground  can  it  be  maintained  that. the  certificate  of  the  returning-board 
is  conclusive  and  cannot  be  contradicted  J?  Section  2  of  the  election- 
law  of  1872,  under  which  this  certificate  is  made  and  promulgated, 
provides : 

The  return  of  the  election  thus  made  and  promulgated  shall  be  prima  facie  evidence 
in  all  courts  of  justice  and  before  all  civil  officers,  until  set  aside  after  contest,  accord 
ing  to  law,  of  the  right  of  any  person  named  therein  to  hold  and  exercise  the  office  to 
which  he  shall  by  such  return  be  declared  elected. 

What  is  prima  facie  evidence  ?  It  is  that  which  on  its  face  is  suffi 
cient  to  establish  a  fact,  but  which  may  be  controverted.  And  when 
the  law  under  which  this  certificate  is  made  declares  that  it  shall  be 


296  ELECTORAL    COUNT    OF    1877. 

pritna  facie  evidence  in  all  courts  of  justice  and  before  all  civil  officers, 
it  does  in  effect  declare  that  it  may  be  contradicted  in  all  courts  of  justice 
and  before  all  civil  officers. 

Again,  were  Levissee  and  Brewster  duly  appointed  ?  The  act  of 
Congress  requires  that  all  presidential  electors  shall  be  appointed  on  a 
certain  day — last  year,  the  7th  day  of  November.  It  is  conceded  that 
on  that  day  both  Levissee  and  Brewster  were  holding  offices  of  trust 
and  profit  under  the  Government  of  the  United  States.  The  Constitu 
tion  of  the  United  States,  article  2,  section  1,  is  as  follows : 

Each  Slate  shall  appoint,  in  such  manner  as  the  legislature  thereof  may  direct,  a  number 
of  electors  eqnal  to  the  whole  number  of  Senators  and  Representatives  to  which  the 
State  may  be  entitled  in  the  Congress  ;  but  no  Senator  or  Representative,  or  person  hold 
ing  an  office  of  trust  or  profit  under  the  United  States,  shall  ~be  appointed  an  elector. 

This  provision  of  the  Constitution  applied  to  the  case  in  hand  is  this : 
The  State  of  Louisiana  shall  appoint  eight  electors ;  but  neither  Levissee 
nor  Brewster  shall  be  appointed.  This  does  not  fix  the  qualification  of 
electors ;  but  it  is  an  inhibition  upon  the  State  in  the  exercise  of  its 
power  to  appoint.  The  Constitution,  article  1,  section  3,  declares : 

No  person  shall  be  a  Senator  who  shall  not  have  attained  to  the  age  of  thirty  years. 

He  may  be  elected  before  he  attains  to  that  age  and  take  his  seat, 
that  is,  become  a  Senator,  afterward.  But  if  the  Constitution  had  pro 
vided  that  no  person  should  be  elected  before  he  attained  to  that  age, 
would  any  one  contend  that  the  election  of  one  under  that  age  could  be 
legal  and  constitutional  ? 

It  is  too  plain  to  be  questioned  that  the  Constitution,  speaking  to 
Louisiana  on  the  7th  day  of  November  last,  forbade  the  State  to  appoint 
Levissee  or  Brewster.  Is  it  possible,  then,  that  that  State  could  on  that 
day  duly  appoint  both  of  them  ?  Duly  means  legally,  properly,  regu 
larly.  Can  that  be  done  legally,  properly,  and  regularly  which  the  Con 
stitution  declares  shall  not  be  done  at  all  ?  It  has  become  an  axiom  in 
our  constitutional  jurisprudence  that  what  the  Constitution  says  shall 
not  be  done  cannot,  in  a  legal  sense,  be  done.  An  attempt  to  do  it  is 
void,  an  absolute  nullity,  accomplishing  nothing.  It  was  at  one  time 
contended  that  an  act  of  Congress  in  conflict  with  tfre  Constitution  was 
prima  facie  valid,  a  de  facto  law,  valid  as  to  persons  acting  under  it,  until 
set  aside  by  judicial  determination.  But  that  sophism  was  instantly  re 
jected.  Such  a  law  is  ab  initio  and  always  absolutely  void,  mere  blank 
paper  in  the  statute-book.  It  follows  that  an  attempt  to  appoint  a  per 
son  an  elector  of  whom  the  Constitution  declares  that  he  shall  not  be 
appointed,  is  simply  and  absolutely  void;  not  voidable,  but  void. 

In  the  counting  of  presidential  votes  in  1837  the  Houses  raised  a  joint 
committee  to  consider  the  subject.  On  the  part  of  the  Senate  Henry 
Clay,  Silas  Wright,  and  Felix  Grundy,  three  great  names  in  our  history, 
were  appointed.  The  report,  in  which  they  concurred,  says : 

The  committee  are  of  opinion  that  the  second  section  of  the  second  article  of  the 
Constitution,  which  declares  that  "  no  Senator  or  Representative,  or  person  holding  an 
office  of  trust  or  profit  under  the  United  States  shall  be  appointed  an  elector,"  ought  to 
be  carried  in  its  whole  spirit  into  rigid  execution.  *  *  *  This  provision  of  the 
Constitution,  it  is  believed,  excludes  and  disqualifies  deputy  postmasters  from  the  appoint- 
ment  of  electors ;  and  the  disqualification  relates  to  tbe  time  of  the  appointment,  and  that 
a  resignation  of  the  office  of  deputy  postmaster  after  his  appointment  as  elector,  would 
not  entitle  him  to  vote  as  elector,  under  the  Constitution. 

Second.  Having  shown,  as  I  think,  that  no  electors  have  been  duly 
appointed  in  Louisiana,  and,  at  all  events,  that  Levissee  and  Brewster 
were  not  duly  appointed,  I  come  now  to  the  second  question :  whether, 
inasmuch  as  these  persons  have  in  fact  acted,  they  are  to  be  regarded 


ELECTORAL    COUNT    OF    1877.  297 

as  de  facto  electors,  aud  their  votes  are  to  be  counted  as  the  electoral 
vote  of  the  State. 

The  ground  upon  which  a  de  facto  officer  stands  is  that  his  election  or 
appointment,  though  voidable,  is  not  void.  But  I  have  attempted  to  show 
that  the  pretended  appointment  of  Levissee  and  Brewster  was  in  the  tech 
nical  sense  absolutely  void.  In  other  words,  as  to  them  there  was  a  fail 
ure  to  elect.  The  case  was  as  though  the  voters  had  cast  ballots  with 
six  names  instead  of  eight,  thereby  appointing  six  instead  of  eight 
electors  for  the  State. 

The  act  of  Congress  recognizes  and  provides  for  two  cases  :  (see  Rev. 
Stats.,  sections  133  and  134.) 

SEC.  133.  Each  State  may,  by  luw,  provide  for  the  filling  of  any  vacancies  which  may 
occur  in  its  college  of  electors  when  such  college  meets  to  give  its  electoral  vote. 

SEC.  134.  Whenever  any  State  has  held  an  election  for  the  purpose  of  choosing  elect 
ors,  and  has  failed  to  make  a  choice  on  the  day  prescribed  by  law,  the  electors  may  be 
appointed  on  a  subsequent  day,  in  such  a  manner  as  the  legislature  of  such  State  may 
direct. 

The  State  had  by  law  made  no  provision  for  the  case  of  failure  to 
elect.  Even  conceding  the  act  of  1868  to  be  in  force  it  made  no  pro 
vision  for  such  case,  although  it  did  provide  for  filling  a  vacancy  oc 
curring  after  a  legal  election.  But  upon  the  theory  contended  for  by 
our  opponents,  that  the  act  of  1872  was  the  only  law  in  force  at  the 
last  election,  then  the  only  provision  for  filling  even  a  vacancy  was  that 
it  should  be  filled  by  a  popular  election.  So  that  the  election  of  Levissee 
and  Brewster  by  the  electoral  college  was  unauthorized  and  void,  and 
their  votes  shpuld  be  rejected. 

Again,  it  is  well  settled  that  the  principle  that  the  acts  of  de  facto 
public  officers  are  valid  in  regard  to  the  public  and  third  persons,  is 
confined  to  those  who  hold  office  under  some  color  of  election  or  appoint 
ment  and  are  in  the  exercise  of  continuous  official  acts,  being  recognized 
by  the  public  as  filling  the  office  to  which  they  pretend.  (See  Vaccari  vs. 
Maxwell,  3  Blackford,  368.)  It  is  manifest  that  electors  cannot  be  con 
sidered  as  de  facto  officers  within  this  definition,  nor  within  any  defini 
tion  ever  laid  down  by  the  courts  upon  the  subject. 


But  again  this  Commission  is  required  by  the  act  of  Congress  to — 

Decide  whether  any  and  what  votes  from  such  State  are  the  votes  provided  for  by 
the  Constitution  of  the  United  States. 

]Sow,  conceding  that  this  Commission  cannot  inquire  into  the  regu 
larity  of  the  election  under  the  constitution  and  laws  of  the  State, 
nor  redress  the  frauds  committed  by  the  returning-board,  and  conced 
ing  that  this  Commission  is  estopped  by  the  certificates  of  State  offi 
cials  as  to  what  persons  received  the  greatest  number  of  votes  for  elect 
ors,  still  it  is  submitted  that  whether  the  persons  who  were  duly 
elected,  so  far  as  votes  were  concerned,  were  authorized  to  act  in  the 
electoral  college  and  cast  votes  for  President  and  Vice-President, 
is  a  question  to  be  settled,  as  to  Levissee  and  Brewster,  by  the  Consti 
tution  of  the  United  States;  and  that  every  Federal  tribunal,  the  judi 
cial  courts,  and  the  two  Houses  of  Congress  are  bound,  in  every  act  they 
perform,  to  give  effect  to  the  Federal  Constitution. 

It  is  clear  that  no  person  can  vote  for  President  and  Vice-President 
who  is  not  an  elector  of  the  State.  The  provision  of  the  Constitution, 
article  2,  section  1,  is  as  follows : 

Each  State  shall  appoint,  in  such  manner  as  the  legislature  thereof  >r.  ay  direct,  a  number  of 


298  ELECTORAL    COUNT    OF    1877. 

electors  equal  to  the  whole  number  of  Senators  and  Representatives  to  which  the 
State  may  be  entitled  in  the  Congress ;  but  no  Senator  or  Representative,  or  person 
holding  an  office  of  trust  or  profit  under  the  United  States,  shall  be  appointed  an  elector. 

Every  lawyer  will  concede  that  a  person  who  is  forbidden  by  the  Con 
stitution  to  be  appointed  an  elector  is  equally  forbidden  by  the  Consti 
tution  to  be  an  elector  or  to  cast  a  vote  for  President  or  Vice-President. 
The  provision  of  the  Constitution  that  no  person  holding  an  office  of  trust 
or  profit  under  the  United  States  shall  be  appointed  an  elector  strikes  at  the 
very  root  of  the  matter,  because  if  he  cannot  be  appointed  he  cannot  be  an 
elector,  cannot  vote  for  President  or  Vice-President.  In  other  words, 
he  violates  the  Constitution  by  acting  and  voting  in  the  electoral  col 
lege.  Every  vote  cast  by  such  person  in  the  electoral  college  is  a  vio 
lation  of  the  Constitution.  Xow,  it  is  an  axiom  in  all  constitutional  dis 
cussions  that  an  act  done  or  vote  cast  in  violation  of  the  Constitution 
is  no  act,  no  vote.  How,  then,  can  this  commission  decide  that  the  votes 
for  Mr.  Hayes  which  were  cast  by  Levissee  and  Brewster  are  votes  pro 
vided  for  by  the  Constitution  of  the  United  States.  Their  appointment 
and,  consequently  their  votes,  the  Constitution  forbids ;  and  to  hold 
that  their  votes  are  the  votes  provided  for  by  the  Constitution  is  to 
hold  the  Constitution  contemplates  its  own  violation.  The  only  de 
cision  this  Commission  can  make  consistent  with  the  judicial  decisions 
and  the  universally  received  and  sanctioned  canons  of  constitutional 
law  is  that  the  votes  cast  by  these  persons  are  no  votes,  and  that  they 
must  be  excluded  from  the  count.  The  most  deliberate,  carefully-con 
sidered  act  of  Congress,  approved  by  the  President,  is  absolutely  void, 
no  act,  a  blank  in  the  statute-book,  if  it  be  forbidden  by  the  Constitu 
tion.  And  it  would  be  simply  shocking  and  monstrous,  and  a  fatal 
blow  to  the  Constitution  itself,  to  hold  that  the  votes  cast  by  two  per 
sons  forbidden  by  the  Constitution  to  vote  at  all  are  votes  provided 
for  by  the  Constitution.  This  is  a  question  independent  of  the  ap 
pointment  in  fact  by  the  State ;  it  relates  to  the  action  of  the  college 
itself,  which  college  derives  its  power  to  act  at  all  from  the  Federal 
Constitution.  How,  then,  can  it  be  maintained  that  an  act  performed 
by  one  of  its  members,  which  by  the  Constitution  he  is  forbidden  to  per 
form,  can  be  a  constitutional  act?  Can  it  be  pretended  that,  when  a 
person  is  forbidden  by  the  Constitution  to  cast  a  vote,  nevertheless,  if 
he  violates  the  Constitution  and  does  cast  it,  it  is  a  vote  provided  for 
by  the  Constitution? 

This  is  the  case  upon  which  we  stand,  and  none  of  the  facts  are 
seriously  controverted  by  our  opponents.  Senator  Howe,  in  substance, 
admits  the  frauds  we  charge ;  but  he  says  that  though  some  streams  in 
that  State  are  muddy  with  fraud,  other  streams  run  blood.  I  loathe  the 
sight  of  blood  and  the  thought  of  it.  I  never  have  vindicated  nor  jus 
tified  the  outrages  committed  within  this  State,  nor  shall  I  ever.  That 
there  have  been  violations  of  law  and  outrages  unnumbered  is  unques 
tionable.  That  there  have  been  murders,  maimings,  and  whippings  can 
not  be  denied.  But  are  these  things  to  be  cured  by  inflicting  upon  the 
State  an  injury  more  injurious  to  our  institutions  than  are  these  bloody 
outrages  $  They  fall  upon  individuals ;  if  our  institutions  are  to  be 
stabbed,  the  injury  falls  upon  the  nation.  If  justice  is  to  be  slaughtered 
in  her  own  temple,  if  the  laws  are  to  be  sacrificed  by  their  sworn  priests, 
if  fraud  is  to  be  solemnized  and  sanctioned  as  an  instrumentality  for 
electing  a  President  of  the  United  States,  then  farewell  to  hope  for  free 
institutions  and  for  our  country. 

One  thing  more.  Without  making  any  apology  for  the  outrages  that 
have  undoubtedly  been  perpetrated  in  this  State  of  Louisiana,  let  u? 


ELECTORAL   COUNT   OF   1877.  299 

look  for  a  moment  at  the  condition  of  affairs  there — the  condition  de 
scribed  by  Messrs.  Hoar,  Wheeler,  and  Frye,  the  committee  from  whose 
report  I  have  quoted.  And  I  ask,  is  it  a  method  likely  to  produce  good 
feeling  in  that  State,  to  keep  them  under  a  government  which  cannot  rest 
upon  "ascertained  facts,"  but  which  is  based  upon  nothing  but  fraud 
and  falsehood  ?  I  submit  it  is  not.  The  injunction  of  the  apostle  is, 
"•Be  ye  first  pure,  and  then  peaceable."  There  is  no  assurance  that 
authorizes  any  one  to  expect  peace  who  is  not  himself  in  the  right. 
Peace,  in  an  American  State,  with  a  government  forced  upon  it  by  the 
villainy  of  four  men;  peace,  under  a  government  resting  not  upon 
"ascertained  facts,"  but  upon  notorious  falsehoods!  No.  Let  no  man 
hug  such  delusion  to  his  bosom.  Allegiance  to  a  government  and  sub 
mission  to  its  laws  in  this  country  can  only  be  expected  when  that 
government  is  the  choice  of  the  people,  the  government  of  the  people. 
So  exercise  your  functions  as  to  give  back  to  that  people  the  rights  of 
which  they  have  been  defrauded,  and  you  will  do  more  to  restore  har 
mony  and  peace  to  its  citizens  than  could  be  done  by  all  the  armies  of 
the  world. 

Mr.  TEUMBULL.  Mr.  President  and  gentlemen,  this  is  the  time 
when  I  suppose  under  the  ruling  of  the  Commission  we  shall  be  re 
quired  to  present  our  evidence,  and  we  offer  now 

The  PRESIDENT.  That  was  the  suggestion  from  the  bar,  that  after 
the  close  of  the  first  argument  you  would  offer  some  evidence. 

Mr.  TRUMBULL.  We  propose  now  to  prove  before  the  Commission 
that  William  P.  Kellogg,  who  certifies  as  governor  of  the  State  of  Lou 
isiana  to  the  appointment  of  electors  of  that  State,  which  certificate  is 
now  before  this  Commission,  is  the  same  William  P.  Kellogg  who  by 
said  certificate  is  certified  to  have  been  appointed  under  said  election. 
In  other  words,  Kellogg  certifies  to  his  own  appointment  as  such  elector. 
We  offer  that  proof. 

The  PRESIDENT.  Do  you  propose  now  to  state  all  your  offers  of 
proof  ? 

Mr.  TRUMBULL.  We  did  not  propose  to  do  so  at  once.  We  pro 
posed  to  offer  the  proof.  There  may  be  some  of  it  that  the  Commission 
might  receive  and  others  not.  Our  proposition  now  is  to  prove  that  one 
fact,  unless  there  is  some  objection  to  it. 

Mr.  EVARTS.    We  object  that  it  is  not  admissible. 

Mr.  TRUMBULL.  If  the  Commission  please,  I  suppose  we  are  entitled 
to  be  heard  upon  that  question. 

The  PRESIDENT.  I  feel  constrained  to  take  the  advice  of  the  Com 
mission  whether  they  will  proceed  upon  your  separate  offers  of  proof  or 
upon  the  whole  together. 

Mr.  Commissioner  STRONG.  Mr.  President,  if  the  counsel  would 
offer  in  writing  all  that  they  propose  to  prove,  offer  it  as  a  whole,  and 
also  offer  it  in  detail,  it  would  very  much  simplify  the  labor  of  the 
Commission.  The  Commission  could  then,  on  consultation,  determine 
whether  the  whole  or  whether  any  part  was  admissible.  Otherwise  we 
might  be  obliged  to  retire  for  consultation  again  and  again. 

Mr.  TRUMBULL.  Then  would  the  argument  on  the  introduction  of 
testimony  be  limited  to  fifteen  minutes  ?  because  there  are  various 
branches  of  it.  We  could  hardly  argue  the  offer  of  testimony  in  fifteen 
minutes. 

Mr.  Commissioner  STRONG.  If  the  offer  were  all  made  in  that  way, 
all  that  was  proposed  to  be  offered  as  a  whole  and  also  the  various  ele 
ments  in  detail,  so  that  the  Commission  could  then  pass  upon  the  whole 
or  upon  the  various  elements  and  determine  what  was  and  what  was 


300  ELECTORAL    COUNT    OF    1877. 

not  admissible,  for  one  I  should  be  very  much  disposed  to  give  all  the 
time  that  was  necessary  for  the  discussion  of  its  admissibility. 

The  PRESIDENT.  I  will  submit  the  question  to  the  Commission. 
Perhaps  without  sufficient  reason  as  yet,  I  derived,  the  impression  that 
your  offer  would  be  made  altogether,  but  of  course  in  subdivisions. 

Mr.  TEUMBULL.  If  the  Commission  will  allow  me  I  am  quite  will 
ing  to  follow  the  suggestion  made  by  Mr.  Justice  Strong  to  offer  the 
whole  of  our  testimony  at  once,  with  the  understanding  that  each  part 
may  be  considered  separately. 

Mr.  Commissioner  STRONG.    You  offer  it  as  a  whole  and  in  parts  ? 

Mr.  TRUMBULL.  As  a  whole  and  in  parts.  I  am  entirely  willing  to 
follow  that  suggestion  if  it  meets  the  views  of  the  Commission,  and 
then  we  shall  be  allowed  a  reasonable  time. 

The  PRESIDENT.  I  think  I  may  assume  that  that  is  the  general 
understanding  of  the  Commission.  If  not,  some  member  will  express 
his  dissent. 

Mr.  Commissioner  BRADLEY.  Have  you  a  printed  copy  of  the  offer 
you  mean  to  make  ? 

Mr.  TRUMBULL.     Yes,  sir ;  partially  so. 

Mr.  EVARTS.  The  only  offer  of  evidence  that  has  yet  been  made  to 
the  Commission  is  to  prove  that  Mr.  Kellogg  who  appears  in  the  certifi 
cate  opened  by  the  President  of  the  Senate  to  be  governor  and  Mr.  Kel 
logg,  who  appears  to  be  elector  are  the  same  person.  While  we  regard 
the  admission  of  any  evidence  extrinsic  to  the  certificates  that  were 
opened  by  the  President  of  the  Senate  as  inadmissible,  we  should  not 
not  in  argument  upon  those  certificates  contend  that  they  were  not  the 
same  person. 

The  PRESIDENT.  The  counsel  are  now  deliberating  as  to  the  form 
to  be  taken.  I  understand  Judge  Trumbull  now  to  accept  the  sugges 
tion  of  Mr.  Justice  Strong  to  make  all  the  offers  at  the  same  time. 

Mr.  TRUMBULL.    Yes,  sir;  and  in  parts. 

The  PRESIDENT.  Separately  and  together.  Proceed  then  to  state 
the  offer. 

Mr.  TRUMBULL.  In  presenting  these  offers  of  evidence,  perhaps 
it  would  be  well  that  we  should  have  some  understanding  as  to  how 
much  time  will  be  permitted.  I  do  not  wish  to  take  any  unnecessary 
or  unreasonable  time  in  stating  what  we  offer. 

Mr.  Commissioner  EDMUNDS.  How  much  time  do  you  think  it  re 
quires  9 

Mr.  TRUMBULL.  I  cannot  tell,  because  I  have  not  prepared  an 
argument  on  this  particular  branch  of  the  subject.  I  shall  have  to  read 
.the  offers  and  briefly  state  what  each  of  them  is.  I  do  not  know  how 
long  it  will  take. 

Mr.  Commissioner  EDMUNDS.  The  reading,  ot  course,  will  not  be 
counted  as  part  of  your  time. 

The  PRESIDENT.    You  may  proceed. 

Mr.  TRUMBULL.  I  have  stated  the  first  proposition,  and,  as  I  un 
derstand,  the  fact  is  conceded,  although  it  is  objected  that  we  have  no 
right  to  introduce  it  in  evidence. 

Mr.  EVARTS.  My  statement  was  that  we  should  not  contend,  on 
the  face  of  the  certificates  as  opened  by  the  President  of  the  Senate, 
that  Mr.  Kellogg  governor  and  Mr.  Kellogg  elector  were  not  the  same 
person.  That  is  satisfactory,  I  suppose. 

Mr.  TRUMBULL.  The'second  branch  of  the  first  offer  which  we 
make  is  to  prove  that  said  Kellogg  was  governor  de  facto  of  said  State 


ELECTORAL    COUNT    OF    1877.  301 

during  all  the  months  of  November  and  December,  A.  D.  1876.  That  is 
in  the  same  category,  I  suppose  ? 

Mr.  EVARTS.    That  is  in  the  certificate. 

Mr.  TEUMBULL.  On  this  point  we  refer  to  the  constitution  of  Lou 
isiana  : 

•ART.  117.  No  person  shall  hold  or  exercise  at  the  same  time  more  than  one  office  of 
trust  or  profit,  except  that  of  justice  of  the  peace  or  notary  public. 

We  offer  to  prove  that  said  William  P.  Kellogg  was  not  duly  appointed 
one  of  the  electors  of  said  State  in  A.  D.  1876,  and  that  the  certificate 
is  untrue  in  fact. 

To  show  this  we  offer  to  prove — 

1.  By  certified  copies  of  the  lists  made  out,  signed,  and  sworn  to  by 
the  commissioners  of  election  in  each  poll  and  voting-place  in  the  State, 
and  delivered  by  said  commissioners  to  the  clerk  of  the  district  court 
wherein  said  polls  were  established,  except  in  the  parish  of  Orleans,  and 
in  that  parish  delivered  to  the  secretary  of  state,  that  at  the  election  for 
electors  in  the  State  of  Louisiana,  on  the  7th  day  of  November  last,  the 
said  William  P.  Kellogg  received  for  elector  6,300  votes  less  than  were 
at  said  election  cast  for  each  and  every  of  the  following-named  persons, 
that  is  to  say :  John  McEnery,  E.  C.  Wickliffe,  L.  Saint  Martin,  E.  P. 
Poche.  A.  De  Blanc,  W.  A.  Seay,  E.  G.  Cobb,  K.  A.  Cross.  (Section 
43,  act  1872.) 

That  offer  of  testimony  involves  the  merits,  to  some  extent,  of  our 
case.  Your  honors  will  remember  that  by  the  law  of  Louisiana  the 
elections  are  held  by  persons  denominated  "  commissioners  of  election." 
They  correspond  with  judges  of  election  in  most  of  the  States.  There 
are  fifty-seven  parishes  in  the  State  of  Louisiana,  and  in  each  parish 
there  are  a  number  of  polls  or  polling-places,  usually  from  ten  to  thirty. 
There  is  for  each  parish  in  the  State  an  officer  known  as  a  supervisor 
of  registration.  This  supervisor  of  registration  is  appointed  by  the  gov 
ernor  of  the  State  and  he  appoints  all  the  commissioners  of  election 
throughout  the  State.  He  appoints  as  many  places  for  voting  as  he 
pleases,  and  these  voting-places  are  presided  over  by  the  commissioners 
whom  he  appoints.  The  governor  appoints  fifty-six  supervisors,  one  for 
each  parish  outside  of  Orleans,  and  each  of  these  supervisors  appoints 
all  the  commissioners  of  election,  and  the  commissioners  of  election 
designate  as  many  places  for  holding  the  election  as  they  please  and  fix 
the  points  where  the  elections  are  to  be  held.  We  complain  very  seri 
ously  of  this  arrangement.  You  will  observe  that  it  places  the  entire 
machinery  of  the  election  in  the  hands  of  the  governor,  and  it  is  in  evi 
dence  here  that  these  supervisors  were  all  of  one  party.  The  commis 
sioners  of  election  are  required  by  the  law  to  be  of  different  parties,  but. 
they  were  generally  all  oi»one  party.  They  were  all  selected  by  the  su-' 
pervisor  of  registration. 

The  law  further  provides  that  this  canvassing-board  for  the  State, 
(called  returning-officers,)  which  under  the  law  is  to  consist  of  five  per 
sons  to  be  elected  by  the  senate  and  composed  of  different  political  par 
ties,  shall  canvass  the  returns  of  the  commissioners  of  election.  They 
take  an  oath  that  they  will  compile  and  canvass  the  statements  of  votes 
made  by  the  commissioners  of  election.  That  is  their  oath  and  that  is 
the  statute.  In  the  second  section,  if  you  will  refer  to  it,  you  will  find 
that  they  are  required  to  canvass  and  compile  the  statements  of  the 
votes  sent  by  the  commissioners  of  election.  Those  commissioners  of 
election  are  required  under  the  law  to  make  out  duplicate  returns  upon 
the  close  of  the  polls.  One  of  these  duplicates  they  send  to  the  clerk 
of  the  parish.  They  also  send  the  ballot-boxes  to  the  clerk  of  the  parish. 


302  ELECTORAL   COUNT    OF    1877. 

I  will  not  stop  to  read  it ;  but  the  law  is  very  specific  as  to  the  duties 
of  these  commissioners  of  election,  how  they  are  to  make  up  their  re 
turns,  and  what  they  are  to  do  with  the  ballots.  They  are  to  make  up 
their  returns,  you  will  observe,  in  duplicate,  and  one  of  these  duplicates 
goes  to  the  supervisor  of  registration  of  the  parish,  from  which  he 
makes  up  consolidated  returns  and  sends  them  to  this  board  of  return- 
ing-officers  for  the  State.  Our  offer  in  this  instance  is  to  prove  by 
certified  copies  of  the  lists  made  up,  signed,  and  sworn  to  by  the 
commissioners  of  election  at  each  poll  and  voting-place  in  the  State, 
and  delivered  into  the  clerk's  offices  throughout  the  State,  except  the 
city  of  New  Orleans,  in  what  is  known  as  Orleans  Parish,  where  they 
are  delivered  to  the  secretary  of  state  •  so  that  there  is  in  the  State  of 
Louisiana  a  perfect  return  from  every  voting-place  in  the  State,  made 
by  the  commissioners  of  election  to  this  board  of  returning-officers,  and 
there  is  a  duplicate  in  the  clerk's  offices,  the  same  that  the  board  of  re- 
turning-officers  have  before  them.  From  that  we  say  it  will  appear  that 
the  majority  given  to  what  are  denominated  here  as  the  Tilden  electors 
varied  from  six  to  nine  thousand,  speaking  in  round  numbers.  We 
offer  now  to  show  that  to  this  tribunal  by  certified  copies  of  these  papers, 
that  you  may  see  what  the  fact  is. 

Then  the  question  arises,  what  is  this  tribunal  ?  That  has  been  gone 
over  by  all  the  counsel  who  have  spoken  ;  but  I  trust  you  will  pardon 
me  for  stating  very  briefly  my  view  of  what  this  tribunal  is  and  what 
its  duties  are. 

Mr.  Commissioner  STEONG.  Before  you  proceed  to  that  considera 
tion,  allow  me  to  ask  you  a  question. 

Mr.  TEUMBULL.     Certainly. 

Mr.  Commissioner  STEONG.  The  action  of  what  is  said  to  be  the 
canvassing-board — that  is,  the  canvassing-board  created  by  the  act  of 
1872 — the  result  at  which  they  arrived,  is  not  before  us,  I  think. 

Mr.  TEUMBULL.  Yes,  sir,*  we  propose  to  present  those  results  to 
you  •  that  is  one  of  our  propositions. 

Mr.  Commissioner  STEONG.  Very  well.  Then  I  understand  that 
that  is  one  of  your  propositions. 

Mr.  TEUMBULL.     That  will  be  one  of  our  propositions. 

Mr.  Commissioner  STEONG.     But  thus  far  it  is  not  before  us. 

Mr.  TEUMBULL.  Perhaps  I  shall  be  better  understood,  and  the 
Commission  will  better  understand  the  state  of  the  case,  if  I  anticipate 
a  little,  then,  what  we  propose  in  that  regard. 

Mr.  Commissioner  STEONG.  Give  us  all  your  offers  first,  and  the 
argument  afterward. 

Mr.  TEUMBULL.     Shall  I  read  the  whole  paper  through  ? 

Mr.  Commissioner  STEONG.  I  think  you  had  better  give  us  all  your 
offers  at  once. 

Mr.  TEUMBULL.  I  have  no  objection  to  that,  if  it  is  agreeable  to 
the  Commission. 

2.  In  connection  with  the  certified  copies  of  said  lists  we  offer  to  prove 
that  the  returning-board,  which  pretended  to  canvass  the  said  election 
under  the  act  approved  November  20,  1872,  did  not  receive  from  any 
poll,  voting-place,  or  parish  in  said  State,  nor  have  before  them,  any 
statement  of  any  supervisor  of  registration  or  commissioner  of  election 
in  form  as  required  by  section  26  of  said  act,  on  affidavit  of  three  or 
more  citizens,  of  any  riot,  tumult,  acts  of  violence,  intimidation,  armed 
disturbance,  bribery,  or  corrupt  influences  which  prevented  or  tended 


ELECTORAL    COUNT    OF    1877.  303 

to  prevent  a  fair,  free,  and  peaceable  vote  of  all  qualified  electors  enti 
tled  to  vote  at  such  poll  or  voting-place. 

3.  We  further  offer  to  show  that  in  many  instances  the  supervisors  of 
registration  of  the  several  parishes  willfully  and  fraudulently  omitted 
from  their  consolidated  statement,  returned  by  them  to  the  State  re- 
turning-board,  the  result  and  all  mention  of  the  votes  given  at  certain 
polls  or  voting-places  within  their  respective  parishes,  as  shown  to  them 
by  the  returns  and  papers  returned  to  said  supervisors  by  the  commis 
sioners  of  election,  as  required   by  law ;  and  that,  in  consequence  of 
this  omission,  the  said  consolidated  statements  on  their  face  omitted  of 
majorities  against  the  said  Kellogg,  and  in  favor  of  each  and  every  the 
said  McEnery,  Wickliffe,  St.  Martin,  Poche,  De  Blanc,  Seay,  Cobb,"  and 
Cross,  amounting  to  2,267 ;  but  that  said  supervisors  of  registration 
did,  as  by  law  required,  return  to  the  said  returning-board,  with  their 
consolidated  statements,  the  lists,  papers,  and  returns  received  by  them 
according  to  law  from  the  commissioners  of  election  at  the  several  polls 
and  voting-places  omitted  as  aforesaid  from  said  consolidated  statements 
of  said  supervisors. 

And  that  the  said  returning-board  willfully  and  fraudulently  neglected 
and  refused  to  make  any  canvass  of  the  majorities  so  omitted,  or  esti 
mate  them  in  any  way  in  their  pretended  determination  that  the  said 
Kellogg  was  duly  elected  an  elector  at  the  election  aforesaid. 

4.  We  offer  to  show  that,  by  the  consolidated  statements  returned  to 
said  returning-board  by  the  supervisors  of  registration  of  the  several 
parishes  of  the  State  of  the  result  of  the  voting  at  the  several  polls  or 
voting-places  within  their  parishes  respectively,  it  appeared  that  said 
Kellogg  received  at  said  election  3,459  less  votes  for  elector  than  the 
said  McEnery,  Wickliffe,  St.  Martin,  Poche,  De  Blanc,  Seay,  Cobb,  and 
Cross,  and  each  and  every  one  of  them. 

5.  We  further  offer  to  show  that  the  said  returning-board  willfully 
and  fraudulently  estimated  and  counted  as  votes  in  favor  of  said  Kel 
logg  234  votes  which  were  not  shown  to  have  been  given  at  any  poll  or 
voting-place  in  said  State,  either  by  any  consolidated  statement  returned 
to  said  returning-board  by  any  of  the  said  supervisors,  or  by  the  state 
ments,  lists,  tally-sheets,  or  returns  made  by  any  commissioners  of  elec 
tion  to  any  of  said  supervisors,  or  which  were  before  said  returning- 
board. 

6.  We  offer  to  prove  that  the  votes  cast  and  given  at  said  election  on 
the  7th  of  November  last  for  the  election  of  electors,  as  shown  by  the 
return  made  by  the  commissioners  of  election  from  the  several  polls  or 
voting-places  in  said  State,  have  never  been  compiled   or  canvassed  ; 
and  that  the  said  returning-board  never  even  pretended  to  compile  or 
canvass  the  returns  made  by  said  commissioners  of  election,  but  that 
said  returning-board  only  pretended  to  canvass  the  returns  made  by  the 
said  supervisor.     (Act  of  1872,  section  43  :  "  Supervisor  must  forward  ;" 
act  of  1872,  section  2  :  u  Board  must  canvass.") 

7.  We  offer  to  prove  that  the  votes  given  for  electors  at  the  election 
of  November  7  last  at  the  several  voting-places  or  polls  in  said  State 
have  never  been  opened  by  the  governor  of  the  said  State  in  presence 
of  the  secretary  of  state,  the  attorney-general,  and  a  district  judge  of  the 
district  in  which  the  seat  of  government  was  established,  nor  in  the 
presence  of  any  of  them  ;  nor  has  the  governor  of  said  State  ever,  in 
presence  as  aforesaid,  examined  the  returns  of  the  commissioners  of 
election  for  said  election  to  ascertain  therefrom,  nor  has  he  ever,  in  such 
presence,  ascertained  therefrom,  the  persons  who  were,  or  whether  any 


304  ELECTORAL    COUXT    OF    1877. 

one  was,  duly  elected  electors  or  elector,  at  said  election :  nor  bas  he 
ever  pretended  so  to  do.     (Revised  Statutes,  section  2826.) 

8.  We  further  offer  to  prove  that  the  said  William  P.  Kellogg,  gov- 
ernor  as  aforesaid,  when  he  made,  executed,  and  delivered  the  said  cer 
tificate,  by  winch  he  certified  that  himself  and  others  had  been  duly 
appointed  electors  as   aforesaid,  well  knew  that  said  certificate   was 
untrue  iu  fact  in  that  behalf,  and  that  he,  the  said  Kellogg,  then  well 
knew  that  he,  the  said  Kellogg,  had  not  received  of  the  legal  votes 
cast  at  the  election  of  November  7,  1876,  for  electors,  within  five  thou 
sand  of  as  many  of  such  votes  as  had  at  said  election  been  cast  and 
given  for  each  and  every  of  the  said  McEnery,  Wickliffe,  Saint  Mar 
tin,  Poche,  De  Blanc,  Seay,  Cobb,  and  Cross ;  and  that  he,  the  said 
Kellogg,  when  he  made  and  executed  the  aforevsaid  certificate,  well  knew 
that  of  the  legal  votes  cast  at  the  popular  election  held  in  the  State  of 
Louisiana  on  the  7th  day  of  November  last,  for  the  election  of  electors 
in  said  State,  as  shown  by  the  lists,  returns,  and  papers  sent  according 
to  law  by  the  commissioners  of  election,  who  presided  over  and  con 
ducted  the  said  election  at  the  several  polls  and  voting-places  in  said 
State,  to  the  supervisors  of  registration,  and  as  shown  by  the  said  lists, 
returns,  papers,  and  ballots  deposited  by  said  commissioners  of  election 
in  the  office  of  the  clerks  of  the  district  courts,  except  the  parish  of  Or 
leans,  and  deposited  for  the  parish  of  Orleans  in  the  office  of  secretary 
of  state,  according  to  law,  that  each  and  every  the  said  McEnery.  Wick 
liffe,  Saint  Martin,  Poche,  De  Blanc,  Seay,  Cobb,  and  Cross  had  received 
more  than  five  thousand  of  the  legal  votes  cast  at  said  election  for  elect 
ors  more  than  had  been  cast  and  given  at  said  election  for  the  said 
Kellogg  as  elector,  and  that  the  said  McEnery,  Wickliffe,  Saint  Martin, 
Poche,  De  Blanc,  Seay,  Cobb,  and  Cross  had  been  thus  and  thereby 
duly  appointed  electors  for  said  State  in  the  manner  directed  by  the 
legislature  of  said  State. 

9.  We  further  offer  to  prove  that  at  the  city  of  New  Orleans,  in  the 
State  of  Louisiana,  in  the  mouth  of  October,  A.  D.  1876,  the  said  Will 
iam   P.   Kellogg,  J.  H.  Burch,  Peter  Joseph,  L.  A.  Sheldon,  Morris 
Marks,  A.  B.  Levissee,  O.  H.  Brewster,  Oscar  Joffrion,  S.  B.  Packard, 
John  Kay,  Frank  Morey,  Hugh  J.  Campbell,  D.  J.  M.  A.  Jewett,  H.  C. 
Dibble,  Michael  Hahp/B.  P.  Blanchard,  J.  K.  G.  Pitkin,  J.  Madison 
Wells,  Thomas  C.  Anderson,  G.  Casanave,  L.  M.  Kenner,  George  P. 
Davis,  W.  L.  Catlin,  C.  C.  Nash,  George  L.  Smith,  Isadore  McCormick, 
and  others  entered  into  an  unlawful  and  criminal  combination  and  con 
spiracy  to  and  with  each  other,  and  each  to  and  with  each  of  the  others, 
to  cause  it  to  be  certified  and  returned  to  the  secretary  of  state,  by  the 
returning-board  of  said  State,  upon  their  pretended  compilation  and 
canvass  of  the  election  for  electors  to  be  thereafter  held  on  the  7th  day 
of  November,  A.  D.  1876,  that  the  said  Kellogg,  Burch,  Joseph,  Sheldon, 
Marks,  Levissee,  Brewster,  and  Joffrion  had  received  a  majority  of  all 
votes  given  and  cast  at  said  election  for  electors,  whether  such  should 
be  the  fact  or  not ;  and 

That  afterward,  to  wit,  on  the  17th  day  of  November,  A.  D.  1876, 
after  said  election  had  been  held  and  it  was  well  known  to  all  of  said 
conspirators  that  said  Kellogg  and  others  had  not  been  elected  at  said 
election,  but  had  been  defeated,  and  their  opponents  had  been  elected  at 
said  election,  the  said  returniug-board  assembled  at  the  city  of  New 
Orleans,  the  seat  of  government  of  said  State,  to  pretend  to  compile 
and  canvass  the  statement  of  votes  made  by  the  commissioners  of  elec 
tion  from  the  several  polls  and  voting-places  in  said  State  for  presi 
dential  electors,  and  make  returns  of  said  election  to  the  secretary  of 


ELECTORAL   COUNT    OF    1877.  305 

state,  as  required  by  an  act  of  the  legislature  of  that  State,  approved 
November  20,  1872  ;  that  when  said  returning-board  so  assembled,  said 
Wells,  said  Anderson,  said  Keuner,  and  said  Casanave,  who  were  all 
members  of  one  political  party,  to  wit,  the  republican  party,  were  the 
only  members  of  said  board ;  there  being  one  vacancy  in  said  board, 
which  vacancy  it  was  the  duty  of  said  Wells,  said  Anderson,  said  Keu 
ner,  and  said  Casanave,  as  members  of  said  board,  to  fill,  then  and 
there,  by  the  election  or  appointment  of  some  person  belonging  to 
some  other  political  party  than  the  republican  party ;  but  that  the  said 
Wells,  Anderson,  Kenuer,  and  Casanave  then  and  there,  in  pursuance 
of  said  unlawful  and  criminal  combination  aforesaid,  neglected  and 
refused  to  fill  said  vacancy,  for  the  reason,  as  assigned  by  them, 
that  they  did  not  wish  to  have  a  democrat  to  watch  the  proceed 
ings  of  said  board  ;  and  that,  although  frequently  during  the  session  of 
said  board  assembled  for  the  purpose  aforesaid,  they,  the  said  Wells, 
Anderson,  Kenner,  and  Casanave,  were  duly,  and  in  writing,  requested 
by  said  McBnery,  Wickliffe,  St.  Martin,  Pocbe,  De  Blanc,  Seay,  Cobb, 
and  Cross  to  fill  said  vacancy,  they  refused  to  do  so,  and  never  did  fill 
the  same,  but  proceeded,  as  such  board,  in  pursuance  of  said  combina 
tion  arid  conspiracy,  to  make  a  pretended  compilation  and  canvass  of 
said  election  without  filling  the  vacancy  in  said  retuming-board;  and 
That  said  Wells,  Anderson,  Kenner,  and  Casanave,  while  pretending 
to  be  in  session  as  a  returning-board  for  the  purpose  of  compiling  and 
canvassing  the  said  election,  and  in  pursuance  of  said  combination  and 
conspiracy,  employed  persons  of  notoriously  bad  character  to  act  as 
their  clerks  and  assistants,  to  wit,  one  Davis,  a  man  of  notoriously  bad 
character,  who  was  then  under  indictment  in  the  criminal  courts  of 
Louisiana,  and  said  Catlin,  said  Blanchard,  and  said  Jewett,  three  of 
said  conspirators,  who  were  then  under  indictment  for  subornation  of 
perjury  in  the  criminal  courts  of  Louisiana ;  the  said  Jewett  being  also 
under  indictment  in  one  of  the  criminal  courts  of  Louisiana  for  obtain 
ing  money  under  false  pretenses;  and  Isadore  McCorrnick,  who  was 
then  under  indictment  in  a  criminal  court  of  said  State  charged  with 
murder.  And  that  in  pursuance  of  said  unlawful  combination  and  con 
spiracy  aforesaid,  the  said  Wells,  Anderson,  Kenner,  and  Casanave, 
acting  in  said  returning-board,  confided  to  their  said  clerks  and  employe's, 
said  co-conspirators,  the  duty  of  compiling  and  canvassing  all  returns 
which  were  by  said  returning-board  ordered  to  be  canvassed  and  com 
piled ;  and,  although  thereto  particularly  requested  by  a  communica 
tion,  as  follows: 

To  the  honorable  Returning- Board  of  the  State  of  Louisiana: 

GENTLEMEN  :  The  undersigned,  acting  as  counsel  for  the  various  candidates  upon  the 
democratic-conservative  ticket,  State, national,  and  municipal,  with  respect  show: 

That  the  returns  from  various  polls  and  parishes  are  inspected  by  this  board,  and  the 
vote  announced  by  it  is  merely  that  for  governor  and  electors  ; 

That  the  tabulation  of  all  other  votes  is  turned  over  to  a  corps  of  clerks,  to  be  done 
outside  of  the  presence  of  this  board; 

That  all  of  said  clerks  are  republicans,  and  that  the  democratic-conservative  candi 
dates  have  no  check  upon  them,  and  no  means  to  detect  errors  and  fraudulent  tabula 
tions,  or  to  call  the  attention  of  this  board  to  any  such  wrong,  if  any  exist ; 

That  by  this  system  the  fate  of  all  other  candidates  but  governor  and  electors  is 
placed  in  the  hands  of  a  body  of  republican  clerks,  with  no  check  against  erroneous 
or  dishonest  action  on  their  part ; 

That  fair  play  requires  that  some  check  should  be  placed  upon  said  clerks,  and  some 
protection  afforded  to  the  said  candidates  against  error  or  dishonest  action  on  the  part 
of  said  clerks : 

Wherefore  they  respectfully  ask  that  they  be  permitted  to  name  three  respectable  per 
sons,  and  that  to  such  parties  be  accorded  the  privilege  of  being  present  in  the  room  or 
rooms  where  said  tabulation  is  progressing,  and  of  inspecting  the  tabulation  and  com- 

20  E  C 


306  ELECTORAL   COUNT    OF    1877. 

paring  the  same  with  the  returns,  and  also  of  fully  inspecting  the  returns,  and  previous 
to  the  adoption  by  this  board  of  said  tabulation,  with  a  view  to  satisfy  all  parties  that 
there  has  been  no  tampering  or  unfair  practice  in  connection  therewith. 
Very  respectfully, 

F.  C.  ZACHARIE. 
CHARLES  CAVANAC. 
E.  A.  BURKE. 

J.  R.  ALCEE  GAUTHREAUX. 
HENRY  C.  BROWN. 
FRANK  McGLOIN. 
I  concur  herein. 

H.  M.  SPOFFORD, 
Of 

they,  the  said  Wells,  Anderson,  Kenner,  and  Oasanave,  acting  as  said 
board,  expressly  refused  to  permit  any  democrat  or  any  person  selected 
by  democrats  to  be  present  with  said  clerks  and  assistants  while  they 
were  engaged  in  the  compilation  and  canvass  aforesaid,  or  to  examine 
into  the  correctness  of  the  compilation  and  canvass  made  by  said  clerks 
and  assistants  as  aforesaid ;  and  that  said  returning-board,  in  pursu 
ance  of  said  unlawful  combination  and  conspiracy  aforesaid,  and  for  the 
purpose  of  concealing  the  animus  of  said  board  and  inspiring  confidence 
in  the  public  mind  in  the  integrity  of  their  proceedings,  on  the  18th  day 
of  November,  A.  D.  1876,  adopted  and  passed  a  preamble  and  resolu 
tion,  as  follows : 

Whereas  this  board  has  learned  with  satisfaction  that  distinguished  gentlemen  of 
national  reputation  from  other  States,  some  at  the  request  of  the  President  of  the 
United  States  and  some  at  the  request  of  the  national  executive  committee  of  the  demo 
cratic  party,  are  present  in  this  city,  with  the  view  to  witness  the  proceedings  of  this 
board  in  canvassing  and  compiling  the  returns  of  the  recent  election  in  this  State  for 
presidential  electors,  in  order  that  the  public  opinion  of  the  country  may  be  satisfied 
as  to  the  truth  of  the  result  and  the  fairness  of  the  means  by  which  it  may  have  been 
attained ; 

And  whereas  this  board  recognizes  the  importance  which  may  attach  to  the  result 
of  their  proceedings,  and  that  the  public  mind  should  be  convinced  of  its  justice  by  a 
knowledge  of  the  facts  on  which  it  may  be  based:  Therefore  be  it 

Resolved,  That  this  board  does  hereby  cordially  invite  and  request  five  gentlemen 
from  each  of  the  two  bodies  named,  to  be  selected  by  themselves,  respectively,  to  at 
tend  and  be  present  at  the  meetings  of  this  board  while  engaged  in  the  discharge  of 
its  duties,  under  the  law,  in  canvassing  and  compiling  the  returns  and  ascertaining  and 
declaring  the  result  of  said  election  for  presidential  electors,  in  their  capacity  as  private 
citizens  of  eminent  reputation  and  high  character,  and  as  spectators  and  witnesses  of 
the  proceedings  in  that  behalf  of  this  board. 

But  that  said  returning-board,  being  convinced  that  a  compilation 
and  canvass  of  votes  given  at  said  election  for  presidential  electors, 
made  fairly  and  openly,  would  result  in  defeating  the  object  of  said  con 
spiracy,  and  compelling  said  returning-board  to  certify  that  said  McEn- 
ery,  Wickliffe,  St.  Martin,  Pochd,  De  Blanc,  Seay,  Cobb,  and  Cross  had 
been  at  said  election  duly  chosen,  elected,  and  appointed  electors  by 
the  said  State  of  Louisiana;  and,  in  pursuance  of  said  unlawful  combi 
nation  and  conspiracy,  did  afterward,  to  wit,  on  the  20th  day  of  Novem 
ber,  A.  D.  1876,  adopt  and  pass  the  following  rules  for  the  better  exe 
cution  and  carrying  into  effect  said  combination  and  conspiracy ;  that  is 
to  say: 

VII. 

The  returning-officers,  if  they  think  it  advisable,  may  go  into  secret  session  to  con 
sider  any  motion,  argument,  or  proposition  which  may  be  presented  to  them ;  any  mem 
ber  shall  have  the  right  to  call  for  secret  session  for  the  above  purpose. 

X. 

That  the  evidence  for  each  contested  poll  in  any  parish,  when  concluded,  shall  be 
laid  aside  until  all  the  evidence  is  in  from  all  the  contested  polls  in  the  several  parishes 


ELECTORAL    COUNT    OF    1877.  307 

where  there  maybe  contests,  and,  after  the  evidence  is  all  in,  the  ret  urning-officers  will 
decide  the  several  contests  in  secret  session ;  the  parties  or  their  attorneys  to  be  al 
lowed  to  submit  briefs  or  written  arguments  up  to  the  time  fixed  for  the  returning- 
officers  going  into  secret  session,  after  which  no  additional  argument  to  be  received 
unless  by  special  consent. 

That  the  proceedings  thus  directed  to  be  had  in  secret  were  protested 
against  by  the  said  McEnery,  Wickliffe,  St.  Martin,  Poche,  De  Blanc, 
Seay.  Cobb,  and  Cross ;  but  said  board  thereafter  proceeded  and  pre 
tended  to  complete  their  duties  as  such  returning-board,  and  did  per 
form,  execute,  and  carry  out  the  most  important  duties  devolving  upon 
said  board  in  secret,  with  closed  doors,  and  in  the  absence  of  any  mem 
ber  of  their  board  belonging  to  the  democratic  party  or  any  person 
whatever  not  a  member  of  said  board  not  belonging  to  the  republican 
party. 

That  the  said  Wells,  Anderson,  Kenner,  and  Casanave,  acting  as  said 
returning-board,  while  engaged  in  the  compilation  and  canvass  afore 
said,  were  applied  to  to  permit  the  United  States  supervisors  of  election, 
duly  appointed  and  qualified  as  such,  to  be  present  at  and  witness  such 
compilation  or  canvass. 

That  application  was  made  to  said  returning-board  in  that  behalf  as 
follows : 

To  the  President  and  Members  of  the,Eeturning- Board  of  the  State  of  Louisiana : 

GENTLEMEN:  The  undersigned,  of  counsel  for  United  States  supervisors  of  election 
duly  appointed  and  qualified  as  such,  do  hereby  except,  protest,  and  object  to  any  rul 
ing  made  this  20th  day  of  November,  1876,  or  that  hereafter  may  be  made,  whereby 
they  are  deprived  of  the  right  of  being  present  during  the  entire  canvass  and  compila 
tion  of  the  results  of  the  election  lately  held  in  the  State  of  Louisiana,  wherein  elect 
ors  for  President  and  Vice-President  and  members  of  the  Forty-fifth  Congress  were 
balloted  for,  and  the  result  of  which  said  board  are  now  canvassing. 

That  under  the  fifth  section  of  the  United  States  act  of  February  28, 1871,  they  are  "  to 
be  and  remain  where  the  ballot-boxes  are  kept,  at  all  times  after  the  polls  are  open, 
until  each  and  every  vote  cast  at  said  time  and  place  shall  be  counted,  and  the  canvass 
of  all  votes  polled  be  wholly  completed  and  the  proper  and  requisite  certificate 
or  returns  made,  whether  said  certificates  or  returns  be  required  under  any  law  of  the 
United  States  or  any  State,  territorial,  or  municipal  law." 

That  under  said  law  of  the  United  States,  District  Attorney  J.  R.  Beckwith,  under 
date  of  October  30,  1872,  gave  his  written  official  opinion  for  the  instruction  and  guid 
ance  of  persons  holding  the  office  now  held  by  protestants,  wherein  said  United  States 
district  attorney  said : 

"  It  cannot  be  doubted  that  the  duty  of  the  supervisors  extends  to  the  inspection  of  the 
entire  election,  from  its  commencement  until  the  decision  of  its  result.  If  the  United 
States  statutes  were  less  explicit,  there  still  could  be  no  doubt  of  the  duty  and  author 
ity  of  the  supervisors  to  inspect  and  canvass  every  vote  cast  for  each  and  every  can 
didate,  State,  parochial,  and  Federal,  as  the  law  of  the  State  neither  provides  nor 
allows  any  separation  of  the  election  for  Representatives  in  Congress,  &c.,  from  the 
election  of  State  and  parish  officers.  The  election  is  in  law  a  single  election,  and  th« 
power  of  inspection  vested  in  law  in  the  supervisors  appointed  by  the  court  extends 
to  the  entire  election,  a  full  knowledge  of  which  may  well  become  necessary  to  defeat 
fraud." 

In  which  opinion  the  attorney-general  of  the  State  of  Louisiana  coincided.  Where 
upon  protestants  claim  admittance  to  all  sessions  of  the  returning-board,  and  protest 
against  their  exclusion  as  unwarranted  by  law,  as  informed  by  their  attorneys  has  been 
done  and  is  contemplated  to  be  done  hereafter  in  said  proceedings  of  said  board. 

F.  C.  ZACHARIE, 
E.  A.  BURKE, 
CHAS.  CAVANAC, 
FRANK  McGLOIN, 
J.  R.  A.  GAUTHREAUX, 
H.  C.  BROWN, 

Of  Counsel. 

But  that  said  Wells,  Anderson,  Kenner,  and  Casanave,  acting  as  such 
returning-board,  in  further  pursuance  and  execution  of  said  unlawful 


308  ELECTORAL    COUNT   OP    1877. 

combination  and  conspiracy,  then  and  there  refused  to  permit  said 
United  States  commissioners  of  election  to  be  present  for  the  purpose 
aforesaid,  but  proceeded  in  their  absence  to  the  pretended  compilation 
and  canvass  aforesaid. 

That  the  said  returuing-board,  while  in  session  as  aforesaid,  for  the 
purpose  aforesaid,  to  wit,  on  the  20th  day  of  November,  1876,  adopted 
the  following  rule  to  govern  their  proceedings;  that  is  to  say : 

IX. 

No  exparte  affidavits  or  statements  shall  be  received  in  evidence,  except  as  a  basis  to 
ahow  that  such  fraud,  intimidation,  or  other  illegal  practice  had  at  some  poll  requires 
investigation,  but  the  returns  and  affidavits  authorized  by  law,  made  by  officers  of 
election  or  in  verification  of  statements  as  required  by  law,  shall  be  received  in  evi 
dence  as  prima  facie. 

But  that  said  board  subsequently,  while  sitting  as  aforesaid  for  the 
purposes  aforesaid,  having  become  convinced  that  they  could  not,  upon, 
other  than  ex  parte  testimony,  so  manipulate  the  said  compilation  and 
canvass  as  to  declare  that  said  Kellogg,  Burch,  Joseph,  Sheldon,  Marks, 
Levissee,  Brewster,  and  Joffrion  were  elected  electors  at  said  election, 
and,  in  further  pursuance  of  said  unlawful  combination  and  conspiracy, 
did  subsequently  modify  said  rule  and  declare  and  decide  that  as  such 
returning  board  they  would  receive  ex  parte  affidavits,  under  which  last 
decision  of  said  board  over  two  hundred  printed  pages  of  exparte  testi 
mony  were  received  by  said  board  in  favor  of  said  Kellogg  and  others; 
and  afterward,  when  the  said  McEnery  and  others  offered  ex  parte  ev 
idence  to  contradict  the  ex  parte  evidence  aforesaid,  the  said  returning- 
board  reversed  its  last  decision  and  refused  to  receive  exparte  affidavits 
in  contradiction  as  aforesaid. 

And  that  in  pursuance  of  said  unlawful  combination  and  conspiracy 
the  said  retumiug-board,  in  violation  of  a  law  of  said  State  approved 
November  20,  1872,  neglected  and  refused  to  compile  and  canvass  the 
statements  of  votes  made  by  the  commissioners  of  election  which  were 
before  them,  according  to  law,  for  canvass  and  compilation  as  aforesaid 
in  regard  to  the  election  of  presidential  electors,  but  that  said  board 
did,  in  pursuance  and  further  execution  of  said  combination  and  con 
spiracy,  canvass  and  compile  only  the  consolidated  statements  and 
returns  made  to  them  by  the  supervisors  of  registration  of  the  several 
parishes  of  said  State. 

And  that  said  returning-board,  in  pursuance  and  further  execution  of 
said  unlawiul  combination  and  conspiracy,  did  knowingly,  willfully,  and 
fraudulently  refuse  to  compile  and  canvass  the  votes  given  for  electors 
at  said  election  in  more  than  twenty  parishes  of  said  State,  as  was 
shown  and  appeared  by  and  upon  the  consolidated  statements  and 
returns  made  to  them  by  said  supervisors  of  said  parishes. 

And  that  said  returning-board  did,  in  said  canvass  and  compilation, 
count  and  estimate,  as  a  foundation  for  their  determination  in  the  prem 
ises,  hundreds  of  votes  which  had  not  been  returned  and  certified  to 
them  either  by  the  commissioners  of  election  in  said  State  or  by  the 
supervisors  of  registration  in  said  State,  they,  the  said  members  of  said 
board,  then  and  there  well  knowing  that  they  had  no  right  or  authority 
to  estimate  the  same  for  the  purpose  aforesaid. 

And  that  said  returning-board,  in  further  pursuance  and  execution 
of  said  unlawful  combination  and  conspiracy,  knowingly,  willfully, 
falsely,  and  fraudulently,  did  make  a  certificate  and  return  to  the 
secretary  of  state  that  said  Kellogg,  Burch,  Joseph,  Sheldon,  Marks, 
Levissee,  Brewster,  and  Joffrion  had  received  majorities  of  all  the 


ELECTORAL -COUNT    OP    1877.  309 

legal  votes  cast  at  said  election  of  November  7,  1876,  for  presidential 
electors,  they  then  and  there  well  knowing  that  the  said  McBnery, 
Wickliffe,  St.  Martin,  Poche',  De  Blanc,  Seay,  Cobb,  and  Gross  had  re 
ceived  majorities  of  all  the  votes  cast  at  said  election  for  presidential 
electors,  and  were  duly  elected  as  the  presidential  electors  of  said 
State. 

A.nd  that  the  said  returning-board,  in  making  said  statement,  cer 
tificate,  and  return  to  the  secretary  of  state,  were  not  deceived  nor 
mistaken  in  the  premises,  bat  knowingly,  willfully,  and  fraudulently 
made  what  they  well  knew  when  they  made  it  was  a  false  and  fraud 
ulent  statement,  certificate,  and  return  ;  and  that  the  said  false  and 
fraudulent  statement,  certificate,  and  return,  made  by  said  returning- 
board  to  the  secretary  of  state  in  that  behalf,  was  made  by  the  mem 
bers  of  said  returning-board  in  pursuance  and  execution  of,  and  only 
in  pursuance  and  execution  of,  said  unlawful  combination  and  con 
spiracy. 

And  that  said  returning-board,  while  in  session  as  aforesaid,  for  the 
purpose  aforesaid,  in  further  pursuance  and  execution  of  said  unlawful 
combination  and  conspiracy,  did  alter,  change,  and  forge,  or  cause  to  be 
altered,  changed,  and  forged,  the  consolidated  statement  and  return  of 
the  supervisor  of  registration  for  the  parish  of  Vernon,  in  said  State,  in 
the  manner  following,  to  wit:  The  said  consolidated  statement,  as  made 
and  returned  to  said  board,  showed  thar,  of  the  l*.»gal  votes  given  in  said 
parish  for  electors  at  said  election  of  November  7,  1876,  said  McEnery 
received  647,  said  Wickliffe  received  647,  said  St.  Martin  received  647, 
said  Poch6  received  647,  said  De  Blanc  received  647,  said  Seay  received 
647,  said  Cobb  received  647,  said  Cross  received  647 ;  .and  that  said 
Kellogg  received  none,  said  Burch  received  none,  said  Joseph  received 
2,  said  Brewster  received  2,  said  Marks  received  2,  said  Levissee  re 
ceived  2,  said  Joffrion  received  2,  said  Sheldon  received  2;  and  said 
board  altered,  changed,  and  forged,  or  caused  to  be  altered,  changed, 
and  forged,  said  consolidated  statement  so  as  to  make  the  same  falsely 
and  fraudulently  show  that  the  said  McEnery  received  469,  gaid  Wick 
liffe  received  4ti9,  said  St.  Marti n  received  469,  said  Poche  received  469, 
said  De  Blanc  received  469,  said  Seay  received  469,  said  Cobb  received 
469,  said  Cross  received  469 ;  and  that  said  Kellogg  received  178,  said 
Burch  received  178,  said  Joseph  received  178,  said  Sheldon  received  180, 
said  Marks  received  180,  said  Levissee  received .180,  said  Brewster  re 
ceived  180,  said  Joffrion  received  180 ;  and  that  said  returniug-board, 
while  in  session  as  aforesaid  tor  the  purpose  aforesaid,  to  pretend  to 
justify  the  alteration  and  forgery  of  said  consolidated  statement,  pro 
cured  and  pretended  to  act  upon  three  forged  affidavits,  purporting  to 
have  been  made  and  sworn  to  by  Samuel  Carter,  Thomas  Brown,  and 
Samuel  Collins— they,  the  said  members  of  said  returniug-board,  then 
and  there,  well  knowing  that  said  pretended  affidavits  were  false  and 
forged,  and  that  no  such  persons  were  in  existence  as  purported  to  make 
said  affidavits. 

And  that  said  members  of  said  returning-board,  acting  as  said  board, 
in  pursuance  and  execution  of  said  unlawful  combination  and  con 
spiracy,  did,  in  their  pretended  canvass  and  compilation  of  the  legal 
votes  given  at  said  election,  on  the  7th  day  of  November,  A.  D.  1876,  for 
presidential  electors  in  said  State  of  Louisiana,  as  shown  to  them  by 
the  statements,  papers,  and  returns  made  according  to  law  by  the  com 
missioners  of  election  presiding  over  and  conducting  said  election  at 
the  several  polls  and  voting-places  in  said  State,  all  of  which  votes  were 
legally  cast  by  legal  voters  in  said  State,  at  said  election,  knowingly, 


310  ELECTORAL    COUNT    OF    1877. 

willfully,  and  fraudulently,  and  without  any  authority  of  law  whatever, 
exclude  and  refuse  to  count  and  estimate,  or  compile  or  canvass,  votes 
given  at  said  election  for  electors,  as  follows,  which  papers,  statements, 
and  returns  were  before  them,  and  which  it  was  their  duty  by  law  to 
compile  and  canvass ;  that  is  to  say,  for  said  John  McEnery,  10,280 ; 
for  said  E.  C.  Wickliffe,  10,293 ;  for  said  L.  St.  Martin,  10,29l';  for  said 
F.  P.  Poche,  10,280 ;  for  said  A.  De  Blanc,  10,289  ;  for  said  W.  A.  Seay, 
10,291 ;  for  said  E.  A.  Cobb,  10,261 ;  for  said  K.  A.  Cross,  10,288 ;  they, 
the  said  members  of  said  returning-board,  then  and  there,  well  knowing 
that  all  of  said  votes,  which  they  neglected  and  refused  to  canvass  and 
compile,  had  been  duly  and  legally  cast  at  said  election  for  presidential 
electors  by  legal  voters  of  said  State  ;  and  then  and  there  well  knowing 
that,  had  they  considered,  estimated,  and  counted,  compiled  and  can 
vassed  said  votes,  as  they  then  and  there  well  knew  it  was  their  duty  to 
do,  it  would  have  appeared,  and  they  would  have  been  compelled  to  cer 
tify  and  return  to  the  secretary  of  state,  that  said  Kellogg  had  not  been 
duly  elected  or  appointed  an  elector  for  said  State,  but  that  at  said 
election  the  said  McEnery,  the  said  Wickliffe,  the  said  St.  Martin,  the 
said  Poche,  the  said  De  Blanc,  the  said  Seay,  the  said  Cobb,  and  the 
said  Cross  had  been  duly  elected  and  appointed  presidential  electors  in 
said  State. 

And  that  by  said  false,  fraudulent,  willful,  and  corrupt  acts  and  omis 
sions  to  act  by  said  returning-board  as  aforesaid  in  the  matter  aforesaid, 
and  by  said  nonfeasance,  misfeasance,  and  malfeasance  of  said  return 
ing-board,  as  hereinbefore  mentioned,  the  said  returning-board  made  to 
the  secretary  of  state  of  said  State  the  statement,  certificate,  and  return 
upon  which  the  said  Kellogg,  as  de  facto  governor  of  said  State,  pre 
tended  to  make  his  said  false  certificate,  certifying  that  himself  and 
others  had  been  duly  appointed  electors  for  said  State,  as  hereinbefore 
mentioned  ;  and  that  said  statement,  certificate,  and  return  made  by 
said  returning-board,  and  that  toe  said  certificate  made  by  the  said 
Kellogg,  as  de  facto  governor,  each,  every,  and  all  were  made  in  pursu 
ance  and  execution  of  said  unlawful  and  criminal  combination  and 
conspiracy,  as  was  well  known  to  and  intended  by  each  and  every  of 
the  members  of  said  returning-board  when  they  made  their  said  false 
statement,  certificate,  and  return  to  the  secretary  of  state  of  said  State, 
and  by  the  said  Kellogg  when,  as  governor  de  facto  of  said  State,  he 
made  his  said  false  certificate  hereinbefore  mentioned. 

III.  We  further  offer  to  prove  that  Oscar  Joffrion  was,  on  the  7th  day 
of  November,  A.  D.  1876,  supervisor  of  registration  of  the  parish  of 
Point  Coupee,  and  that  he  acted  and  officiated  as  such  supervisor  of 
registration  for  said  parish  at  the  said  election  for  presidential  electors 
on  that  day ;  and  that  he  is  the  same  person  who  acted  as  one  of  the 
electors  for  said  State,  and  on  the  6th  day  of  December,  A.  D.  1876,  as 
an  elector,  cast  a  vote  for  Eutherford  B.  Hayes  for  President  of  the 
United  States  and  for  William  A.  Wheeler  for  Vice-President  of  the 
United  States. 

IV.  We  further  offer  to  prove  that,  on  the  7th  day  of  November,  A. 
D.  1876,  A.  B.  Levissee,  who  was  one  of  the  pretended  college  of  elect 
ors  of  the  State  of   Louisiana,  and  who  in  said  college  gave  a  vote  for 
Eutherford  B.  Hayes  for  President  of  the  United  States  and  for  William 
A.  Wheeler  for  Vice- President  of  the  United  States,  was  at  the  time  of 
such  election  a  court  commissioner  of  the  circuit  court  of  the  United  States 
for  the  district  of  Louisiana ;  which  is  an  office  of  honor,  profit,  and  trust 
under  the  Government  of  the  United  States. 

V.  We  further  offer  to  prove  that,  on  the  7th  day  of  November,  A.  D. 


ELECTORAL    COUNT    OF    1877.  311 

1876,  O.  H.  Brewster,  who  was  one  of  the  pretended  electors  in  the 
pretended  college  of  electors  of  the  State  of  Louisiana,  and  who  in  sa 
college  gave  a  vote  for  Rutherford  B.  Hayes  for  President  of  the  United 
States,  and  for  William  A.  Wheeler  for  Vice-President  of  the  United 
States,  was,  at  the  time  of  such  election  as  aforesaid,  holding  an  office  of 
honor,  profit,  and  trust  under  the  Government  of  the  United  States, 
namely,  the  office  of  surveyor-general  of  the  land-office  for  the  district 
of  Louisiana. 

VI.  We  further  offer  to  prove  that,  on  the  7th  day  of  November,  1876, 
Morris  Marks,  one  of  the  pretended   electors,  who  in   said  college  of 
electors  cast  a  vote  for  Eutherford  B.  Hayes  for  President  of  the  United 
States,  and  a  vote   for  William  A.  Wheeler  for  Vice-President  of  the 
United  States,  was,  ever  since  has  been,  and  now  is,  holding  and  exer 
cising  the  office  of  district  attorney  of  the  fourth  judicial  district  of  said 
State,  and  receiving  the  salary  by  law  attached  to  said  office. 

VII.  We  further  offer  to  prove  that,  on  the  7th  day  of  November,  A. 
D.  1876,  J.  Henri  Burch,  who  was  one  of  the  pretended  electors  who  in 
said  pretended  electoral  college  gave  a  vote  for  Eutherford  B.  Hayes  for 
President  of  the  United   States  and  a  vote  for  William  A.  Wheeler  for 
Vice-President  of  the  United  States,  was  holding  the  following  offices 
under  the  constitution  and  laws  of  said  State,  that  is  to  say :  member 
of  the  board  of  control  of  the  State  penitentiary,  also  administrator  of 
deaf  and  dumb  asylum  of  said  State,  to  both  of  which  offices  he  had 
been  appointed  by  the  governor  with   the  advice  and  consent  of  the 
senate  of  said  State,  both  being  offices  with  salaries  fixed  by  law,  and 
also  the  office  of  treasurer  of  the  parish  school-board  for  the  parish  of 
East  Baton  Eouge;  and  that  said  Burch,  ever  since  the  said  7th  day  of 
November,  (and  prior  thereto,)  has  exercised  and  still  is  exercising  the 
functions  of  all  said  offices  and  receiving  the  emoluments  thereof. 

VIII.  We  further  offer  to  prove  the  canvass  and  compilation  actually 
made  by  said  returning-board,  showing  what  parishes  and  voting  places 
and  polls  were  compiled  and  canvassed,  and  what  polls  or  voting-places 
were  excluded  by  said  returning-board  from  their  canvass  and  compila 
tion  of  votes  given  for  presidential  electors ;  and  we  also  offer  to  show 
what  statements  and  returns  of  the  commissioners  of  election  and  of  the 
supervisors  of  registration  were  duly  before  said  returning-board. 

IX.  We  further  offer  to  prove  that  a  member  of  said  returning-board 
offered  to  receive  a  bribe  in  consideration  of  which  the  board  would 
certify  the  election  of  the  Tilden  electors. 

X.  We  offer  to  prove  that  the  statements  and  affidavits  purporting 
to  have  been  made  and  forwarded  to  said  returning-board  in  pursuance 
of  the  provisions  of  section  26  of  the  election-law  of  1872,  alleging  riot, 
tumult,  intimidation,  and  violence  at  or  near  certain  polls  and  in  certain 
parishes,  were  falsely  fabricated  and  forged  by  certain  disreputable 
persons  under  the  direction  and  with  the  knowledge  of  said  returning- 
board,  and  that  said  returning-board,  knowing  said  statements  and 
affidavits  to  be  false  and  forged,  and  that  none  of  said  statements  or 
affidavits  was  made  in  the  manner  or  form  required  by  law,  did,  know 
ingly,  willfully,  and  fraudulently  fail  and  refuse  to  canvass  or  compile 
more  than  ten  thousand  votes  lawfully  cast,  as  is  shown  by  the  state 
ments  of  votes  of  the  commissioners  of  election. 

XI.  We  further  offer  to  prove  that  said  returning-board  did  willfully 
and  fraudulently  pretend  to  canvass  and  compile  and  did  promulgate 
as  having  been  canvassed  and  compiled  certain  votes  for  the  following- 
named  candidates  for  electors  which  were  never  cast  and  which  did  not 
appear  upon  any  tally-sheet,  statement  of  votes,  or  consolidated  state- 


312  ELECTORAL    COUNT    OP    1877. 

merit  or  other  return  before  said  board,  namely:  J.  H.  Burcli,  241 ; 
Peter  Joseph,  1,362  ;  L.  A.  Sheldon,  1,364  ;  Morris  Marks,  1,334 ;  A.  B. 
Levissee,  829  ;  O.  H.  Brewster,  776 ;  Oscar  Joffriou,  1,364. 

Mr.  EVARTS.  Has  the  Commission  given  any  direction  as  to  the 
length  of  time  for  discussing  the  question  of  adrnissibility  ? 

The  PRESIDENT.     I  have  no  instructions  on  the  subject. 

Mr.  Commissioner  EDMUNDS.  I  think  some  time  should  be  fixed. 
There  being  so  many  offers,  fifteen  minutes  would  hardly  be  sufficient. 
There  ought  to  be  some  reasonable  time. 

The  PRESIDENT.     Does  any  one  submit  a  motion  ? 

Mr.  Commissioner  ABBOTT.  I  should  like  to  know  how  much  time 
the  counsel  would  desire  to  argue  all  these  objections  in  the  mass. 

Mr.  Commissioner  BRADLEY.  I  understood  the  decision  to  be  that 
the  argument  on  the  offer  of  evidence  would  come  out  of  the  time 
allowed  to  counsel  on  either  side.  It  was  understood  this  morning  that 
the  reading  of  the  offers  should  not  be  counted  as  part  of  the  time. 
That  was  fair  ;  but  I  think  the  presentation  of  the  evidence  is  as  much 
a  part  of  the  presentation  of  the  case  as  the  rest  of  the  argument.  It 
seems  to  me  that  we  are  breaking  our  rules,  if  we  allow  further  time 
than  four  and  a  half  hours  on  each  side. 

The  PRESIDENT.  Let  us  first  hear  the  counsel  answer  the  inquiry. 
I  think  we  ought  to  have  that  answer. 

Mr.  TRUMBULL.  On  consultation  with  the  gentlemen  with  whom 
I  am  associated,  they  think  that  we  should  have  three  hours  on  each 
side,  an  hour  apiece  to  each  counsel.  Each  of  the  gentlemen  associated 
with  tne  desires  to  present  his  views ;  and  we  think,  as  suggested  by 
one  of  the  Commissioners,  or  at  least  I  do,  that  this  does  involve  to  a 
great  extent  any  argument  that  will  afterward  take  place. 

Mr.  Commissioner  STRONG.  Mr.  President,  I  did  not  understand 
the  order  which  the  court  made  in  regard  to  time,  as  Mr.  Justice  Brad 
ley  understood  it.  I  did  not  understand  the  order  we  made  as  requir 
ing  that  the  time  occupied  in  the  offer  of  evidence,  or  objections  that 
might  be  made  to  its  admissibility,  or  arguments  made  in  support  of  its 
adrnissibility,  should  be  taken  out  of  the  four  and  a  half  hours  which 
we  agreed  to  allow  for  general  argument  on  each  side.  I  agree,  sir, 
that  in  one  aspect  of  the  case  the  evidence  which  is  offered  is  substan 
tially  the  whole  case;  in  another  aspect  of  the  case  it  is  not.  I  think 
counsel  ought  to  be  allowed  a  reasonable  time  for  the  argument  of  the 
question  whether  this  evidence  thus  proposed  is  admissible  or  not.  It 
seems  to  me  that  three  hours  on  this  interlocutory  question  is  rather 
large.  I  should  be  willing  to  give  what  we  gave  in  the  Florida  case, 
two  hours.  I  think  counsel  ought  to  be  content  with  that. 

The  PRESIDENT.     Do  you  move  that  f 

Mr.  Commissioner  STRONG.     I  move  that  two  hours  be  allowed. 

The  PRESIDENT.  Mr.  Commissioner  Strong  moves  that  counsel 
be  allowed  two  hours  on  a  side  for  the  argument  of  the  question  of  the 
admissibility  of  the  evidence  offered  and  objections  thereto. 

Mr.  Commissioner  THURMAN.  Mr.  President,  I  cannot  help  saving 
that  it  does  seem  to  me  that  counsel  on  both  sides  would  aid  this  Com 
mission  in  arriving  with  a  reasonable  degree  of  expedition  and  not 
unreasonable  haste  at  the  conclusion  to  which  they  must  arrive  one 
time  or  another,  and  this  whole  thing  should  be  settled  by  letting  the 
evidence  come  in,  subject  to  exception,  and  then  arguing  the  question. 
If 'the  four  hours  and  a  half  that  we  have  allowed  are  not  sufficient  for 
that  purpose  because  of  the  introduction  of  the  element  of  the  com 
petency  or  incompetency  of  the  testimony,  then  that  time  can  be  enlarged; 


ELECTORAL    COUNT    OF    1877.  313 

but  to  fritter  our  time  away  with  arguments  upon  the  admissibility  of 
this  point  of  testimony  or  that  particular  item  of  testimony,  instead  of 
treating  this  subject  in  a  large  view  and  letting  the  testimony  come  in 
subject  to  exception  on  both  sides,  and  then  arguing  its  competency  and 
its  relevancy  as  well  as  the  merits  of  the  case,  seems  to  me  to  be  making 
of  this  tribunal  a  court  of  common  pleas  instead  of  the  tribunal  which 
it  is. 

Mr.  Commissioner  EDMUNDS.     Mr.  President 

The  PEESIDBNT.  I  will  remark  that  there  is  no  motion  before  the 
Commission  except  that  of  allowing  two  hours  on  a  side  to  the  counsel 
to  argue  the  question.  Having  permitted  discussion  by  Mr.  Thurman, 
I  will  also  allow  Senator  Edmunds  to  proceed. 

Mr.  Commissioner  EDMUNDS.  That  was  precisely  the  question, 
Mr.  President,  that  I  was  about  to  speak  to.  The  length  of  time  required 
for  the  discussion  of  this  question  depends  on  whether  counsel  are  to 
discuss  the  offer  of  testimony  as  a  mere  technical  question  of  whether  a 
particular  species  of  testimony  is  competent  to  prove  a  particular  fact 
that  is  relevant  to  the  matter,  or  whether  the  fact  itself  proposed  is  one 
which  falls  within  the  scope  of  the  consideration  of  the  Commission. 
Inasmuch  as  we  understand  from  the  preceding  case  exactly  how  this 
question  arises,  really,  as  Judge  Strong  has  said,  in  one  aspect  of  the 
case,  the  discussion  of  the  question  of  the  admissibility  of  this  testimony, 
and  so  of  its  legal  effect,  or  the  question  of  its  materiality  in  point  of 
law,  covers  the  whole  ground.  If,  therefore,  counsel  can  so  manage  as 
to  argue  the  whole  subject  presented  by  this  offer,  as  well  its  mate 
riality  as  the  result  that  must  be  drawn  from  it  if  the  facts  were  proved, 
then  if  the  Commission  should  be  of  opinion  that  it  was  not  competent 
in  its  judgment  to  go  into  that  species  of  proof,  that  would  be  an  end  of 
the  matter.  On  the  other  hand  if  the  Commission  should  be  of  opinion 
that  it  was  competent  to  go  into  the  proof  or  some  portion  of  it — of 
course  I  am  not  speaking  of  every  thing — then  we  should  have  already 
determined  the  relevancy  and  effect  of  the  facts  if  they  should  be  estab 
lished  and  not  counteracted  by  counter- proof,  and  should  have  made,  as 
it  appears  to  me,  more  rapid  progress  than  in  any  other  way. 

The  difficulty  about  taking  proof  provisionally,  as  I  understand  the 
other  side's  attitude,  is  that  if  you  take  proof  provisionally  on  the  part 
of  the  objectors  to  certificate  No.  1,  then  you  must  take  proof  provision 
ally  on  the  part  of  those  who  support  certificate  No.  1,  and  we  at  once, 
if  I  correctly  understood  the  statement  of  the  objectors,  go  into  an 
indefinite  period  of  taking  testimony  on  the  part  of  the  supporters  of 
certificate  No.  1  to  prove  that  the  very  circumstances  did  exist  under 
which,  if  this  law  of  Louisiana  be  constitutional  and  applies  to  this 
case,  it  was  the  duty  of  this  board  to  proceed  to  reject  polls,  and  so  on; 
and  they  would  ask'uson  the  same  principle  to  waive  tor  the  time  being 
the  question  as  to  whether  preliminary  steps  had  been  taken  and  to 
take  the  evidence  and  then  consider  whether  it  was  competent  for  this 
canvassing-board  to  receive  testimony  owing  to  a  defect,  in  the  want  of 
protest,  or  whatever  it  might  be.  The  result,  therefore,  of  taking  evi 
dence  provisionally  on  both  sides  (for  we  must  on  both  sides  if  on  either) 
would  be  that  we  might  find  ourselves  at  the  end  of  a  week  or  ten  days 
in  the  attitude  of  just  discovering,  as  it  is  possible  we  might — I  express 
no  opinion  about  it  and  have  none  to  express — that  we  had  wasted  all 
this  time  in  going  into  a  range  of  inquiry  that  we  felt,  under  the  law, 
we  had  no  right  to  have  gone  into.  So  I  think  the  rule  which  we 
adopted  in  the  Florida  case  would  be  the  better  one,  to  hear  this  ques 
tion  now  argued  generally  upon  the  effect  of  this  evidence  if  it  should 


314  ELECTORAL    COUNT    OF    1877. 

be  made  out,  and  the  nature  of  it,  and  what  our  powers  are,  and  so  on, 
so  that  we  can  make  definite  progress  in  the  inquiry  and  upon  the 
whole  of  the  case  as  it  would  be  presented  on  this  evidence. 

Mr.  Commissioner  BEADLEY.  That  is  very  much  my  view,  that  we 
should  go  on  and  have  it  argued  as  we  had  the  Florida  case.  It  might 
be  considered  if  not  as  evidence  in  subject  to  objection,  at  least  as  evi 
dence  offered  and  demurred  to  on  the  other  side. 

Mr.  Commissioner  STEONGr.  We  must  assume  then  that  they  can 
prove  what  they  offer. 

Mr.  Commissioner  BEADLEY.  Certainly.  I  would  add  that  no  one 
can  shut  his  eyes,  it  seems  to  me,  to  the  fact  that  the  discussion  of  the 
admission  of  this  evidence  and  going  into  this  inquiry  is  the  discussion 
of  the  whole  case. 

Mr.  Commissioner  MILLEE.  Mr.  President,  I  would  ask  my  brothers 
Edmunds  and  Bradley  whether  they  mean  (which  I  think  is  the  bet 
ter  course)  to  give  what  time  now  may  be  proper  on  all  the  questions 
in  the  case,  including  the  effect  of  this  evidence,  so  that,  when  we  retire 
for  consultation,  if  we  should  conclude  that  none  of  this  evidence  is  to 
be  admitted,  we  could  then  decide  the  whole  case  without  coming  back 
for  another  argument,  giving  counsel  fair  time  to  argue  all  the  questions 
in  the  case,  including  the  admissibility  of  this  evidence.  Of  course,  if 
in  conference  we  determine  to  receive  this  evidence,  we  shall  have  to 
come  back,  let  it  be  admitted,  and  let  counter-evidence  be  admitted,  and 
hear  argument  on  its  effect.  If  not,  can  it  not  be  so  argued  that  when  we 
do  retire  on  this  question,  if  the  evidence  should  be  excluded,  (about 
which  I  have  no  idea  what  the  Commission  will  hold,)  the  law  will  then 
have  been  argued  on  the  other  papers  and  we  shall  be  prepared  to  make 
a  decision. 

The  PEESIDENT.  The  only  question  before  the  Commission  is  the 
motion  of  Judge  Strong  to  allow  two  hours  on  a  side. 

Mr.  Commissioner  EDMUNDS.  I  move  to  amend  that  by  substi 
tuting  the  following  order : 

Ordered,  That  counsel  now  be  heard  on  the  whole  subject  as  the  case  now  stands, 
and  that  three  hours  on  a  side  be  allowed. 

Mr.  EYAETS.    Three  hours  added  to  what  is  already  allowed  ? 

Mr.  Commissioner  EDMUNDS.     No,  sir;  three  hours  now. 

Mr.  EYAETS.  We  had  four  and  a  half  hours  on  our  side  yesterday. 
Two  hours  have  been  taken  up  by  the  other  side. 

The  PEESIDENT.     This  is  changing  the  course  of  the  trial. 

Mr.  Commissioner  EDMUNDS.  I  will  modify  my  proposition  on  the 
suggestion  that  part  of  the  time  has  already  been  occupied. 

The  PEESIDENT.    As  modified,  the  order  is  : 

Ordered,  That  counsel  now  be  heard  on  the  whole  subject  as  the  case  now  stands, 
and  that  four  hours  on  a  side  be  allowed. 

It  makes  no  deduction  of  what  is  past. 

Mr.  Commissioner  THUEMAN.  I  should  like  to  have  the  meaning 
of  that  order  explained. 

Mr.  Commissioner  EDMUNDS.  It  means,  as  I  suppose,  exactly  what 
it  says.  If  I  read  it  to  my  friend  again,  perhaps  he  will  understand  it ; 

Ordered,  That  counsel  now  be  heard  on  the  whole  subject  as  the  case  [now  stands* 
and  that  four  hours  on  a  side  be  allowed. 

If  I  correctly  understand  the  offer  of  Judge  Trumbull,  which  has  been 
carefully  read  and  is  perfectly  perspicuous  and  understandable,  it  is 
that  the  objectors  to  certificate  No.  1  and  the  supporters  of  certificate 


ELECTORAL    COUNT    OF    1877.  315 

No.  2  propose  to  prove  certain  things.  The  counsel  on  the  other  side 
object  to  that  as  irrelevant  and  incompetent  in  this  consideration.  So 
that  if  we  now  proceed  on  the  subject  as  the  case  now  stands,  it  opens 
the  effect  of  this  evidence,  as  we  must  take  it  to  be  capable  of  being 
proved  as  a  matter  of  course  as  we  now  argue  it;  and  the  whole  duty 
of  this  Commission  upon  the  subject,  it'  we  decide  that  it  is  not  within 
our  power  under  the  law  to  go  into  an  inquiry  of  that  kind,  will  be  dis 
posed  of.  If  we  decide  that  it  is  in  our  power  to  go  into  a  part  of  the 
inquiry,  then  we  go  into  it.  If  we  hold  that  it  is  within  our  power  to 
go  into  the  whole  inquiry,  we  so  decide  and  the  evidence  proceeds.  I 
think  there  is  no  difficulty  in  understauding  it. 

Mr.  Commissioner  THUEMAN.  I  really  meant  no  disrespect  to  my 
brother ;  but  I  did  not  understand  it.  If  he  means  four  hours  on  a  side 
to  argue  the  admissibility  of  this  testimony,  it  is  one  thing. 

The  PRESIDENT.    And  its  effect. 

Mr.  Commissioner  THUEMAN.  If  he  means  that  the  whole  case  is 
to  be  submitted  after  four  bours  have  been  exhausted  on  each  side,  then 
that  strikes  me  as  a  singular  proposition  for  several  reasons.  In  the 
first  place,  one  of  the  sides  has  already  occupied  two  hours.  The  propo 
sition  then  would  give  to  them  the  advantage  of  two  hours  in  the  argu 
ment,  give  them  six  hours  instead  of  four. 

But  again,  if,  without  deciding  whether  we  have  anything  in  evidence 
at  all,  without  counsel  knowing  whether  we  have  anything  in  evidence 
at  all,  we  are  to  fix  a  time  to  have  the  whole  case  submitted  and  the 
argument  finally  closed  and  then  we  retire  and  give  our  final  decision, 
upon  my  word  I  do  not  know  what  kind  of  a  judicial  proceeding  that 
would  be. 

Mr.  Commissioner  MILLEE.  Mr.  President,  let  me  suggest  that  the 
proposed  order  does  not  provide  that  we  shall  give  a  final  decision  ;  it 
does  not  provide  that  we  shall  give  any  decision  at  all,  nor  what  that 
decision  shall.be.  It  says  that  we  shall  hear  argument  upon  the  whole 
case  as  it  now  stands,  on  the  effect  of  the  certificates  and  papers  sub 
mitted  by  the  President  of  the  Senate  and  the  effect  of  the  offer  of  tes 
timony.  It  is  easy  to  see  that  under  such  an  argument,  whether  it  be 
long  or  short,  (and  I  have  nothing  to  say  about  what  its  length  should 
be,)  when  we  retire,  if  this  testimony  is  to  be  admitted,  we  have  got  to 
come  back  and  iet  it  be  submitted  and  argued ;  and  if  it  is  to  be  excluded, 
then  the  other  question  of  the  effect  of  the  papers  submitted  and  the 
whole  of  the  case  will  have  been  argued,  and  we  can  then  decide  the 
whole  case.  That  I  understand  to  be  the  purport  and  object  of  the 
order. 

Mr.  Commissioner  BAYAED.  Mr.  President,  what  is  the  precise 
meaning  of  the  words  "  as  the  case  now  stands,"  if,  as  has  been  said  by 
my  brother  Bradley,  the  case  is  to  be  treated  as  if  on  a  demurrer  to 
evidence,  which  considers  the  evidence  before  the  court,  the  effect  of  it 
•imply  being  in  question?  If  therefore  this  argument  is  to  proceed 
upon  the  basis  of  the  facts  which  have  been  offered  to  be  proved  being 
proved  and  before  the  court,  that  is  one  thing.  Then  the  argument 
would  have  for  its  basis  the  law  as  applied  to  the  facts  stated  by  counsel 
here  to  us.  If  that  be  the  understanding,  that  we  are  to  hear  this  case 
as  it  it  were  upon  a  demurrer  to  testimony,  we  know  what  that  means; 
and  if  after  that  judgment  there  will  be  again  argument  in  case  it  is 
desired,  with  that  understanding  I  shall  be  content. 

Mr.  Commissioner  FEELINGHU  YSEN.  Mr.  President,  I  should  like 
to  know  from  the  objectors  to  certificate  No.  2  whether  this  time  is  sat 
isfactory  to  them.  It'  it  is,  I  shall  vote  for  it.  If  it  is  not,  inasmuch  as 


316  ELECTORAL    COUNT    OF    1877. 

the  other  side  have  already  occupied  two  hours.  I  should  want  the  rule 
made  uniform. 

Mr.  Commissioner  ABBOTT.  Mr.  President,  I  understand,  in  answer 
to  the  suggestion  made  by  Senator  Bayard,  that  this  is  an  argument 
not  only  upon  the  competency  of  the  evidence  offered  as  upon  a  de 
murrer  to  evidence,  but  it  is  in  addition  an  argument  upon  the  whole 
case,  so  that  when  this  argument  is  once  made  we  are  to  decide  the 
whole  case  unless  we  admit  the  testimony.  It  is  not  an  argument 
simply  upon  a  demurrer  to  the  testimony,  as  to  the  effect  of  the  testi 
mony,  but  it  is  an  argument  upon  that  and  also  upon  the  whole  merits 
of  the  case  if  there  is  anything  else  outside  of  this  question  of  testimony. 
Now,  sir,  I  object  for  one  to  mixing  up  the  two  matters  together.  I  am 
content,  as  suggested  by  Judge  Strong,  to  take  an  argument  upon  this 
offer  of  testimony  as  upon  a  demurrer  to  testimony.  Let  us  hear  the 
effect  of  that  testimony  argued,  whether  we  will  or  will  not  admit  it; 
and  then  if  we  agree  to  admit  it,  very  well ;  if  we  agree  not  to  admit  it, 
let  us  have  the  argument  upon  what  is  left  of  this  case,  distinct  and 
independent  and  by  itself.  I  think  the  statement  made  by  Judge 
Strong  on  that  matter  covers  the  whole  case.  The  course  now  pro 
posed  is  mixing  up  two  matters  which  necessarily  have  no  sort  of  con 
nection  with  each  other. 

Mr.  Commissioner  EDMUNDS.  Mr.  President,  that  would  be  true 
if  we  had  unlimited  time,  and  I  should  quite  agree  that  it  would  be 
more  convenient  to  hear  the  precise  point  argued  on  the  oifer  of  a  par 
ticular  piece  of  testimony,  just  as  a  court  would;  but  we  ought  not  to 
forget  that  time  is  running  very  fast  and  we  only  have  a  dozen  or  thir 
teen  days  more  within  which  to  dispose  of  this  case  and  every  other 
that  may  come  to  us,  and  that  there  are  twenty  five  States,  or  something 
like  that  number,  whose  voice  in  this  queston  has  not  been  unsealed, 
and  cannot  be  until  a  report  is  made  upon  this  case.  Therefore,  to  save 
time,  it  appears  to  me  that  it  would  be  better  to  argue  the  case  as  it 
now  stands,  upon  the  admissibility  of  this  testimony  and  upon  the  atti 
tude  the  case  would  occupy  if  the  testimony  were  not  admitted,  in  order 
that  in  one  event  we  should  be  able  to  make  proper  and  diligent  haste 
and  not  undue  haste,  and  in  the  other  event  we  then  should  have  elimi 
nated  difficulties  and  should  be  ready  to  go  on  with  the  testimony. 

The  PRESIDENT.  I  desire  to  say  one  word.  If  the  order  relates 
only  to  the  evidence  and  its  effect,  I  will  vote  for  it.  If  it  embraces  not 
only  the  offer  of  evidence  and  its  effect,  but  also  the  effect  of  the  certifi 
cates  and  otf  the  evidence  which  accompanies  them  and  all  the  other 
papers  submitted  to  us,  I  will  vote  against  it. 

Mr.  Commissioner  THUEMAN.  Mr.  President.  I  do  not  understand 
what  is  meant  by  speaking  of  a  demurrer  to  evidence  before  this  tribunal. 
Do  we  proceed  by  a  demurrer  to  evidence?  If  we  do,  we  are  to  give 
judgment  when  we  overrule  that  demurrer;  that  is  an  end  of  the  case. 
Furthermore,  if  we  proceed  by  the  technical  rules  of  a  demurrer  to  evi 
dence,  then  the  party  who  demurs  is  subject  to  every  possible  inference 
and  suggestion  that  can  be  drawn  from  that  testimony — every  one  that 
is  possible.  He  is  subjected  to  the  disadvantages  of  it.  Is  that  meant 
here?  What  is  this  but  a  simple  objection  to  evidence,  not  a  demurrer 
to  evidence  ?  I  do  not  understand  that  the  technical  rules  as  to  demur 
rers  to  evidence  apply  in  this  case  at  all. 

If  the  Commission  think  that  the  course  pursued  in  the  Florida  case 
is  the  best  way,  and  will  now  hear  argument  on  the  admissibility  of 
this  testimony  and  then  decide  that  question,  and  if  decided  one  way, 
decided  in  favor  of  the  admissibility,  then  receive  the  testimony,  and  if 
decided  against  it,  then  let  the  argument  take  place  upon  the  papers 


ELECTORAL    COUNT    OF    1877.  317 

that  have  beeu  laid  before  us  and  which  all  admit  to  be  in  evidence, 
well  and  good.  Then  it  is  only  a  question  of  how  much  time  should  be 
allowed  to  either  side  to  argue  the  question  of  the  adinissibility  of  the 
evidence.  I  am  in  favor  of  a  liberal  time  for  that  purpose;  but  I  agree 
with  my  brother  Abbott  that  if  we  are  to  treat  the  case  in  that  way, 
let  us  keep  the  questions  separate.  I  think  a  very  much  better  way 
would  be  to  consider  all  the  testimony  in  and  argue  this  case  on  its 
full  merits  with  reference  to  the  competency  of  the  testimony,  and 
allow  ample  time  to  do  it;  but  if  that  is  not  agreeable  to  the  Commis 
sion,  then  the  only  other  way  that  I  see  is  to  allow  a  reasonable  time  to 
argue  the  question  of  the  adinissibility  of  this  testimony. 

Mr.  Commissioner  ABBOTT.  I  only  desire  to  say  that  I  used  the 
term.  "  demurrer  to  evidence "  not  in  its  strictest  technical  sense.  I 
think  the  Senator  from  Ohio  and  myself  do  not  differ  as  to  what  we 
desire.  I  suppose  that  the  argument  of  this  question  of  the  offer  of 
evidence  is  upon  the  objection  to  the  evidence,  but  it  is  to  be  treated 
precisely  as  if  the  evidence  was  before  us,  and  if  it  was  before  us  what 
would  be  the  effect  of  that  evidence  upon  the  objection  to  the  evidence  f 
I  only  used  the  term  "  demurrer  to  the  evidence'7  as  a  convenient  way 
of  expressing  what  I  meant.  God  knows  I  do  not  desire  to  import  into 
this  tribunal  any  technical  rules  and  count  in  or  count  out  a  President 
of  the  United  States  upon  a  technical  rule. 

Mr.  EVAETS.  Mr.  President,  I  have  been  anticipated  in  a  great 
part  by  the  observations  that  have  fallen  from  Mr.  Commissioner  Thur- 
man.  I  wished  to  guard  against  any  implication  by  our  silence  that  we 
assented  to  the  position  of  counsel  who  were  objecting  to  the  adinissi 
bility  of  evidence  as  being  equivalent  to  that  of  counsel  wrho  admitted 
the  evidence  and  demurred  to  its  effect.  We  certainly  do  not  intend  to 
place  ourselves  in  the  position  of  treating  the  evidence  as  if  already  in 
and  arguing  then. 

The  PEES1DENT.  In  arguing  the  question,  must  we  not  proceed 
on  the  ground  that  those  who  offer  it  can  prove  it ! 

Mr.  EVARTS.  Undoubtedly,  and  then  you  determine  whether  it  is 
admissible. 

The  PRESIDENT.  That  is  the  exact  state  of  the  case. 
Mr.  EVAETS.  That  is  the  situation ;  but  a  demurrer  to  evidence 
concedes  it  to  be  already  in  and  says,  u  What  happens  then  PJ  We  wish 
to  guard  against  that  implication  and  simply  that.  Now,  in  regard  to 
the  question  that  Mr.  Commissioner  Frelinghuysen  put  to  us,  it  cer 
tainly  would  seem  to  enlarge  a  little  the  area  of  argument  imposed  upon 
us  when,  in  addition  to  what  was  supposed  to  be  the  duty  imposed  upon 
counsel  when  four  and  a  half  hours  were  allowed  to  each  side,  there  is 
now  by  introduction  of  this  offer  of  evidence  a  somewhat  separate  con 
sideration.  But  we  agree  entirely  on  our  part  to  the  method  suggested 
of  hearing  the  question  of  the  admissibility  of  the  evidence,  and  then 
also  the  question  of  what  would  be  the  result  if  it  were  excluded  and 
the  certificates  opened  by  the  President  of  the  Senate  were  the  only 
matters  before  the  Commission.  The  argument  of  both  may  properly 
proceed  together;  so  that  if  the  Commission,  retiring  from  that  com 
pleted  argument,  should  hold  that  this  evidence  was  to  be  excluded  and 
that  all  the  evidence  before  them  was  included  in  the  certificates  opened 
by  the  President  of  the  Senate,  it  would  have  heard  the  argument  on 
that  subject. 

The  PEESIDENT.  The  question  is  on  the  order  submitted  by  Sen 
ator  Edmunds : 

Ordered,  That  counsel  now  be  heard  on  the  whole  subject  as  the  case  now  stands, 
apd  that  four  hours  on  a  side  be  nllo-rp^. 


318  ELECTORAL    COUNT    OF    1877. 

Mr.  Commissioner  PAYNE.  Mr.  President,  I  am  very  much  opposed, 
as  one  member  of  the  Commission,  to  that  order.  There  are  eleven  or 
twelve  propositions  stated  by  counsel  of  what  they  propose  to  prove  j 
and  under  the  rules  of  this  Commission  one  counsel  on  a  side  can  be 
heard  on  each  one  of  those  propositions  for  fifteen  minutes.  That  would 
make  more  time  than  we  now  propose  by  this  motion  to  allow  for  the 
argument  of  the  merits  as  well  as  the  argument  of  the  interlocutory 
question.  I  do  not  understand  the  reason  or  the  propriety  of  compel 
ling  counsel  to  argue,  upon  this  first  proposition  as  to  the  admissibility 
of  evidence,  the  other  questions  presented  in  the  case,  to  wit,  the  con 
stitutionality  of  some  of  these  laws.  They  are  entitled  to  three  hours 
to  discuss  the  interlocutory  questions.  Now,  after  this  statement  of 
counsel  that  they  require  the  three  hours  for  the  discussion  of  those 
questions,  to  require  them  within  the  same  time  to  discuss  the  other 
questions  pertaining  to  the  constitutionality  of  these  laws — some  three 
or  four  distinct  propositions  made  in  the  statement  of  counsel — appears 
to  me  grossly  unjust  and  grossly  unfair  toward  the  counsel  who  prose 
cute  this  case.  I  hope,  therefore,  that  the  Commission  will  not  so  regard 
the  pressing  necessity  of  urgent  haste,  on  the  supposition  made  by  Sen 
ator  Edmunds  that  there  are  some  twenty  or  thirty  cases  yet  behind 
this,  as  a  reason  for  inflicting  this  unjust  requisition  on  counsel.  I  hope, 
therefore,  that  the  Commission  will  not  adopt  that  resolution,  but  will 
confine  it  to  interlocutory  questions. 

Mr.  Commissioner  MORTON.  Mr.  President,  in  view  of  the  very  few- 
days  left,  I  shall  be  compelled  to  vote  against  any  extension  of  time  and 
that  we  proceed  under  the  rule  as  it  now  stands.  The  order  seems  to 
me  to  be  unequal  in  its  character  and  in  effect  to  give  six  hours  to  one 
side  and  four  hours  to  the  other.  It  seems  to  me  that  the  ordinary  way 
is  the  best  way:  first,  let  the  question  of  the  admissibility  of  the  evi 
dence  be  taken  up  and  discussed  5  and  if  it  should  be  decided  to  admit 
all  of  it  or  to  admit  none  of  it,  then  the  effect  of  that  which  is  admitted, 
what  it  proves,  will  be  discussed.  As  far  as  I  am  concerned,  I  prefer  to 
adhere  to  the  rule  as  it  now  stands. 

Mr.  Commissioner  ABBOTT.  Mr.  President,  as  I  understand,  proceed 
ing  with  this  case  as  the  rule  now  stands  would  be,  as  suggested  by  Mr. 
Commissioner  Payne,  to  give  fifteen  minutes  on  each  single  proposition, 
and  if  we  are  to  act  upon  that  I  do  not  see  that  it  can  be  prevented. 
Then  if  we  have  required,  as  we  have,  the  counsel  to  present  their  objec 
tions  all  in  a  mass  instead  of  separately,  I  do  not  see  how  we  can  say  to 
them,  u  You  shall  expend  your  fifteen  minutes  upon  one  proposition," 
but  they  may  take  the  whole  time,  it  seems  to  me,  upon  the  whole  mass. 
We  have  massed  the  propositions,  the  offers  of  evidence,  arid  why  not 
consolidate  and  mass  the  time? 

Mr.  Commissioner  EDMUNDS.  May  I  ask  Judge  Abbott,  supposing 
exactly  the  same  principle  applied  to  two  propositions  and  two  offers  of 
evidence,  would  you  hold  that  having  heard  one  discussion  of  fifteen 
minutes  and  decided  it  you  could  hear  the  judgment  of  the  tribunal  dis 
cussed  over  again  on  the  next  one,  which  was  exactly  like  it  ? 

Mr.  Commissioner  ABBOTT.    No,  sir. 

Mr.  Commissioner  EDMUNDS.  Then  it  would  not  follow  that  the 
whole  twelve  would  take  up  fifteen  minutes  each. 

Mr.  Commissioner  ABBOTT.  I  do  not  understand  that  the  decision 
of  one  offer  of  evidence  necessarily  decides  all  the  others.  I  do  not  un 
derstand  that  counsel  are  to  discuss  over  again  the  judgment  of  the 
tribunal  that  has  once  been  made  ;  but  if  you  will  be  kind  enough,  Mr. 
President,  to  read  the  ler  again,  I  desire  to  move  an  amendment. 


ELECTORAL    COUNT    OF    1877.  319 

The  PEESIDENT.    I  will  read  it  again. 

Ordered,  That  counsel  now  be  heard  on  the  whole  subject  as  the  case  now  stands,  and 
that  four  hours  on  a  side  be  allowed. 

Mr.  Commissioner  STEONG-.  If  Judge  Abbott  will  permit  me,  I  un 
derstand  that  to  be  an  amendment  offered  to  the  order  which  I  moved. 
My  motion  was  that  counsel  be  allowed  two  hours  on  each  side  to  argue 
the  question  of  the  admissibility  or  inadmissibility  of  the  evidence 
offered. 

The  PRESIDENT.  I  will  state  the  question.  The  motion  made  by 
Judge  Strong  is  that  two  hours  be  allowed  on  a  side  to  argue  the  ques 
tion  of  the  admissibility  of  the  testimony  offered.  Mr.  Edmuuds's 
proposition  is  in  the  nature  of  a  motion  to  strike  that  out  and  insert — 

Ordered,  That  counsel  now  be  heard  on  the  whole  subject  as  the  case  now  stands,  and 
that  four  hours  be  allowed  on  a  side. 

The  question  is  upon  striking  out  and  inserting. 

Mr.  Commissioner  HOAE.  Mr.  President,  it  seems  to  me  that  it  is 
very  obvious  that  this  is  not  the  ordinary  question  of  presenting  evi 
dence  in  a  court  on  an  issue  framed.  The  prime  question,  we  all  know, 
which  lies  at  the  foundation  of  this  whole  discussion  is  this :  Is  the  con 
stitutional  power  vested  in  the  two  Houses,  or  either  of  them,  by  the 
provision  that  they  shall  be  present  at  the  opening  of  the  certificates, 
to  hear  evidence  to  impeach  those  certificates  ?  If  that  power  be  vested 
in  the  two  Houses,  and  through  them  in  this  Commission,  then  there 
may  come  up  the  ordinary  questions  of  detail  as  to  the  evidence  which 
is  to  be  introduced,  its  competency,  and  its  force.  If  that  power  be  not 
vested  in  the  two  Houses  and  through  them  in  the  Commission,  then  to 
ask  them  to  exercise  it  is  to  ask  them  to  do  exactly  what  is  imputed  as 
a  crime  to  the  officers  whose  action  is  now  laid  before  the  Commission, 
to  wit,  to  usurp  power  to  redress  what  we  fancy  to  b'e  a  public  wrong. 
That  one  question  cannot  be  separated  from  the  question  of  the  admis 
sibility  of  the  evidence.  If  the  evidence  be  inadmissible,  it  is  inadmissi 
ble  in  consequence  of  one  view  of  that  question.  If  it  be  admissible,  it 
is  admissible  in  consequence  of  another  view  of  that  question.  It  seems 
to  me,  therefore,  that  the  amendment  proposed  by  Senator  Edmunds 
brings  up  practically  what  we  already  know  is  and  must  be  brought  up 
practically  in  the  mind  of  the  Commission  in  any  form  of  the  discussion. 

The  PRESIDENT.  The  question  is  upon  striking  out  the  motion 
made  by  Judge  Strong  and  inserting  the  one  made  by  Senator  Ed 
munds. 

Mr.  Commissioner  GAEFIELD.  I  wish  to  make  a  single  remark. 
The  proposition  of  Judge  Strong  proceeds  upon  the  supposition,  which 
is  the  fact,  that  our  order  of  last  night,  which  is  partially  executed,  has 
been  arrested  by  an  interlocutory  question.  The  order  last  night  was 
that  we  should  proceed  to  hear  counsel  four  and  a  half  hours  on  each 
side,  and  as  far  as  anything  before  us  then  was  concerned,  it  was  on  the 
final  question.  That  order  is  partly  executed  j  two  hours  have  been 
consumed  on  one  side ;  but  we  are  now  arrested  by  an  interlocutory 
question  of  the  offer  of  proof  and  the  admissibility  of  evidence.  It  seems 
to  me  much  the  plainest,  much  the  easiest  mode,  to  arrest  our  progress 
here  and  hear  that  question  argued,  as  Judge  Strong  moves,  for  two 
hours  on  a  side.  That  being  settled,  we  proceed  to  execute  the  other 
order  which  has  half  been  executed  by  hearing  argument  for  two  hours 
on  one  side ;  two  hours  and  a  half  more  are  to  be  heard  on  that  side  and 
four  and  a  half  on  the  other,  and  that  closes  it.  I  shall  vote  against 
the  amendment  and  in  favor  of  Judge  Strong's  motion. 

Mr.  Commissioner  THUEMAN     I  wish  there  may  be  no  misuuder- 


320  -    ELECTORAL    COUNT    OF    1877. 

standing  as  to  the  effect  of  this  amendment  or  substitute.  As  I  under 
stand  it,  it  is  this,  that  after  four  hours  of  argument  on  each  side  the 
Commission  shall  go  into  consultation;  if  they  decide  against  receiving 
the  testimony,  then  without  further  argument  they  shall  proceed  to 
decide  the  case.  I  hope  that  that  will  be  understood.  That  is  the  prop 
osition. 

Mr.  Commissioner  EDMUNDS.    That  is  as  I  understand  it. 

Mr.  Commissioner  THURMAN.  That  we  hear  eight  hours'  argu 
ment,  four  on  a  side,  and  then  go  into  consultation.  Then  if  the  decis 
ion  be  to  receive  the  testimony,  we  come  into  open  session  again  and 
hear  it,  and  then  argument  follows,  as  a  matter  of  course.  If  we  decide 
not  to  receive  it,  then  without  any  further  argument  we  decide  the  whole 
case.  That  is  the  proposition  in  substance.  I  rather  incline  to  think 
that  the  course  suggested  by  Mr.  Justice  Strong  is  better  than  that, 
provided  the  time  be  extended.  I  do  not  believe  that  the  admissibility 
of  this  testimony  can  be  argued  on  either  side  within  two  hours,  and, 
therefore,  as  it  is  in  order  to  move  to  perfect  the  original  motion  before 
a  substitute  is  voted  on,  I  move  to  strike  out  "two"  in  Judge  Strong's 
motion  and  insert  "four." 

Mr.  Commissioner  GARFIELD.     Only  three  hours  are  asked  for. 

Mr.  Commissioner  THURMAN.     Three,  then,  I  will  say. 

The  PRESIDENT.  The  first  question  is  on  perfecting  the  motion  of 
Judge  Strong  by  striking  out  "two"  and  inserting  "three"  as  the 
number  of  hours.  The  question  is  on  that  amendment. 

Mr.  Commissioner  PAYNE  called  for  the  yeas  and  nays;  and  being 
taken,  they  resulted — yeas  7,  nays  8;  as  follows  : 

Those  who  voted  in  the  affirmative  were :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurmau — 7. 

Those  who  voted  in  the  negative  were:  Messrs.  Bradley,  Edmunds, 
Frelinghuyseu,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

So  the  amendment  was  not  agreed  to. 

The  PRESIDENT.  The  question  recurs  on  the  substitute  striking 
put  all  after  the  word  "ordered"  in  Judge  Strong's  proposition  and 
inserting  the  substitute  of  Senator  Edmunds. 

Mr.  Commissioner  PAYNE  called  for  the  yeas  and  nays ;  and  being 
taken,  they  resulted — yeas  4,  nays  11 ;  as  follows : 

Those  who  voted  in  the  affirmative  were:  Messrs.  Edmunds,  Freling- 
huysen,  Hoar,  and  Miller — 4. 

Those  who  voted  in  the  negative  were:  Messrs.  Abbott,  Bayard, 
Bradley,  Clifford,  Field,  Garfield,  Hunton,  Morton,  Payne,  Strong,  and 
Thurrnan — 11. 

So  the  amendment  was  rejected. 

The  PEESIDENT.  The  question  recurs  on  the  motion  of  Judge 
Strong  that  counsel  be  allowed  two  hours  on  each  side  to  argue  the 
question  of  the  admissibility  of  the  offers  of  evidence. 

The  motion  was  agreed  to. 

Mr.  EYARTS.  Mr.  President,  we  understand  upon  our  part,  and  it 
is  important  that  we  should  not  misunderstand  at  this  stage  of  the 
matter,  that  when  the  two  hours  have  been  consumed  by  each  side  on 
this  interlocutory  matter  of  the  introduction  of  evidence,  the  order  of 
yesterday  proceeds  to  be  executed  by  two  hours  and  a  half  being  allowed 
to  the  other  side  on  the  merits  and  four  and  a  half  hours  to  us. 

The  PRESIDPJNT.  That  is  my  understanding,  unless  the  Commis 
sion  otherwise  direct. 

Mr.  EVARTS.  The  pertinency  of  this  suggestion  will  be  seen  when 
I  state  what  I  was  proceeding  to  ask  in  our  behalf;  that  is,  we  might 


ELECTOEAL    COUNT    OF    1877.  321 

be  of  opinion  that  the  argument  in  full  and  satisfactorily  in  point  of 
time  of  this  interlocutory  question  might  well  be  expected  to  shorten 
our  final  argument  upon  the  merits ;  we  might  be  allowed  to  take  an 
hour  from  the  four  and  a  half  on  the  merits,  lessening  our  time  in  that 
behalf,  to  speak  on  the  interlocutory  question. 

The  PRESIDENT,    There  is  no  such  power  in  the  Chair. 

Mr.  EVARTS.  If  the  Commission  should  retire  at  the  end  of  two 
hours'  argument  nothing  in  supplement  to  that  would  proceed  from  our 
general  discussion  of  the  case,  while  our  opponents  have  had  two  hours 
of  general  discussion  of  the  case  in  aid  of  the  considerations  they  are 
now  presenting. 

The  PRESIDENT.  The  present  decision  of  the  Commission  is  that 
two  hours  be  allowed  on  a  side  to  discuss  the  question  of  the  admissi 
bility  of  the  proof  offered.  When  that  is  concluded,  unless  the  Com 
mission  decide  to  retire,  (on  which  the  Chair  will  not  make  any  determin 
ation,)  the  question  then  will  be  the  execution  of  the  former  order,  which 
has  been  in  part  executed. 

Mr.  CAMPBELL.  Allow  me,  Mr.  President,  to  make  a  remark.  I 
have  the  same  opinion  that  was  expressed  by  one  of  the  honorable 
members  of  the  Commission,  that  the  whole  merits  of  this  case  will  be 
involved  in  the  question  of  the  admissibility  of  this  evidence,  because 
in  the  question  of  admissibility  is  involved  the  question  of  the  effect;  and 
therefore,  I  agree  with  the  suggestion  of  counsel  on  the  other  side  that 
if  we  find  it  necessary  to  discuss  the  question  of  admissibility  at  greater 
length  than  the  two  hours,  we  be  allowed  to  continue  the  discussion  and 
subtract  the  time  so  consumed  from  the  four  and  a  half  hours  allowed 
us  on  the  merits. 

The  PRESIDENT.    That  is  for  the  Commission,  not  for  the  Chair. 

Mr.  EVARTS.  The  Commission  will  see  the  great  disparity  in  the 
position  of  the  counsel  for  the  two  sides.  Two  hours  have  been  occu 
pied  already  in  discussing  the  general  merits  of  the  case  which  involve 
all  this  question  of  admissibility.  Now,  they  are  to  have  two  hours  to 
discuss  the  specific  question.  We  are  to  have  but  two  hours  to  discuss 
the  specific  question,  and  then  the  Commission  may  retire  upon  that 
disparity  of  argument  and  preclude  us  from  further  argument. 

Mr.  Commissioner  BRADLEY.  Mr.  President,  I  voted  for  two  hours 
for  a  side  on  this  question  in  consequence  of  the  amount  of  time  still 
left  to  discuss  the  main  question  ;  but  the  proposition  now  made  by 
counsel  on  both  sides  seems  to  me  to  be  a  very  fair  one,  that  either  side 
may  take  so  much  of  their  remaining  time  as  they  consider  necessary 
in  the  discussion  of  this  question  of  the  admissibility  of  the  evidence, 
and  I  move  that  they  be  permitted  to  do  so. 

Several  MEMBERS.    That  is  right. 

The  PRESIDENT.  The  motion  of  Justice  Bradley  is  that  counsel 
may  take  such  time  as  they  desire,  if  any,  from  the  time  previously 
allowed,  four  and  a  half  hours,  and  employ  it  in  the  discussion  of  the 
question  of  the  admissibility  of  the  proofs,  in  addition  to  the  two  hours 
already  allowed.  The  question  is  on  that  motion. 

The  motion  was  agreed  to. 

The  PRESIDENT.  In  the  absence  of  any  direction  from  the  Commis 
sion,  the  Chair  rules  that  the  objectors  to  the  offers  of  proof  open  and 
close. 

Mr.  EVARTS.  That  is  the  opposite  order  to  that  which  was  adopted 
on  the  former  discussion. 

The  PRESIDENT.    Certainly  ;  but  it  is  the  rule  in  court  and  I  adopt 
21  E  c 


322  ELECTORAL    COUNT    OF    1877. 

that  rule  in  the  absence  of  any  direction  from  the  Commission.    The 
objectors  to  evidence  always  speak  first. 

Mr.  Commissioner  EDMUNDS.  In  the  Florida  case  it  was  exactly 
the  other  way.  I  do  not  know  what  would  be  more  convenient  to  coun 
sel. 

Mr.  EYAETS.  We  had  expected  that  the  course  pursued  in  the 
Florida  case  would  have  proceeded  here  5  we  had  no  intimation  of  a 
change. 

Mr.  Commissioner  EDMUNDS.  I  move,  then,  that  those  who  offer 
the  proof  shall  have  the  opening  and  the  close. 

The  PRESIDENT.   The  question  is  on  the  motion  of  Senator  Edmunds. 

Mr.  Commissioner  MILLEE.  If  the  counsel  on  both  sides  wish  that, 
there  can  be  no  objection  to  it. 

Mr.  Commissioner  GAEFIELD.  If  counsel  can  agree  on  that  I  should 
prefer  that  they  should  decide  it.  I  think,  if  they  can  make  a  choice 
themselves,  they  ought  to  be  permitted  to  do  it. 

Mr.  TEUMBULL.  We  supposed  it  properly  came  from  the  objectors, 
but  upon  that  we  are  entirely  willing  to  submit  to  the  Commission.  We 
are  willing  to  open  ourselves. 

The  PEESIDENT.  Very  well ;  then  there  is  no  need  of  a  vote.  If 
you  are  agreed,  the  counsel  making  the  offer  of  proof  will  open,  but  the 
rule  in  court  is  always  the  other  way. 

Mr,  TEUMBULL.  Mr.  President,  and  gentlemen  of  the  Commis 
sion 

Mr.  Commissioner  EDMUNDS.  Before  Judge  Trumbull  begins,  as 
we  shall  have  to  sit  quite  late,  I  move  that  we  now  take  a  recess  for 
thirty  minutes. 

The  motion  was  agreed  to,  and  the  Commission  took  a  recess. 

The  Commission  re-assembled  at  one  o'clock  and  four  minutes  p.  m. 

Mr.  TEUMBULL.  Mr.  President  and  gentlemen,  under  the  ruling  of 
the  Commission,  we  are  brought  face  to  face  with  the  question  whether 
a  President  of  the  United  States  is  to  be  made  by  forgery  and  conspiracy 
on  the  part  of  the  officials  whose  duty  it  is  to  certify  the  electoral  vote  of  a 
State  ;  and  it  is  submitted  to  this  Commission  boldly  and  baldly  to  de 
cide  that  question.  The  power  rests  nowhere  else.  There  is  no  tribunal 
in  this  land,  judicial  or  otherwise,  that  can  inquire  into  this  matter  ex 
cept  this  Commission  ;  and  when  I  speak  to  this  Commission  I  consider 
myself  as  addressing  the  two  Houses  of  Congress  assembled  together 
for  the  purpose  of  counting  the  electoral  votes  from  the  various  States. 

Is  it  true  that  the  great  Republic,  founded  by  the  wisest  men  and  the 
purest  patriots,  has  made  no  provision  against  the  inauguration  of  its 
Chief  Magistrate  by  fraud,  corruption,  and  forgery  ?  Is  that  the  con 
dition  to  which  the  people  of  this  great  country  are  reduced  ?  Is  this 
our  boasted  freedom  1  Is  this  our  great  American  system  that  has  no 
power  to  protect  the  seat  occupied  by  Washington  and  Lincoln  from 
being  filled  by  a  person  who  goes  to  it  through  the  forgery,  fraud,  and 
conspiracy  of  those  who  certify  to  the  election,  and  thereby  thwart  the 
will  of  the  people  ?  I  confess  myself  humiliated  that  as  a  citizen  of  this 
Republic,  in  which  we  all  take  so  much  pride,  I  am  called  upon  to  argue 
such  a  question  before  a  national  tribunal. 

In  my  judgment,  there  has  been  a  very  great  misconception  in  regard 
to  the  powers  of  this  Commission.  It  is  neither  a  canvassing- board, 
with  the  powers  usually  given  to  persons  who  are  to  determine  who  is 
elected  constable  in  some  small  town,  nor  is  it  a  judicial  tribunal;  but 
it  is  the  representative  of  both  Houses  of  the  Congress  of  the  United 
States,  vested  with  power  to  goto  the  bottom  and  investigate  any  ques- 


ELECTORAL   COUNT   OF    1877.  323 

tion  that  the  two  Houses  have  a  right  to  consider.  Parliamentary  law, 
the  rules  and  methods  of  proceeding  by  legislative  assemblies,  are  as 
well  established  as  the  rules  of  proceeding  of  the  common  law. 

You  are  sitting  here  as  legislators  to  decide  a  political  question,  ham 
pered  by  no  technical  rules  of  evidence,  but  having  authority  conferred 
upon  you  by  the  organic  act  and  by  parliamentary  law  to  inform  your 
selves  upon  any  question  that  you  have  a  right  to  consider. 

It  has  been  settled,  and  is  not  now  to  be  questioned,  that  the  two 
Houses  of  Congress  are  to  count  the  electoral  vote,  and  you  now  represent 
those  two  Houses.  The  question  has  arisen  and  has  been  submitted  to  you, 
as  to  how  many,  and  what,  votes  shall  be  counted  from  the  State  of  Louis 
iana,  and  there  is  submitted  to  you  not  only  that  question,  but  the  law  of 
your  organization  declares  that  all  questions  "  upon  or  in  respect "  to  the 
double  returns  from  that  State  have  been  submitted  to  your  considera 
tion. 

Is  this  tribunal  a  lie  and  a  cheat,  to  defraud  the  American  people  ? 
When  the  act  passed  creating  it,  there  was  great  satisfaction  through 
this  whole  country.  We  were  thought  by  some  to  be  upon  the  verge  of 
civil  war.  There  was  great  danger  of  collision  in  the  land,  of  the  in 
auguration  of  two  Presidents,  and  the  consequences  were  dreaded  by 
every  well-wisher  to  his  country.  When  the  act  passed  creating  this 
Commission  it  was  felt  that,  whatever  might  be  its  decision,  it  would 
receive  the  sanction  of  the  whole  people ;  for  however  much  partisans 
of  one  candidate  or  the  ojher  might  be  disappointed,  all  good  men  felt 
that  it  was  vastly  more  important  that  whoever  succeeded  to  the  Presi 
dency  should  succeed  as  the  legitimate  choice  of  the  people,  than  that 
any  particular  man  should  be  installed  by  fraud. 

Is  it  to  turn  out  that  this  Commission  was  formed  for  the  mere  pur 
pose  of  doing  a  sum  in  arithmetic,  of  adding  up  certain  figures  ?  When 
it  was  said  to  the  country  that  it  was  to  decide  "  all  questions  upon  or 
in  respect  to  such  double  returns,"  did  it  mean  nothing  more  than  that 
you  should  compute  the  number  of  votes  appearing  on  the  returns  ? 
When  the  oath  was  taken  "to  examine  and  consider  all  questions  sub 
mitted,"  did  that  mean  that  you  were  simply  to  add  up  a  set  of  figures? 
Do  "examination  and  consideration"  apply  to  a  mere  mathematical 
proposition  of  that  kind  ? 

But  you  are  required  by  the  law  to  proceed  to  consider  the  objections 
and  to  decide  what  ?  To  decide  "whether  any  and  what  votes  from  the 
State  of  Louisiana  are  the  votes  provided  by  the  Constitution,  and  how 
many  and  what  persons  were  duly  appointed  electors  in  that  State." 
Can  you  consider  how  many  and  what  persons  were  duly  appointed 
electors  in  the  State  of  Louisiana  without  inquiring  whether  the  certifi 
cate  that  is  read  here  is  a  forgery  or  the  result  of  forgery  and  a  conspi 
racy  ?  We  offer  to  prove  that  William  P.  Kellogg,  whose  certificate  is 
before  you,  was  a  conspirator  with  others,  fraudulently  to  alter  the 
return  of  the  election  and  that  his  certificate  is  false.  We  offer  to  prove 
that  the  canvassing-board,  upon  the  action  of  which  his  certificate  was 
based,  through  its  president,  offered  the  vote  of  the  State  for  sale  in  the 
markets  of  the  country,  and  are  you  only  here  to  count  that  vote  ?  Is 
there  a  man  in  America  fit  to  be,  I  will  not  say  President,  but  fit  to  be  a 
constable,  that  would  take  office  through  such  a  source?  What  the 
country  wants  is  a  decision  of  the  question  as  to  who  is  duly  elected. 
With  that  the  country  will  be  satisfied,  and  with  nothing  else. 

I  said  you  were  clothed  with  power  to  investigate  this  subject,  because 
it  is  submitted  for  your  consideration,  and  I  beg  leave  to  refer  to  an  ele- 


324  ELECTORAL    COUNT    OF    1877. 

inentary  book  for  authority  for  what  I  have  said.  In  Cushing's  Law  and 
Practice  of  Legislative  Assemblies,  at  page  253,  section  634,  it  is  said : 

It  has  always,  at  least  practically,  been'  considered  to  be  the  right  of  legislative  as 
semblies  to  call  upon  and  examine  all  persons  within  their  jurisdiction  as  witnesses  in 
regard  to  subjects  in  reference  to  which  they  have  power  to  act  and  into  which  they 
have  already  instituted,  or  are  about  to  institute,  an  investigation.  Hence  they  are 
authorized  to  summon  and  compel  the  attendance  of  all  persons  within  the  limits  of 
their  constituency,  as  witnesses,  and  to  bring  with  them  papers  and  records,  in  the 
same  manner  as  is  practiced  by  courts  of  law. 

At  page  295,  section  747,  of  the  same  work,  it  is  said : 

In  addition  to  what  may  properly  be  called  evidence,  namely,  that  which  is  obtained 
by  means  of  an  inquiry  instituted  by  the  House  or  brought  forward  by  a  party,  all  the 
information  of  every  description  which  in  any  way  comes  into  the  possession  of  the 
House  may  be  regarded  as  evidence.  Messages  from  the  Executive,  either  at  the  com 
mencement  or  in  the  course  of  the  session,  documents  from  the  same  source,  returns 
from  public  officers  or  commissioners,  either  in  pursuance  of  law  or  of  the  orders  of 
the  House,  constitute  evidence  upon  which  legislative  proceedings  may  be  founded. 

|f  These  are  the  usual  modes  of  obtaining  evidence  by  legislative  bodies, 
and  they  are  as  well  established  as  the  rules  by  which  testimony  is  ob 
tained  in  courts  of  law.  Have  you,  then,  authority  to  pass  upon  the 
question  submitted  to  you  as  to  which  of  these  returns  from  the  State 
of  Louisiana  is  the  proper  return  ?  Have  you  authority  to  pass  upon 
the  question  submitted  to  you  in  respect  to  those  returns  ?  Have  you 
authority  to  determine  "  how  many,  and  if  any,  what,  persons  were  duly 
appointed  electors  in  the  State  "  of  Louisiana  ?  If  you  have  power  to 
make  that  inquiry,  you  are  bound  by  parliameHtary  law,  you  are  bound 
by  the  oath  imposed  upon  you,  you  are  bound  by  the  proceedings  of  legis 
lative  bodies  as  old  as  the  existence  of  parliaments,  to  investigate  this 
question ;  and  will  you  say  that  you  will  not  receive  this  testimony  that 
you  yourselves  have  been  two  mouths  in  obtaining  ?  The  Senate  sent  its 
committee  to  Louisiana,  and  the  House  sent  its  committee  to  Louisiana, 
and  these  committees  have  taken  a  mass  of  testimony,  which  now  lies 
before  you,  and  we  are  prepared  with  that  testimony,  taken  according 
to  the  rules  of  legislative  assemblies,  to  establish  the  facts  we  allege. 
I  call  upon  gentlemen  on  the  other  side  to  show,  if  they  can,  that  the 
power  of  a  legislative  body  does  not  extend  to  any  investigation  it  thinks 
proper  to  make  in  regard  to  a  question  submitted  to  its  consideration. 

What  is  this  State  of  Louisiana  that  has  sent  here  these  double  re 
turns,  one  of  which  is  just  as  good  as  the  other  ?  Both  these  returns 
come  here  signed  by  an  acting  governor ;  both  come  under  the  great 
seal  of  the  State  of  Louisiana,  and  the  real  seal  is  the  one  affixed  to  the 
McEnery  certificate.  I  know  it  was  said  here  yesterday  by  my  distin 
guished  friend  from  Wisconsin,  [Mr.  Howe,]  in  his  quiet  way,  that  you 
knew  who  William  Pitt  Kellogg  was,  but  you  did  not  know  John  Mc 
Enery  ;  that  John  McEnery  had  given  certificates  to  persons  who  came 
knocking  at  the  doors  of  Congress  for  admission,  but  that  the  gate  was 
never  opened  to  them.  If  I  have  not  forgotten,  hardly  twelve  mouths 
have  transpired  since  a  person  came  knocking  at  the  door  of  the  Senate 
with  a  certificate  signed  by  William  Pitt  Kellogg  as  governor  of  the 
State  of  Louisiana,  stating  that  the  applicant  was  duly  elected  to  the 
Senate  of  the  United  States.  Did  the  Senate  open  its  doors  to  him  ;  or 
did  it  shut  the  door  in  his  face  and  send  him  away  f  From  the  day 
that  Kellogg  pretended  to  be  governor,  more  than  four  years  ago,  no 
man  has  entered  the  Senate  Chamber  on  a  credential  signed  by  him. 
He  is  in  no  better  condition  in  that  respect  than  McEnery. 

Let  us  look  at  the  history  for  a  moment.  In  1872  McEuery  and  Kel 
logg  were  opposing  candidates  for  governor.  A  committee  of  the  Sen 
ate,  presided  over  by  one  of  this  commission,  arid  of  which  I  had  the 


ELECTORAL    COUNT    OF    1877.  325 

honor  at  the  time  to  be  a  member,  investigated  that  contest.  The  re 
turns  from  the  State  of  Louisiana  were  brought  here  and  exhibited  in 
our  committee-room.  After  careful  examination  of  the  returns,  the 
committee  reported  as  follows  : 

Your  committee  are,  therefore,  led  to  the  conclusion  that  if  the  election  held  in  No 
vember,  1872,  be  not  absolutely  void  for  frauds  committed  therein,  McEnery  and  his 
associates  in  State  offices,  and  the  persons  certified  as  members  of  the  legislature  by 
the  De  Feriet  board,  ought  to  be  recognized  as  the  legal  government  of  the  State. 

Such  was  the  report  of  the  committee  of  the  Senate  after  the  most 
patient  investigation  of  all  the  facts,  showing  that  McEnery,  and  not 
Kellogg,  was  the  legitimate,  lawful  governor  of  the  State.  How,  then, 
did  Kellogg  happen  to  get  to  be  acting  governor  ?  The  history  of  that 
transaction  is  known  to  the  whole  country. 

Mr.  Commissioner  BRADLEY.  Is  that  the  report  made  by  Mr.  Car 
penter  ? 

Mr.  TRUMBULL.  Yes,  sir.  Kellogg  succeeded  in  being  installed 
as  governor  through  the  usurpation  of  a  subordinate  judge,  who  usurped 
authority  and  set  up  a  legislature  and  a  government  in  the  State  of 
Louisiana.  Under  his  order  no  man  was  permitted  to  enter  the  legisla 
tive  halls  of  the  State  as  a  member  unless  he  had  a  certificate  of  elec 
tion  from  a  returniug-board  that  never  had  a  return  before  it,  from  a 
returning-board  that  counted  forged  affidavits  by  the  thousand  as  evi 
dence  of  election.  The  legislature  thus  organized,  in  less  than  twenty- 
four  hours  impeached  and  removed  the  existing  governor.  In  a  few 
hours  more  it  turned  out  of  office  some  of  the  judges  of  the  courts,  and 
appointed  others  to  whom  it  gave  the  sole  jurisdiction  of  determining 
all  questions  in  regard  to  the  right  to  hold  office. 

Mr.  Commissioner  EDMUNDS.  You  mean  that  they  suspended  the 
governor.  They  never  pronounced  final  sentence. 

Mr.  TRUMBULL.  Whether  he  was  convicted  and  sentenced  I  do 
not  know  ;  but  under  the  constitution  and  laws  of  Louisiana,  the  im 
peachment  amounts  to  a  suspension.  They  removed  him  in  that  way. 
His  term,  I  understand,  expired  within  a  very  short  time. 

Mr.  Commissioner  EDMUNDS.  I  merely  meant  to  suggest  that  the 
word  a  removed  "  was,  perhaps,  inapplicable ;  but  yet  it  does  not  affect 
the  line  of  your  argument. 

Mr.  TRUMBULL.    Not  at  all. 

Immediately  a  case  was  brought  before  a  judge  whom  this  legislature 
had  created  to  determine  as  to  the  rightfulness  of  the  legislature,  and, 
of  course,  this  judge,  the  creature  of  usurpers  calling  themselvs  a  leg 
islature,  decided  that  the  authority  from  which  he  derived  his  judgeship 
was  legitimate;  and  that  is  the  way  the  legitimacy  of  the  Kellogg  gov 
ernment  was  established ! 

In  regard  to  that  usurpation,  let  me  read  a  sentence  from  the  report 
of  the  Senate  committee  : 

Viewed  in  any  light  which  your  committee  can  consider  them,  the  orders  and  injunc 
tions  made  and  granted  by  Judge  Durell  in  this  cause  are  most  reprehensible,  errone 
ous  in  point  of  law,  and  are  wholly  void  for  want  of  jurisdiction  ;  and  your  committee 
must  express  their  sorrow  and  humiliation  that  a  judge  of  the  United  States  should 
have  proceeded  in  such  flagrant  disregard  of  his  duty?  and  have  so  far  overstepped  the 
limits  of  Federal  jurisdiction. 

Mr.  Morton,  a  member  of  that  committee,  commenting  upon  the  acts 
of  this  judge,  said  in  his  separate  report : 

The  conduct  of  Judge  Durell,  sitting  in  the  circuit  court  of  the  United  States,  cannot 
be  justified  or  defended.  He  grossly  exceeded  his  jurisdiction  and  assumed  the  exer 
cise  of  powers  to  which  he  could  lay  no  claim,  and  his  acts  can  only  be  characterized 
as  a  gross  usurpation. 


326  ELECTORAL    COUNT    OF    1877. 

This  same  government  in  Louisiana  underwent  a  review  only  a  year 
or  two  ago,  when  a  person  bearing  the  certificate  of  Kellogg  applied  for 
a  seat  in  the  Senate  as  having  been  elected  by  the  legislature  of  that 
State,  and  in  the  dis'cussion  upon  that  occasion  much  was  said,  and 
better  than  I  can  express  it,  in  regard  to  the  Kellogg  government.  In 
speaking  of  the  usurpation  of  the  returning-board  which  had  counted 
in  the  Kellogg  legislature  and  of  the  returns  required  to  be  transmitted 
to  the  secretary  of  state  by  the  constitution,  a  member  of  this  Commis 
sion,  Mr.  Edmunds,  said : 

They— 

The  returns — 

are  the  returns  which  the  various  local  officers  take  from  the  votes  of  the  people,  seal 
up.  and  transmit,  and  not  the  judgment  of  a  body  of  men  unknown  to  the  constitu 
tion,  who  are  to  take  these  various  papers  and  produce  any  result  that  in  their  judg 
ment  is  lawful  or  convenient. 

******* 

I  shall  have  no  hesitation  in  saying  that,  no  matter  what  returning-board  had  de 
clared  this  to  be  a  legislature  or  the  other  to  be  a  legislature,  it  is  within  the  compe 
tence  of  our  duty  to  know,  as  the  final  and  supreme  judges  of  the  election  and  quali 
fication  of  this  claimant  to  a  seat,  whether  that  legislature  was  composed  of  persons 
who  appeared  by  the  returns  that  the  constitution  speaks  of  to  have  been  elected  or 
whether  they  were  the  creation  of  some  intermediate  contrivance  that  either  the  cu 
pidity  of  thieves  or  the  ambition  of  politicians,  or  whatever,  may  have  invented  as  a 
means  of  standing  between  the  right  of  the  people  to  elect  their  representatives  and 
the  persons  who  are  to  be  authorized  to  meet  and  to  organize  the  house. 

Then,  speaking  of  the  powers  of  the  board,  Mr.  Edmunds  said : 

The  law  itself  gives  this  board  no  power  of  its  own  judgment  or  its  own  discretion 
in  any  way  to  tamper  with  or  to  change  this  primary  and  fundamental  evidence,  the 
only  evidence  which  in  any  government  which  is  to  live  by  law  can  ever  be  received 
for  the  time  being,  the  certificates  from  the  people  to  show  who  have  been  elected 

members  of  the  legislature  or  the  governor  of  the  State. 

*  *  *  *  *  *  * 

Can  any  man  stand  up  and  say  that  it  is  any  other  thing  than  what  the  language  of 
the  law  says,  a  compilation  of  results  from  the  various  sources  which  the  law  has  pro 
vided  and  which  has  flowed  into  their  hands  ?  Such  returns,  it  says — not  those  obtained 
by  extrinsic  evidence;  not  those  obtained  upon  affidavit;  not  those  obtained  upon  the 
judgment  of  any  court ;  not  those  obtained  in  any  other  way  than  that  they  come  from 
the  separate  assemblies  of  the  people,  sworn  to  and  certified  in  the  manner  prescribed 
by  law,  their  seals  broken  in  their  presence,  and  the  results  of  those  statements  are  to 
be  proclaimed — and  such  results,  thus  proclaimed,  are  prima-facie  evidence. 

It  is  a  special  creation  of  the  law;  it  has  no  finality,  and  it  can  have  none  that  the 
law  does  not  expressly  or  by  clear  implication  confer  upon  it ;  and  when  the  law  says 
it  may  throw  out  a  parish  for  a  certain  reason,  it  is  an  implied  declaration  of  the  law 
that  it  shall  not  throw  out  a  parish  for  any  other  reason ;  and  when  the  law  says  that 
it  shall  compile  and  canvass  the  returns  that  come  to  it,  that  is  certainly  a  prohibition 
against  its  compiling  or  canvassing  and  getting  together  information,  as  this  witness 
calls  it,  derived  from  his  political  knowledge  or  from  any  other  knowledge  under  the 
sun,  I  do  not  care  how  sacred  or  how  particular  or  complete  it  may  be ;  for  the  moment 
these  officers  of  the  law,  whose  duties  are  so  clearly  pointed  out,  depart  from  the  firm 
foundation  of  that  path  which  the  law  has  marked  out  for  them,  there  is  no  security 
for  liberty  or  for  right  or  for  anything  for  which  government  is  instituted,  for  the 
reason  that  there  is  then  no  guide  or  limit  either  to  their  powers  or  their  discretion  ; 
and  that  people,  in  my  opinion,  will  make  a  great  mistake  who  undertake  to  uphold 
results  produced  by  a  body  acting,  as  this  did,  outside  of  the  constitution  and  the  laws 
of  the  State. 

Every  word  I  have  read,  and  much  more  that  was  said  on  that  occa 
sion,  is  applicable  to  the  canvass  by  which  Kellogg,  conspiring  with  the 
returning-officers,  made  the  certificate  which  is  now  before  you  and  on 
which  you  are  called  upon  to  count  the  electoral  vote  for  Hayes. 

Xot  to  detain  you  as  to  this  government  in  Louisiana,  I  will  only  say 
that  it  is  not  a  republican  government,  for  it  is  a  matter  that  I  think 
this  Commission  should  take  official  knowledge  of,  that  the  pretended 


ELECTORAL    COUNT   OF   1877.  327 

officers  in  the  State  of  Louisiana  are  upheld  by  military  power  alone. 
They  could  not  maintain  themselves  an  hour  but  for  military  support. 
Is  that  government  republican  which  rests  upon  military  power  for  sup 
port  ?  A  republican  government  is  a  government  of  the  people,  for  the 
people,  and  by  the  people;  but  the  government  in  Louisiana  has  been 
nothing  but  a  military  despotism  for  the  last  four  years,  and  it  could 
not  stand  a  day  if  the  people  of  the  State  were  not  overborne  by  mili 
tary  power. 

Hear  what  an  author  of  great  credit  in  this  country  says  in  regard  to 
this  Louisiana  usurpation.  I  read  from  Story  on  the  Constitution,  as 
lately  published,  with  notes  and  additions  by  Judge  Oooley. 

Mr.  Commissioner  EDMUNDS.  Is  the  original  numbering  of  the 
sections  preserved  ? 

Mr.  TRUMBULL.  The  original  number  is  1814,  second  volume. 
Judge  Cooley  in  his  note  to  that  section  says : 

The  recent  case  of  Louisiana  demonstrates  that  there  may  be  greater  wrongs  than 
even  the  wrongful  refusal  by  Congress  to  recognize  the  legitimate  government  of  a 
State,  and  yet  no  speedy  and  effectual  remedy  be  attainable.  Such  action  on  the  part 
of  Congress  would  at  least  be  that  of  a  proper  authority,  and  would  imply  deliberation, 
and  be  supported  by  a  presumption  of  due  regard  for  the  public  good  and  for  the 
supremacy  of  the  law.  But  in  the  case  of  Louisiana  in  1873,  an  inferior  Federal  judge, 
without  a  shadow  of  authority,  and  consequently  in  defiance  of  law,  and  for  that 
reason  supported  by  no  presumption  of  correct  motives,  and  with  scarcely  a  pretense 
of  observing  even  the  usual  forms,  by  the  process  of  his  court,  aided  by  a  military 
force,  installed  in  power  a  State  government  which  he  sided  with  as  against  rival 
claimants,  and  in  consequence  of  a  pressure  of  business  in  Congress  precluding  prompt 
attention  to  the  case  by  that  body,  has  been  enabled  to  sustain  this  government  in 
power  until  the  present  time.  Mr.  Justice  Story  has  with  reason  predicted  that  "if  a 
despotic  or  monarchical  government  were  established  in  one  State  it  would  bring  on 
the  ruin  of  the  whole  republic." 

How  prophetic.  We  are  threatened  to-day  with  that  ruin  which  Mr. 
Justice  Story  foresaw. 

What  government  can  be  more  despotic  than  one  elected  by  an  injunction  and  con 
tinued  in  pcwer  by  a  military  force  under  the  order  of  a  judge  who,  having  no  juris 
diction,  is  restrained  by  no  law  but  his  arbitrary  will  ? 

It  is  a  despotism  according  to  Judge  Cooley. 

For  the  facts  of  this  unparalleled  wrong  we  refer  to  reports  made  by  the  Judiciary 
Committee  of  the  United  States  Senate  in  February,  1873.  The  case  requires  no  fur 
ther  comment  than  it  there  receives.  The  dullest  mind  cannot  fail  to  see  that  the 
facility  with  which  the  wrong  is  committed  and  the  possible  immediate  advantages 
which  individuals  may  derive  therefrom  present  constant  temptations  to  its  repeti 
tion,  and  if  suifered  to  pass  once  unrebuked  a  precedent  will  be  tacitly  assented  to 
which  cannot  fail  to  threaten  constant  danger  to  our  liberties,  especially  at  those  very 
periods  of  high  political  excitement  when  prudence,  caution,  and  the  strictest  regard 
for  the  Constitution  and  the  laws  are  most  important.  What  party  or  what  political 
leader  can  at  such  times  be  expected  to  paj  scrupulous  deference  to  the  laws  if  a  judge 
may  ignore  them  with  impunity?  It  was  thought  the  climax  of  wrong  had  been, 
reached  when  a  local  judge  in  one  of  the  States  could  seize  upon  the  property  of  indi 
viduals  and  corporations  through  his  injunctions  and  mandates  and  plunder  them 
through  receivers;  but  he  at  least  was  not  acting  wholly  without  jurisdiction,  and  if 
he  seized  property  he  did  not  venture  to  go  so  far  as  to  make  the  liberties  of  the  people 
'  the  subject  of  a  receivership. 

There  is  the  opinion  of  a Judge  and  one  of  the  ablest  elementary  writers 
of  our  time  in  regard  to  this  government  in  Louisiana.  The  Constitu 
tion  of  the  United  States  says  that  each  State  shall  appoint,  in  such 
manner  as  its  legislature  shall  direct,  a  number  of  electors  equal  to  the 
whole  number  of  its  Senators  and  Representatives  in  Congress ;  but  it 
must  be  a  State  that  does  it  5  and  what  is  meant  by  a  "State?"  A  des 
potism,  or  a  State  having  a  republican  form  of  government  where  the 
people,  and  not  usurpers,  rule  ?  What  has  become  of  Dnrell,  the  Fed- 


328  ELECTORAL    COUNT    OF    1877. 

eral  judge  who  set  up  the  Kellogg  dynasty?  He  resigned  to  escape 
impeachment  by  the  House  of  Representatives)  composed  at  the  time  of 
a  large  majority  of  political  friends  of  the  party  he  sought  to  serve, 
and  is  now  a  fugitive  from  the  State  of  Louisiana,  subject  to  the  scorn 
and  contempt  of  all  who  know  him.  He  is  receiving  to  day  the  punish 
ment  which  sooner  or  later  will  come  upon  all  men  who,  clothed  with 
official  authority,  betray  their  trust,  and  for  party  ends  encroach  on  the 
rights  of  the  people.  While  the  author  of  these  iniquities  which  have 
brought  ruin  upon  the  people  of  Louisiana  goes  forth  a  vagabond  upon 
the  face  of  the  earth,  condemned  to  everlasting  infamy,  his  work  stands, 
and  this  high  Commission  is  to-day  asked  to  uphold  it  and  give  it  new 
force. 

But  you  have  here  a  certificate  from  a  person  claiming  to  be  governor, 
a  certified  list,  as  it  is  called  in  the  statute,  of  the  names  of  the  persons 
elected  electors.  What  does  that  amount  to!  Did  the  Constitution 
require  it?  That  instrument  says : 

The  electors  shall  meet  in  their  respective  States  and  vote  by  ballot  for  President  and 
Vice-President,  one  of  whom  at  least  shall  not  be  an  inhabitant  of  the  same  State  with 
themselves  ;  they  shall  name  in  their  ballots  the  person  voted  for  as  President,  and  in. 
distinct  ballots  the  person  voted  for  as  Vice-President,  and  they  shall  make  distinct 
lists  of  all  persons  voted  for  as  President,  and  of  all  persons  voted  for  as  Vice-President, 
and  of  the  number  of  votes  for  each  ;  which  lists  they  shall  sign  and  certify,  and  trans 
mit  sealed  to  the  seat  of  Government  of  the  United  States,  directed  to  the  President  of 
the  Senate.  The  President  of  the  Senate  shall,  in  the  presence  of  the  Senate  and  House 
of  Representatives,  open  all  the  certificates,  and  the  votes  shall  then  be  counted. 

That  is  all  the  electors  have  to  do.  The  right  to  appoint  electors  is 
not  inherent  in  a  State,  but  derivative  from  the  Constitution  of  the  United 
States,  which  is  as  much  a  part  of  the  constitution  of  every  State  as  it 
is  of  the  United  States.  Every  word  and  every  letter  of  this  Con 
stitution  is  as  binding  on  the  State  as  on  the  United  States.  It  was 
framed  for  the  purpose  of  forming  a  general  government  and  also  for 
the  purpose  of  protecting  the  States  in  certain  national  rights.  This 
Constitution  says  to  the  State  of  Louisiana,  "You  may  appoint  electors 
in  such  manner  as  your  legislature  shall  direct ;  they  shall  meet  and 
cast  their  ballots  in  a  certain  way,  and  send  them  to  the  President  of 
the  Senate,  and  the  votes  shall  then  be  counted."  Tell  me  by  what 
authority  Congress  passes  a  law  that  they  shall  not  be  counted  unless  cer 
tified  in  a  particular  manner.  By  what  authority  has  Congress  said  to 
the  governor  of  Louisiana  or  to  the  governor  of  any  State,  "  You  make 
three  certified  lists  of  the  names  of  the  persons  appointed  electors?"  It 
may  be  a  matter  of  convenience  for  the  two  Houses  to  have  that  sort  of 
evidence ;  but  it  is  entirely  at  the  option  of  the  governor  of  the  State  to 
obey  that  act  or  not;  and  old  John  Hancock,  nearly  a  century  ago,  be 
fore  he  would  make  any  such  certificate,  sent  a  communication  to  the 
legislature  of  the  commonwealth  of  Massachusetts  to  know  whether  it 
would  meet  their  approval.  I  will  read  what  was  said  by  a  committee  of 
the  Senate  in  a  unanimous  report  made  by  Mr.  Morton  on  this  subject 
in  1873: 

The  third  section  of  the  act  of  Congress  of  1792  declares  what  shall  be  the  official 
evidence  of  the  election  of  electors,  and  provides  that  "the  executive  authority  of 
each  State  shall  cause  three  lists  of  the  names  of  the  electors  of  such  State  to  be  made 
and  certified,  to  be  delivered  to  the  electors  on  or  before  the  first  Wednesday  in  Decem 
ber,  and  the  said  electors  shall  annex  one  of  the  said  lists  to  each  of  their  votes."  The 
certificate  of  the  secretary  of  state  is  not  required,  and  the  certificate  of  the  governor, 
as  provided  for  in  this  section,  seems  to  be  the  only  evidence  contemplated  by  the  law 
of  the  election  of  electors  and  their  right  to  cast  the  electoral  vote  of  the  State.  If 
Congress  chooses  to  go  behind  the  governor's  certificate,  and  inquire  who  has  been 
chosen  as  electors,  it  is  not  violating  any  principle  of  the  right  of  the  States  to  pre 
scribe  what  shall  be  the  evidence  of  the  election  of  electors,  but  it  is  simply  going  be- 


ELECTORAL    COUNT    OF    1877.  329 

hind  the  evidence  as  prescribed  by  an  act  of  Congress ;  and,  thus  going  behind  the 
certificate  of  the  governor,  we  find  that  the  official  returns  of  the  election  of  electors 
from  the  various  parishes  of  Louisiana  had  never  been  counted  by  anybody  having 
authority  to  count  them. 

What  was  the  result  ?  On  that  report  in  1873  the  Senate  and  the 
House  of  Representatives  voted  not  to  count  the  electoral  vote  of  the 
State  of  Louisiana,  and  it  was  rejected.  Governor  Warmoth  had  given 
a  certificate  in  due  form  certifying  to  the  election  of  the  electors  in  thai 
State;  but  what  was  it  good  for?  The  two  Houses  went  behind  it. 
A  committee  of  the  Senate  reported  that  the  votes  had  never  been  can 
vassed  by  anybody  having  authority  to  canvass  them,  and  the  result 
was  that  the  vote  of  the  State  was  rejected.  There  is  authority  for 
going  behind  the  governor's  certificate. 

Mr.  Commissioner  BEADLEY.  Who  canvassed  at  that  time  !  Who 
made  the  canvass? 

Mr.  TKUMBULL.  The  canvass  at  that  time  was  required  to  be 
made  by  a  returning-board  consisting  of  the  governor,  the  lieutenant- 
governor,  the  secretary  of  state,  and  two  persons  designated  by  name. 
There  was  a  controversy  as  to  which  was  the  proper  canvassing-board. 

Mr.  Commissioner  BE  AD  LEY.  And  it  was  held  that  the  proper 
board  had  not  made  the  canvass? 

Mr.  TEUMBULL.    It  was  not  decided  in  this  report. 

Mr.  Commissioner  BEADLEY.  I  want  to  know  the  meaning  of  that 
language. 

Mr.  TEUMBULL.     Let  me  read  from  the  report : 

And  thus  going  behind  the  certificate  of  the  governor,  we  find  that  the  official  re- 
turns*of  the  election  of  electors  from  the  various  parishes  of  Louisiana  had  never  been 
counted  by  anybody  having  authority  to  count  them. 

Mr.  Commissioner  MOETON.  I  would  inquire  whether  Judge  Trum- 
bull  has  the  whole  report  there? 

Mr.  TEUMBULL.  I  have.  You  will  find  it  commencing  at  page 
370  of  this  book  entitled  The  Presidential  Counts. 

Mr.  Commissioner  MORTON.  Will  the  Judge  then  state  what  the 
report  says  in  regard  to  the  right  of  Congress  to  go  behind  the  evidence 
prescribed  by  the  laws  of  the  State,  a  little  further  on  ? 

Mr.  Commissioner  BEADLEY.  The  thing  has  passed  out  of  my 
mind  and  I  merely  ask  for  information. 

Mr.  TEUMBULL.    This  is  the  passage,  I  suppose : 

The  election  of  the  Greeley  electors  was  certified  to  by  the  governor  of  the  State,  but 
the  official  returns  of  the  election  have  not  been  counted  by  the  returning-board 
created  by  the  laws  of  Louisiana  for  that  purpose ;  and  the  persons  who,  in  fact,  made 
the  examination  and  count  had  no  legal  authority  to  do  so.  The  election  of  the  Grant 
electors  is  certified  by  the  Lynch  returning-board,  but  that  board  did  not  have  the 
official  returns  before  them,  and  their  election  is  not  certified  by  the  governor  of  the 
State,  as  required  by  the  act  of  Congress.  The  committee  are  of  the  opinion  that 
neither  the  Senate  of  the  United  States  nor  both  Houses  jointly  have  the  power  under 
the  Constitution  to  canvass  the  returns  of  and  election  and  count  the  votes  to  deter 
mine  who  have  been  elected  presidential  electors,  but  that  the  mode  and  manner  of 
choosing  electors  are  left  exclusively  to  the  States.  And  if  by  the  law  of  the  State 
they  are  to  be  elected  by  the  people,  the  method  of  counting  the  vote  and  ascertaining 
the  result  can  only  be  regulated  by  the  law  of  the  State.  Whether  it  is  competent 
for  the  two  Houses,  under  the  twenty-second  joint  rule,  (in  regard  to  the  constitution 
ality  of  which  the  committee  here  give  no  opinion,)  to  go  behiud  the  certificate  of  the 
governor  of  the  State  to  inquire  whether  the  votes  for  electors  have  ever  been  counted 
by  the  legal  retuming-board  created  by  the  law  of  the  State,  or  whether  in  making 
such  count,  the  board  had  before  them  the  official  returns,  the  committee  offer  no  sug 
gestions,  but  present  only  a  statement  of  the  facts  as  they  understand  them. 

That  covers,  I  presume,  what  was  asked  of  me. 
Mr.  Commissioner  MORTON.     That  covers  it. 


330  ELECTORAL   COUNT   OF   1877. 

Mr.  Commissioner  EDMUNDS.  Do  I  understand  you  to  mean,  Judge 
Trumbull,  in  speaking  of  the  action  of  the  Senate  four  years  ago,  that 
the  judgment  of  the  Senate  was  upon  the  question  of  fact  as  to  what 
the  real  vote  of  the  people  had  been  ? 

Mr.  THUMB ULL.  It  would  be  difficult  to  state  upon  what  considera 
tion  Senators  voted.  The  vote  of  Louisiana  was  duly  certified  to  by 
the  governor  of  the  State  j  I  have  the  certificate  here  in  proper  form  ; 
as  the  honorable  Senator  is  aware,  we  never  can  know  the  considera 
tions  upon  which  Senators  vote,  but  for  some  reason  or  other  the  Senate 
and  the  House  concurred  in  rejecting  the  vote  of  Louisiana.  The  cer 
tificate  of  the  governor,  however,  was  in  due  form  and  complete ;  so 
that  it  does  amount  to  a  decision  thus  far  that  the  two  Houses  of  Con 
gress  have  decided  that  the  certificate  of  the  governor  in  due  form, 
stating  that  certain  persons  are  electors,  is  not  conclusive  upon  the  two 
Houses  of  Congress. 

Mr.  Commissioner  EDMUNDS.  Under  certain  circumstances.  The 
resolution,  if  you  will  pardon  me,  was  that  all  the  objections  presented 
having  been  received,  no  electoral  vote  purporting  to  be  that  of  the 
State  of  Louisiana  should  be  counted,  in  favor  of  which  there  were  33 
affirmative  and  against  it  16  negative  votes.  Among  the  objections 
was  one  by  Mr.  Carpenter,  a  Senator  from  Wisconsin  : 

I  object  to  the  counting  of  the  votes  given  for  U.  S.  Grant  for  President  and  Henry 
Wilson  Vice-President,  by  the  electors  of  Louisiana,  because  there  is  no  proper  return 
of  votes  cast  by  the  electors  of  the  State  of  Louisiana,  and  because  there  is  no  State 
government  in  said  State  which  is  republican  in  form,  and  because  no  canvass  or 
counting  of  the  votes  cast  for  electors  in  the  State  of  Louisiana  at  the  election  held 
in  November  last  had  been  made  prior  -to  the  meeting  of  the  electors. 

And  another  of  similar  purport  by  Mr.  Senator  Trumbull,  of  the  State 
of  Illinois. 

Mr.  Commissioner  THURMAN.  Allow  me  to  interrupt  Judge  Trum 
bull.  I  understand  that  the  decision  of  the  Senate  went  on  the  question 
whether  the  governor's  certificate  was  conclusive,  and  it  was  decided 
not  only  that  his  certificate  was  not  conclusive,  but  it  was  decided  that 
the  decision  of  that  returning-board  on  which  he  founded  his  certificate 
was  not  conclusive. 

Mr.  Commissioner  MORTON.  There  was  no  such  certificate  before 
the  Senate. 

Mr.  Commissioner  THURMAN.  There  was  a  certificate  of  one  return 
ing-board. 

Mr,  TRUMBULL.  The  certificate  of  Governor  Warmoth  I  had  bet 
ter  read,  that  the  Commission  may  see  what  the  certificate  was  in  that 
case : 

UNITED  STATES  OF  AMERICA, 

State  of  Louisiana,  city  of  New  Orleans  : 

I,  H.  C.  Warmoth,  governor  of  the  State  of  Louisiana,  do  hereby  certify  that  the 
foregoing  signature  of  B.  P.  Blanchard,  State  registrar  of  votes  for  the  State  of 
Louisiana,  is  genuine  ;  and  I  do  further  certify  that  Messrs.  T.  C.  Manning,  A.  S.  Her- 
ron,  and  C.  H.  Weed,  for  the  State  at  large,  and  Hugh  ,T.  Campbell,  for  first  district; 
Louis  Bush,  second  district ;  Allen  Thomas,  third  district ;  A.  H.  Leonard,  fourth  dis 
trict,  and  L.  V.  Reeves,  fifth  district,  were  duly  and  legally  elected  presidential  elect 
ors  for  the  State  of  Louisiana,  at  an  election  held  in  said  State  on  the  4th  day  of 
November,  A.  D.  1872,  pursuant  to  the  statutes  of  the  Congress  of  the  United  States 
and  State  of  Louisiana  on  the  subject. 

In  faith  whereof  I  have  hereunto  affixed  my  official  signature  and  caused  the  great 
seal  of  the  State  to  be  hereto  attached,  at  the  city  of  New  Orleans,  capital  of  the 
State,  this  4th  day  of  December,  A.  D.  1672,  and  of'  the  Independence  of  the  United 
States  the  ninety-seventh. 

H.  C.  WARMOTH. 

By  the  governor : 

[il  s.]  Y.  A.  WOODWARD, 

Assistant  Secretary  of  State. 


ELECTORAL   COUNT    OF   1877.  331 

la  the  Senate  report  it  is  said : 

Messrs.  Woodward  and  Bragdon,  according  to  the  testimony,  looked  over  the  returns 
to  ascertain  who  had  been  elected  electors  for  President  and  Vice-President,  and  made 
a  statement  to  the  governor  of  the  result  of  their  examination  ;  and  the  governor,  on 
the  morning  of  the  4th  of  December,  the  day  fixed  by  the  act  of  Congress  when  the 
electors  in  the  several  States  shall  meet  and  cast  their  votes,  issued  a  paper,  in  which 
he  declared  that  T.  C.  Manning,  G.  A.  Weed,  A.  S.  Herron,  H.  J.  Campbell,  L.  Bush, 
A.  Thomas,  A.  H.  Leonard,  and  L.  V.  Reeves  had  been  elected  electors,  and  placed  a 
copy  of  the  said  paper  in  the  possession  of  each  of  said  persons ;  and  afterward,  on 
the  same  day,  they  assembled  in  the  city  of  New  Orleans,  and,  as  electors,  voted  for 
President  and  Vice-President.  It  clearly  appears  from  the  testimony  that  the  official 
returns  of  the  State  were  never  examined  and  counted  for  presidential  electors  by  any 
persons  except  Messrs.  Woodward  and  Bragdon,  and  up  to  this  time  never  have  been 
examined  and  counted  by  the  Lynch  board  or  any  person  having  authority  whatever 
to  make  such  examination  and  count.  While  we  have  no  doubt  that  the  returns  sent 
to  Governor  Warmoth  from  the  various  parishes  by  the  supervisors  of  registration 
will,  upon  their  face,  show  that  the  aforesaid  persons  named  as  electors,  and  whom  we 
shall  designate  as  the  "  Greeley  electors,"  received  a  majority  of  the  votes,  that  fact 
Las  never  been  ascertained  by  any  competent  authority,  and  the  action  of  Governor 
Warmoth  depended  entirely  upon  the  unauthorized  statements  of  Messrs.  Woodward 
and  Bragdon,  who,  at  the  time,  had  no  right  to  look  into  the  returns  at  all.  In  this 
matter  there  is  no  pretense  that  the  law  was  complied  with,  and  the  Lynch  board 
were  never  at  any  time  permitted  to  see  them. 

That  is  the  report  made  by  the  Senate  Committee  on  Privileges  and 
Elections,  of  which  the  Senator  from  Indiana  then  was,  as  he  now  is, 
chairman. 

Mr.  Commissioner  BRADLEY.  I  now  understand  the  point.  One 
set  of  men  had  the  returns  but  were  not  entitled  to  have  them,  and  the 
other  set  who  were  entitled  to  them  did  not  have  them. 

Mr.  TRUMBULL.  That  was  a  disputed  question,  and  I  do  not  know 
that  it  has  ever  been  settled  to  this  day,  except  by  the  judge  to  whom. 
I  referred  who  was  put  in  office  for  the  purpose  of  settling  it. 

Mr.  Commissioner  EDMUNDS.    That  was  the  contention. 

Mr.  TRUMBULL.  That  was  the  contention,  as  is  very  aptly  ex 
pressed.  But  however  it  may  have  been,  one  thing  was  settled  by 
Congress,  so  far  as  the  two  Houses  could  settle  it,  that  the  governor's 
certificate  in  due  form,  the  same  kind  of  a  certificate  as  No.  1  now 
before  the  Commission,  was  overruled  by  the  concurrent  action  of  the 
two  Houses  of  Congress,  and  they  refused  to  count  the  vote,  and  the 
report  of  the  committee  was  that  the  vote  had  not  been  properly  can 
vassed.  Now  we  propose  to  show  this  Commission  that  the  vote  in 
November  last  has  never  been  canvassed,  that  the  pretended  canvass 
is  a  fraud,  that  the  papers  were  forged,  that  the  returns  were  altered 
and  falsified,  and  I  should  like  to  know  if  a  count  under  such  circum 
stances  is  any  better  than  a  true  count  made  by  persons  who  had  no 
authority  to  make  it.  If  the  action  of  Congress  is  worth  anything, 
unless  it  is  to  reverse  its  decision,  and  that  in  behalf  of  iniquity,  this 
Commission  can  go  back  of  the  returns.  Legislative  bodies  and  courts 
sometimes,  though  very  reluctantly,  overrule  former  decisions  ;  but  in 
the  history  of  legislative  proceedings  or  of  courts  was  it  ever  heard  that 
a  former  decision  was  reversed  in  order  to  perpetuate  a  wrong,  an 
iniquity,  a  falsehood,  a  forgery  ?  If  the  action  of  Congress  is  good  for 
anything,  it  establishes  the  right  to  go  behind  the  certificate.  That 
was  the  understanding  when  this  Commission  was  created,  and  it  will 
be  a  delusion  and  a  snare  in  the  estimation  of  this  whole  people  if  the 
questions  submitted  to  this  Commission  are  decided  upon  the  technical 
ground  that  the  Commission  has  nothing  to  do  but  to  add  up  the  votes 
as  shown  on  the  face  of  the  certificates.  It  will  be  overturning  not 
only  the  decision  of  Congress  four  years  ago,  it  will  overturn  every 


332  ELECTORAL    COUNT    OF    1877. 

settled  principle  of  parliamentary  law  from  the  beginning  of  time,  so 
far  as  we  have  any  record  of  it.  Is  my  time  up  "? 

The  PRESIDENT.  You  commenced  at  five  minutes  past  one.  It  is 
now  twelve  minutes  past  two.  You  have  spoken  one  hour  and  seven 
minutes. 

Mr.  Commissioner  ABBOTT.  There  were  some  fifteen  minutes  lost 
l)y  a  discussion  of  the  Louisiana  question  which  I  do  not  think  in  all 
fairness  should  be  taken  out  of  Judge  TrumbulPs  time. 

Mr.  Commissioner  BAYARD.  Mr.  President,  I  submit  that  when 
counsel  are  compelled  to  read  long  papers  in  answer  to  members  of  the 
Commission  and  are  thereby  diverted  from  their  argument,  at  least  the 
time  so  occupied  in  responding  to  questions  of  individuals  upon  the  Com 
mission  should  not  be  charged  to  them,  in  the  computation  of  their  time. 

The  PRESIDENT.  Judge  Trumbull  has  still  time  left.  The  question 
would  hardly  arise,  unless  the  time  should  come  when  I  might  consider 
it  my  duty  to  stop  him. 

Mr.  TRUMBULL.  There  is  another  principle  of  parliamentary  law 
to  which  I  desire  to  call  attention.  It  is  succinctly  stated  in  an  ele 
mentary  work  to  which  I  refer  rather  than  quote  decisions,  in  section 
441  in  what  is  entitled  The  American  Law  of  Elections,  by  McCrary, 
where  it  is  said : 

Fraud,  in  tbe  conduct  of  an  election,  may  be  committed  by  one  or  more  of  the  offi 
cers  thereof,  or  by  other  persons.  If  committed  by  persons  not  officers,  it  may  be  either 
with  or  without  knowledge  or  connivance  of  such  officers.  There  is  a  difference 
between  a  fraud  committed  by  officers  or  with  their  knowledge  and  connivance,  and  a 
fraud  committed  by  other  persons,  in  this  :  the  former  is  ordinarily  fatal  to  the  return, 
while  the  latter  is  not  fatal,  unless  it  appear  that  it  has  changed  or  rendered  doubtful 
the  result.  If  an  officer  of  the  election  is  detected  in  a  willful  and  deliberate  fraud 
upon  the  ballot-box,  the  better  opinion  is  that  this  will  destroy  the  integrity  of  his 
official  acts,  even  though  the  fraud  discovered  is  not,  of  itself,  sufficient  to  affect  the 
result,  (ante,  section  184,  Judkins  vs.  Hill,  50  N.  H.,  104.)  The  reason  of  this  rule  is  that 
an  officer  who  betrays  his  trust  in  one  instance  is  shown  to  be  capable  of  the  infamy 
of  defrauding  the  electors,  and  his  certificate  is  therefore  good  for  nothing. 

Now  we  propose  to  show  by  evidence  which  we  have  offered  here  that 
the  president  of  the  returning-board  with  the  sanction  of  his  confed 
erates  altered  the  returns  of  Vernon  Parish,  took  178  votes  from  one 
side  and  put  them  on  the  other  by  a  forgery  of  the  papers.  According 
to  this  authority,  a  fraud  committed  by  an  officer  is  fatal  to  his  return. 

I  see  I  shall  have  no  time  to  go,  and  it  is  perhaps  not  proper  that  I 
should  on  this  preliminary  question  of  admitting  evidence  go,  into  the 
question  of  the  want  of  authority  in  this  returning-board  under  any 
circumstances  to  canvass  the  electoral  vote.  Assuming  that  it  has  such 
authority  under  any  circumstances,  still  it  would  have  no  authority  to 
reject  votes,  except  the  foundation  be  properly  laid.  The  law  is  suc 
cinctly  and  clearly  stated  in  the  report  already  cited,  made  by  Senator 
Morton,  as  follows : 

The  statute  of  Louisiana  authorizes  the  supervisors  of  registration  in  the  parishes, 
or  the  commissioners  of  election,  to  make  affidavit  in  regard  to  any  violence,  tumult, 
fraud,  or  bribery  by  which  a  fair  election  has  been  prevented,  which  shall  be  forwarded 
to  the  returning-board  along  with  the  returns,  and  upon  which  the  returning-board 
may  reject  the  vote  of  a  poll  in  making  the  count ;  and  if  the  evidence  of  the  officers 
of  the  election  is  not  sufficient  to  satisfy  the  minds  of  the  returniug-board  in  regard 
to  the  matters  charged  they  are  authorized  to  send  for  persons  and  papers  and  take 
further  testimony  upon  the  matter ;  but  they  have  no  authority  to  make  such  inves 
tigation  unless  the  foundation  is  first  laid  by  the  sworn  statements  of  the  officers  of 
the  election,  as  before  mentioned. 

Everybody  who  ever  looked  into  the  Louisiana  law  agrees  with  what 
was  stated  by  the  Committee  on  Privileges  and  Elections  of  the  Senate 
in  1873.  The  same  committee  in  1875  and  the  committee  of  the  House 
of  Representatives  which  visited  Louisiana  in  1874  both  agree  that  the 


ELECTORAL    COUNT    OF    1877.  333 

laying  of  a  proper  foundation  to  reject  votes  was  a  jurisdictional  fact, 
without  the  existence  of  which  the  returuing-board  would  have  no 
authority  to  reject  votes  or  to  do  anything  except  to  compile  the  state 
ments  of  votes  that  were  made  by  the  commissioner  of  election. 

Mr.  Commissioner  MILLER.  Judge  Trumbull,  allow  me  to  make  a 
suggestion  to  you  just  there.  The  point  came  up  in  the  Florida  case, 
and  was  much  considered  in  the  conference  and  was  the  ground  of  some 
of  the  votes  then  cast,  and  there  is  a  great  deal  of  importance  attached 
to  it,  in  my  mind  at  least.  If  the  only  thing  which  that  returniug- 
board  could  do  was  to  determine  whether  certain  polls  should  be  re 
jected  or  counted,  your  argument  is  a  perfectly  just  one;  but  is  it  not 
also  true  that  the  jurisdiction  of  that  board  is  commensurate  with  the 
duties  and  functions  it  is  to  perform,  and  is  it  not  true  that  the  one 
main  function  it  is  to  perform  is  to  ascertain  who  was  elected  and  to 
declare  that  fact?  And  can  it  be  said  that  if  they  mistake  the  law  in 
some  of  the  points  that  they  have  to  determine  upon  in  discharging 
that  function  of  declaring  who  are  elected,  or  if  they  fail  properly  to 
weigh  the  testimony  on  which  they  act  in  any  of  those  points,  that  is 
so  j  urisdictioual  that  their  decision  is  erroneous'? 

Mr.  TRUMBCTLL.     No,  sir;  I  do  not  contend  for  that. 

Mr.  Commissioner  MILLER.  Then  my  suggestion  is  that  the  jurisdic 
tion  of  this  board,  the  function  which  it  is  called  upon  to  discharge,  is 
to  ascertain  and  declare  who  are  elected.  That  is  their  jurisdiction, 
and  all  below  it  is  the  exercise  of  means  and  modes  of  procedure. 

Mr.  TRUMBULL.  To  that  I  cannot  quite  assent.  I  assent  entirely 
to  the  proposition  that  upon  any  matter  of  which  this  board  had  juris 
diction  and  a  discretion  to  act,  their  judgment  is  not  to  be  disturbed; 
but  the  point  I  make  is  that  while  it  is  their  duty  to  canvass  and  com 
pile  the  vote — that  is  their  sworn  duty — it  is  also  their  sworn  duty  not 
to  take  jurisdiction  of  the  question  of  rejecting  votes  unless  a  founda 
tion  is  first  laid  for  so  doing.  Upon  the  want  of  power  of  a  canvassiug- 
board  to  reject  votes,  and  that  its  acts  in  so  doing  are  without  jurisdic 
tion  and  void,  I  refer  to  the  cases  of  The  People  vs.  Cook,  4  iSelden,  82; 
and  10  Bush,  743.  In  the  case  of  the  State  vs.  County  Judge,  7  Iowa 
Rep.,  201,  it  is  said: 

The  next  subject  of  examination  is  the  answer  that  the  duty  had  already  been  per 
formed. 

It  was  a  case  of  mandamus  to  compel  a  returning-officer  to  canvass 
the  votes. 

Inasmuch  as  the  canvassers  have  rejected  the  returns  from  three  of  the  townships 
which  they  should,  have  counted,  it  is  legally  true  that  duty  has  not  been  discharged  ; 
and  when  the  writ  now  commands,  it  is  not,  in  a  proper  legal  sense,  to  recanvass,  but 
to  canvass,  the  returns  of  that  election.  It  is  to  do  that  which  was  before  their  duty, 
but  which  they  omitted.  What  has  been  done  is  as  if  it  had  not  been  done,  and  the 
judge  is  now  commanded  to  proceed  as  if  no  former  steps  had  been  taken. 

He  had  left  out  three  returns  that  it  was  his  duty  to  canvass.  The 
mandamus  went  compelling  him  to  make  the  canvass.  The  same  prin 
ciple  is  very  forcibly  stated  in  a  recent  decision  by  the  Supreme  Court 
of  the  United  States  in  a  case  that  is  not  yet  reported,  decided  at  the 
present  term  of  the  court.  It  is  the  case  of  Windsor  vs.  McVeigh.  It 
was  an  action  of  ejectment,  and  there  came  up  collaterally  the  validity 
of  title  derived  from  a  sale  under  the  confiscation  acts.  Some  years 
ago  a  suit  was  instituted  in  Virginia  to  condemn  property  under  the 
confiscation  acts,  and  the  owners  came  in  and  sought  to  defend.  The 
judge  of  the  court  struck  their  answer  from  the  files  and  refused  to  hear 
them  at  all.  The  case  proceeded  to  judgment  and  the  property  was 


334  ELECTORAL    COUNT    OF    1877. 

sold.    Aii  action  of  ejectment  was  brought  involving  the  title  derived 
under  the  sale.    The  court  say  in  that  case: 

The  law  is  and  always  has  been  that  whenever  notice  or  citation  is  required,  the 
party  cited  has  the  right  to  appear  and  be  heard,  and  when  the  latter  is  denied  the 
former  is  ineffectual  for  any  purpose.  The  denial  to  a  party  in  such  a  case  of  the  right 
to  appear  is  in  legal  effect  the  recall  of  the  citation  to  him. 

*  *  *  7,  *  *  * 

The  jurisdiction  acquired  by  the  court  by  seizure  of  the  res  was  not  to  condemn  the 
property  without  further  proceedings. 

The  jurisdiction  secured  by  this  returning- board  to  make  the  canvass 
was  not  to  reject  a  part  of  the  returns  arbitrarily  and  at  will.  There  is 
much  in  this  decision  illustrative  of  the  present  case: 

If  a  seizure  is  made  and  condemnation  is  passed  without  the  allegation  of  any  spe 
cific  cause  of  forfeiture  or  offense,  and  without  any  public  notice  of  the  proceedings, 
so  that  the  parties  in  interest  have  no  opportunity  of  appearing  and  making  a  defense, 
the  sentence  is  not  so  much  a  judicial  sentence  as  an  arbitrary  sovereign  edict. 

In  quoting  from  Mr.  Justice  Story  in  another  case,  with  approbation, 
the  court  say — 

In  another  part  of  the  same  opinion  the  judge  characterized  such  sentences  "as  mere 
mockeries,  and  as  in  no  just  sense  judicial  proceedings ;"  and  declared  that  they  "  ought 
to  be  deemed,  both  ex  directo  in  rem  and  collaterally,  to  be  mere  arbitrary  edicts  or  sub 
stantial  frauds." 

The  court  held  the  judgment  of  condemnation  absolutely  void  in  a 
collateral  proceeding.  A  jurisdiction  to  compile  and  canvass  votes  does 
not  confer  jurisdiction  to  reject  votes.  The  latter  jurisdiction  can  only 
be  exercised  when  the  statutory  foundation  is  laid. 

There  is  another  point  which  goes  to  the  jurisdiction  of  this  board 
which  we  ought,  I  think,  to  be  permitted  to  show,  that  it  was  not  so 
constituted  as  to  have  jurisdiction  of  the  canvass  at  all,  for  the  reason 
that  the  Jaw  declares  that  "  five  persons,  to  be  elected  by  the  senate,  of 
all  political  parties,  shall  constitute  the  returning-officers  for  all  elections, 
a  majority  of  whom  shall  constitute  a  quorum  and  have  power  to  make 
the  returns  of  all  elections.'7  Xow,  I  insist  that  it  was  incompetent  for 
four  persons  to  act.  Four  or  three  might  act  if  the  board  was  full ;  but 
when  a  duty  is  required  to  be  performed  by  five  persons  of  different  po 
litical  parties,  it  cannot  be  lawfully  performed  by  four  persons  all  of  the 
same  party. 

There  was  an  object  in  the  requirement  that  the  board  should  be  com 
posed  of  different  political  parties.  It  is  not  a  mere  directory  statute. 
The  legislature  undoubtedly  had  in  view  fairness  in  the  canvass  of  the 
returns,  and  hence  it  committed  it  to  returning-officers  to  be  made  up  of 
all  political  parties.  The  fact  here  is,  that  four  persons,  all  of  one  party, 
made  the  canvass.  Suppose  five  had  existed,  could  a  majority  have 
acted  without  giving  notice  to  the  others  ?  The  act  of  a  majority  would 
doubtless  be  good  if  the  board  had  been  full  and  all  had  been  notified. 
Each  party  had  the  right  to  have  the  advice  and  the  judgment  of  some 
of  its  friends  in  this  board.  While  three  might  act  they  must  give 
notice  to  all  that  all  might  have  an  opportunity  to  be  present.  These 
four  had  authority  to  fill  up  the  board.  The  statute  required  them  to 
do  it.  They  were  asked  to  fill  the  vacancy  and  refused.  Every  clerk 
engaged  by  them  was  of  the  same  political  party.  I  insist  that  this 
board  was  not  constituted  so  as  to  have  authority  to  make  the  canvass 
at  all.  The  general  rule  on  this  subject  is  well  stated  in  21  Wendell's 
Reports  in  the  case  of  Downing  vs.  Euger,  page  182 : 

The  rule  seems  to  be  well  established  that,  in  the  exercise  of  a  public  as  well  as 
a  private  authority,  whether  it  be  ministerial  or  judicial,  all  the  persons  to  whom 
it  is  committed  must  confer  and  act  together,  unless  there  be  a  provision  that  a  less 


ELECTORAL   COUNT   OF   1877.  335 

number  may  proceed.  Where  the  authority  is  public,  and  the  number  is  such  as  to 
admit  of  a  majority,  that  will  bind  the  minority,  after  all  have  duly  met  and  con 
ferred. 

I  do  not  insist  that  the  whole  five  must  have  been  present ;  but  I  do 
insist  that  where  the  authority  existed  in  the  four  to  supply  the  vacancy 
they  had  no  authority  to  go  on  and  make  the  canvass  without  supplying 
the  vacancy.  It  was  not  fair ;  it  was  not  what  the  legislature  intended  ; 
and  they  are  in  no  better  position  surely,  failing  to  obey  the  law  and 
supply  this  vacancy,  than  they  would  have  been  if  they  had  supplied 
the  vacancy  and  then  acted  without  giving  the  fifth  man  notice  or 
affording  him  an  opportunity  to  attend  ;  and  that  would  have  been  fatal. 

The  fact  that  the  statute  authorizes  a  majority  to  act  does  not  change 
the  rule.  A  majority  could  have  acted  in  a  case  of  this  kind,  if  the 
statute  had  not  said  so,  provided  all  had  been  afforded  an  opportunity 
to  co-operate. 

Mr.  Commissioner  EDMUNDS.  Your  point  is,  that  no  step  at  all 
could  be  taken  until  the  board  was  full  ? 

Mr.  TRUMBULL.  No  step  could  be  taken  until  the  vacancy  was  filled, 
the  four  having  authority  to  fill  it. 

The  constituent  elements  of  which  this  returniug-board  was  to  consist 
being  wanting,  I  insist  the  four  could  not  go  on  without  filling  up 
the  board,  particularly  as  one  of  the  elements  which  entered  into  the 
mind  of  the  legislature  in  the  passage  of  the  law  was  wanting  in  the 
board  as  it  existed,  the  four  being  all  of  one  political  party. 

My  attention  is  called  to  the  phraseology  of  the  laW.    It  is : 

In  case  of  any  vacancy  by  death,  resignation,  or  otherwise,  by  either  of  the  board, 
then  the  vacancy  shall  be  filled  by  the  residue  of  the  board  of  returniug-officers. 

The  act  is  mandatory,  and  a  failure  to  obey  it  I  think  is  a  fatal  defect 
in  the  organization  of  the  board. 

The  PRESIDENT.  Excuse  me  for  saying  that  you  have  occupied  an 
hour  and  a  half. 

Mr.  TRUMBULL.  I  desire  to  call  attention  to  one  other  matter.  It  has 
been  stated  in  another  argument  in  the  hearing  of  the  Commission,  and 
I  have  not  the  vanity  to  suppose  that  I  can  state  it  any  more  clearly, 
but  yet  I  desire  to  press  it  upon  your  consideration.  To  my  mind  it  is 
conclusive  and  unanswerable.  I  allude  to  the  inability  of  the  legisla 
ture  of  Louisiana  to  appoint  Brewster  and  Levissee  electors.  The  lan 
guage  of  the  Constitution  is  in  that  respect  peculiar.  It  is  an  inhib 
ition  on  the  legislature  and  not  a  disqualification  or  inability  on  the  part 
of  the  individual.  The  attention  of  the  Commission  was  called  to  that 
the  other  day.  The  language  of  the  Constitution,  that  "  no  person  shall 
be  a  Senator  who  shall  not  have  attained  to  the  age  of  thirty  years  and 
been  nine  years  a  citizen  of  the  United  States,"  is  very  different  from  the 
language  here.  The  only  power  that  a  State  has  to  appoint  an  elector 
at  all  is  derived  from  the  Constitution  of  the  United  States.  Most  of 
the  powers  exercised  by  a  State  are  inherent,  belonging  to  the  State 
itself,  but  the  power  to  appoint  electors  of  President  and  Yice-President 
is  derived  from  the  Constitution  of  the  United  States.  That  is  the  war 
rant  of  authority,  and  it  reads  thus: 

Each  State  shall  appoint,  in  such  manner  as  the  legislature  thereof  may  direct,  a 
number  of  electors,  equal  to  the  whole  number  of  Senators  and  Representatives  to 
which  the  State  may  be  entitled  in  the  Congress;  but  no  Senator  or  Representative, 
or  person  holding  an  office  of  trust  or  profit  under  the  United  States,  shall  be  appointed 
an  elector. 

We  have  here  the  evidence  that  Brewster  was  surveyor-general  of  the 
land-office  for  the  district  of  Louisiana,  an  office  to  which  he  was  nom- 


336  ELECTORAL    COUNT    OF    1877. 

inated  by  the  President  and  confirmed  by  the  Senate.  He  held  this 
office  on  the  7th  of  November  last.  The  warrant  of  authority  to  the 
State  of  Louisiana  is,  "  You  may  appoint  as  many  electors  as  you  have 
Senators  and  Representatives,  but  you  shall  not  appoint  O.  H.  Brews- 
ter."  That  is  what  the  Constitution  in  effect  says. 

Mr.  Commissioner  MORTON.  Let  me  ask  the  gentleman  a  question. 
Does  he  believe  that  the  control  given  to  the  legislature  in  the  appoint 
ment  of  electors  can  be  limited,  restrained,  or  directed  by  the  constitu 
tion  of  the  State  1 

Mr.  TRUMBULL.  They  can  determine  certainly  in  the  State  whom 
they  will  appoint,  and  may  put  inhibitions  on  the  appointment  of  par 
ticular  persons,  I  should  imagine. 

Mr.  Commissioner  MORTON.  My  question  is  this:  inasmuch  as  the 
Constitution  of  the  United  States  gives  to  the  legislature  of  the  State 
the  control  of  the  appointment  of  electors,  is  it  competent  for  the  State 
by  her  constitution  to  control  the  legislature  in  the  exercise  of  that 
power  ? 

Mr.  TRUMBULL.  That  question  does  not  arise  in  this  case.  The 
power  being  granted  by  the  Constitution  of  the  United  States  to  the 
legislature  in  terms,  it  may  be  questionable  whether  it  is  competent  for 
the  people  in  their  constitution  to  regulate  it. 

Mr.  Commissioner  BOAR.  Mr.  Trumbull,  is  not  the  question  a  little 
deeper  even  than  Mr.  Morton  has  put  it !  When  the  Constitution  of 
the  United  States  has  fixed  the  qualifications  of  presidential  electors, 
or  rather  has  expressed  certain  disqualifications,  is  it  competent  for  the 
legislature  of  a  State,  under  the  mere  power  of  fixing  the  manner  of 
appointment,  to  impose  other  disqualifications  *? 

Mr.  Commissioner  THURMAN.    No  such  question  arises  here. 

Mr.  SHELLABARGER.     This  is  a  Federal  officer. 

Mr.  Commissioner  HOAR.  I  understand  that  was  the  point  you  were 
then  arguing,  but  Mr.  Morton  called  your  attention  to  another,  and  you 
were  replying  to  him. 

Mr.  TRUMBULL.  The  question  of  the  Senator  from  Indiana,  as  I 
understand  it,  is  whether  the  legislature,  in  the  exercise  of  this  power 
conferred  upon  it  by  the  Federal  Constitution,  is  bound  by  its  State  con 
stitution  9  It  amounts  to  that.  I  should  say  a  legislature  is  bound  to 
observe  the  State  constitution  as  well  as  the  Constitution  of  the  United 
States,  both,  unless  they  conflict.  If  there  be  a  conflict  between  them, 
then  we  all  know  that  the  Federal  Constitution  is  paramount;  but  I 
think  the  legislature  would  be  bound  by  the  constitution  of  the  State 
so  far  as  it  did  not  interfere  with  any  provision  of  the  Constitution  of 
the  United  States.  But  that  is  not  the  case  I  am  arguing.  The  case  I 
am  presenting  to  you  is  this :  The  Constitution  of  the  United  States  in 
the  grant  of  power  has  said  to  the  State  of  Louisiana,  "  You  may  ap 
point  certain  persons  as  electors  for  President,  but  you  shall  not  appoint 
O.  H.  Brewster."  Now,  I  say,  when  the  Constitution  says  that  to  the 
State  of  Louisiana,  it  is  binding  upon  the  legislature  and  upon  every 
citizen  of  Louisiana.  Any  appointment,  therefore,  made  in  defiance  of 
that  provision  is  utterly  void.  It  cannot  be  that  such  an  appointment 
can  stand.  You  are  to  inquire  here,  "  Who,  and  how  many  electors, 
were  duly  appointed  f  and  I  put  it  to  every  member  of  this  Commis 
sion  if  he  can  say,  that  a  man  who  the  Constitution,  which  is  above 
us  all  and  which  we  all  swear  to  support,  says  shall  not  be  an  elector, 
shall  nevertheless  be  an  elector,  and  that  his  appointment  as  such  is 
according  to  the  Constitution  ? 

Mr.  Commissioner  MORTON.     I  ask  the  gentleman  this  question, 


ELECTORAL   COUNT   OF    1877.  337 

whether  it  is  competent  for  a  State  by  her  constitution  to  add  to  the 
qualifications  required  for  United  States  Senators? 

Mr.  TftUMBULL.  Undoubtedly  not.  That  has  been  settled.  That 
is  another  question.  I  do  not  see  its  applicability  to  this  point.  There 
are  some  cases  in  Louisiana  which  I  shall  leave  for  my  associate,  Judge 
Campbell,  to  discuss,  of  persons  inhibited  by  the  constitution  of  Louis 
iana  from  holding  any  office ;  for  instance,  the  law  of  Louisiana  spe 
cifically  and  in  terms  declares  that  no  supervisor  of  registration  that  is, 
no  person  who  has  charge  of  all  this  election  machinery,  shall  be  a 
candidate  for  an  office  at  the  election  which  he  superintends.  Yet,  in 
defiance  of  that  statute,  one  of  the  Hayes  electors  was  a  supervisor  of 
registration  managing  the  election  when  he  himself  was  a  candidate. 
I  do  not  propose  to  go  into  that.  I  am  speaking  of  the  other  cases  of 
United  States  officers ;  there  are  two  of  them  who  claim  to  have  been 
chosen  electors.  What  is  the  answer  to  the  suggestions  that  such  per 
sons  cannot  be  electors  ?  My  distinguished  friend  [Mr.  Evarts]  says  the 
Constitution  does  not  execute  itself. 

Mr.  Commissioner  BRADLEY.  Allow  me,  Mr.  Trumbull.  The 
proposition  No.  6  is  that  Brevvster  was  surveyor-general  at  the  time  of 
the  election. 

Mr.  TRUMBULL.     Yes,  sir. 

Mr.  Commissioner  BRADLEY.  Do  you  include  and  intend  to  prove 
that  he  w*as  such  at  the  time  of  giving  his  vote? 

Mr.  TRUMBULL.  No,  sir;  at  the  time  of  his  appointment;  he  was 
appointed  at  the  time  of  the  election.  I  do  not  wish  to  state  it  stronger 
than  it  is.  I  understand  that  he  tendered  his  resignation  some  time  in 
November  after  the  election,  and  it  was  accepted,  very  singularly,  to 
date  back  before  the  election,  although  the  resignation  was  not  offered 
until  some  time  after,  as  Mr.  Brewster  himself  stated  under  oath. 

Mr.  Commissioner  THURMAN.  Let  me  ask  you  a  question,  Judge 
Trumbull.  The  law  of  Louisiana,  as  I  understand,  provides  that  if  an 
elector  who  has  been  chosen  or  appointed  does  not  appear  by  a  certain 
hour,  the  remaining  electors  shall  proceed  to  fill  the  vacancy? 

Mr.  TRUMBULL.  Yes,  sir;  there  is  such  a  provision  in  the  act  of 
18G8. 

Mr.  CARPENTER.     And  nowhere  else. 

Mr.  Commissioner  EDMUNDS.  I  understand  Judge  Trumbull  con 
tends  that  act  is  not  in  force. 

Mr.  Commissioner  THURMAN.  But  if  that  law  is  in  force,  and  he 
did  not  appear  at  the  time,  as  the  certificate  reads,  then  no  matter 
whether  he  was  an  officer  or  not,  there  was  a  vacancy  under  that  law, 
was  there  not? 

Mr.  TRUMBULL.     No,  sir. 

Mr.  Commissioner  THURMAN.     Under  the  law  of  1868  ? 

Mr.  TRUMBULL.  I  do  not  consider  that  there  was;  I  understand 
that  there  was  not.  The  statutes  of  the  United  States  make  two 
provisions:  one  is  for  .filling  any  vacancies  which  may  occur  in  the 
college  when  such  college  meets  to  give  its  electoral  votes ;  the  other 
is  when  a  State  has  held  an  election  for  the  purpose  of  choosing  elect 
ors,  and  has  failed  to  make  a  choice  on  the  day  prescribed  by  law,  the 
electors  may  be  appointed  on  a  subsequent  day,  in  such  manner  as  the 
legislature  of  the  State  may  direct.  Here  was  no  choice.  It  was  just 
as  if  two  persons  had  received  the  same  vote- 
Mr.  Commissioner  THURMAN.  I  do  not  think  you  comprehend  my 
question.  Is  not  the  real  question,  whether  there  is  any  power  to  fill  a 
22  E  C 


338  ELECTORAL   COUNT    OF    1877. 

vacancy  in  the  remaining  members  of  the  board?  Suppose  this  man 
had  been  qualified,  but  did  not  appear. 

Mr.  TRUMBULL.  Then,  if  this  statute  was  in  force,  the  other  elect 
ors  could  have  filled  the  vacancy. 

Mr.  Commissioner  THURMAN.     But  suppose  it  were  not? 

Mr.  TRUMBULL.  Then  there  is  no  law  authorizing  the  filling  of  the 
vacancy — — 

Mr.  Commissioner  HUNTCXN".    Except  by  popular  election. 

Mr.  TRUMBULL.  That  brings  up  complicated  questions.  The 
statute  of  1872  provides  for  filling  all  vacancies  by  popular  election.  If 
that  statute  was  in  force,  then  the  vacancy  would  have  to  be  filled  by  a 
popular  election.  If  the  law  of  1868  was  in  force,  then  one  of  those 
elected  being  absent  would  give  the  others  authority  to  fill  the  vacancy, 
provided  anybody  had  ever  been  elected.  If  you  will  look  at  the 
statute  of  1868  you  will  find  it  says: 

If  any  one  or  more  of  the  electors  chosen  by  the  people  shall  fail  from  any  cause 
•whatever  to  attend — 

We  insist  that  these  men,  Brewster  and  Levissee,  were  never  chosen 
by  the  people,  and  could  not  be  chosen  by  the  people;  it  was  utterly 
out  of  their  power  to  choose  them.  As  to  the  other  provision  of  the 
law  of  the  United  States,  there  is  no  statute  in  Louisiana  authorizing 
the  supph  ing  of  this  want  of  an  election  on  the  7th  of  November,  unless 
it  be  the  ^utute  of  1872,  and  so  there  must  be  a  popular  election  if  that 
applies. 

But  I  was  about,  when  interrupted,  to  reply  to  the  suggestion  that 
the  Constitution  did  not  execute  itself.  That  is  true  in  reference  to 
some  things;  but  it  is  untrue  in  reference  to  a  great  many  other  things. 
If  you  will  refer  to  the  Constitution  of  the  United  States  you  will  find 
that  a  great  many  of  its  provisions  do  execute  themselves.  Look  at 
section  10  of  article  1.  You  will  observe  that  this  is  an  inhibition  on 
the  State,  and  such  provisions  do  execute  themselves.  No  law  of  Con 
gress  could  execute  them.  How  could  you  punish  a  State  for  not 
obeying  the  Constitution  of  the  United  States'?  The  Constitution  says 
that  no  State  shall  appoint  a  public  officer  an  elector.  The  Constitution 
of  the  United  States  says: 

No  State  shall    *     *      ''     emit  bills  of  credit. 

Suppose  a  State  does  emit  bills  of  credit,  are  they  not  void?  Did  not 
the  Supreme  Court  of  the  United  States  nearly  half  a  century  ago  decide 
in  the  Missouri  case  that  bills  of  credit  issued  by  the  State  of  Missouri 
were  utterly  void  ;  and  where  is  the  statute  making  them  void?  How 
many  times  has  the  Supreme  Court  decided  that  a  law  passed  by  a  State 
impairing  the  obligation  of  a  contract  is  void?  Is  there  any  statute  of 
the  United  States  declaring  that  if  a  State  passes  a  law  impairing  the 
obligation  of  a  contract  it  shall  be  void?  Would  it  not  be  an  absurdity 
to  pass  such  a  statute?  Could  a  United  States  statute  impose  a  penalty 
on  a  State  for  passing  an  ex  post  facto  law?  Do  you  propose  to  put  a 
State  in  prison  or  to  fine  a  State?  All  these  inhibitions  on  the  State 
execute  themselves.  The  case  referred  to  in  Mississippi  in  regard  to 
the  importation  of  slaves  into  that  State  is  entirely  different,  governed 
by  different  considerations.  The  constitution  of  Mississippi  provided 
that— 

The  introduction  of  slaves  into  this  State  as  merchandise,  or  for  sale,  shall  be  pro 
hibited  from  and  after  the  1st  day  of  April,  1833. 

That  was  a  provision  for  the  legislature  to  prohibit  the  importation 
for  certain  purposes  after  a  certain  time. 


ELECTORAL   COUNT    OP    1877.  339 

I  certainly  need  not  take  up  the  time  of  this  honorable  Commission 
further  to  show  that  certain  provisions  of  the  Constitution  are  self- 
executing.  There  is  not  a  person  upon  it  who  does  not  know  that  it 
has  been  decided  over  and  over  again  that  these  inhibitions  upon  the 
States  are  self-executing. 

There  is  only  one  other  suggestion  to  be  made  in  regard  to  this  dis 
qualified  elector,  and  that  is  that  he  was  not  a  de facto  elector;  but  if 
he  was  such,  his  acts  as  a  de  facto  officer  are  no  more  valid  than  the  acts 
of  the  Tilden  electors.  The  duties  of  the  office  of  elector  are  all  per 
formed  at  one  time.  It  is  simply  to  cast  a  vote,  and  McEnery  and  his 
associates  met  together  at  the  proper  place,  on  the  proper  day,  and  cast 
their  vote.  They  were  officers  defaoto  just  as  much  as  was  Brewster. 
But  neither  of  them  was  an  officer  de  facto  in  the  sense  that  the  acts  of 
an  officer  de  facto  are  to  stand;  and  why  ?  Because  the  reason  of  the 
rule  that  gives  validity  to  the  acts  of  de  facto  officers  has  no  application 
whatever  to  the  act  of  a  person  who  has  .a  single  duty  to  perform,  and 
that  act  incomplete.  The  object  of  the  law  recognizing  the  acts  of  de 
facto  officers  as  valid  is  the  security  of  the  public.  The  people  having 
business  before  officers  cannot  stop  to  investigate  their  legal  authority  to 
the  offices  they  occupy  ;  and  hence,  so  far  as  the  public  and  business  in 
terests  are  concerned,  their  acts  are  valid.  What  act  has  this  elector 
ever  performed  that  affected  the  public  interest  until  this  vote  is  counted? 
The  reason  that  has  led  to  the  adoption  of  the  rule  in  regard  to  de  facto 
officers  has  no  application  to  such  a  case. 

I  have  taken  so  much  more  time  than  I  intended  that  I  must  close 
without  discussing  some  other  points  ;  and  I  do  so  by  saying  that  if  a 
man  is  to  be  made  President  of  the  United  States  by  counting  the  votes 
of  Levissee,  Brewster,  and  their  associates  from  Louisiana,  it  will  be  by 
the  mere  form  of  law,  contrary  to  the  principles  of  the  Constitution  and 
in  violation  of  the  rights  of  the  people. 

Mr.  MEREICK.  Mr.  President,  I  ask  leave  to  file  a  brief  on  the  sub 
ject  of  the  validity  of  the  acts  of  officers  de  facto.* 

The  PRESIDENT.     I  think  I  may  receive  it. 

Mr.  EVARTS.     Let  us  have  copies. 

Mr.  MERRICK.     Certainly. 

Mr.  TRUMBULL.  If  the  Commission  please,  in  justice  to  my  asso 
ciate  I  really  think  that  all  the  time  I  have  occupied  ought  not  to  be 
taken  from  his,  as  I  was  frequently  interrupted. 

The  PRESIDENT.  I  shall  submit  that  matter  to  the  Commission 
when  Mr.  Campbell  asks  for  time. 

Mr.  Commissioner  PAYNE.  I  move  now  that  the  time  consumed  by 
interruptions  of  the  Commission  be  not  counted. 

The  PRESIDENT.    I  have  no  definite  count  of  the  time  so  consumed. 

Mr.  Commissioner  BAYARD.  I  should  like  to  ask  Mr.  Trumbull 
whether  there  is  any  statute  of  Louisiana  requiring  a  certificate  from 
the  governor  of  the  appointment  of  electors. 

Mr.  TRUMBULL.  There  is  a  statute  of  Louisiana  which  I  will  refer 
to,  which  requires  the  governor  to  commission  all  officers  except  certain 
persons  who  are  named,  of  which  an  elector  is  not  one. 

Mr.  Commissioner  BAYARD.  That  is  the  law  of  1872.  Is  there  any 
statute  requiring  the  governor  to  issue  a  certificate  of  election  to  the 
electors  ? 

Mr.  TRUMBULL.    Not  specifically,  but  there  is  a  statute  of  Louis- 

*  This  brief  will  be  found  in  the  Appendix  of  Briefs,  marked  Brief  No.  4. 


840  ELECTORAL    COUNT    OF    1877. 

iana  and  a  provision  of  the  constitution.    The  act  of  1872,  section  25, 
provides — 

That  it  shall  be  the  duty  of  the  governor  to  commission  all  officers-elect  except 
members  of  the  general  assembly,  the  governor,  and  the  members  of  the  police-jury. 

Mr.  Commissioner  BAYAKD.  Is  there  any  other  provision  than 
that  1 

Mr.  TEUMBULL.  I  do  not  remember  any  other  provision.  I  am 
informed  that  there  is  no  constitutional  provision,  and  that  is  the  only 
provision  of  the  statute  I  can  call  attention  to  at  this  moment. 

Mr.  Commissioner  STRONG.  It  would  be  a  great  convenience  to 
some  of  us  if  we  could  have  copies  of  the  offers  of  evidence.  I  heard 
them  read  only. 

f  Mr.  CARPENTER.    I  will  see  that  the  judges  are  furnished  with  a 
copy  to-night  before  nine  o'clock. 

Mr.  Commissioner  EDMUNDS.  Only  a  very  few  of  the  Commission 
have  been  able  to  obtain  copies. 

Mr.  CARPENTER.  I  will  see  that  all  of  them  are  supplied  to-night. 
If  tbe  Commission  please,  I  ask  permission  for  about  five  minutes  to 
cite  some  authorities  on  some  of  our  points,  so  that  they  may  be  before 
the  counsel  on  the  other  side  before  they  close,  as  I  understand  we  have 
the  conclusion.  Is  there  objection  to  that  ? 
The  PRESIDENT.  Some  not  in  your  brief? 

Mr.  CARPENTER.  One  or  two  not  in  our  brief.  Five  minutes  will 
suffice. 

The  PRESIDENT.     I  suppose  there  is  no  objection  to  that. 
Mr.  EVARTS.    None  at  all.     We  understand  they  have  the  right  to 
have  three  counsel  speak  if  they  choose,  and  it  comes  out  of  their  time. 
Mr.  CARPENTER.     That  is  the  way  we  understood  it.     If  for  in 
stance  the  discussion  had  proceeded  under  the  formal  rule,  we  should 
have  had  fifteen  minutes  on  each  offer,  and  could  have  taken  the  time 
with  one  counsel  on  one  objection  and  another  on  another. 

The  PRESIDENT.  Are  there  three  counsel  to  speak  on  your  side 
of  this  question  ? 

Mr.  CARPENTER.  Yes,  sir;  counting  me  for  five  minutes  as  coun 
sel. 

The  PRESIDENT.    Then  two  are  required  to  open. 
Mr.  TRUMBULL.     If  the  Commission  please,  in  regard  to  our  offer 
of  testimony,  some  of  it  is  in  manuscript.    I  would  suggest,  if  it  is 
proper  for  me  to  do  so,  that  the  clerk  be  directed  to  have  it  printed, 
that  you  may  get  a  copy  of  it. 

Mr.  Commissioner  GARFIELD.     We  had  better  have  it  all  printed. 
The  PRESIDENT.    I  presume  there  will  be  no  objection  to  having  it 
printed. 

Mr.  CARPENTER.     We  offer  to  prove,  and  it  is  a  conceded  fact 

The  PRESIDENT.  I  want  it  distinctly  understood  that  the  rule 
which  I  have  prescribed  is  that,  if  three  counsel  are  to  be  heard  on  a 
side,  two  shall  open  and  only  one  speak  in  conclusion. 

Mr.  CARPENTER.  So  I  understand.  We  offer  to  prove,  and  it  is 
admitted  as  a  fact,  that  Governor  Kellogg,  who  issued  the  certificate 
here  to  the  electors,  is  the  same  individual  as  elector  Kellogg  certified 
to  by  him.  On  page  38  of  my  brief  I  have  cited  the  authorities  to  show 
that  a  person  cannot  appoint  himself.  The  king  is  the  fountain  of 
honor  and  of  office,  but  he  cannot  exercise  the  duties  of  an  office  to 
which  he  might  make  an  appointment. 

It  was  decided  in  33  Barbour,  cited  on  this  brief,  that  where  three 
officers  had  the  power  to  appoint  an  officer,  they  could  not  appoint  one 


ELECTORAL    COUNT    OF   1877.  341 

of  their  own  number,  it  being  all  an  enlargement  of  that  proverb  of  the 
law  that  no  man  can  be  a  judge  in  his  own  case  and  that  no  man  can 
exercise  the  functions  of  his  office  for  his  own  benefit.  In  this  case  the 
distinction  between  a  man's  appointing  himself  and  issuing  a  certificate 
which  would  be  conclusive  evidence  that  he  had  been  appointed,  is  too 
nice  to  be  substantial,  and  it  falls,  we  think,  within  that  well-settled 
principle  that  no  public  officer  can  certify  an\  thing  for  his  own  benefit; 
that  is,  in  which  he  holds  an  interest  at  the  time  he  makes  the  certifi 
cate.  Upon  that  point,  in  addition  to  the  cases  cited  in  the  brief,  I 
want  to  call  attention  to  the  case  of  McKnight  vs.  Lewis,  5  Barbour's 
Beports.  page  584.  In  that  case  a  note  had  been  protested  by  a  notary; 
he  afterward  became  the  owner  of  the  note,  and  the  question  was 
whether  he  could  read  in  his  own  favor  the  certificate  which  he  made  as 
notary  public  of  the  protest  of  the  note.  This  is  what  the  court  say 
about  it : 

The  next  objection  is  that  the  official  protest  and  certificate  of  the  intestate  were 
admitted  in  evidence  in  favor  of  the  plaintiff,  who  is  his  representative.  At  the  time 
J.  E.  McKnight  made  his  protest  and  memoranda  of  notice  at  its  foot,  he  had  no  inter 
est  in  the  note.  He  had  authority  by  law,  and  was  competent  in  the  particular  case, 
to  present  and  demand  payment  of  it  and  to  give  the  notice  of  refusal,  and  also  to 
make  officially  the  protest  and  memoranda  which,  in  a  certain  contingency,  the  stat 
ute  had  declared  presumptive  evidence  of  such  dishonor  and  notice.  The  certificate 
of  an  officer,  when  by  law  evidence  for  others,  is  competent  testimony  for  the  officer 
himself,  provided  he  was  competent,  at  the  time  of  making  it,  to  act  officially  in  the 
matter  to  which  it  relates.  This  doctrine  is  applied  daily  in  cases  of  justices  of  the 
peace,  sheriffs,  constables,  and  other  officers.  No  one  will  doubt  that  a  commissioner 
of  deeds  or  judge  who  takes  and  certifies  the  acknowledgment  of  the  execution  of  a 
deed  conveying  land,  and  who  subsequently  purchases  the  same  land,  may  use  his  own 
certificate  to  prove  the  execution  of  the  couveyauce  to  his  grantor. 

Witnesses  who  have  been  examined  and  afterward  become  interested,  and  are  made 
parties  in  the  same  suit,  have  been  permitted  to  read  their  depositions  in  their  own 
favor. 

All  stating  the  ground  to  be  that,  in  order  to  make  the  certificate 
available  in  his  own  favor,  it  must  be  shown  that  he  had  no  interest  in 
it  at  the  time  the  certificate  was  made.  The  case  cited  on  the  brief 
from  Anstruther  held  that  a  sheriff  could  not  certify  his  own  neglect 
or  an  excuse  for  his  neglect.  He  must  make  his  affidavit  to  that.  He 
could  not  use  the  functions  of  his  office  to  certify  anything  in  his  own 
favor.  Now,  the  doctrine  applied  to  this  case  is  this :  Governor  Kel- 
logg's  certificate  to  himself  is  worthless.  It  is  no  evidence  that  he  was 
duly  appointed  elector  at  all.  In  the  case  of  a  sheriff,  it  is  universally 
well  known  to  all  the  judges  that  where  a  sheriff  on  process  in  a  case 
between  other  parties  makes  a  return  which  afterward  becomes  mate 
rial  in  a  suit  against  him,  and  he  offers  it  in  evidence,  even  in  that  case 
where  he  made  it  upon  process  between  other  parties,  at  the  time 
merely  performing  kis  duty,  when  he  comes  to  claim  any  benefit  to 
himself,  it  is  only  prima  facie  evidence. 

Then  to  show  that  Kellogg  was  duly  appointed,  you  have  got  to  go 
behind  the  certificate  of  Kellogg.  He  cannot  appoint  himself;  he  can 
not:  certify  that  he  is  appointed ;  and  when  you  get  behind  thafc  certifi 
cate  what  do  you  come  to  ?  You  come  to  the  certificate  of  this  can- 
vassing-board.  It  will  be  claimed  undoubtedly  by  my  honorable  friends 
that  there  you  must  stop.  Bat  what  is  the  effect  of  that  certificate  of 
the  returning-board  ?  Its  character  as  evidence  is  determined  by  the 
law  which  makes  it  evidence.  That  law  says  that  the  certificate  of  the 
returuing-board,  when  filed  with  the  secretary  of  state,  shall  be  prima- 
facie  evidence  in  all  courts  and  before  all  civil  officers  until  set  aside  by 
contest. 


342  ELECTORAL   COUNT   OF    1877. 

What  is prima-facie  evidence1?  It  is  evidence  that  may  be  disputed; 
and  when  the  legislature  says  a  certain  paper  shall  be  prima  facie  evi 
dence  in4  all  courts  and  before  all  officers,  it  says  in  effect  that  in  all 
courts  and  before  all  officers  you  may  dispute  it.  The  Supreme  Court 
of  the  United  States  in  two  or  three  cases  have  defined  what  prima- 
facie  evidence  is  and  so  defined  it.  It  is  that  evidence  which,  of  itself 
and  uucontradicted,  would  be  sufficient  to  establish  the  fact,  but  which 
is  always  controvertible.  So  we  say  this  returning-board's  certificate  is 
not  conclusive.  The  statute  says  it  shall  not  be  conclusive  ;  it  says  it 
shall  be  prima  facie,  and  prima  facie  means  disputable.  Then  you  must 
go  back  of  that  to  the  fact  in  order  to  prove  that  Kellogg  was  elected  j 
or,  if  it  is  not  necessary  for  them  affirmatively  to  go  back  to  show  that 
he  was  elected,  it  is  certainly  competent  for  us  to  go  back  to  show  that 
he  was  not,  or  else  you  give  that  certificate,  which  the  law  says  shall  be 
only  prima-facie  evidence,  the  full  force  and  effect  of  conclusive  evi 
dence. 

I  want  to  cite  also  without  comment,  upon  the  same  subject,  the  case 
of  Ohio  vs.  Taylor,  12  Ohio  State  Reports,  132. 

I  also  call  attention  to  the  case  of  Sublett  vs.  Tread  well,  in  47  Mis 
sissippi  Reports,  266,  and  will  read  simply  one  clause  from  the  syllabus: 

The  majority  candidate,  having  been  a  registrar  of  voters  preparatory  to  the  election 
at  which  he  was  a  candidate  and  elected,  was  thereby  disqualified  and  his  election  was 
void. 

The  PRESIDENT.    The  other  side  may  now  proceed. 

Mr.  STOUGHTON.  Mr.  President  and  gentlemen,  I  have  heard  in 
the  course  of  to-day  some  objections  made  which  I  think  may  well  be 
disposed  of  first  and  briefly.  We  are  somewhat  surprised  to  hear  it 
objected  that  the  certificate  of  Governor  Kellogg  is  inoperative  for  the 
purpose  of  certifying  to  this  tribunal  the  electoral  vote.  I  think  it  will 
be  remembered  that  when  the  vote  of  Connecticut  was  counted,  her  gov 
ernor,  Ingersoll,  was  an  elector  at  large.  I  think  his  certificate  was  re 
ceived  without  objection.  Such  objections  are  hardly  suitable  to  the 
dignity  of  the  occasion. 

It  has  been  objected  this  morning,  and  argued  with  much  zeal,  that 
Governor  Kellogg  is  not  the  governor  of  Louisiana.  It  has  been  said 
that  Louisiana  is  governed  by  a  military  despotism,  by  which  I  suppose 
is  meant  that  military  force,  which,  on  application  sent  by  Governor 
Kellogg  to  the  President,  he  ordered  to  Louisiana,  for  the  purpose  of 
suppressing  insurrection.  I  think  the  learned  counsel  was  right  in  say 
ing  that  without  such  aid  the  government  of  which  Governor  Kellogg 
was  the  head  would  have  been  overturned  ;  but  is  the  gentleman  aware 
that  the  very  fact  that  Governor  Kellogg  made  such  an  application, 
the  very  fact  that  it  was  granted,  is  decisive  evidence  here  that  he  was, 
until  his  term  expired,  governor  of  the  State  of  Louisiana  ?  Need  I  tell 
the  learned  counsel  that  ? 

I  beg  leave  to  refer  this  Commission  for  one  moment  to  the  case  of 
Luther  vs.  Borden,  where  that  question  was  decided,  and  where  it  was 
held  that  the  very  fact  that  the  President  of  the  United  States  had 
recognized  the  then  governor  and  government  of  Rhode  Island,  although 
he  had  not  sent  a  military  force  for  the  purpose  of  suppressing  the  Dorr 
insurrection,  was  evidence  conclusive  of  who  was  the  governor  of  that 
State  and  what  was  its  government.  Has  my  learned  friend  forgotten 
that  case  ? 

Mr.  TRUMBULL.    Did  the  court  say  that  was  conclusive? 

Mr.  STOUGHTON.  I  mean  to  say  conclusive  until  the  Congress  of 
the  United  States  in  its  capacity  as  such  shall  determine  otherwise. 


ELECTORAL    COUNT    OF    1877,  343 

Mr.  TRUMBULL.     Could  not  either  House  contradict  it? 

Mr.  STOUGHTON.  No.  I  am  amazed  at  some  of  the  doctrines 
which  I  have  heard  announced  here,  and  this  one  of  them,  and  I  pass 
from  it,  for  this  tribunal  is  entirely  familiar  with  the  doctrine  decided 
in  the  case  referred  to,  binding  upon  every  department  of  the  Govern 
ment,  decided  by  a  court— perhaps  the  counsel  did  not  entertain  the 
same  opinion  of  it  then  that  he  tloes  now — presided  over  by  a  judge  emi 
nent  for  his  learning  and  for  his  integrity,  and  I  may  add  for  the  great 
ness  of  his  abilities,  Chief  Justice  Tauey. 

Now  let  me  state  briefly  and  generally  what  the  question  is  that  coun 
sel  here  are  expected  to  argue.  I  think  I  may  say  it  comprehends  sub 
stantially  the  whole  case  ;  and  yet  it  comes  up  upon  an  offer  to  do  what  ? 
It  comes  up  upon  an  offer  to  prove  by  a  search  and  scrutiny  of  many, 
if  not  all,  the  polls  of  Louisiana,  what  in  fact  was  the  vote  of  that  State 
for  electors  last  November.  Many  other  facts  are  superadded.  It 
comes  up  upon  an  offer  to  prove  facts  upon  which  it  is  insisted  that  this 
tribunal  may  overrule,  disregard,  go  behind  the  action  of  the  final 
returning-omcers  of  that  State  and  hold  for  naught  their  conclusions. 
They  acted  under  a  statute  to  which  I  will  call  the  attention  of  the  tri 
bunal  for  a  moment ;  and  in  the  course  of  what  I  shall  have  to  say  I 
shall  satisfy  this  tribunal  beyond  all  question  that  that  board  as  consti 
tuted  had  the  power  delegated  to  it  by  the  State  of  Louisiana — as  a 
little  patience,  a  little  intelligence,  will  demonstrate — to  determine  the 
number  of  votes  cast  for  electors,  and  power  to  certify  finally,  so  far  as 
the  authority  of  that  State  is  concerned,  who  they  were.  Confusion 
rather  than  clearness  has  resulted  relative  to  these  statutes  owing  some 
what,  I  conceive,  to  their  arrangement.  I  shall  take  some  pains,  for  the 
purpose  of  showing  that  the  board  was  a  final  tribunal,  empowered  by 
the  State  to  determine  who- had  been  chosen  electors,  to  call  attention 
to  the  different  statutes,  after  a  careful  examination  of  which  it  will  be 
clear  that  the  board,  and  that  only,  and  not  the  governor  of  the  State 
as  has  been  sug-gested,  was  the  authorized  power  for  the  purpose  named  ; 
and  I  shall  satisfy  the  Commission,  moreover,  that  the  objection  raised 
yesterday  by  the  learned  counsel,  [Mr.  Carpenter,]  that  if  there  should 
happen  to  be  a  vacancy  in  the  electoral  college  it  must  be  filled  by  a 
popular  election  and  could  not  be  filled  by  the  electoral  college  itself, 
has  no  foundation  whatever. 

It  seems  to  me  that  the  decision  of  this  tribunal  in  the  Florida  case 
determines  the  entire  question  here  raised  as  to  the  right  to  go  behind 
the  returning-board ;  and  I  beg  leave,  in  order  that  we  may  move  with 
chart  in  hand,  to  read  what  this  tribunal  did  in  that  case  decide  and 
determine : 

The  ground  of  this  decision,  stated  briefly,  as  required  by  said  act,  is  as  follows  : 
That  it  is  not  competent  under  the  Constitution  and  the  law,  as  it  existed  at  the 
date  of  the  passage  of  said  act,  to  go  into  evidence  aliunde  the  papers  opened  by 
the  President  of  the  Senate  in  the  presence  of  the  two  Houses  to  prove  that  other  per 
sons  than  those  regularly  certified  to  by  the  governor  of  the  State  of  Florida,  in  and 
according  to  the  determination  and  declaration  of  their  appointment  by  the  board  of 
State  canvassers  of  said  State  prior  to  the  time  required  for  the  performance  of  their 
duties,  had  been  appointed  electors,  or  by  counter- proof  to  show  that  they  had  not, 
and  that  all  proceedings  of  the  courts,  or  acts  of  the  legislature,  or  of  the  executive  of 
Florida,  subsequent  to  the  casting  of  the  votes  of  the  electors  on  the  prescribed  day, 
are  inadmissible  for  any  such  purpose. 

I  am  unable  to  perceive  from  that  determination  that  any  question, 
much  less  the  main  question  here  directed  to  be  argued,  is  open 
for  argument.  The  manifest  justice  of  that  conclusion,  if  support 
can  be  obtained  from  such  a  source — I  speak  with  great  respect — 
is  to  be  found  in  the  report  of  the  committee  of  the  Senate  of  the  United 


344  ELECTORAL    COUNT    OF    1877 

States,  of  which  the  learned  coimsel,  Mr.  Trumbull,  was  a  member,  from 
the  portion  of  which  report  that  I  shall  read  he  not  only  did  not  dissent, 
but  by  expressly  dissenting  from  other  portions  he  did  assent  to  tbisj 
so  that  we  have,  before  his  conversion  to  a  different  doctrine,  his  adhe 
sion  to  the  opinion  announced  by  this  Commission,  and  that  conclusion 
thus  stated  is  as  follows: 

The  committee  are  of  the  opinion  that  neitheu  the  Senate  of  the  United  States,  nor 
both  Houses  jointly,  have  the  power  under  the  Constitution  to  canvass  the  returns  of 
an  election  and  count  the  votes  to  determine  who  have  been  elected  presidential 
electors,  but  that  the  mode  and  manner  of  choosing  electors  are  left  exclusively  to  the 
States.  And  if  by  the  law  of  the  State  they  are  to  be  elected  by  the  people,  the 
method  of  counting  the  vote  and  ascertaining  the  result  can  only  be' regulated  by  the 
law  of  the  State.  Whether  it  is  competent  for  the  two  Houses,  under  the  twenty- 
second  joint  rule,  (in  regard  to  the  constitutionality  of  which  the  committee  here  give 
no  opinion,)  to  go  behind  the  certificate  of  the  governor  of  the  State,  to  inquire 
whether  the  votes  for  electors  have  ever  been  counted  by  the  legal  return  ing-board 
created  by  the  law  of  the  State,  or  whether,  in  making  such  count,  the  board  bad  be 
fore  them  tbe  official  returns,  the  committee  offer  no  suggestions,  but  present  only  a 
statement  of  the  facts  as  they  understand  them. 

So  careful  was  this  committee  that  it  doubted  its  power  to  go  far 
enough  behind  the  certificate  of  the  governor  to  learn  whether  the 
votes  for  electors  had  been  counted  by  the  proper  returuing-board.  To 
going  so  far,  we  here  make  no  objection;  but  when  the  purpose  is  to 
go  further,  to  violate  the  rule  laid  down  by  this  Commission,  to  violate 
the  principle  asserted  in  this  report,  to  violate  the  fundamental  law  of 
the  Union,  the  Federal  Constitution,  which  provides  that  electors  shall 
be  appointed  in  such  manner  as  the  legislature  of  the  State  may  direct; 
when  this  tribunal  is  asked  to  go  thus  far,  and  by  inquiry  ascertain  not 
only  what  occurred  at  every  poll  throughout  the  State  of  Louisiana,  but 
to  purge  the  polls,  and  not  merely  to  do  that,  but  to  ascertain  for  the 
purpose  of  enforcing  the  law  of  Louisiana,  whether  violence  and  out 
rage  and  intimidation  have  been  in  fact  perpetrated,  and  bring  on  a 
trial  of  the  entire  case  involving  every  parish  and  every  poll  of  Louisi 
ana  within  the  circumference  of  Federal  jurisdiction,  I  say  the  objec 
tion  to  such  testimony,  to  such  a  course,  instead  of  being  technical,  be 
comes  substantial  in  the  last  degree,  and  is  asserted,  not  on  behalf  of 
ten  thousand,  (for  whom  my  learned  brother  Carpenter  said  he  ap 
peared,)  but  on  behalf  of  forty-odd  millions  of  people,  every  one  deeply 
interested  to  preserve  the  independence  of  the  States  from  the  aggres 
sions  of  Congress  and  the  Federal  power. 

What  is  the  theory  on  which  this  power  is  supposed  to  rest  ?  We 
are  referred  to  the  bill  organizing  this  Commission,  which  has  been 
read  as  though  the  tribunal  had  been  appointed  to  ascertain  what 
electors  were  duly  appointed,  not  in  the  sense  of  the  Constitution,  but 
in  another  and  aggressive  sense — as  though  this  tribunal  had  been  a'p- 
pointed  to  explore  and  ascertain  step  by  step,  from  the  time  the  first 
voter  presented  himself  at  the  ballot-box  until  the  time  when  the  elec 
tion  was  over,  what  had  been  its  course  and  what  had  been  the  votes, 
how  many,  and  for  whom.  The  law  under  which  this  Commission  was 
created  is  an  extraordinary  exhibition  of  subtlety  and  of  care.  It  had 
a  subject  to  deal  with  not 'easy  of  solution.  We  know  all  the  surround 
ing  circumstances ;  we  know  the  causes  which  led  to  the  framing  of 
this  bill ;  and  we  know  why  its  language  was  couched  so  inexpressively 
of  power  delegated  here.  We  know  that  conflicting  opinions  were  to 
be  harmonized  not  by  uniting  upon  language  which  had  meaning,  but 
by  using  that  which  for  certain  purposes  conveyed  none — I  mean  none 
as  the  expression  of  an  opinion  of  Congress.  And  to  this  tribunal  was 
delegated  the  power  to  do  what  ?  To  exercise  such  powers,  if  any,  as 


ELECTORAL    COUNT    OF    1877.  345 

the  two  Houses  or  either  of  them  had.  For  what  purpose  ?  For  the 
purpose  of  counting  the  electoral  votes. 

Now,  will  the  tribunal  permit  me — little  entitled  as  I  am  to  attempt 
to  instruct  any  one,  much  less  a  member  of  this  body — to  suggest  that 
there  has  been  a  great  confusion  of  ideas  presented  upon  this  sub 
ject.  My  learned  brother,  Mr.  Carpenter,  yesterday  said  this  tribunal 
had  no  judicial  power;  I  suppose  he  was  right;  it  had  no  legislative 
power ;  I  suppose  he  was  right ;  but  had  a  parliamentary  authority  to 
investigate  and  take  testimony  by  any  means  it  pleased.  What  is  a  par 
liamentary  power?  It  is  the  power  of  parliament.  And  what  is  the 
power  of  parliament  ?  To  legislate.  And  what  is  the  purpose  of  taking 
testimony?  It  is  that  legislative  bodies  may  be  better  informed  as  to 
how  they  should  legislate  upon  all  subjects ;  and  when  a  legislative 
body  takes  testimony  it  takes  it  to  inform  itself,  and  hence  its  mode  of 
taking  testimony  is  loose,  confined  by  no  rule,  guarded  by  no  objection, 
often  overturning  the  safeguards,  if  not  of  society,  certainly  of  reputa 
tion,  carefully  protected  always  in  courts  of  justice.  So,  with  a  wide, 
unlicensed  discretion,  and  as  wide,  unlicensed  power,  it  takes  testi 
mony  when  and  where  it  pleases;  but  it  discharges  only  its  duties  as  a 
legislative  body,  always  for  the  purpose  of  legislation  only,  unless  for 
one  other  purpose,  and  that  is  to  inquire  into  the  qualifications  of  its 
own  members,  in  accordance  with  that  clause  in  the  Constitution  which 
provides  that  "each  House  shall  be  the  judge  of  the  elections,  returns, 
and  qualifications  of  its  own  members,''  a  very  familiar  clause.  But  is 
each  House  judge  of  the  elections,  returns,  and  qualifications  of  presi 
dential  electors?  Has  either  House  that  power?  Are  not  the  learned 
counsel  here  seeking  to  induce  this  body  to  exercise  exactly  that  power  ? 
Is  there  any  question  that  they  are  ? 

I  ask  every  gentleman  ugon  this  Commission,  are  you  not  seeking 
by  this  course,  if  you  concur  in  the  views  of  the  counsel,  to  ascertain 
by  inquiry  and  testimony  whether  these  electors  have  been  properly 
elected,  returned,  and  qualified  ?  Let  every  man  pause  who  undertakes 
to  advance  toward  that  result.  I  repeat,  no  member  of  the  Commission 
can  discriminate,  assuming  the  evidence  offered  to  be  competent,  be 
tween  the  power  of  the  House  to  investigate  as  to  the  election,  return, 
and  qualification  of  its  members,  and  the  power  here  asserted. 

Again,  what  happens  if  this  testimony  shall  be  admitted?  Is  it  to 
be  assumed  that  it  will  not  be  controverted  by  counter-proof?  Cer 
tainly  not.  Then  are  you  to  undertake  to  execute  the  laws  of  Louisiana 
by  determining  as  matter  of  fact  whether  there  has  been  intimidation, 
violence,  armed  disturbance,  and  therefore  whether  this  board  has 
properly  performed  its  duty  ?  Is  that  a  function  which  can  be  exer 
cised  by  this  tribunal?  It  must  be  if  you  enter  upon  the  inquiry  sug 
gested.  Is  it  not  as  well  to  leave  that  administration  of  State  laws  to 
the  States?  The  power  to  count,  transferred  to  this  tribunal,  is  the 
power  of  the  two  Houses,  or  either  of  them.  That  power,  if  it  exists,  is 
subject  to  other  constitutional  provisions  ;  and  one  is,  that  the  electors 
of  the  several  States  are  to  be  appointed  in  such  manner  as  the  legis 
latures  thereof  may  direct.  How  has  the  legislature  of  Louisiana 
directed  its  electors  to  be  appointed  ?  By  a  majority  of  votes  lawfully 
cast,  to  be  ascertained  and  the  appointment  of  electors  finally  deter 
mined  and  declared  by  the  State  officers  appointed  by  its  legislature, 
such  officers  having  exclusive  authority  so  to  do. 

The  national  power  to  count,  the  power  to  do  what  may  be  needful 
in  counting,  is  subject  to  that  power  of  each  State  to  appoint.  Where 
does  that  power  of  appointment  by  the  State  end  ?  Where  does  the 


346  ELECTORAL    COUNT    OF    lc?7. 

power  to  count  begin  ?  Does  the  power  of  the  State  end  until  it  fully 
reaches  the  appointment  by  the  final  authority  delegated  by  the  State 
as  the  appointing  power?  The  State  of  Louisiana  has  but  one  mode  of 
expressing  its  will  upon  this  subject;  that  is,  by  the  returning- board. 
It  may  not  have  been  the  best  way;  but  it  is  its  mode  of  expressing  its 
will,  and  cannot  be  here  overthrown.  I  am  glad  to  have  my  argument 
on  this  point  confirmed  by  an  eminent  jurist,  an  honest  judge,  and  I 
was  about  to  say  a  spotless  politician,  but  perhaps  that  would  be  going 
too  far,  though  1  think  not.  I  allude  to  a  letter  written  by  the  chief- 
justice  of  the  court  of  appeals  of  the  State  of  New  York,  who  says: 

I  have  always  expressed  the  opinion  that  the  authentication  of  the  election  of  presidential 
electors  according  to  the  laws  of  each  Slate  is  final  and  conclusive,  and  that  there  exists  no 
power  to  go  behind  them. 

This  opinion  thus  concurs  with  that  of  this  tribunal,  and  of  the 
eminent  gentlemen  who  made  the  report  in  the  Senate  in  1873. 

Mr.  Commissioner  MORTON.  I  would  inquire  of  the  counsel  whea 
that  was  written  I 

Mr.  STOUGHTON.  It  appears  to  have  been  dated  on  the  10th  of 
February,  1877. 

Mr.  Commissioner  BAYARD.  A  letter  by  Judge  Church  ? 

Mr.  STOUGHTON.  It  purports  to  be  signed  by  him,  and  doubtless 
was  written  as  a  more  correct  expression  of  his  opinion  than  was  given 
by  an  interviewer ;  that  class  of  gentlemen  not  being  always  absolutely 
accurate,  although  I  believe  very  generally  so. 

Mr.  Commissioner  ABBOTT.  Do  you  understand  that  to  express  the 
opinion  that  it  cannot  be  shown  that  fraud,  that  corruption,  that  bribery 
existed  in  obtaining  that  authentication  ?  I  do  not  so  understand  it. 

Mr.  STOUGHTON.  I  understand  it  in  this  way,  and  there  is  no  diffi 
culty  in  understanding  it  if  one  will  only  place  his  mind  toward  the  sub 
ject  and  in  the  right  road:  The  State,  having  power  to  appoint,  is  re 
sponsible  for  its  tribunals  and  they  are  responsible  to  it ;  but  the  cir 
cumference  of  the  power  of  Congress  is  limited,  and  that  of  the  power 
to  count  very  much  circumscribed,  being  neither  judicial,  as  gentlemen 
say,  nor  legislative;  although  legislative  powers  are  here  claimed  for 
the  purpose  of  taking  testimony,  and  the  broadest  judicial  powers  in 
the  nature  of  a  quo  icarranto  for  the  purpose  of  going  behind  the  final 
returns  of  the  returuing-board.  The  State  corrects  the  frauds  of  its 
officers.  It  does  not  appeal  to  Congress,  and  Congress  will  best  perform 
its  duty  by  discharging  it  within  its  authority,  leaving  those  occasional 
frauds,  which  are  sometimes  assumed  and  sometimes  for  effect  offered  to 
be  proven,  to  be  taken  care  of  by  the  tribunals  having  jurisdiction  over 
them. 

I  think  some  of  my  learned  friends  within  the  hearing  of  my  voice, 
who  have  been  much  engaged  in  contested  suits,  have  bad  their  trials 
somewhat  added  to  by  being  compelled  to  object  to  testimony  offered 
in  presence  of  a  jury  (and  the  American  people  are  the  jury  to-day)  to 
prove  frauds  of  the  most  infamous  character,  when  perad venture  the 
practice  and  performance  would  not  come  up  to  the  proclamation!  But 
it  is  the  duty  of  counsel  to  make  objection  to  the  introduction  of  testi 
mony  beyond  the  function  of  the  tribunal  he  is  before  to  receive ;  and 
we  make  it  here. 

And  now  I  proceed  to  look  at  some  of  the  questions  in  this  case, 
assuming  that  this  is  a  lawful  and  final  returning-board  of  the  State  of 
Louisiana,  Laving  the  final  powers  attributed  to  it,  not  merely  by  this 
body  in  the  decision  in  the  Florida  case,  not  merely  in  the  Senate  by 
the  report  which  I  have  read,  not  merely  by  force  of  the  opinion  con- 


ELECTORAL    COUNT    OF    1877.  347 

tained  in  the  letter  of  the  learned  chief-justice  of  New  York,  but 
also  by  the  sanction  of  the  highest  courts  of  the  State  of  Louisiana. 
I  believe  that  if  there  is  one  principle  settled  in  our  jurisprudence, 
it  is  that  on  a  question  of  local  law,  on  the  powers  of  a  tribunal  of 
a  local  character  within  a  State,  the  decision  of  the  highest  judicial 
tribunal  of  the  State  is  a  final  authority. 

I  therefore  cite  the  decision  of  the  highest  court  of  Louisiana  on  the 
subject  of  the  powers  of  the  returuing-board,  not  in  one  case  only,  but 
in  several — in  25  Louisiana  Annual  Reports  for  1873,  page  268,  declar 
ing  the  legality  of  the  Lynch  returning-board,  which  did  not  have  before 
it  in  1872  the  electoral  or  other  returns,  but  undertook  to  canvass  and 
did  canvass  the  vote  in  favor  of  the  Grant  electors  without  having  the 
returns  before  it.  It  was  therefore  said,  if  I  am  not  mistaken,  by  the 
committee  of  Congress  that  inasmuch  as  the  right  board  did  not  have 
the  returns,  and  therefore  had  not  the  materials  for  action,  and  the  wrong 
board  did  have  the  returns,  they  could  not  count  the  votes  of  either  set 
of  electors.  The  court  in  Louisiana  in  the  case  to  which  I  have  referred 
declares : 

No  statute  conferring  upon  the  courts  the  power  to  try  cases  of  contested  elections 
or  title  to  office  authorizes  them  to  revise  the  action  of  the  returning- board.  If  we 
were  to  assume  that  prerogative,  we  should  have  to  go  still  further,  and  revise  the 
returns  of  the  supervisors  of  elections,  examine  the  right  of  voters  to  vote,  and,  in 
short,  the  courts  would  become  in  regard  to  such  cases  mere  offices  for  counting,  com 
piling,  and  reporting  election-returns.  The  legislature  has  seen  proper  to  lodge  the 
power  to  decide  who  has  or  has  not  been  elected  in  the  returniug-board.  It  might 
have  conferred  that  power  upon  the  courts,  but  it  did  not.  Whether  the  law  be  good 
or  bad,  it  is  our  duty  to  obey  its  provisions,  and  not  to  legislate.  *  *  *  Having  no 
power  to  revise  the  action  of  the  board  of  returning-officers,  we  have  nothing  to  do 
with  the  reasons  or  grounds  upon  which  they  arrived  at  their  conclusion. 

There  are  one  or  two  other  cases  in  this  same  book  to  the  same  effect; 
and  when  it  was  sought  under  the  so-called  intrusion  act  to  eject  a  per 
son  who  had  been  returned  and  commissioned  by  force  of  this  return 
iug-board,  the  court  held  that  the  commission  was  conclusive,  and  that 
the  court  could  not  go  behind  it.  There  was  no  judicial  power  vested 
in  the  court  so  to  do,  unless  conferred  specially  by  legislative  authority. 
Some  courts  have  given  very  good  reasons  for  thus  maintaining  the 
inviolability  of  the  highest  and  final  returning-board  of  a  State,  and 
I  beg  leave  here  to  introduce  two  or  three  such  decisions, 

Mr.  Commissioner  THUKMAN.  What  is  the  name  of  the  case  you 
just  read  from? 

Mr.  STOUGHTOK  I  beg  pardon  for  not  mentioning  it.  It  was  the 
case  of  Bonner  vs.  Lynch,  and  I  read  from  page  268.  It  was  decided 
in  1873,  and  it  passed  upon  the  power  of  the  returning-board  organized 
under  the  act  of  1870,  repealed  by  the  act  of  1872,  the  only  difference 
between  the  two  acts  being  in  this,  that  the  act  of  1872  now  in  force 
requires  that  the  returniug-ofncers  shall  be  appointed  by  the  senate, 
while  the  act  of  1870  designates  the  persons  to  act  as  the  board,  as  the 
governor,  lieutenant  governor,  I  think,  and  two  persons,  naming  them. 
That,  I  believe,  is  the  only  substantial  difference  between  the  two;  and 
therefore,  when  the  supreme  court  of  the  State  of  Louisiana  held  that  it 
had  no  power  to  review  or  reverse  or  revise  the  action  of  the  returning- 
board  then  existing,  it  said  the  same  thing  as  to  the  returning-board 
now  existing;  and  this  tribunal  will  not  disregard  the  highest  judicial 
authority  of  a  State  upon  a  purely  local  question. 

Mr.  Commissioner  GARFIELD.  Were  the  duties  of  that  board  sub 
stantially  the  same  as  the  duties  of  this? 

Mr.  STOUGHTON.  Precisely  almost.  There  is  hardly  the  variation 
of  a  line.  That  act  was  substantially  transcribed  for  the  purpose  of 


348  ELECTORAL   COUNT    OF    1877. 

making  it  the  act  of  1872.  Now  I  refer  to  47  Illinois,  169,  where  a  stat 
ute  had  expressly  authorized  a  circuit  court  consisting  of  a  single  judge 
to  pass  upon  a  contested  election  case  on  appeal  from  justices,  and  the 
constitution  giving  judicial  power  to  the  supreme  court  of  the  State 
conferred  it  in  certain  cases  "and  in  all  other  cases;"  and  when  the 
supreme  court  on  appeal  in  this  case  was  asked  to  revise  the  decision  of 
the  circuit  court,  it  said : 

This  is  not  a  case  within  the  meaning  of  the  constitution,  but  a  statutory  proceeding 
to  recanvass  votes  cast  at  an  election,  in  which  illegal  votes  may  be  rejected  and  legal 
votes  may  be  counted  and  the  result  ascertained,  and  that  result  is  not  a  judgment. 
It  is  neither  a  suit  at  law  nor  in  chancery. 

Why  have  sensible  courts  adopted  views  like  that?  For  the  purpose 
of  keeping  these  inflammatory  cases,  as  far  as  possible,  outside  of  the 
reach  of  judicial  authority.  As  was  well  said  in  a  Kentucky  case  which 
1  will  refer  to,  courts  of  justice  have  always  held  in  dealing  with  these 
questions  that  unless  the  legislative  power  expressly  delegates  authority 
to  do  it,  courts  have  no  power  to  touch  election  contests.  But  yet  here, 
under  a  power  to  count  electoral  votes,  this  tribunal  is  expected  to  count 
the  popular  votes  given  for  the  electors,  and  to  purge  the  polls  from  the 
beginning  to  the  end  of  the  election,  upon  the  theory  that  it  has  the 
power  by  implication  and  by  a  stretch,  an  enforced  stretch,  an  outrage 
upon  language,  which  courts  of  justice  take  care  never  to  commit. 

I  refer  now  to  51  Illinois,  177,  where  the  court  said  that — 

The  proceeding  was  purely  statutory ;  that  without  the  aid  of  an  act  of  the  legisla 
ture  the  contest  could  not  have  been  brought  to  the  circuit  court,  and  that  jurisdiction 
can  be  exercised  only  subject  to  the  limitations  of  the  act. 

And  then  in  the  Kentucky  case,  1  Metcalfe's  Kentucky  Reports,  538? 
the  court  say : 

This  was  a  board  to  determine  questions  upon  an  election.  A  board  is  to  be 
constituted  to  examine  the  poll-books  and  issue  certificates  of  election.  Another 
is  to  be  organized  in  the  case  of  contested  elections  for  determining  contests  be 
tween  claimants.  Upon  this  the  law  devolves  the  duty  and  confers  the  power  of 
deciding  who  is  entitled  to  the  office.  The  courts  have  no  right  to  adjudicate  upon 
these  questions  or  to  decide  such  contests.  Decisions  of  the  contesting-board  are 
final  and  conclusive;  and  this  is  so  to  accomplish  a  tsvofold  purpose:  a  speedy  and 
summary  mode  of  deciding  cases  of  contested  elections,  and  determining  finally  and  con 
clusively  which  one  of  the  claimants  is  entitled  ;  and  another,  equally  important,  was 
to  withdraw  these  contests  from  the  jurisdiction  of  courts,  and  as  was  said  in  New- 
combe  vs.  Kirkley,  (13  B.  Monroe,  517,)  to  prevent  the  ordinary  tribunals  of  justice 
from  being  harassed,  and,  indeed,  overwhelmed,  with  the  investigation  and  involved 
in  the  excitements  to  which  these  cases  may  be  expected  to  give  rise. 

If  there  ever  was  an  illustration  of  the  solidity  and  policy  of  such  a 
view,  it  is  to  be  found  here  before  us,  where  this"great  tribunal  is  asked 
to  go  into  an  inquiry,  endless  in  detail,  harassing  by  its  very  nature,  in 
volving  the  examination  of  hundreds  of  witnesses,  and  leading  to  that 
excitement,  to  be  tenfold  increased,  which  we  already  perceive  gather 
ing  about  this  Commission.  Here  we  have  offers  of  testimony,  inflamed 
to  the  last  degree  by  their  mode  of  statement,  involving  inquiries  of  the 
most  extraordinary  and  painful  character,  leading  to  answers,  leading  to 
testimony  in  reply,  leading  to  testimony  in  justification  of  the  returning- 
board,  endless,  difficult  of  procurement;  and  all  for  what?  To  enable 
this  tribunal  to  violate  the  supremacy  of  the  State,  to  determine  how 
many  votes  were  cast  in  the  State  of  Louisiana  for  electors;  and  all 
that  the  public  may  be  satisfied  that  we  have  here  a  tribunal  anxious  to 
calm  and  allay  excitementand  prevent,  as  the  learned  counsel  who  opened 
the  case  yesterday  [i\Ir.  Carpenter]  said,  a  judicial  proceeding  to  vex  the 
nation  for  years,  that  it  may  thereby  be  determined  who  is  elected  Presi 
dent.  I  have  heard  more  than  one  threat  couched  under  shields  of  Ian- 


ELECTORAL   COUNT   OF    1877.  349 

fuage  so  that  it  might  not  quite  reach  in  plain  terms  its  destination,  but 
have  understood  those  threats,  and  they  are  unworthy  of  the  circum 
stances  under  which  this  tribunal  was  formed,  and  equally  unworthy  of 
those  who  seek  its  justice  and  its  decision. 

Now,  may  it  please  your  honors,  1  desire  to  say  a  few  words  on  the 
subject  of  these  statutes.  My  learned  brother  [Mr.  Carpenter]  yester 
day  insisted  that  this  returning-board,  as  it  has  been  called,  had  no 
power  under  the  laws  of  Louisiana  to  ascertain  the  votes  cast  for  elect 
ors  or  who  had  been  elected.  He  said  if  that  power  existed  anywhere, 
it  existed  in  the  governor  of  the  State  under  the  act  of  1868  incorpo 
rated  afcerward  into  the  revised  laws  of  the  State  of  Louisiana,  and 
that  proposition  was  presented  as  though  the  laws  of  Louisiana  had  at 
one  time  discriminated  between  the  officer  or  tribunal  to  count  votes 
for  electors  and  the  officer  or  tribunal  authorized  to  count  votes  for 
other  State  officers.  That  is  a  misconception  of  that  law,  and  I  call 
attention  to  what  the  statute  law  on  that  subject  is.  But  if  it  were  not, 
if  the  governor  had  the  power  under  the  section  referred  to  to  count 
the  vote,  this  tribunal  would  be  bound  under  the  certificate  to  consider 
that  power  as  having  been  properly  exercised,  the  governor  having 
certified  that — 

Pursuant  to  the  laws  of  the  United  States,  at  a  general  election  held  in  accordance 
with  law,  the  following-named  persons  were  duly  chosen  and  appointed  electors. 

If,  therefore,  that  clause  only  were  contained  in  this  certificate,  it 
would  be  ample  evidence  of  the  election  of  these  electors,  if  the  statute 
which  declares  that 

Immediately  after  the  receipt  of  a  return  from  each  parish,  or  on  the  fourth  Mon 
day  of  November,  if  the  returns  should  not  sooner  arrive,  the  governor,  in  the  presence 
of  the  secretary  of  state,  the  attorney-general,  a  district  judge  of  the  district  in  which 
the  seat  of  government  may  be  established,  or  any  two  of  them,  shall  examine  the  re 
turns  and  ascertain  therefrom  the  persons  who  have  been  duly  elected  electors, 

were  un repealed. 

All  who  have  examined  the  statute  with  care  know  that  that  provision 
has  been  repealed,  however,  and  I  will  proceed  to  show  under  what  cir 
cumstances  it  was  repealed,  and  also  that  instead  of  that  section  being 
isolated  and  making  a  distinction  between  the  officers  authorized  to 
count  the  votes  for  electors  and  those  authorized  to  count  the  votes  for 
other  officers,  it  was  a  part  of  the  scheme  of  the  act  of  1868,  by  which 
the  governor,  in  conjunction  with  the  district  judge  of  the  parish,  counted 
the  votes  for  all  officers — the  governor  counting,  subject  in  certain  cases 
to  a  prior  determination  of  the  district  judge  as  to  whether  there  had  not 
been  violence,  tumult,  intimidation,  &c.,  sufficient  to  justify  the  throwing 
out  of  the  polls,  the  governor,  if  the  district  judge  came  to  that  conclusion, 
being  inhibited  by  the  statute  from  counting  the  vote.  The  governor 
on  receiving  the  judge's  decision,  if  it  was  to  reject  the  poll  or  any  num 
ber  of  polls,  was  authorized  to  do  so  and  count  the  remainder  j  but  he 
could  not  count  the  contested  parish  as  having  voted  until  after  receiving 
the  decision  of  th<e  district  judge.  That  was  the  scheme  of  1868,  never 
really  to  any  extent  put  into  practice ;  a  scheme  of  a  returning-board 
very  imperfect,  quite  inadequate,  and  still  a  part  of  a  general  scheme 
in  which  the  governor  participated,  not  merely  by  ascertaining  the  votes 
for  electors,  but  by  ascertaining  and  certifying  as  to  all  votes. 

Another  view  taken  by  the  learned  counsel,  Mr.  Carpenter,  and  very 
much  relied  upon,  was  this  :  That  if  a  vacancy  should  occur  in  the  elect 
oral  college,  he  did  not  care  how  this  tribunal  determined  the  question 
as  to  which  statute  was  in  force,  for  he  could  under  either  cast  out  two 
electoral  votes  and  still  attain  his  object,  which  seemed  tome  somewhat 


350  ELECTORAL    COUNT    OF    1877. 

strange,  his  purpose  being,  as  he  told  us  at  the  outset,  to  appear 
not  for  Mr.  Tilden,  whose  future  supremacy  he  deplored  as  one  of 
the  greatest  disasters  which  might  befall  this  country,  but  for  the  ten. 
thousand  persons  who  had  been  deprived  of  their  votes  in  Louisi 
ana.  A  rejection,  therefore,  by  this  tribunal  of  two  electoral  votes, 
while  it  would  answer  his  purpose,  would  bring  upon  us  the 
calamity  he  so  much  deplored.  I  think  he  will  be  disappointed. 
Let  us  look  at  this  objection.  Assuming,  as  the  learned  counsel  as 
sumed,  for  the  purpose  of  inquiring  into  this  objection,  that  the  act  of 
1872  is  in  force,  let  us  learn  whether  vacancies  in  the  electoral  college 
are  to  be  filled  by  a  popular  election.  He  referred  us  as  authority  for 
that  to  section  24,  page  104  of  the  covered  book  : 

That  all  elections  to  be  held  in  this  State  to  fill  any  vacancies  shall  be  conducted 
and  managed,  and  returns  thereof  shall  le  made,  in  the  same  manner  as  is  provided 
for  general  elections. 

Now,  says  the  learned  counsel,  that  covers  the  case  of  an  election  to 
fill  a  vacancy  in  the  electoral  college.  But  the  Constitution  of  the  United 
States  provides  that  Congress  may  determine  the  time  of  choosing  the 
electors  and  the  day  on  which  they  give  their  votes,  "  which  day  shall 
be  the  same  throughout  the  United  States."  By  an  act  of  Congress, 
section  133  of  the  Revised  Statutes,  each  State  is  authorized  to  provide 
by  law  for  the  filling  of  any  vacancy  which  may  occur  in  its  college  of 
electors  when  such  college  meets  to  give  its  electoral  vote.  Then  the 
Louisiana  law  provides — 

If  any  one  or  more  of  the  electors  chcsen  by  the  people  shall  fail  from  any  cause 
whatever  to  attend  at  the  appointed  place  at  the  hour  of  four  p.  m.  of  the  day  pre 
scribed  for  their  meeting,  it  shall  be  the  duty  of  the  other  electors  immediately  to  pro 
ceed  by  ballot  to  supply  such  vacancy  or  vacancies. 

Mr.  Commissioner  HUNTOK     But  is  not  that  the  law  of  1868  1 

Mr.  STOUGHTON.     It  is  a  law  passed  in  1868,  an  old  law. 

Mr.  Commissioner  HUNTON.    Did  not  the  act  of  1872  repeal  that  ? 

Mr.  STOUGHTON.     O,  no  ;  it  did  not  touch  it. 

Mr.  Commissioner  HUNTON.  This  was  also  in  the  act  of  1870,  the 
revised  statutes. 

Mr.  STOUGHTON.  It  does  not  touch  this  at  all.  It  would  be  an 
absurdity  to  hold  that  the  express  purpose  in  the  Constitution,  carried 
out  by  Federal  legislation,  supplemented  by  State  legislation,  could  be 
defeated  by  giving  a  violent  construction  to  the  clause,  section  24,  when 
it  has  abundance  to  feed  upon  in  the  sections  that  I  will  refer  to  in  one 
moment.  Look  at  the  vacancies  provided  for  in  section  24,  to  be  found 
in  sections  28,  30,  and  31. 

Mr.  Commissioner  HUNTON.  The  clause  that  I  referred  to  as  repeal 
ing  the  section  you  have  mentioned  will  be  found  in  section  71  of  the 
act  of  1872.  It  says  that  "all  other  acts  on  the  subject  of  election  laws 
be,  and  the  same  are  hereby,  repealed." 

Mr.  STOUGHTOISr.  Yes,  that  means  all  other  acts  on  the  subject  of 
election  laws,  for  the  purpose  of  carrying  on  the  machinery  of  elections 
within  the  State. 

Mr.  Commissioner  HOAR.  Mr.  Stoughton,  I  do  not  wish  to  interfere 
with  the  course  of  your  argument,  but  I  will  venture  to  ask  you  if  you 
think  it  is  worth  while  to  spend  much  time  in  the  endeavor  to  satisfy 
the  Commission  that  section  24  refers  to  vacancies  to  be  filled  by  popu 
lar  election,  and  can  refer  to  nothing  else? 

Mr.  STOUGHTON.  I  do  not  propose  to  spend  a  moment,  only  to 
refer  to  the  three  sections  which  are  referred  to  by  section  24,  and  which 


ELECTORAL    COUNT    OF    1877.  351 

relate  to  vacancies  which  may  occur,  and  those  three  sections  you  will 
find  to  be  sections  28,  30,  and  31,  on  page  106  of  the  covered  book. 

In  the  revised  statutes  of  the  State  which  were  adopted  on  the  14th 
of  March,  1870,  will  be  found  the  act  of  1868,  originally  passed  in  that 
year,  containing  the  scheme  that  I  have  mentioned,  and  the  scheme 
under  which  the  governor  was  to  count  the  electoral  vote,  as  he  was  in 
substance  all  other  votes.  That  act  of  1868  in  entering  into  the  revised 
statutes  was  very  much  divided  in  space;  the  section  authorizing  the 
district  judge  to  act  being  found  at  page  274,  section  1386.  Upon  a 
statement  made  by  a  commissioner  he  was  to  make  a  duplicate,  transmit 
one  to  the  judge  and  one  to  the  governor.  If  the  governor  thought  the 
statement  of  riot  and  tumult  was  of  such  a  character  that  the  vote  ought 
to  be  thrown  out,  he  directed  the  district  judge  to  investigate  it.  Dur 
ing  the  investigation  the  governor  was  prohibited  from  counting  the 
vote  of  that  poll  or  parish,  When  the  district  judge  decided,  he  certi 
fied  his  decision  to  the  governor ;  the  governor  could  then  proceed  to 
count,  and  he  did  ;  but  he  acted  always  in  subjection  to  the  mandate  of 
the  statute,  which  was  that  he  must  not  count  until  the  decision  of  the 
district  court  should.be  presented  ;  that  is,  he  must  not  count  that  par 
ish.  That  was  found  to  be  inefficient  and  the  act  of  1870  was  passed. 
It  was  passed  on  the  16th  of  March,  1870. 

A  question  is  raised  that  inasmuch  as  the  act  of  1870  incorporated  in 
the  revised  statutes  was  not  to  go  into  operation  until  the  1st  of  April, 
that  might  by  its  own  operation  repeal  or  stand  in  place  of  the  act 
adopted  on  the  16th  of  March  to  go  into  operation  immediately.  The 
answer  is  this :  The  act  of  the  14th  of  March  repealed  all  prior  acts  on 
the  subject  of  these  election  laws  providing  for  elections  within  the 
State  and  the  mode  of  returning  votes,  but  repealed  nothing  else.  It 
did  not  repeal  those  clauses  of  the  act  which  had  always  stood  in  sub 
stance  authorizing  the  election  of  electors,  only  changing  the  mode  by 
which  their  election  should  be  ascertained  after  the  vote  of  the  State 
had  been  cast.  Then  the  act  of  1872  was  passed,  I  think  approved  on 
the  20th  of  November,  1872,  and  that  provided  for  the  present  returning- 
board,  adopting  substantially  the  prior  act  of  1870,  adopting  it  in  all 
respects  with  the  exception  of  the  composition  of  the  returning-board. 

I  have  not  troubled  the  Commission  as  fully  as  I  had  marked  upon 
my  notes  with  the  different  sections  of  these  laws.  I  only  desire  to  say 
that  it  will  appear  by  looking  at  page  101  of  the  covered  book  that  the 
act  of  1872  provided  in  a  general  way  for  the  election  of  electors,  and 
the  returuing-board  having  been,  abolished  and  with  it  the  functions 
of  the  governor  for  the  purpose  of  counting  the  votes,  the  returniug- 
board  provided  for  by  the  act  of  1872  took  their  place — the  act  of  1872 
declaring  in  terms  that  "five  persons  to  be  elected  by  the  senate  from 
all  political  parties,  shall  be  the  returning  officers  for  all  elections  of  the 
State,  a  majority  of  whom  shall  constitute  a  quorum,  and  have  power 
to  make  the  returns  of  all  elections."  And  then  we  have  at  the  close 
of  the  act  that  it  "  shall  take  effect  from  and  after  its  passage,  and  that 
all  others  on  the  subject  of  election  laws  be,  and  the  same  are  hereby, 
repealed."  Will  any  one  seriously  contend  that  the  operation  of  that 
was  to  blot  out  from  the  statute-book  the  power  to  elect  electors  when 
their  election  was  provided  for  in  a  previous  part  of  the  act  in  a  general 
way?  Will  anyone  pretend  that  section  24,  which  has  ample  means  to 
give  effect  to  it  in  other  sections  of  the  act,  was  intended  to  declare  that 
that  needful  authority  given  to  the  college  of  electors  to  elect  on  the 
day  they  assemble,  if  need  be,  was  blotted  out,  and  that  the  State  must 
lose  its  electoral  vote  because  it  could  not  possibly  then  go  through  on 


352  ELECTORAL    COUNT   OF    1877. 

that  day  with  another  election1?  Such  frivolous  objections  are  some 
times  made  elsewhere ;  but  I  think  are  entitled  to  but  very  little  force. 
&*  It  has  been  said  that  this  board  to  be  appointed  by  the  senate  should 
consist  of  five  persons.  Originally  that  number  were  appointed.  Hav 
ing  ceased  to  be  five  and  having  become  four  only  by  the  resignation  of 
one,  it  is  said  it  had  no  power  to  act  by  means  of  these  four.  The  gen 
tlemen  who  urge  the  objection  say  that  although  it  had  no  power  to 
act  there  being  but  four,  if  there  were  five  it  could  act  by  three  alone. 
UA  majority  of  whom  shall  constitute  a  quorum  and  have  power  to  make 
returns  of  all  elections."  Is  it  to  be  said  that  with  the  power  expressly 
conferred  upon  three  to  act  alone,  they  could  only  act  alone  when  there 
were  five  and  could  not  when  there  were  four? 

Then  it  is  said  that  the  political  complexion  of  this  board  was  not  of 
the  right  color;  there  should  have  been  a  democratic  infusion  ;  and  there 
has  been  read  an  application  for  the  admission  of  a  democratic  member. 
I  suppose,  upon  that  theory,  if  after  the  election  of  these  five,  two  being 
democrats  and  three  republicans,  the  two  democrats  (not  an  improbable 
supposition)  should  have  changed  their  faith,  the  board  would  cease  to 
exist  by  that  operation  !  This  clause  is  directory  merely.  The  failure 
to  observe  it  in  no  manner  interferes  with  the  capacity  or  jurisdiction  of 
the  board. 

I  suppose  that  it  is  entirely  proper  and  respectful  to  this  tribunal  to 
argue  the  leading  questions  involved  here  without  assailing  the  reputa 
tion  of  any  one,  and  I  shall  follow  no  example  of  that  kind.  I  have 
he«rd  the  members  of  this  board  stigmatized  by  the  speech  of  counsel 
in  a  way  that  I  have  been  somewhat  sorry  to  hear.  Personally  they  are 
unknown  here,  personally  they  were  perhaps  unknown  to  counsel  who 
spoke  of  them.  They  are  to  be  respected  as  officials  when  acting  as 
such,  and  their  determination  is  to  be  respected  and  followed. 

An  example  of  that  kind  was  set  in  a  very  celebrated  case  where  the 
question  arose,  in  1792,  as  to  whether  George  Clinton  or  Mr.  John  Jay 
was  elected  governor  of  the  State  of  New  York.  There,  as  the  members 
of  this  tribunal  may  remember,  there  was  a  clear  majority  of  votes  de 
posited  in  the  ballot-boxes  of  the  State  of  New  York  for  Mr.  Jay.  The 
sheriff  appointed  to  carry  the  votes  of  one  county,  giving  a  majority  of 
some  four  hundred  for  Mr.  Jay,  was  an  officer  whose  term  of  office  had 
expired  for  a  few  days,  no  one  having  been  appointed  to  succeed  him. 
Mr.  King,  an  eminent  lawyer,  advised  that  he  was  a  proper  messenger 
to  carry  the  votes,  being  sheriff  de  facto.  Aar°n  Burr  advised  that  he 
was  not.  The  lineal  ancestors  of  the  democratic  party  of  to-day  adopted 
the  views  of  Aaron  Burr,  threw  out  the  county  vote,  and  defeated  Mr. 
Jay;  and  inasmuch  as  the  canvassing-board  had  final  and  absolute 
power  to  determine  who  was  elected,  although  an  effort  was  made  by 
the  friends  of  Mr.  Jay  to  induce  him  to  rebel  against  the  decision,  to  vex 
the  State  of  New  York  for  years  perhaps  with  the  judicial  question  of 
who  was  elected,  he  declined  to  do  it,  considering  that  the  tribunal  had 
final  and  absolute  power  to  determine  the  question,  and  he  cheerfully 
submitted  to  its  exercise;  and  moreover,  he  added  that  no  man,  no  set 
of  men,  did  wrong  who  did  right  under  the  law — holding  to  the  precept 
that  justice  is  the  law  executed,  and  not  that  wild  and  unlicensed  thing 
which  we  sometimes  call  justice,  but  is  the  law  executed,  whatever  the 
law  may  be;  and  whoever  executes  the  law,  if  he  be  empowered  by  it 
so  to  do,  is  entitled  to  respect,  and  if  his  determination  is  final,  it  must 
stand  unresisted.  You  can  no  more  invade  the  domain  of  State  juris 
diction  than  you  can  direct  your  marshal  to  enter  my  house  and  take 
my  property  or  my  person.  And  he  who  invites  any  departure  from 


ELECTOKAL    COUNT    OF    1877.  353 

that  respect  for  loyalty  to  the  law  and  its  officers  is  not  performing  his 
duty  as  a  minister  of  justice,  and  he  who  denounces  a  judge  who  has 
discharged  his  duty  because  it  does  not  suit  the  prejudice  or  political 
views  of  another,  is  unworthy  to  speak  his  name  or  to  come  into  his 
presence.  Such  was  the  teaching  of  Mr.  Jay. 

I  have  heard  it  said  that  the  law  authorizing  what  the  learned  counsel 
calls  the  disfranchisement  of  these  voters  is  unconstitutional.  Is  it! 
Will  the  Commission  indulge  me  for  a  moment  while  I  refer  to  the 
doctrine  of  one  of  the  ablest,  one  of  the  purest,  and  one  of  the  most 
distinguished  of  men  belonging  to  the  democratic  party  at  this  day. 
I  find  this  doctrine  in  a  report  written  by  him— I  allude  to  Senator 
Stevenson,  of  Kentucky — founded  upon  authority  so  solid  that  nothing 
can  shake  the  views  he  presents.  If  it  be  unconstitutional  to  pass 
laws  for  the  purpose  of  protecting  men  from  violence  and  outrage 
at  the  polls,  then  we  have  been  under  a  delusion  for  many  genera 
tions.  I  refer  for  this  purpose  to  reports  of  committees  of  the  House 
of  Representatives,  second  session,  Thirty-sixth  Congress,  volume  1, 
1860-'6l.  He  is  considering  the  question  of  the  effect  of  intimida 
tion  and  violence  at  an  election  where  the  sitting  member  received 
10,068  votes  and  the  contestant  2,796;  and  I  allude  to  it  upon  the  gen 
eral  question  that  such  legislation  as  we  have  in  Louisiana  is  right  in 
all  States  and  countries,  but  especially  right  in  that  State  where  in  1868 
a  lesson  was  taught  which  led  to  the  legislation  now  before  you ;  a  les 
son  written  in  blood,  as  was  said  by  the  learned  Senator  [Mr.  Howe]  who 
addressed  you  yesterday ;  a  lesson  taught  us  by  the  death  by  violence, 
as  reported  authentically  by  committees  of  Congress,  of  two  thousand 
people,  where  whole  parishes  were  disfranchised  on  one  side.  No  hor 
ror  has  been  expressed  at  outrages  like  those.  Great  horror  is  expressed 
for  fraud,  perjury  ;  none  for  violence  and  murder.  While  Louisiana  was 
teaching  the  lesson  that  led  the  legislature  to  pass  this  act,  the  State  of 
New  York  was  teaching  a  lesson  in  its  chief  city  which  led  the  Congress 
of  this  country  to  pass  the  law  to  take  care  of  the  elections  for  members 
of  Congress,  because  in  1868  25,000  votes  were  manufactured — we  all 
know  it;  it  is  a  matter  of  authentic  history — in  the  city  of  New  York. 
They  were  needed  to  carry  the  State  ;  they  carried  it  by  10,000  major 
ity.  A  governor  was  elected  by  them  ;  a  President  was  to  be.  Sitting 
over  and  managing  the  scene  was  an  individual  as  chairman  of  the 
State  committee  whose  name  I  will  not  mention,  and  his  instruments,  in 
the  city  of  New  York,  who  actually  manufactured  the  votes  that  led  to 
the  legislation  we  all  know.  Such  legislation  in  cases  of  fraud  and  vio 
lence  and  murder  and  outrage  sometimes  becomes  necessary. 

In  the  report  of  Senator  Stevenson  it  was  said  "  that  illegal  voting 
was  a  trifling  wrong — altogether  a  venial  offense — in  comparison  with 
the  overshadowing  outrage  of  intimidation  and  violence  upon  which 
the  burden  of  his  evidence  bears." 

Mr.  Commissioner  MOETON.    In  what  case  was  that  report  made  ? 

Mr.  STOUGHTON.  I  read  from  the  report  made  by  Mr.  Stevenson 
from  the  committee  on  the  Henry  Winter  Davis  election  case,  in  which 
report  he  cites  for  his  propositions  authorities  the  most  eminent  we  have 
in  the  common  law,  and  he  says  : 

Indeed,  there  is  no  conflict  of  authority,  nowhere  a  hint  of  an  opposite  doctrine,  no 
intimation  of  a  doubt  that  elections  must  be  free,  or  they  cease  to  have  any  legal  valid 
ity  whatever.  *  *  *  The  very  word  election  implies  choice,  the  declaration  of  the 
preference,  the  wish,  of  those  who  have  the  right  to  make  a  choice,  *  *  but  if 

bribery  be  found  to  have  corrupted  the  well,  if  violence  prevented  access  to  the  poll, 
or  reasonable  fear  deterred  electors  from  a  determined  effort  to  exercise  the  elective 
franchise,  there  is  no  question  made  as  to  the  number  of  votes  affected  by  this  bribery, 
violence,  or  intimidation. 
23  EC 


354  ELECTORAL    COUNT    OF    1377. 

In  Louisiana,  under  the  statute,  it  is  said  that  10,00©  votes  were  thrown 
out  by  the  returning-board,  and  my  learned  brother  yesterday  said  he 
appeared  for  those  men  here.  I  will  state  the  problem  :  I  think  after 
what  has  been  said  I  may  state  the  problem  that  was  solved  in  Louisiana 
by  those  who  managed  the  election  there.  In  forty  parishes  there  was 
6,097  republican  majority.  In  the  remaining  seventeen  parishes  there 
were  20,323  colored  voters  registered  and  16,253  registered  white  voters. 
What  do  you  suppose  the  problem  to  be  solved  was ?  How  to  get  a  major 
ity  to  overcome  the  6,000  republican  majority  in  the  forty  parishes.  That 
was  the  problem.  Out  of  what  material  ?  Sixteen  thousand  white  votes 
registered  to  20,000  colored.  Was  the  problem  solved ?  Yes.  How? 
Does  any  man  in  this  court-room  believe  that  the  problem  could  have 
been  peacefully  solved  by  12,000  majority  with  20,000  colored  republican 
voters  to  16,000  white  voters  ?  What  became  of  the  latter  in  the  seven 
teen  parishes  1  I  appear  for  them,  in  imitation  of  my  learned  friend. 
WTere  they  disfranchised  ?  How  ? 

Again,  five  of  these  parishes  had  13,244  registered  colored  voters 
and  5,134  white.  The  problem  was  what  ?  To  get  a  democratic  major 
ity  of  4,495  by  means  of  5,000  white  voters  to  13,000  colored.  Was  it 
solved?  Yes.  How?  Let  the  record  of  the  five  parishes  answer. 
Solved  by  bloody  hands.  I  hurl  back  the  charge  of  fraud  and  disfran- 
chisernent  of  voters  !  There  are  two  sides  to  this  question,  and  if  you 
sit  here  to  go  back  and  canvass  votes,  you  sit  here  to  administer  the 
laws  of  Louisiana,  and  you  will  administer  them  by  learning  who  have 
been  disfranchised  and  what  was  the  lawful  vote  of  that  State  in  har 
mony  with  her  laws,  and  not  in  harmony  with  the  will  of  any  party. 

I  will  not  trouble  the  Commission  further  except  to  say,  as  to  the  ob 
jection  made  to  some  of  the  electors  because  they  held  offices  under  the 
State  government  when  elected  electors,  that  I  conceive  there  is  here  no 
disqualification  whatever.  The  constitutional  provision  inhibiting  the 
holding  and  the  exercise  of  two  offices  refers  only  to  offices  under  the 
State  constitution,  to  offices  mentioned  in  it:  and  on  that  subject  I  de 
sire  to  call  attention  to  a  case  to  be  found  in  25  Louisiana  Annual  Re 
ports,  page  138. 

I  now  leave  it  to  my  learned  brothers  to  make  such  further  observa 
tions  upon  the  questions  presented  as  they  may  see  fit. 

Mr.  SHELLABARGER.  Mr.  President  and  gentlemen  of  the  Com 
mission,  I  know  how  weary  you  must  be,  and  it  is  with  extreme  reluc 
tance  that  I  rise  to-  address  you.  There  is  this  reflection  with  which  we 
may  all  sustain  ourselves  in  this  protracted  trial,  that  we  shall  probably 
never  have  to  go  through  such  an  experience  again,  certainly  never  such 
an  experience  again  so  far  as  it  relates  to  the  matter  of  its  dignity  and 
its  supreme  importance.  I  know,  judging  by  what  I  have  already  ex 
perienced  and  observed  of  your  kindness,  that  you  will  be  forbearing  in 
indulging  me  in  my  part  of  this  discussion.  I  shall  endeavor,  Mr.  Pres 
ident  and  gentlemen,  to  eschew  everything  in  the  way  of  an  attempt  at 
extended  elaboration,  to  try  to  state,  if  I  can,  what  seem  to  me  to  be 
the  points  on  which  this  case  now,  as  it  is  presented,  must  turn. 

Of  course,  at  the  very  threshold  of  your  inquiry  now  is  the  question, 
what  are  the  statutes  which  have  been  enacted  by  Louisiana  under  the 
authority  of  the  Constitution  of  the  United  States  directing  the  appoint 
ment  of  electors — what  are  the  statutes  which  were  in  force  this  last 
year  governing  that  matter?  My  friend,  who  has  just  taken  his  seat, 
has  gone  over -that  subject;  it  has  been  gone  over  by  others;  I  had 
designed  to  discuss  it;  but  I  think  I  will  omit  any  extended  analysis  of 
the  statutes.  I  will  venture  to  make  this  statement,  gentlemen,  that 


ELECTORAL    COUNT    OF    1877.  355 

after  you  have  carefully  gone  over  the  statutes  and  have  looked  at  them 
in  all  their  parts,  you  will  be  unanimous.  One  of  your  body  said  to  me 
a  day  or  two  ago  that  you  had  proven  to  be  unanimous  on  one  subject, 
and  that  was  that  this  was  a  great  Commission  and  that  the  members 
thereof  were  all  great  men. 

The  PRESIDENT.    There  has  been  no  vote  on  that  question. 

Mr.  SHELLABARGEK.  Now,  I  will  venture  the  prediction  that  when 
you  go  over  these  statutes  you  will  be  unanimous  upon  another  subject, 
that  is,  that  the  act  of  1872  did  govern  in  1876  the  presidential  election. 
You  will  be  unanimous  in  the  opinion  that  that  provision  of  the  revisory 
act  of  1870,  which  provided  for  the  canvassing  of  the  returns  by  the 
governor,  &c.,  was  repealed  and  was  not  in  force  in  1876.  You  will  be 
unanimous  upon  that  subject  for  the  very  plain  reason  that  that  pro 
vision  which  made  the  governor  a  canvasser  for  the  purposes  of  the 
election  was  inconsistent  with  the  fifty-fourth  section  of  the  session  acts 
of  1870,  which  expressly  provided  a  different  tribunal  for  all  elections, 
including  the  electoral  elections. 

There  is  not  a  particle  of  difficulty  or  doubt  or  obscurity  upon  either 
one  of  the  propositions  that  I  have  thus  far  stated.  You  will  also,  I 
think,  be  unanimous  upon  the  proposition  that  the  election  law  Kof 
1872  applies  to  all  elections,  and  furnishes  the  machinery  or  meansrof 
conducting  all  in  the  {State,  including  that  for  the  electoral  college. 
You  will  be  so  for  several  quite  conclusive  reasons.  One  is  that  when 
an  act  undertakes  to  revise  and  provide  for  a  subject-matter  in  its  total- 
itj7,  such  a  revisory  act  is  always  considered  to  repeal  and  to  take  the 
place  of  the  acts  that  it  revises  in  so  far  as  it  purports  so  to  do.  This 
act  of  1872  purports  to  supply  the  machinery  for  every  popular  election 
in  the  State  by  its  scope.  But  a  more  conclusive  reason  perhaps  than 
even  that,  is  that  its  express  terms  in  its  section  2,  in  so  many  words, 
declare  that  this  returning-board  shall  be  "  the  returning-board  for  all 
elections  held  in  the  State,"  and  you  have  simply  to  disregard  the  ex 
press  wording  of  the  act,  without  any  authority  for  so  disregarding  it, 
or  else  you  have  got  so  to  treat  this  law. 

I  say  I  have  no  apprehensions  in  regard  to  either  one  of  those  prop 
ositions.  Now  the  only  other  one  left  is  the  question  whether  the  con 
sequences  of  the  propositions  that  I  have  now  gone  over  lead  me  to  any 
result  hurtful  to  the  position  that  we  take  in  this  case  in  regard  to  this, 
to  wit,  that  that  section  of  the  act  of  1870 — I  mean  the  revisory  act 
which  provides  for  filling  vacancies  in  the  electoral  college — is  thereby 
also  repealed.  That  is  the  predicament  that  we  are  claimed  to  place 
ourselves  in,  when  we  say  that  the  act  of  1872  has  superseded  and  swept 
away  the  act  of  1870,  including  that  section  in  regard  to  the  governor 
canvassing  the  vote. 

Now,  sirs,  it  is  never  wise,  it  is  never  manly,  it  is  never  lawyerlike,  it 
is  never  respectful  to  a  court  to  blink  or  dodge  any  question  in  a  great 
discussion  or  in  a  small  one  ;  and  it  would  be  eminently  unworthy  that 
we  should  undertake  to  avoid  every  possible  consequence  of  the  posi 
tions  we  take  in  this  regard ;  and  upon  that  subject  I  have  not  the 
slightest  difficulty,  though  in  that  I  may  be  deceived. 

My  question  at  the  present  moment  is,  how  can  I  preserve  and  keep 
in  force  that  provision  of  the  act  of  1870  revising  that  of  1868,  which 
provides  for  filling  the  electoral  college,  consistently  with  what  I  have 
just  been  saying  ?  I  answer  first  of  all  that  it  is  a  cardinal,  as  it  is  an 
exceedingly  benign,  canon  of  interpretation  that  a  law  is  never  repealed 
by  a  new  act  unless  either  expressly  so  done,  or  unless  the  repugnance 
be  such  (and  now  I  am  using  the  very  words  of  the  Supreme  Court  of 


356  ELECTORAL   COUNT   OF    1677. 

the  United  States,  at  least  half  a  dozen  times  repeated  in  the  most 
solemn  judgments)  that  it  is  impossible  for  the  two  acts  to  stand  to 
gether.  Those  words  are  so  familiar,  so  thoroughly  established  as  law, 
that  they  have  become  the  formula  of  statement  upon  which  courts 
seize  in  stating  the  rule  on  this  subject,  that  a  succeeding  act  shall  not, 
where  the  prior  act  is  not  expressly  repealed,  repeal  the  preceding  one 
unless  the  two  cannot  stand  together. 

Another  rule  of  interpretation  equally  salutary,  equally  well  estab 
lished,  equally  familiar,  you  will  find  stated  in  the  case  of  The  United 
States  vs.  Kirby,  7  Wallace,  pages  482,  486,  and  487. 

I  beg  to  impress  this  part  of  my  statement  upon  the  memory  of  every 
one  of  you.  There  is  of  course  nothing  new  in  that  case,  as  you  will  see 
when  I  state  it.  It  is  only  in  cases  of  doubt  that  the  office  of  interpre 
tation  comes  in  at  all.  Where  the  language  of  an  act  is  clear,  one  of 
the  maxims,  one  of  Domat's  rules,  one  of  the  American  rules,  as  you 
will  find  it  laid  down  in  Dwarris,  is  that  there  is  no  place  for  interpre 
tation  except  where  the  words  are  susceptible  of  doubt.  Wherever, 
then,  the  business  of  the  interpreter  comes  in  at  all  and  has  play,  an 
other  rule  for  his  guidance  is  this,  and  it  is  one  that  I  want  to  impress 
on  your  memories,  from  7  Wallace,  pages  482,  487,  that  wherever  inter 
pretation  would  lead  to  consequences  that  are  either  absurd  or  hurtful  to 
the  public  welfare,  that  interpretation  shall  never  be  tolerated  unless 
its  escape  is  impossible. 

Then  keeping  that  in  your  mind,  go  with  me  the  next  step.  Is  it  pos 
sible  to  escape  the  conclusion  that,  under  the  legislation  of  Louisiana, 
Louisiana  was  disfranchised  ? 

I  invite  gentlemen  on  the  other  side  who  may  suppose  that  this  act 
is  repealed,  by  which  a  vacancy  in  the  electoral  college  can  be  filled  if 
filled  at  all,  to  show  me  some  statute  that  forces  upon  you,  either  by 
direct  provision  or  by  any  fair  interpretation,  the  conclusion  that  Louis 
iana  has  been  disfranchised  in  these  processes  of  legislation,  There  is 
nothing,  absolutely  nothing,  to  repeal  that  section  which  provides  for 
the  filling  of  vacancies  under  the  law  of  1868  and  the  law  of  1870,  except 
the  repealing  clause  of  1872,  which  is  in  these  words : 

That  this  act  shall  take  effect  from  and  after  its  passage,  and  that  all  others  on  the 
subject  of  election  laws  be,  and  the  same  are  hereby,  repealed. 

Is  it  possible  for  the  act  of  1870,  providing  for  filling  vacancies,  to 
stand  consistently  with  that  repealing  clause  ?  If  it  is,  you  are  bound 
by  your  oaths  and  by  all  the  rules  of  interpretation  to  let  it  stand  ;  first, 
because  of  the  rule  I  have  stated,  that  you  shall  not  make  it  work  a  re 
peal  by  implication  if  you  can  help  it ;  second,  because  if  you  do  make 
it  work  a  repeal,  you  work  a  disfranchisement  of  the  State.  The  pro 
vision  for  filling  a  vacancy  in  the  electoral  college  is  not  an  election  law 
at  all  in  the  sense  that  that  language  is  used  there.  Taking  that  sec 
tion  by  itself,  it  is  not  an  election  law  at  all.  I  mean  in  the  popular  and 
legal  sense  of  that  repealing  clause.  It  is  filling  a  vacancy  where  there 
was  a  failure,  the  gentlemen  say,  to  elect ;  we  say  where  there  was  a 
vacancy  under  the  provisions  of  these  acts  of  Congress  on  the  subject  of 
vacancy  and  this  legislation  of  the  State. 

Mr.  President  and  gentlemen,  having  said  that  much,  you  are  in  pos 
session,  without  any  elaboration  at  all  of  the  discussion,  of  my  views  in 
regard  to  what  you  will  find  out  for  yourselves  when  you  go  to  your 
chamber,  and  I  take  the  next  step  in  this  discussion.  The  law  of  1872 
was  in  force ;  it  governed  this  election  ;  and  the  provision  for  filling  the 
vacancy  is  one  that  was  resorted  to  and  was  in  force. 

I  ought  to  have  added,  by  way  of  abundant  caution,  in  the  connection 


ELECTORAL   COUNT    OF    1877.  357 

in  which  I  was  a  moment  ago,  another  rule  of  interpretation  which  is 
exceedingly  valuable  here,  and  that  is  where  a  statute  has  received 
what  your  Supreme  Court  calls  a  practical  construction,  and  has  been 
executed  according  to  that  practical  construction,  in  every  case  of  doubt, 
that  is  exceedingly  valuable.  The  Supreme  Court  of  the  United  States, 
in  a  decision  that  I  will  hand  up — I  think  it  is  in  21  Howard,  66 — says 
that,  in  a  case  of  doubt,  the  practical  construction  that  has  been  given 
to  a  law  is  conclusive.  This  law  for  filling  vacancies  has  been  practi 
cally  construed  as  applicable  to  the  presidential  elections,  because  all 
the  elections  that  have  been  held  since  it  was  upon  the  statute-book 
have  been  conducted  under  it,  there  being  in  fact  two. 

I  take  my  next  proposition.  I  have  not  deemed  it  necessary  in  mark 
ing  out  my  part  of  the  work  to  take  these  propositions  up  in  any  par 
ticular  order.  I  therefore  come  at  once  to  the  question  as  to  what 
opportunity  there  is  left  for  doubt,  dispute,  or  debate  in  regard  to  the 
question  of  the  power  of  Governor  Kellogg  to  certify  this  election.  I 
want  to  add  to  what  was  said  by  Mr.  Stoughton,  whose  argument  has 
just  been  concluded,  in  the  way  of  refreshing^our  memories,  the  words 
of  the  Supreme  Court  of  the  United  States  upon  that  point  that  are  so 
exactly  apposite,  so  completely  conclusive  here,  as  it  seems  to  me,  as  to 
shut  up  forever,  to  all  intents  and  purposes,  all  discussion  in  regard  to 
the  question  which  was  the  rightful  government  in  Louisiana  and 
which  was  entitled  to  make  the  certificate. 

Mr.  Commissioner  PAYNE.  Mr.  Shellabarger,  before  you  proceed  to 
that  point,  I  should  like  to  ask  you  if  there  are  any  of  the  sections  of 
the  law  of  1868,  on  which  you  have  been  just  commenting,  that  you 
claim  are  not  repealed  by  the  repealing  clause  of  the  law  of  1872,  except 
the  one  you  referred  to  about  filling  vacancies? 

Mr.  SHELLABARGER.  I  have  not  gone  over  the  law  of  1868  nor 
even  the  law  of  1870,  as  it  revises  that  of  1868,  in  all  its  parts.  I  there 
fore  cannot  answer  that  question  categorically,  for  I  do  not  know,  not 
having  any  concern  about  any  other  parts  of  the  law  except  those  that 
were  involved  in  this  case.  I  answer  generally  that  I  understand  that 
an  examination  will  result  in  finding  that  all  the  provisions  of  1868  are 
superseded  without  exception  by  the  revision  of  1870.  Then,  if  your 
question  means  to  ask  me  what  part  of  the  legislation  of  1870  is  left 
alive,  I  reply  that  my  analysis  has  not  been  such  as  to  enable  me  to 
answer  except  as  to  the  case  in  hand,  and  that  as  to  that,  the  section 
relating  to  vacancies  has  been  preserved,  first  by  the  fact  that  it  is  not 
within  the  repealing  clause  of  1872,  it  not  being  a  matter  as  to  holding 
an  election;  and  second,  it  has  not  been  repealed,  because  to  do  so 
would  disfranchise  a  State;  third,  it  has  not  been  repealed  because  it 
is  possible  to  stand.  That  is  my  whole  position  on  that  subject. 

Mr.  Commissioner  HOAR.  The  law  of  1870  is  an  entire  revision  of 
the  whole  statute  law  of  the  State  on  this  subject.  It  contains  pro 
vision  as  to  the  presidential  electors  meeting,  how  they  shall  certify 
their  acts,  and  a  like  class  of  provisions. 

Mr.  EYARTS.  I  rise  to  ask  Mr.  Commissioner  Payne  whether,  in 
his  inquiry  as  to  the  law  of  1868,  he  referred  to  the  general  election  law 
of  1868,  or  the  electoral  election  law  of  1868,  which  are  two  independ 
ent  acts? 

Mr.  Commissioner  PAYNE.    May  they  not  be  "election  lawsF 

Mr.  EYARTS.  They  are  two  independent  acts,  found  in  the  session 
laws  of  the  same  year. 

Mr.  SHELLABARGER.  Now,  Mr.  President.  I  take  the  language  of 
the  Supreme  Court  of  the  United  States  from  a  case  that  has  been 


358  ELECTORAL    COUNT    OF    1877. 

• 

often  referred  to,  Luther  vs.  Borden,  and  I  apply  it  here.  It  is  in  these 
words : 

It  rests  with  Congress  to  decide  what  government  is  the  established  one  in  a 
State ;  "  and  when  the  Senators — 

And  it  is  especially  to  this  that  I  invite  your  attention — 

and  when  the  Senators  and  Representatives  from  a  State  are  admitted  into  the  coun 
cils  of  the  Union,  the  authority  of  the  government  under  which  they  are  appointed, 
as  well  as  its  republican  character — 

Note,  for  here  are  two  objections,  first,  that  the  State  has  not  a  republi 
can  character  5  second,  that  it  is  not  a  State,  or  that  the  Kellogg  govern 
ment  was  not  the  government.  The  Supreme  Court  replies  to  that,  that 
when  members  are  admitted  to  the  councils  of  the  Union — 

the  authority  of  the  government  under  which  they  are  appointed,  as  well  as  its  repub 
lican  character,  is  recognized  by  the  proper  constitutional  authority,  and  its  decision 
is  binding  on  every  other  department  of  the  government  and  cannot  be  questioned  in 
a  judicial  tribunal. 

I  said,  gentlemen,  that  that  language  was  absolutely  conclusive  of 
this  whole  question,  and  it  is,  unless  the  suggestion  made  by  Judge 
Trumbull  to  my  friend  who  preceded  me  is  an  answer.  His  suggestion 
was,  "Well,  that  says  it  is  for  Congress  to  determine,  and  here  we  are 
in  Congress  for  the  purpose  of  having  you  determine  the  thing  the 
other  way."  Now,  plainly  and  most  manifestly,  the  suggestion  is  founded 
in  error,  first,  because  if  you  were  Congress,  with  all  the  sovereign 
powers  of  Congress,  and  could  make  a  law,  still  you  could  not  make 
your  act  ex  post  facto  or  retroactive.  If  that  thing  was  in  November, 
1876,  a  State  by  the  recognition  of  the  two  Houses,  by  the  action  of  the 
Executive  under  the  act  of  1795,  by  the  fact  of  its  passing  laws  and 
taking  the  government  and  exercising  it,  by  all  the  facts  that  make  and 
create  a  State  of  this  Union  de  facto  and  de  jure — if  that  were  so  of 
Louisiana  as  it  was  in  November,  1876,  then  will  my  friend  have  the 
courage,  not  to  say  the  temerity,  to  tell  this  Commission  that  even 
Congress  can  take  that  status  away  and  rob  the  State  by  post  hac  action 
of  its  capacity  to  elect,  as  it  was  held  on  the  day  when  the  election  was 
made '? 

1  come  next  to  the  question  of  the  ineligibility  that  is  alleged  to  be 
wrought  as  to  certain  of  these  electors  by  the  fact  that  certain  of  them 
held  State  offices.  Let  me  take  now  and  let  me  make  illustrious,  if  I 
can,  my  speech  by  a  quotation.  I  know  it  has  been  quoted  a  hundred 
times,  so  that  it  has  become  familiar  to  you  all ;  but  the  oftener  the 
better,  because,  first,  of  the  intrinsic  excellence  of  the  statement  itself ; 
second,  because  of  the  time  whence  it  comes  to  us,  away  back  in  the 
very  morning  of  our  life  as  a  nation ;  and,  third,  and  perhaps  especially, 
because  it  comes  from  one  of  the  most  illustrious  of  the  framers  of  the 
Constitution.  I  mean  Charles  Pinckuey.  It  is  a  speech  that  he  made 
on  the  bill  that  was  pending  in  Congress  in  1800,  proposing  to  make  a 
commission  something  like  this.  I  am  now  reading  from  Mr.  Pinckney 
for  the  purpose  of  showing  to  you  that  it  was  not  the  design  of  the  Con 
stitution  to  permit  the  States  by  any  method  to  add  to  or  subtract  from 
the  qualifications  of  the  presidential  electors.  I  have  'now  reached  the 
point  that  it  is  said  disqualifies  Kellogg  and  one  or  two  other  men  be 
cause  they  held  State  offices,  and  I  wish  to  make  use  of  what  Mr.  Pinck 
uey  here  states  upon  that  point.  But  in  order  that  I  may  use  what  he 
states  in  other  connections,  I  will  read  as  well  what  he  stated  on  other 
points  as  upon  that  one.  He  says : 

Knowing  that  it  was  the  intention  of  the  Constitution  to  make  the  President  com 
pletely  independent  of  the  Federal  Legislature,  I  well  remember  it  was  the  object,  as 


ELECTORAL    COUNT    OF    1877  359 

• 

it  is  at  present  not  only  the  spirit  but  the  letter  of  that  instrument,  to  give  to  Congress 
no  interference  in  or  control  over  the  election  of  President.     It  is  made  their  duty  to  • 
count  over  the  votes  in  a  convention  of  both  Houses,  and  for  the  President  of  the  Sen 
ate  to  declare  who  has  the  majority  of  the  votes  of  the  electors  so  transmitted. 

It  never  was  intended,  nor  could  it  have  been  safe,  in  the  Constitution,  to  have 
given  to  Congress  thus  assembled  in  convention  the  right  to  object  to  any  vote,  or 
even  to  question  whether  they  were  constitutionally  or  properly  given. 

This  right  of  determining  on  the  manner  in  which  the  electors  shall  vote  ;  the  in 
quiry  into  the  qualifications,  and  the  guards  that  are  necessary  to  prevent  disqualified 
or  improper  men  voting,  and  to  insure  the  votes  being  legally  given,  rests  and  is  ex 
clusively  vested  in  the  State  legislatures. 

When  I  come  to  read  this,  it  reminds  me  that  my  friend  who  sits  be 
fore  me  [Mr.  Trumbull]  drew  his  wisdom  from  this  speech,  for  it  is 
almost  in  hcec  verba  the  language  of  his  report  made  in  1873. 

If  it  is  necessary  to  have  guards  against  improper  elections  of  electors  and  to  insti 
tute  tribunals  to  inquire  into  their  qualifications,  with  the  State  legislatures  — 

That  is  just  what  you  said  in  1873  5  it  is  with  the  State  legislatures — 

and  with  them  alone,  rests  the  power  to  institute  them,  and  they  must  exercise  it. 
To  give,  to  Congress,  even  when  assembled  in  convention,  a  right  to  reject  or  admit 
the  votes  of  States  would  have  been  so  gross  and  dangerous  an  absurdity  as  the  framers 
of  the  Constitution  never  could  have  been  guilty  of.  How  could  they  expect  that  in 
deciding  on  the  election  of  a  President,  particularly  where  such  election  was  strongly 
contested,  that  party  spirit  would  not  prevail  and  govern  every  decision?  Did  they 
not  know  how  easy  it  was  to  raise  objections — 

Very  easy,  as  we  have  found  out  to-day,  for  there  are  whole  piles, 
cart-loads  of  them  here — 

how  easy  it  was  to  raise  objections  against  the  votes  of  particular  electors,  and  that 
in  determining  upon  these  it  was  more  than  probable  the  members  would  recollect 

their  sides,  their  favorite  candidate,  and  sometimes  their  own  interests! 

*#**#*# 

These  being  the  avowed  reasons  for  introducing  this  bill,  I  answer  them  by  observ 
ing  that  the  Constitution  having  directed  that  electors  shall  be  appointed  in  the  man 
ner  the  legislature  of  each  State  shall  direct,  it  is  to  be  taken  as  granted  that  the 
State  legislatures  will  perform  their  duties,  and  make  such  directions  as  only  qualified 
men  shall  be  returned  as  electors.  The  disqualifications  against  any  citizen  boing  an 
elector  are  very  few — 

]S"ow  note — 

The  disqualifications  against  any  citizen  being  an  elector  are  very  few  indeed  ;  they 
are  two:  the  first,  that  no  officer  of  the  United  States  shall  be  an  elector;  and  the 
other,  that  no  member  of  Congress  shall. 

Having  read  that,  we  have  the  indication  of  the  point  I  am  now  upon, 
that  it  was  for  very  wise  reasons  that  the  disqualifications  imposed 
upon  the  electors  were  very  few ;  also,  we  have  it  indicated,  what  is 
plain  of  course  upon  the  face  of  the  instrument,  that  the  Government 
of  the  United  States,  the  Constitution  itself,  was  the  only  authority 
upon  that  subject  of  eligibility,  and  that  the  States  can  exercise  none 
whatever. 

I  now  pass  to  another  authority.  Let  me  refer  you  to  the  language 
of  Mr.  Cooley,  in  his  Constitutional  Limitations,  page  64  : 

Another  rule  of  construction  is  that  when  the  Constitution  defines  the  circumstances 
under  whi«h  a  right  may  be  exercised— 

The  electoral  right  here — 

or  a  penalty  imposed,  the  specification  is  an  implied  prohibition  against  legislative 
interference  to  add  to  the  condition  or  to  extend  the  penalty  to  other  cases.  On  this 
ground  it  has  been  held  by  the  supreme  court  of  Maryland  (4  Maryland,  189)  that 
where  the  Constitution  defined  the  qualifications  of  an  officer,  it  was  not  in  the  power 
of  the  legislature  to  change  or  superadd  to  them,  unless  the  power  to  do  so  was  ex 
pressly  or  by  necessary  implication  conferred  by  the  Constitution. 

So  that,  both  by  the  most  obvious  reason  of  the  case  and  by  the  au- 


360  ELECTORAL    COUNT    OF    1877. 

• 

thority  of  Mr.  Pinckuey,  one  of  the  framers  of  the  Constitution,  stating 
why  it  was  that  so  few  disqualifications  were  imposed  upon  the  holding 
of  the  electoral  office,  and  also  lay  the  decisions  of  the  courts,  and  by 
every  possible  view  that  applies  to  the  case,  it  is  true  that  the  holding  of 
office  under  the  State  government  neither  is  nor  can  be  made  to  be  a 
disqualification  to  hold  the  electoral  office.  I  add  more,  that  the  Con 
gress  itself  cannot  add  to  or  subtract  from  the  qualifications  of  an 
elector.  There  they  stand,  broad,  wide,  and  unlimited,  except,  as  Mr. 
Pinckney  states,  by  two  solitary  disqualifications. 

Mr.  Commissioner  THUEMAN.  Would  it  be  unconstitutional  for  a 
State  to  require  its  elector  to  be  a  citizen  of  the  State? 

Mr.  SHELLABAEGEE.  A  citizen  of  the  State  in  which  he  resides  ? 
I  answer  that  in  my  judgment  it  would  be.  I  see  not  why  it  is  that  a 
State  can  on  any  account  add  to  or  subtract  from  the  provisions  that  the 
Constitution  has  made  upon  the  subject  of  qualification. 

Mr.  Commissioner  THUEMAN.  Could  then  a  State  select  an  alien 
for  an  elector? 

Mr.  SHELLABAEGEE.  If  the  State  may  not  choose  an  alien  for 
an  elector,  it  must  be  because  the  Constitution  has  prohibited  it.  The 
Constitution  of  the  United  States  has  not  prohibited  it.  It  has,  as  Mr. 
Pinckney  has  expressed  it,  made  but  two  prohibitions.  It  was  long 
doubted  whether  the  States  could  appoint  their  electors  by  an  act  of  the 
legislature,  but  long  ago  it  was  settled  that  there  was  no  limitation,  no 
fettering  of  the  power  of  the  State  in  regard  to  the  methods  of  the  ap 
pointment.  That  there  was  a  provision  in  regard  to  what  the  qualifica 
tion  of  the  electors  should  be,  I  think  is  express  and  plain  upon  the 
very  face  of  the  Constitution,  and  two  disqualifications  being  named 
the  addition  of  others  is  excluded.  Whether  I  am  right  or  not  upon 
that,  is  not  very  material  for  the  purposes  of  this  discussion,  because  the 
question  put  to  me  by  the  Senator  does  not  arise  in  this  case.  No  such 
extreme  case  has  occurred  here,  and  it  is  an  abstract  proposition. 

The  next  question  I  propose  to  consider  is  whether  the  returning- 
board  as  it  was  organized  was  a  good  returuing-board ;  I  mean  good  as 
to  numbers.  It  is  said  that  because  it  had  but  four  in  it,  when  there 
ought  to  have  been  five,  that  spoils  the  board  and  renders  it  incapable 
of  action.  Now,  without  any  elaboration,  permit  me  to  state  the  au 
thorities  and  the  propositions  upon  which  I  rely  in  that  regard.  In  the 
case  of  Gildersleve  vs.  The  Board  of  Education,  17  Abbott's  Practice 
Reports,  201,  you  will  find  a  case  where  the  court  held  that  a  board 
composed  of  ten  persons  with  power  to  fill  vacancies  could  by  a  vote  of 
five  of  its  members  remove  a  superintendent  of  schools  at  a  time  when 
there  was  an  unfilled  vacancy  in  the  board,  because  they  could  act  by  a 
majority,  and  five  was  a  majority  of  nine. 

I  have  selected  this  case  simply  because,  although  a  decision  of  a  com 
mon  pleas  judge,  the  facts  happened  to  be  so  exceedingly  like  those  of 
the  case  we  are  dealing  with.  It  was  a  case  where  the  number  was 
fixed  by  statute  at  ten  •  it  was  a  case  where  there  was  a  vacancy  at  the 
time  of  the  action;  it  was  a  case  where  there  was  a  power  to  fill  the 
vacancy  in  the  board ;  it  was  a  case  where  they  failed  to  fill  the 
vacancy;  and  it  was  a  case  where  had  they  filled  the  vacancy  the  vote 
by  which  the  act  was  done,  to  wit,  five,  would  not  have  accomplished 
the  removal.  There  the  court  was  brought  square  up  to  the  very  ques 
tion  whether  that  board  thus  constituted  could  act.  It  is  the  exact  case 
with  which  we  deal.  There  the  court  says  that  in  private  affairs  all 
must  meet  and  consider,  and  then  proceeds : 
But  where  the  powers  to  be  exercised  are  a  continuous  trust  or  duty  confided  to- 


ELECTORAL    COUNT    OF    1877.  361 

designated  persons,  the  discharge  of  the  public  trust  is  not  to  be  interrupted  or  fail 
through  the  death  or  absence  or  inability  of  any  of  the  persons  to  whom  the  exercise 
of  it  is  intrusted  ;  provided,  there  is  a  sufficient  number  to  confer  together,  to  delib 
erate,  and,  in  view  of  the  possibility  of  the  division  of  opinion,  to  decide  upon  what 
course  is  to  be  adopted. 

I  said  that  this  .was  the  decision  of  a  common  pleas  judge. 

Mr.  Commissioner  STROJSTG.     By  whom  was  the  opinion  delivered? 

Mr.  SHELLABARGER.  By  Judge  Daly  ;  but  I  want  now  to  say 
for  Judge  Daly's  opinion  and  for  his  authority  that  he  has  quoted  what 
I  have  read  from  the  very  highest  sources  of  the  law,  and  I  give  you  the 
cases  from  whence  he  derived  it.  You  will  find  it  first  in  the  case  of 
Blacket  vs.  Blizzard,  decided  in  1829,  found  in  9  Barnewall  and  Ores- 
well,  pages  856  to  859.  You  will  find  the  same  principle  in  Cooke  vs. 
Loveland,  2  Bosanquet  and  Puller,  31 ;  also  in  Rex^s.  Beestou,  3  Term 
Reports,  592  ;  also  in  Grindley  vs.  Baker,  1  Bosauquet  and  Puller,  229 . 
You  will  find  the  same  thing  in  its  legal  effect  laid  down  in  Bouvier's 
Law  Dictionary  under  the  title  "  Quorum."  Precisely  the  same  thing  is 
decided  in  the  great  case  of  The  People  vs.  Cooke,  4  Selden,  67.  That 
was  a  case  where  the  court  decided  that  a  vacancy  or  an  absence  in  the 
election  board  did  not  vitiate  the  poll.  That  is  one  of  the  leading 
American  cases.  It  is  quoted  everywhere  ever  since  it  was  decided,  on 
a  great  many  different  points,  and  it  is  so  long  that  I  will  ask  you  to 
make  a  note  of  the  place  where  you  will  find  the  fact  especially  stated 
as  to  how  that  board  was  organized  in  the  dissenting  opinion  of  Judge 
Taggart,  pages  95  and  96.  There  you  will  find  that  the  board  held  an 
election  when  but  two  out  of  the  three  were  present  a  part  of  the  time, 
and  other  irregularities  appeared  in  the  case. 

You  will  find  the  same  thing  decided  in  The  State  vs.  Stumpf,  21 
Wisconsin,  579,  where  two  out  of  three  judges  were  held  to  be  com 
petent  to  hold  an  election.  The  same  principle  you  will  find  decided  in 
the  State  of  Louisiana  in  4  Louisiana  Annual  Reports,  419,  decided  in 
1849,  where  it  was  held  that  when  the  power  of  a  motion  was  conferred 
upon  two-thirds  of  the  body,  then  two-thirds  of  a  quorum  were  capable 
of  acting.  So  also  in  a  case  in  10  Wendell,  658,  and  in  16  Iowa,  284, 
where  the  same  thing  is  laid  down. 

The  result  of  all  these  cases  is  that  wherever  a  body  has  a  public  or 
political  duty  to  discharge,  as  distinguished  from  private  arbitration  or 
trial  of  that  sort,  there  because  it  is  a  public  tribunal  exercising,  as  in 
the  case  at  bar,  political  functions  with  the  presence  of  a  quorum,  a  ma 
jority  of  a  quorum  is  competent  to  act  and  the  public  business  will  not 
be  suffered  to  be  arrested  or  put  in  peril  by  reason  of  the  death  or  the 
absence  of  any  member.  The  law  as  laid  down  in  the  case  of  Gilder- 
sieve  is  the  law  upon  this  subject. 

Mr.  Commissioner  ABBOTT.  Permit  me  to  ask  a  question.  Have 
you  examined  those  cases  so  as  to  say  whether  the  board  was  full,  that 
is,  that  the  number  required  by  law  had  absolutely  been  appointed  and 
were  in  existence,  or  whether  there  was  a  mere  absence  J? 

Mr.  SHELLABARGBR.  I  answer  that,  and  it  is  a  very  pertinent 
inquiry,  they  are  not  all  so  directly  on  all-fours  with  the  case  at  bar  as 
the  case  I  first  read,  because 'in  most  of  them,  perhaps  in  all  for  aught 
I  know,  the  absence  was  not  by  reason  of  death  so  as  to  create  an  actual 
vacancy  ;  and  the  reasoning  of  the  court  is  entirely  in  support  of  our 
position,  to  wit,  that  the  public  interests  will  not  be  imperiled  nor  stopped 
absence,  Avhether  that  absence  be  caused  by  death  or  what  not. 
They  employ  that  very  language,  so  as  to  show  that  it  makes  no  differ 
ence  what  the  cause  of  the  absence  is,  whether  it  is  death  or  what ;  it 
being  a  public  function,  a  public  tribunal  disposing  of  public  and  polit- 


362  ELECTORAL    COUNT    OF    1877. 

ical  affairs,  it  can  act  by  a  majority  when  a  majority  is  present.  That 
is  the  law  of  this  body,  and  it  makes  no  difference,  as  you  will  see  by 
reading  the  cases,  whether  the  absence  is  caused  by  death  or  what. 

Mr.  Commissioner  ABBOTT.  I  put  the  question,  sir,  because  there 
are  very  respectable  cases,  I  am  sure,  where  the  courts  have  holdeu,  even 
with  the  provision  of  the  statute  that  a  majority  may  act,  that,  if  the 
board  is  not  full,  the  action  of  a  majority  will  not  bind,  because  that  is 
not  the  board  provided  by  law. 

Mr.  SHELLABARGER.  I  am  very  much  obliged  for  the  suggestion, 
and  every  one  that  I  can  answer  I  will,  and  if  I  cannot  I  will  say  so. 

Mr.  Commissioner  THURMAN.  If  it  would  not  interrupt  you  I 
should  like  to  ask  you  a  question.  According  to  my  recollection,  all  the 
authorities  you  have  read  are  very  good  law  ;  but  do  they  touch  the 
case  where  the  board  is  required  to  be  constituted  of  different  elements, 
where  the  statute  creating  it  requires  it  to  be  constituted  of  different 
elements,  and  requires  certain  persons  to  constitute  it  in  practice,  and 
one  element  excludes  the  other  element? 

Mr.  SHELLABARGER.  That  question  I  will  discuss  under  another 
head;  but  my  answer  now  to  that  suggestion  is  that  that  provision  is, 
in  its  very  nature  and  by  the  necessities  of  the  case,  directory,  and  it 
does  not  go  to  the  essential  power  of  the  body.  You  must  know  that 
from  the  very  common  sense  of  the  case,  because  how  are  you  to  test 
whether  a  man  is  a  democrat  or  a  republican  ?  How  are  you  to  fiad  out 
whether  his  politics  change  yesterday,  to-day,  or  to-morrow  ?  It  is  most 
obvious,  I  submit  to  your  long  experience  and  excellent  learning,  it  must 
be  so,  that  that  is  a  directory  provision  to  be  abided  by  and  performed 
in  good  faith,  and  if  not  performed  in  good  faith  and  if  there  were  no 
reason  for  its  being  omitted  in  this  case,  then  it  is  an  act  reprehensible 
and  to  be  condemned;  but  it  does  not  go  to  the  jurisdiction  of  the  body. 
1  will  state  here,  Mr.  President  and  gentlemen,  what  I  happen  to  know. 
Gentlemen  have  been  talking  about  the  testimony  they  propose  to  give. 
Now,  let  me  state  the  testimony  that  I  propose  to  give  if  you  open  this 
door.  I  shall  prove,  and  say  so  on  my  professional  honor,  that  if  these 
gentlemen — and  they  seem  to  me  to  be  gentlemen  of  the  very  highest 
character — have  not  falsified  to  me,  I  will  prove,  if  you  compel  us  to  go 
into  this  door,  that  we  tendered  again  and  again  the  filling  of  that  va 
cancy  and  it  w.is  refused  by  every  man,  and  there  were  several  to  whom 
the  application  was  made,  because  they  did  not  want  to  be  mixed  up 
with  the  troublous  affairs  of  Louisiana  and  the  long  labor,  or  some  such 
reason  as  that.  I  only  say  that,  in  passing,  to  repudiate  and  repel  these 
incessant  inundations  that  we  have  in  the  way  of  denunciation,  of  in 
vective,  and  of  declamation  about  fraud.  I  undertake  to  meet  it  just 
where  I  have;  and  if  I  am  deceived  in  that,  it  is  not  my  faulty  but  it  is 
the  fault  of  the  gentleman  who  stated  it  to  me,  he  being  one  of  the  lead 
ing  members,  not  the  president,  of  the  board. 

I  now  come  to  the  next  point  that  I  have  marked  in  my  brief,  and  that  is 
a  proposition  that  my  friend  Senator  Carpenter  seems  to  attach  some 
consequence  to,  though  I  do  not  know  that  anybody  else  on  his  side  has 
especially  discussed  it;  and  it  is  the  proposition  that  these  functions  of 
the  returning-board  of  Louisiana  are  judicial  in  their  nature,  that  they 
could  not  under  the  constitution  of  Louisiana  be  conferred  except  on  a 
court,  and  that  hence  this  law  goes  by  the  board  for  that  reason.  Let  me 
in  the  first  place  give  your  honors  a  reference  to  the  case  of  The  State  vs. 
Hufty,  11  Louisiana  Annual  Reports,  304,  decided  in  1856.  I  give  you 
the  date  of  the  decision  in  order  that  I  may  get  you  away  back  of  the 
unhealthy  influences  that  are  alleged  to  have  pervaded  and  affected 


ELECTORAL    COUNT    OF    1877.  363 

these  courts  since  the  rebellion.  In  1856,  when  the  State  constitution 
had  a  provision,  as  every  constitution  has,  divorcing  the  executive,  the 
legislative,  and  the  judicial  parts  of  the  government,  keeping  them  sepa 
rate  ;  away  back  in  1856,  under  a  constitution  that  prohibited  the  exer 
cise  of  judicial  powers  by  anything  except  the  courts  of  Louisiana,  this 
question  arose  in  the  case  of  The  State  vs.  Hut'ty.  There  an  address 
was  made — that  was  what  it  was  called — an  address  by  the  legislature 
to  remove  Mr.  Hufty  from  the  office  of  sheriff  to  Avhich  he  had  been 
elected.  One  of  the  grounds  for  removal  was  the  very  ground  with 
which  we  deal  to-day,  to  wit,  that  his  election  had  been  carried  by  vio 
lence,  intimidation,  and  fraud.  It  was  alleged  that  there  were  organ 
ized  bands  of  men  that  broke  up  the  ballot-box,  disturbed  the  election, 
and  prevented  its  result  being  fair.  The  counsel  in  that  case  made  the 
point  directly  that  that  was  a  judicial  question,  that  it  could  not  be 
tried  in  the  legislature,  and  that  the  law  providing  for  such  address  was 
unconstitutional.  The  court  decided  this  very  question  that  it  was  not 
a  judicial  but  was  an  administrative  process — that  was  the  word  of  the 
court — and  was  entirely  competent  to  be  committed  to  the  legislature, 
and  that  it  was  therefore  constitutional. 

Then  I  give  you  three  other  cases :  the  case  of  Collins  vs.  Knoblock, 
25  Louisiana  Annual  Eeports,  263 ;  The  State  vs.  Lynch,  the  same  book, 
267  5  also  13  Louisiana  Annual  Reports,  90,  in  every  one  of  which  the 
question  of  the  validity  of  laws  giving  this  power  to  the  returning-board 
was  involved,  although  perhaps  in  none  of  them,  certainly  not  in  all  of 
them,  was  the  question  directly  and  expressly  made ;  but  it  was  involved 
in  each  one  of  these  cases,  the  one  in  13  Annual  Eeports  being  under  a 
former  constitution,  because  that  was  about  1858,  the  others  under  the 
present  constitution  and  under  the  law  of  1870,  all  holding  and  agreeing 
that  this  is  a  valid  law,  and  that  the  judicial  powers,  or  the  quasi-judi 
cial  powers,  as  the  court  calls  them,  that  are  conferred  upon  this  return 
ing-board  aro  entirely  competent  to  be  so  conferred  under  the  constitu 
tion  of  Louisiana. 

Then  upon  that  question — that  local  question  of  the  constitution  and 
laws  of  Louisiana — you  have  the  judgment  three  times,  nay  four  times 
over,  pronounced  under  similar  constitutions  by  the  court  of  last  resort 
of  the  State  of  Louisiana.  Surely,  that  ought  to  be  enough  upon  that. 
But  pardon  me  again,  by  way  of  making  "  assurance  double  sure/7  for 
adding  to  them  other  authorities.  First  I  take  Cooley's  Constitutional 
Limitations,  page  623,  and  I  use  his  words  in  the  way  of  fortification  of 
what  I  have  said.  Speaking  about  the  proposition  that  boards  of  can 
vassers  generally  act  ministerially  in  our  States,  he  proceeds : 

This  is  the  general  rule,  and  the  exceptions  are  those  where  the  law  under  which 
the  canvass  is  made  declares  the  decision  conclusive,  or  where  a  special  statutory 
board  is  established  with  powers  of  final  decision. 

So  that,  according  to  the  authority  of  Mr.  Cooley,  it  is  perfectly  com 
petent  for  their  legislature  to  confer  the  quasi-judicial  powers  upon  the 
board,  and  where  that  is  done  by  the  State  statute  it  is  final,  and  neither 
by  quo  icarranto  nor  by  any  other  trial  can  you  reverse  the  decision  of 
the  returniug-board,  as  has  been  decided  in  Louisiana  in  the  four  cases 
that  I  have  now  given  to  you.  I  may  refer  also  to  Greer  vs.  Shackel- 
ford,  Constitutional  S.  C.  Eeports,  642.  There  is  also  a  case  in  1  Met- 
calfe,  Kentucky,  Eeports,  Batman  vs.  Magowau,  533;  The  People  vs. 
Goodwin,  22  Michigan,  496;  The  State  vs.  Marlow,  15  Ohio  State 
Eeports,  114;  The  Commonwealth  vs.  Garrigues,  28  Pennsylvania  State 
Eeports,  9;  The  Commonwealth  vs.  Baxter,  35  Pennsylvania  State 


364  ELECTORAL    COUNT    OF    1877. 

Beports,  263;  The  Commonwealth  vs.  Leech,  44  Pennsylvania  State 
Beports,  332. 

In  every  one  of  these  cases  there  were  special  statutory  tribunals  pro 
vided.  In  most  of  them  they  were  not  the  courts.  In  my  State  it  hap 
pened  to  be  one  of  the  courts;  but  in  every  one  of  them,  whether  they 
were  special  statutory  tribunals  or  whether  they  were  courts,  it  was  held, 
just  as  Cooley  says,  that  wherever  or  whenever  a  special  tribunal  is  con 
stituted  as  the  one  to  try,  as  this  does,  it  can  be  made  final.  It  is 
administrative,  to  adopt  the  language  of  the  supreme  court  of  Louisiana 
in  the  old  case  in  13  Annual  Reports,  90,  and  requoted  in  every  subse 
quent  decision.  It  is  administrative;  it  is  a  part  of  the  political 
machinery  of  your  country;  and  it  is  perfectly  competent,  unless  the 
constitution  of  the  State  otherwise  provides,  to  confer  it  upon  these 
special  tribunals ;  and  that  is  as  well  settled  as  anything  that  is  settled 
in  our  law. 

Mr.  President,  how  long  have  I  been  speaking  ? 

The  PRESIDENT.     One  hour  and  eight  minutes,  to  be  exact. 

Mr.  SHELLABARGER.  I  want  to  add  now  to  the  authorities  that 
were  read  by  my  friend  who  preceded  me  upon  this  subject  of  the  final 
ity  of  the  acts  of  the  returning-board  in  Louisiana,  and  also  upon  the 
question  I  have  just  passed  over,  to  wit,  that  it  is  competent  to  bestow 
this  power  upon  this  special  tribunal,  and  is  not  unconstitutional.  He 
read  one,  The  State,  on  the  relation  of  John  M.  Bonner,  vs.  B.  L.  Lynch, 
in  25  Louisiana  Annual  Reports,  page  267,  and  I  add  the  case  of  Col 
lins  vs.  Knoblock,  25  Louisiana  Annual  Reports,  page  263,  and  also  13th 
Louisiana  Annual  Reports,  page  90.  The  court  go  over  very  thoroughly 
and  carefully,  and,  I  think,  very  strongly  state,  the  law  of  Louisiana 
upon  this  subject ;  but  whether  strongly  or  not,  for  the  purposes  of  this 
tribunal,  by  the  judgments  of  the  Supreme  Court  of  the  United  States, 
making  the  laws  of  the  States  and  their  interpretation  by  the  local 
courts  the  law  of  this  tribunal,  you  are  bound  to  abide. 

Gentlemen,  I  have  gone  over  these  various  outlying  questions  as  well 
as  I  could.  I  come  now  to  the  main  question  in  this  case,  and  really, 
as  it  seems  -to  me  in  all  frankness  and  fairness  of  statement,  the  only 
question  there  is;  and  that  is  decided  by  what  you  have  just  decided  in 
the  case  of  Florida,  and  that  is  whether  or  not  it  is  competent  for  you 
to  go  behind  the  action  of  the  returniug-board  of  Louisiana  for  the  pur 
pose  of  finding  out  what  happened  in  its  exercise  of  the  jurisdiction 
vested  by  the  statute.  I  need  not  restate,  indeed  I  will  not,  what  has 
been  decided  in  the  Florida  case.  I  know  that  the  logic  and  law  of  that 
case  has  decided  all  there  is  in  this,  if  I  can  appreciate  legal  principle 
at  all,  except  the  question  whether  that  Louisiana  returning-board  was 
one  authorized  by  valid  law  to  exercise  the  jurisdiction  that  it  under 
took,  to  exercise. 

Mr.  Commissioner  EDMUNDS.  Was  it  offered  in  the  Florida  case  to 
prove  that  the  State  board  of  canvassers  of  Florida  were  actuated  by 
corrupt  motives  in  whatever  mistakes  they  were  said  to  have  made  J?  In 
this  case  it  is  directly  offered  to  prove  that  the  motive  of  the  board  in 
doing  these  alleged -wrong  things  was  corrupt. 

Mr.  SHELLABARGER.  I  understood,  your  honor,  that  the  proposi 
tion  in  the  Florida  case  offered  to  prove— without  designating  whether 
it  went  to  the  question  of  motive  or  not — fraud  generally,  corrupt  action 
on  the  part  of  the  Florida  returning-board.  That  was  the  proposition, 
to  prove  conspiracy  and  corrupt  motive  or  action  on  the  part  of  that 
board. 

Now  I  come  to  the  consideration  of  that  question  so  far  as  I  shall  dis- 


ELECTORAL    COUNT   OF    1877.  365 

cuss  it  at  all,  because  I  shall  assume  in  the  remarks  that  I  am  about  to 
Diake  that  the  Florida  case  decided  nothing.  That  is  the  assumption 
we  are  compelled  to  adopt,  because  it  is  adopted  and  this  debate  is  con 
ducted  and  the  whole  case  is  conducted  on  the  idea  that  nothing  has 
been  decided  in  the  Florida  case.  JSTow  let  me  state  what  I  understand 
to  be  the  main  question  or  foundation-inquiry  that  we  have  reached,  and 
it  is  this :  It  being  assumed  that  the  law  of  1872  is  in  force  and  is  con 
stitutional — I  have  gone  over  that — it  being  assumed  that  this  board 
had  the  functions  that  the  second  and  third  sections  purported  to  give 
to  the  returning-board,  then  is  it  competent  for  this  tribunal  to  inquire 
into  the  method  of  the  exercise  of  the  jurisdiction  that  the  board  did 
possess  ?  Let  me  restate  my  proposition.  It  is  really  the  same  question, 
very  much  less  clearly  stated,  that  was  suggested  by  his  honor,  Judge 
Miller,  to  wit:  Whether  there  being  a  board  competent  to  make  these 
returns,  competent  and  required  by  the  law,  as  it  expressly  is,  to  find 
out,  to  declare,  and  certify  who  were  duly  elected  to  the  offices  in  the 
State,  including  that  of  elector,  that  being  the  jurisdiction  of  the  board, 
you  have  the  power  in  this  tribunal  to  try  the  question  as  to  how  they 
reached  the  result  they  did  reach  ? 

Upon  the  threshold  of  that  inquiry,  pardon  me  for  saying  to  you  that 
when  we  deny  in  this  stage  of  inquiry  and  in  this  tribunal  the  power  of 
going  behind  the  finding  of  that  board,  the  charge  that  we  are  thereby 
covering  up  fraud  or  seeking  to  escape  scrutiny  is,  I  submit,  unutterably 
unjust.  It.  has  not  even  the  semblance  of  fairness  in  it.  Why*?  Sim 
ply  because — and  I  concede  his  law — my  friend,  Mr.  Carpenter,  has  fur 
nished  us  with  a  reply  to  all  the  loud  denunciations  in  which  he  indulged 
yesterday  ;  and,  with  my  friend  Stoughton,  I  must  say  that  I  too  was 
surprised  at  the  language  that  was  brought  into  this  high  tribunal  when 
he  undertook  to  denounce  four  men  that  he  probably  never  saw,  as  four 
villains  of  Louisiana.  I  say  the  language  was  not  worthy  of  my  friend. 
It  is  surely  not  worthy  of  this  tribunal.  Why  do  I  say  that  our  position 
is  no  concealment  of  fraud  ?  First  of  all,  because  it  is  begging  the 
whole  question  to  say  that  you  have  a  right  to  try  the  question  of  fact 
that  discloses  this  fraud,  in  this  tribunal.  I  said  a  moment  ago  that  he 
begged  the  whole  question  when  he  said  we  were  undertaking  to  cover 
up  fraud  by  our  objection  to  this  evidence.  It  just  occurs  to  me  that 
in  a  case  not  long  ago  decided  by  his  honor,  Mr.  Justice  Field,  in  13 
Wallace,  347,  where  Mr.  Bradley  sued  Mr.  Fisher,  a  judge  of  this  Dis 
trict,  because  he  fraudulently,  maliciously,  wantonly,  and  corruptly 
turned  him  away  from  the  bar,  Justice  Field  met  that  as  a  court,  as  a 
lawyer  would,  by  saying  that  is  one  of  the  cases  where  you  cannot  show 
fraud  for  reasons  that  are  given  by  the  Justice  in  the  decision.  It  would 
have  been  strange  logic  and  stranger  law  for  Mr.  Carpenter  to  have 
got  up  and  insulted  the  court  by  saying,  "  You  are  nine  villains  and 
conspirators  undertaking  to  shut  out  the  light  of  truth  from  the  courts 
of  the  country."  It  would  have  been  just  as  worthy,  though,  as  this 
remark  here  to-day. 

Then  take  the  case  of  Field  vs.  Seabury,  19  Howard,  331,  an  action 
of  ejectment  coming  up  from  California  on  a  writ  of  error,  where  a  law 
making  a  grant  had  been  got  through  the  legislature  by  fraud,  whereby 
the  grantee  under  the  fraudulent  deed  brought  himself  within  the  cat 
egory  of  persons  whose  titles  to  land  were  confirmed  by  an  act  of 
Congress.  He  got  his  grant  by  a  fraud  in  the  legislature.  He  brought 
.himself  within  the  category.  His  opponent  sought  to  set  up  the  fraud; 
but  no,  said  the  Supreme  Court  of  the  United  States,  it  is  not  true  that 
fraud  in  every  forum  vitiates  everything  ;  you  are  in  the  wrong  forum  ; 


366  ELECTORAL    COUNT   OF    1677. 

you  must  attack  this  thing  in  the  right  place.  So  with  us  to-day  here 
and  now.  Gentlemen,  it  is  an  insult  to  your  intelligence  to.  say  that, 
because  as  mere  counters,  as  mere  ministerial  officers,  you  cannot  go 
into  frauds,  therefore  here  is  an  attempt  to  cover  up  fraud. 

Look  at  it  for  a  moment  in  another  light.  This  argument  of  the 
gentlemen  contains  in  itself  an  utter  felo  de  se.  How  wide-mouthed 
was  their  declamation  when  they  were  talking  to  you  about  the  fraud 
of  the  returning-board  in  Florida.  What  was  the  fraud  ?  It  was  a 
fraud  which  was  committed  by  them,  they  being  mere  ministerial  offi 
cers,  in  usurping  jurisdiction  and  going  behind  the  returns  from  the 
counties  and  undertaking  to  throw  out  votes,  in  violation  of  law. 
There,  my  friends,  a  case  of  that  sort  could  not  be  inquired  into  accord 
ing  to  your  law.  Abide  by  your  law  ;  stand  up  to  its  logic,  and  take 
its  consequences.  It  is  right,  and  it  is  right  because  of  what  you  put 
nto  your  report  in  1873,  to  wit,  that  the  two  Houses  combined  have 
not  the  power  of  a  quo  warranto  court.  You  could  not  go  behind  the 
returns.  Therefore,  do  not  talk  to  me  about  our  position  being  one 
designed  either  in  logic,  law,  or  morality  to  shut  out  evidence  of  fraud. 
But  more  than  that,  do  not  forget  that  my  friend,  Senator  Carpenter, 
said  to  you  last  night,  and  he  read  the  law-books  to  prove  it,  that  the 
courts  of  the  United  States  to-day,  under  the  existing  law  bestowing 
jurisdiction  upon  the  circuit  courts,  have  power  to  try  which  of  these 
two  men  has  been  elected  President  of  the  United  States.  Did  he  not 
say  that  ?  Did  he  not  read  the  statutes  to  prove  it  to  you  ?  Did  he  not 
take  the  ground  that  there  was  such  power  to-day;  and  that  to-morrow, 
if  you  make  your  decision,  after  the  4th  of  March,  he  can  come  with  his 
quo  ivarranto  and  can  retry  the  question  as  to  who  is  President  ?  I  do 
not  undertake  to  say  whether  that  is  law  or  not ;  but,  if  it  be  law,  then 
it  ill-becomes  our  friend  to  talk  to  us  about  this  being  an  attempt  to  put 
a  man  into  the  presidency  of  the  United  States  by  fraud. 

I  remember  reading  a  remark  that  was  made  by  King  James  in  regard 
to  the  Novum  Organon  of  Lord  Bacon.  He  said  the  book  was  like  the 
peace  of  God,  that  it  passed  all  knowledge.  These  objections  on  the 
other  side  are  just  of  that  sort.  Afc  one  moment  we  find  them  saying 
to  you  that  the  divorcement  between  the  judiciary  and  the  executive 
and  the  legislative  is  complete,  and  therefore  Congress  cannot  exercise 
judicial  powers;  but  the  very  next  moment  they  say  to  you,  "  Yes,  you 
have  all  judicial  powers ;  you  can  do  the  same  thing  that  a  quo  warranto 
could,  and  because  a  quo  warranto  could  try  this  thing,  therefore  you 
can  try  it."  Thus  my  brother  Carpenter  gets  felo  de  se  into  his  argu 
ment  there.  Then  in  another  place  you  find  these  gentlemen  coming 
up  and  saying  that  Mr.  Kellogg  was  the  governor  of  Louisiana,  and 
therefore  he  is  no  elector,  and  then  the  next  moment  you  have  them 
coming  forward  and  saying,  "No,  he  is  not  an  officer  at  all;  he  is  not 
the  governor  of  Louisiana,  but  McEuery  is."  To  such  strange  positions, 
gentlemen  most  eminent  are  driven  in  this  frantic  endeavor  to  escape 
from  the  familiar  requirements  of  the  law. 

Now,  if  you  will  pardon  rne,  I  will  read  on  this  point  one  single  au 
thority  and  then  will  trouble  you  with  no  more.  I  read  it  because  of 
its  application  to  the  point  upon  which  I  am  now  engaged.  It  is  the 
case  of  Hulseman  vs.  Reins,  in  41  Pennsylvania  State  Reports,  396. 
It  was  a  bill  to  restrain  the  defendants  from  using  election-certificates 
to  get  their  seats  as  members  of  the  common  council  from  the  nine 
teenth  ward  in  Philadelphia,  and  among  the  grounds  for  the  injunction  t 
were: 

1.  That  whtn  the  returning-board  met  arid  made  the  canvass  it  was  without  authority 


ELECTORAL    COUNT    OF    1377.  367 

of  law,  and  the  proceedings  were  therefore  null  and  void,  because  issued  by  a  defunct 
board. 

That  brings  squarely  up  your  biggest  question,  the  waut  of  authority 
in  the  body. 

2.  That  this  defunct  board  counted  forged  returns. 

That  is  another  big  thing  here. 

3.  That  even  these  forged  returns  never  reached  the  board  in  any  lawful  way,  but 
surreptitiously  and  without  certificates,  and  the  bill  alleged  that  the  certificates  were 
therefore  utterly  void. 

There  are  two  things  in  that  decision  that  I  want  to  call  attention  to. 
The  first  proposition  is  in  these  words: 

It  is  alleged  that  on  the  second  Tuesday  of  November  some  of  the  return-judges  re 
fused  to  meet,  and  that  those  who  did  meet  met  at  an  unusual  place  to  count  the  sol 
diers'  votes  and  to  issue  the  certificates  ;  but  the  affidavits  of  the  defendants  seem  to 
us  sufficiently  to  account  for  this  by  showing  that  the  duties  of  the  return-judges  were 
so  interfered  with  by  a  disorderly  crowd  that  they  could  not  be  performed  at  the  usual 
place. 

While  I  am  on  that,  let  me  make  use  of  it  in  another  connection. 
There  was  a  case  where  the  returning-officers  were  required  to  meet  and 
make  their  return  within  a  certain  time,  and  were  also  required  to  have 
their  meeting  at  a  certain  place.  It  does  not  appear  in  the  report 
whether  that  certain  place  was  pointed  out  by  statute  or  by  usage  ;  it  is 
spoken  of  as  a  failure  to  meet  at  the  usual  place.  Perhaps  Judge 
Strong,  who,  I  think,  was  on  that  bench  at  the  time,  will  enable  me  to 
know  how  that  was.  At  any  rate,  that  is  the  way  it  appears  in  the 
report.  There  were  two  detects  in  the  return  ;  one  was  that  the  board 
met  at  the  wrong  time ;  the  second  was  that  they  met  at  the  wrong 
place.  The  supreme  court  of  Pennsylvania  say  that  it  was  a  sufficient 
reason  for  their  not  meeting  at  that  time  and  at  that  place,  that  they 
could  not  do  so  by  reason  of  mob  violence,  and  that  they  could  perform 
that  act  at  another  time  and  place.  I  say  that  for  the  purpose  of  stating 
this,  and  I  want  to  state  it  once  for  all,  for  I  shall  probably  not  have 
time  to  discuss  the  question  in  extenso  ;  but  I  want  to  lay  it  down  and 
state  it  carefully,  that  these  provisions  in  regard  to  the  sending  up  of 
affidavits,  to  their  being  attached  with  wax,  in  regard  to  the  time  of  their 
taking,  &c.,  are  just  like  this  one  in  the  Pennsylvania  State  Eeports  relat 
ing  to  an  election;  they  are  directory,  and  they  are  not  jurisdictional  in 
the  sense  of  that  word  as  applied  to  the  trial  of  private  rights  of  the  citi 
zen.  Let  me  restate  it,  and  perhaps  in  a  little  different  form,  for  I  wish 
to  leave  it  in  your  minds,  if  it  is  worthy  of  being  left. 

Because  this  is  a  political  process,  because  it  is  a  step  in  government 
as  distinct  from  a  trial  of  private  rights  of  suitors  in  the  courts,  there 
fore  the  law  is  that  any  affirmative  requirement  of  this  kind  which  is 
either  not  accompanied  or  connected  with  negative  words  prohibiting 
the  thing  from  being  done  at  another  time  or  in  another  way,  or  else  is 
not  of  such  essence  of  the  very  provision  as  to  spoil  the  provision  if  it 
is  not  done  in  the  time  and  way  pointed  out — in  every  such  case  the  law 
is  directory.  I  do  not  say  that  these  acts  in  regard  to  the  returning  of 
affidavits  can  be  dispensed  with ;  but  I  say  the  things  required  can  be 
done  at  other  times  and  in  other  ways  as  soon  as  the  violence  will  suffer 
them  to  be  done. 

Gentlemen,  look  at  the  reason  of  the  thing.  Is  it  possible  that  you 
are  going  to  hold  that  that  same  violence  which  rendered  it  impossible 
to  vote,  and  at  the  same  time  rendered  it  impossible  for  the  officers 
safely  to  make  their  affidavits  and  their  returns,  shall  triumph  so  that 


368  ELECTORAL    COUNT    OF    1877. 

they  cannot  do  it  at  another  time  !  Beware  before  you  come  to  such  a 
conclusion.  If  you  do,  you  will  do  it  in  the  face  of  the  law.  You  will 
find  Parsons,  that  chief -justice  who  stands  in  his  illustrious  fame  next 
to  Marshall  himself,  and  perhaps  his  peer,  declaring  in  2  Massachusetts 
Eeports  that  whenever  one  of  these  laws  contains  no  negative  words 
and  the  provision  as  to  time,  place,  and  circumstance  does  not  go  to  the 
essence  of  the  transaction  or  affect  it,  in  every  such  case  the  provision 
is  directory  merely. 

Mr.  Commissioner  HOAR.  Judge  Shellabarger,  I  should  like  to  ask 
you  a  question,  whether  that  is  not  of  the  essence  of  the  transaction  ? 
What  do  you  make  of  the  provision  that ll  any  person  interested  in  the 
office  by  reason  of  being  a  candidate  shall  be  allowed  a  hearing  on 
making  application  within  the  time  for  the  forwarding  of  the  returns  of 
said  election  ?"  In  order  to  give  the  person  interested  in  the  office  the 
opportunity  for  a  hearing  or  the  power  of  complying  with  the  requisition 
that  he  shall  make  that  application  in  time,  must  he  not  find  on  the  copy 
sent  to  the  clerk's  office,  notice  that  the  validity  of  the  voting  at  the  par 
ticular  polling-place  or  particular  parish  is  to  be  drawn  in  question  ?  In 
other  words,  can  the  essential  right  of  the  person  interested  in  the  office  to 
be  heard  before  the  returning-board  be  preserved,  if  you  regard  this  as 
merely  directory,  and  not  essential  ? 

Mr.  SHELL  ABARGER.  I  answer  that  first  by  saying  that  that  is 
a  suggestion  addressed  to  the  consideration  of  convenience.  It  is  a 
useful  provision  beyond  all  doubt ;  it  is  a  proper  provision  to  be  obeyed  ; 
but  it  being  a  mere  suggestion  going  to  convenience,  it  is  not  so  of  es 
sence  as  that  no  violence  or  impossibility  of  executing  it  at  the  time 
shall  forbid  that  notice  being  given  to  the  candidate  in  some  other  way, 
or  in  that  way  at  some  later  date,  or  in  some  way  that  is  adequate,  so 
that  he  shall  have  the  opportunity  in  the  language  of  the  statute  to  have 
his  hearing  before  the  time  for  making  returns  shall  have  expired.  That, 
it  seems  to  me,  is  an  answer.  If  it  is  not,  I  accept  the  consequences  of 
its  not  being.  It  is  not  essential  at  all  to  the  case  that  we  should  main 
tain  the  proposition  that  I  am  stating  5  still  I  believe  it  to  be  the  law, 
and  I  submit  it  to  this  tribunal. 

I  was  about,  when  Mr.  Hoar  kindly  asked  the  question,  to  take  the 
case  of  the  jurisdiction  conferred  by  the  act  of  1795  on  the  President  of 
the  United  States  to  make  proclamation  and  to  require  insurgents  to 
disperse,  and  all  that.  There,  you  remember,  it  is  a  constitutional  pro 
vision  that  interference  can  only  occur  upon  a  vote  and  request  of  the 
legislature,  if  the  legislature  be  in  session,  or  the  executive,  if  it  be  not 
in  session ;  but  yet  when  the  time  came,  as  it  did  come  sadly  in  our  his 
tory,  when  that  same  violence  that  made  the  insurrection  rendered  it 
impossible  for  the  legislature  to  send  the  summons,  when  the  legislature 
itself  went  into  the  mischief,  was  a  part  of  it,  and  when  the  executive 
made  a  part  of  the  mischief,  then  came  the  time  when  the  life  of  the 
State  was  rescued  by  still  issuing  the  proclamation  calling  for  the  troops 
and  attempting  the  suppression  of  the  insurrection  in  the  absence  of  all 
requests.  I  take  it  as  entirely  analogous  to  and  confirmatory  of  the 
proposition  that  I  now  restate  in  the  light  of  the  case  of  Hulseman  vs. 
Eems,  in  41  Pennsylvania  State  Reports,  in  the  light  of  the  reason  of 
the  thing.  It  is  that  the  time  of  making  the  return,  the  attaching  of  it, 
&c.,  are  not  jurisdictional  in  the  sense  that  they  cannot  be  done  at 
another  time ;  but  that,  wherever  the  mischief  in  fact  exists,  wherever 
the  violence  in  fact  has  destroyed  the  election,  and  wherever  that  fact  is 
made  known  in  due  time  to  the  returning-officers,  there  their  jurisdiction 
to  exclude  votes  has  attached  and  they  can  make  the  exclusion. 


ELECTORAL   COUNT    OF    1877.  369 

But  that  is  not  necessary  to  the  purposes  of  our  case,  as  I  said  a 
moment  ago,  and  I  now  come  back  to  the  proposition  that  I  .stated 
awhile  ago,  that,  these  men  having  the  requirement  put  upon  them  that 
they  shall  canvass  and  make  return  as  to  every  officer  and  declare  who 
is  properly  and  duly  elected,  there  is  the  scope  of  their  jurisdiction. 
Under  that  they  had  power  to  decide  who  was  elected  and  to  grant  these 
certificates ;  and  that  maxim  applies  which  presumes  that  all  things  are 
done  rightly  by  officers  until  the  contrary  is  shown,  which  you  will  find 
decided  in  a  number  of  cases  that  I  have  on  my  brief,  but  will  not  stop 
to  read  (see  12  Wheaton,  70)  because  it  is  not  only  familiar  law,  but  it 
is  a  maxim  of  the  law  that  all  things  done  officially  are  presumed  to  be 
rightly  done  until  the  contrary  is  proved.  Therefore,  as  suggested  by 
the  question  of  Judge  Miller,  as  suggested  by  the  manifest  law  of  the 
case,  these  men  having  power  to  exercise  this  jurisdiction,  the  jurisdic 
tion  having  been  exercised,  you  not  being  a  court  can  only  count,  not 
having  judicial  functions  sufficient,  as  my  friend  Trurnbull's  report  says, 
must  stop  without  going  behind  and  canvassing  the  votes  for  electors. 
Such  being  your  function,  I  say  this  jurisdiction  of  this  board  thus  exer 
cised  is  presumed  to  have  been  lawfully  exercised  ;  and  for  the  purposes- 
of  this  count,  you  have  rightfully  decided  the  law  as  stated  by  Pinckney, 
as  stated  by  your  decision  in  the  Florida  case,  and  as  recognized  by  the- 
decisions  that  I  have  read,  and  I  was  about  to  conclude  by  reading  a 
single  one  more.  Lowrie,  Judge,  says,  in  the  case  in  41  Pennsylvania 
State  Eeports: 

We  have,  therefore,  no  ground  left  for  our  interference,  but  the  single  one  that  the 
return-judges  included,  in  their  enumeration,  returns  purporting  to  be  from  three 
companies  of  volunteers  which  were  mere  forgeries.  We  admit  that,  in  the  evidence 
before  us,  it  appears  clear  to  us  all  that  those  returns  are  forgeries,  and  that  it  was 
only  by  their  inclusion  in  the  enumeration  that  the  defendants  have  obtained  certifi 
cates  of  their  election.  We  admit,  therefore,  that  the  evidence  proves  that  these  cer 
tificates  of  the  election  of  the  defendants  are  founded  in  manifest  fraud,  the  forgery  of 
some  unknown  person,  but  we  do  not  find  that  the  defendants  had  any  hand  in  it,  and 
we  trust  they  hud  not. 

Can  we,  on  this  account,  interfere  and  declare  the  certificates  void  ?  We  think  not.. 
According  to  our  laws,  the  election  has  passed  completely  through  all  its  forms,  the 
result  has  been  in  due  form  declared  and  certified,  and  the  defendants  have  received 
their  certificates  of  election,  and  are  entitled  to  their  seats  as  members  of  the  common 
council.  The  title-papers  of  their  offices  are  complete,  and  have  the  signatures  of  the 
proper  officers  of  the  law  ;  and  if  they  are  vitiated  by  any  mistake  or  fraud  in  the 
process  that  has  produced  them,  this  raises  a  case  to  be  tried  by  the  forms  of  "a  con 
tested  election." 

Gentlemen,  this  case  goes  all  over  the  one  at  the  bar  ;  it  answers  all 
this  exclamation  about  fraud,  about  our  attempt  to  cover  up  fraud,  about 
what  are  the  functions  of  a  counting-board  and  what  the  functions  of  a 
contestiug-board  : 

And  if  they  are  vitiated  by  any  mistake  or  fraud  in  the  process  that  has  produced 
them,  this  raises  a  case  to  be  tried  by  the  forms  of  "a  contested  election,""  before  th& 
tribunal  appointed  by  law  to  try  such  questions,  and  not  by  the  ordinary  forms  of 
legal  and  equitable  process  before  the  usual  judicial  tribunals.  It  is  part  of  the  pro 
cess  of  political  organization,  and  not  a  question  of  private  rights  ;  and  therefore  the 
Constitution  does  not  require  that  the  courts  shall  determine  its  validity. 

The  law  has  appointed  a  special  tribunal  to  try  just  such  a  question  as  this,  and  we 
can  have  no  right  to  step  in  between  the  case  and  that  tribunal,  and  alter  the  return  of  the 
election  judges,  and  annul  their  certificates.  Plain  as  the  fraud  appears,,  and  earnestly 
as  we  condemn  it  as  citizens,  it  is  no  part  of  our  functions  as  a  court  to  sit  in  judgment 
on  it.  The  common  council  is  the  proper  tribunal  to  try  cases  of  contested  elections 
relative  to  its  own  members,  and  there  the  fraud  and  forgery  must  necessarily  be  tried 
and  decided  with  final  effect.  They  are  appointed  by  law  to  try  the  whole  case,  and 
they  alone  can  try  it.  We  decided  this  last  year  at  Philadelphia,  in  the  case  of  The 
Commonwealth  vs.  Baxter,  11  Casey,  264,  a  case  from  Bradford  County,  where  a  com 
missioner  of  highways  had  received  a  regular  certificate  of  election,  and  where  we 

24  E  c 


370  ELECTORAL   COUNT   OF    1877. 

decided  that  it  could  be  avoided  only  by  a  regular  process  of  a  contested-election  case. 
Perhaps  that  case  may  be  found  worthy  of  examination. 

If  in  this  way  we  suffer  a  gross  fraud  to  pass  through  our  hands  without  remedy,  it 
is  not  because  we  have  any  mercy  for  the  fraud,  but  because  we  cannot  frustrate  it  by 
any  decree  of  ours  without  an  act  of  usurpation.  Another  tribunal  is  appointed  to 
administer  the  remedy,  and  we  believe  that,  on  proper  application,  it  will  administer 
it  rightly,  according  to  the  evidence  it  may  have. 

And,  gentlemen,  I  say  here  now  and  once  for  all  that  there  is  a 
proper  tribunal,  according  to  my  friend  Carpenter's  able  argument  last 
night;  that  tribunal  is  the  courts  of  the  country,  and  there  we  invite 
them  to  go  with  this  case,  where  our  side  can  be  heard  as  well  as  theirs. 

I  now  conclude  this  argument  by  an  allusion  or  two  to  what  has 
been  the  weight  and  the  burden  of  debate  on  the  other  side.  It  is  in 
regard  to  this  alleged  outrage  in  the  State  of  Louisiana.  Why,  gentle 
men,  are  we  to  shut  our  eyes  in  scanning  this  question  as  to  where  this 
wrong  and  fraud  and  violence  is  going  ultimately  to  be  found  when  it 
comes  to  a  tribunal  that  can  try  it.  Can  you  shut  your  eyes  to  what 
now  is  the  saddest — if  not  the  saddest,  certainly  one  of  the  saddest 
chapters  of  American  history  ? 

I  remember,  Mr.  President,  as  you  do  right  well,  though  I  was  then 
but  a  boy,  when  the  Caroline  was  set  on  fire,  sent  adrift,  and  it  was 
believed  that  one,  two,  or  more  American  citizens  were  destroyed  by 
the  act  of  the  British  government.  O,  the  thrill  of  indignation  and  of 
unutterable  horror  that  pervaded  the  whole  body-politic  !  It  was  only 
by  the  matchless  diplomacy  and  the  strange  power  of  such  intellects  as 
Webster,  who  was  then  guiding  the  helm  of  state,  that  your  country 
was  rescued  from  universal  war  with  the  mightiest  power  of  the  earth, 
because  we  believed  that  by  an  outrage  of  the  British  government  one 
or  two  lives  of  American  citizens  had  been  lost.  So  that  thing  struck 
us  then  ;  but  how  marvelously  inured  has  the  public  mind  become  since 
those  better  days  to  this  business  of  the  destruction  of  American  citi 
zens  !  Why,  gentlemen,  by  actual  count  made  in  an  official  report  to 
the  Government  of  the  United  States,  through  the  aid  of  General 
Sheridan,  it  is  set  down  as  a  part  of  your  history  that  in  this  blighted 
and  blasted  State  of  Louisiana  four  thousand  and  odd  citizens  have 
been  murdered  by  plan,  murdered  by  system,  by  organization,  murdered 
for  the  purpose  of  putting  down  the  right  of  the  black  man  to  vote,  and 
that  thing  has  been  going  on  and  on  and  on  through  these  dark  and 
terrible  years. 

It  was  my  misfortune  to  go  once  myself  to  this  State,  sent  by  the 
Congress  of  the  United  States.  I  went  there  in  1SOG,  and  I  took  the 
testimony  of  hundreds  of  men  ;  and  when  I  was  taking  it  I  literally  sat 
with  my  feet  in  pools  of  human  blood  (clotted  and  dried  up  then,  but 
still  visible)  shed  there,  that  of  Dr.  Dotsie  and  others,  in  putting  out 
the  free  government  of  the  State  of  Louisiana,  and  they  did  put  it  out 
right  well  and  effectually.  So  that  thing  has  been  going  on  and  on  in 
the  attempt  to  put  out  the  right  of  the  black  man  to  vote. 

Gentlemen  of  America,  you  have  written  in  the  last  fifteen  years  a 
grand  history  for  your  country,  a  grand  one  in  its  general,  large  as 
pects.  I  remember  with  gratification,  and  I  shall  till  I  die,  that  I  was 
once  thrown  in  company  with  the  most  illustrious  man  now  living  in 
Great  Britain,  illustrious  by  reason  of  his  intellect,  illustrious  by  reason 
of  his  great  deeds,  illustrious  by  reason  of  his  service  in  the  British 
Parliament  for  thirty  years,  illustrious  because  of  his  adhesion  to 
the  cause  of  human  liberty  in  his  own  country  and  in  all  others ;  I 
mean  John  Bright,  of  England.  I  remember  with  gratification  what 
he  said  to  me  in  regard  to  the  last  chapters  that  we  had  written  in  our 


ELECTORAL    COUNT    OF    1577.  371 

American  history.  Said  he  to  me :  "  Sir,  I  have  been  a  part  of  the 
British  government  now  for  thirty  years.  In  that  time  I  have  thought 
we  in  the  British  country  had  enacted  some  great  affairs ;  and  so  we 
have.  We  have  extended  the  right  of  the  Englishman  to  vote;  we 
have  obliterated  the  rotten  borough  system  ;  we  have  emancipated  the 
Jews;  we  have  elevated  our  colonies;  we  are  extending  the  right  of  the 
children  to  be  educated,"  and  so  he  went  on  in  a  grand  catalogue  of  the 
affairs  that  had  been  enacted  during  his  time  in  the  British  govern 
ment,  and  then  he  concluded  by  saying:  "Sir,  notwithstanding  what  I 
have  said  about  my  country,  I  say  to  you  that  you  have  dwarfed  it," 
and  he  brought  his  hand  down  on  the  table  with  an  emphasis  that  was 
startling,  "you  have  dwarfed  all  that  we  have  done  in  the  life  of  the 
British  nation  by  what  you  have  enacted  in  the  last  ten  years  of  your 
life.  You  have  saved  the  life  of  the  last,  the  one  republic  of  the  earth, 
and  the  cynosure  of  all  eyes  loving  human  liberty.  You  have  done 
more  than  that;  you  have  put  out  of  the  Constitution  of  your  country 
and  thereby  ultimately  out  of  the  earth  the  chattelization  of  the  human 
soul.'7  Was  it  not  a  grand  tribute  ?  But  let  me  say  to  you  now,  if  this 
career  of  yours  as  a  nation  which  began  fifteen  or  twenty  years  ago  in 
this  direction  by  the  election  of  Mr.  Lincoln  to  the  Presidency,  then  by 
the  putting  down  of  the  rebellion,  then  by  the  extinction  of  slavery  by 
the  thirteenth,  amendment,  then  by  your  fourteenth  amendment  making 
all  men  equal  before  the  law  in  all  their  civil  and  political  rights,  then 
making  all  men  free  to  vote — if  this  procession  of  yours  as  a  nation,  and 
which  is  indeed  like  the  procession  of  the  gods,  which  in  every  foot-fall 
marks  a  constellation  and  shakes  from  its  sandals  the  star-dust  of  the 
heavens — if  your  career  of  that  grand  description  is  to  end  by  going 
back,  turning  around,  and  abandoning  to  these  murderers  who  are 
drenching  our  country,  in  this  part  of  it  which  is  under  consideration 
to-night,  in  blood  for  purposes  of  their  disfranchisement,  then  indeed 
this  career  of  yours  will  be  like  that  French  astronomer's,  described  so 
magnificently  by  one  of  our  most  gifted  men,  who  went  in  search  of  the 
central  sun  of  the  universe  until  he  found  it,  and  then  denied  the  exist 
ence  of  the  God  that  made  it,  arid  walked  back  to  perdition  in  the  night 
of  his  own  shadow. 

I  conclude  this  discussion  by  saying,  gentlemen  of  America — that  is 
a  higher  designation  than  gentlemen  of  the  Commission — gentlemen  of 
America,  remember  that  there  is  on  trial  here  to-night  the  question 
whether  those  laws  made  in  Louisiana  in  jnirsuance  of  article  103  of  her 
constitution  and  enjoining  it  on  the  legislature  to  make  laws  for  the 
protection  of  .the  right  of  the  freedman  to  vote,  can  be  sustained  and 
enforced.  If  you  fail  to  execute  these  laws  you  will  have  stabbed  your 
country  in  that  place  where  by  the  very  traditions  of  the  children  we 
are  taught  the  life  of  the  country  is  to  be  found,  and  is  to  reside,  to  wit, 
in  the  freedom,  the  purity  of  the  ballot-box. 

Mr.  EVARTS.  I  was  expecting  to  address  the  Commission,  not  to  so 
great  length  as  my  associates,  and  I  certainly  would  much  prefer  to  do 
so  to-morrow  morning.  I  have  been  in  the  room  ever  since  ten  o'clock, 
not  being  able  to  leave  it  during  the  recess  that  was  given. 

Mr.  Commissioner  ABBOTT.  I  move,  Mr.  President,  that  we  adjourn. 
It  seems  to  be  desirable  to  the  counsel  on  either  side.  My  motion  is  that 
we  adjourn  until  to-morrow  morning  at  ten  o'clock. 

Mr.  Commissioner  THURMAN.     I  propose  half  past  ten. 

Mr.  Commissioner  ABBOTT.  I  will  accept  the  amendment;  say  half 
past  ten. 

Mr.  Commissioner  EDMUNDS.    I  ask  for  the  yeas  and  nays. 


372  ELECTORAL   COUNT    OF    1877. 

Mr.  Commissioner  GARFIELD.  Let  us  take  ten  o'clock,  and  not  call 
the  yeas  and  nays. 

Mr.  Commissioner  ABBOTT.  I  have  no  choice  about  the  hour.  I 
will  return  to  the  original  motion. 

The  PRESIDENT.  The  amendment  is  to  strike  out  "  ten"  and  insert 
"  half  past  ten,'7 1  understand.  I  will  put  the  question  on  that  amend 
ment. 

The  amendment  was  rejected. 

The  PRESIDENT.  The  question  recurs  on  the  motion  that  the  Com 
mission  adjourn  until  to-morrow  morning  at  ten  o'clock. 

Mr.  Commissioner  MORTON  called  for  the  yeas  and  nays,  which  being 
taken,  resulted — yeas  7,  nays  7. 

Those  who  voted  in  the  affirmative  were :  Messrs.  Abbott,  Bradley, 
Clifford,  Garfield,  Hunton,  Payne,  and  Strong — 7. 

Those  who  voted  in  the  negative  were :  Messrs.  Edmunds,  Field,  Fre- 
linghuysen,  Hoar,  Miller,  Morton,  and  Thurman — 7. 

So  the  motion  was  not  agreed  to. 

Mr.  Commissioner  THURMAN.  I  move  that  we  adjourn  until  quar 
ter  past  ten  to-morrow. 

Mr.  Commissioner  MORTON  called  for  the  yeas  and  nays;  which  being 
taken,  resulted: 

YEAS ; 8 

NAYS 7 

Those  who  voted  in  the  affirmative  were :  Messrs.  Abbott,  Bayard, 
Bradley,  Clifford,  Field,  Huuton,  Payne,  and  Thurunau — 8. 

Those  who  voted  in  the  negative  were:  Messrs.  Edmunds,  Frelinghuy- 
seu,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 7. 

So  the  motion  was  agreed  to ;  and  (at  six  o'clock  and  fifty-two  minutes 
p.  m.)  the  Commission  adjourned  until  to-morrow  at  ten  o'clock  and 
fifteen  minutes  a.  m. 

THURSDAY,  February  15, 1877. 

The  Commission  met  at  ten  o'clock  and  fifteen  minutes  a.  m.,  pursu 
ant  to  adjournment,  all  the  members  being  present. 

The  respective  counsel  appearing  in  the  Louisiana  case  were  also 
present. 

The  Journal  of  yesterday  was  read  and  approved. 

Mr.  EVARTS.  Mr.  President  and  gentlemen  of  the  Commission, 
the  general  subject  of  controversy  before  the  Commission  is,  how  this 
iCommission,  under  the  powers  conferred  upon  it  and  in  discharge  of 
the  duty  confided  to  it  by  the  act  of  Congress  under  which  it  is  organ 
ized,  shall  advise  the  two  Houses  of  Congress,  in  the  discharge  of  their 
duty  under  the  Constitution  of  the  United  States  in  counting  the  votes 
for  ^President  and  Vice-President,  what  votes  shall  be  counted  for  the 
State  of  Louisiana.  The  Constitution  has  undertaken  to  determine  that 
the  State  shall  have  the  power  to  appoint  electors  as  its  legislature  may 
direct,  and  no  authority  or  argument  can  disparage  or  overreach  that 
right  of  the  State.  That  right  is  in  the  State.  It  is  not  a  gift  from  the 
Federal  Government,  for  there  was  no  Federal  Government  to  give  it. 
It  is  not  carved  out  of  any  fund  of  power  and  right  that  the  Federal 
Government  possessed,  for  the  Federal  Government  had  no  general 
fund  of  power  or  right  out  of  which  it  could  carve  a  gift  to  a  State.  The 
State  of  Louisiana  stands  in  this  behalf  as  one  of  the  original  thirteen 
States  stood.  Whatever  was  the  right  of  one  of  the  original  thirteen 
States  in  the  election  of  Washington,  is  the  right  of  Louisiana  now  iii 


ELECTORAL   COUNT   OF    1877.  373 

the  election  of  a  President.  And,  therefore,  it  is  not  to  be  measured  as 
a  gift,  not  to  be  measured  by  its  relation  to  any  general  fund  of  author 
ity  on  the  subject  that  the  United  States  had  and  which  it  has  limited, 
but  as  one  of  the  original  conditions,  one  of  the  original  limitations,  one 
of  the  original  distributions  of  power  out  of  which  and  by  which  com 
bined  comes  the  Government  of  the  United  States  and  exists  the  gov 
ernment  of  each  State  as  a  member  of  the  Union. 

This  topic  at  once  leads  us  to  consider  wherein  the  Constitution  of 
the  United  States  has  established  and  how  it  has  distributed  the  au 
thority  of  choosing  a  President  of  the  United  States,  what  part  of  it  is 
administered  and  adrninistrable  as  the  action  of  the  Federal  Govern 
ment,  and  what  part  of  it  is  administered  and  administrable  as  a  part 
of  State  action  in  the  matter.  On  the  terms  of  the  Constitution  is  this 
demarkation  to  be  drawn  and  adhered  to  !  And  in  this  regard,  as  well 
as  in  every  other  respect  of  power,  are  the  maxims  of  the  Constitution 
as  to  construction  concerning  the  line  drawn  to  be  observed  as  well  as 
in  any  other?  The  Government  confers  nothing  upon  the  States.  The 
Government  comes  into  existence  by  and  through  the  States  and  their 
people.  The  location  of  authority  is  primarily  in  the  State,  and  is  in 
the  General  Government  only  by  its  allotment  in  the  terms  of  the  Con 
stitution.  There  is  therefore  the  same  method  of  construction  and  inter 
pretation  in  drawing  the  line  and  in  maintaining  its  defenses  in  this 
matter  of  the  election  of  President  as  in  all  others.  Whatever  the  Fed 
eral  Government  has  in  this  matter  of  the  election  of  a  President,  it  has 
by  force  of  terms  in  the  Constitution ;  and  whatever  the  State  has,  it 
has  upon  the  same  terms:  and  then  the  ninth  and  tenth  articles  of  the 
amendments  made  soon  after  the  adoption  of  the  Constitution  apply, 
that  there  is  to  be  no  disparagement  of  rights  that  are  reserved  by  rights 
that  are  conferred,  and  that  whatever  is  not  conferred  upon  the  Federal 
Government  by  this  Constitution,  and  is  not  forbidden  to  the  States,  is 
reserved  to  the  States  or  to  the  people. 

It  is  not  for  me  to  repeat  the  arguments  made  by  my  learned  associ 
ates  so  well,  and  by  me,  so  far  as  I  could  aid  them,  in  the  general  dis 
cussions  which  were  presented  under  the  Florida  case.  These  general 
propositions  were  that  the  whole  matter  of  creating  the  elector  belonged 
to  the  State;  the  whole  matter  of  ascertaining,  accrediting,  setting  for 
ward  with  credentials,  belonged  to  the  State  so  far  as  the  text  of  the 
Constitution  read ;  and  that  whatever  the  statute  of  1792  had  sought 
to  prescribe  in  the  matter  of  these  credentials  was  directory  and  for  the 
convenience  and  instruction  of  the  body  that  was  to  count  the  votes,  as 
to  the  fact  of  the  action  of  each  State;  that  the  elector  was  not  an  offi 
cer  of  the  State ;  that  in  no  very  considerable  sense  could  he  be  treated 
as  an  officer  of  the  United  States ;  that  he  was  an  elector,  having  the 
right  under  the  Constitution  of  the  United  States  to  vote  for  President, 
and  that  he  was  a  representative  elector,  and  was  to  be  measured  only 
to  discern  whether  he  was  deputized  to  act  as  an  agent  or  whether  he 
was  accredited  with  the  voting  power  to  vote  as  an  elector  having  the 
suffrage  in  his  hands.  To  say  that  he  is  a  representative  elector  be 
cause  he  comes  to  be  the  elector  in  representation  of  a  participation  in 
the  government  of  a  State,  conies  to  nothing  more  than  to  say  that  you, 
members  of  the  two  Houses  of  Congress,  are  representative  legislators. 
You  are  representative  legislators.  You  are  legislators  in  a  Govern 
ment  resting  upon  the  will  of  the  people  and  on  its  communicated  au 
thority  to  you  as  representatives ;  but  you  are  not  deputies  to  derive 
your  instructions  and  authority  from  a  principal  at  home.  You  are  rep 
resentatives  of  the  legislative  authority,  lodged  theoretically  in  the  peo- 


374  ELECTORAL    COUNT   OF   1877. 

pie,  and  in  the  theory  of  representation  possessed  by  you  in  the  same 
plenary  power  that  the  people  themselves  would  have  exercised  it. 

It  was  then  announced  as  our  proposition,  that  after  the  appointment 
of  the  elector,  the  vote,  and  the  title  to  vote,  and  the  exercise  of  the 
right,  and  performance  of  the  duty  to  vote  on  the  part  of  the  elector 
had  come  under  the  exclusive  dominion  of  the  Federal  Constitution; 
the  representation,  so  far  as  it  entered  into  the  creation  of  the  title  and 
the  conferring  of  authority,  had  been  exhausted. 

In  the  Florida  case,  as  here,  these  considerations  had  their  weight 
and  were  accepted  or  declined  by  the  different  members  of  the  Commis 
sion,  according  to  their  estimate  of  the  constitution  and  laws  of  their 
country.  In  that  case,  as  in  this,  there  were  present  before  this  Com 
mission  matters  of  consideration,  about  which,  as  open  entirely  for  your 
inspection  and  necessarily  forming  a  part  of  your  determination,  there 
was  no  question — 1  mean  the  papers  that  were  opened  by  the  President 
of  the  Senate,  according  to  the  Constitution,  in  the  presence  of  the  two 
Houses  of  Congress.  They  are  before  you  under  the  law  of  1877,  as 
they  were  before  that  assemblage  in  that  presence  under  the  Constitu 
tion  without  the  law  of  1877,  and  now  the  question  as  to  what  more  is 
or  can  be  before  you  is  a  question  under  the  law  of  1877,  as  interpreted 
by  its  own  terms  in  the  light  of  the  Constitution  of  the  United  States. 
It  has  passed  beyond  dispute  j  we  did  not  dispute  it  in  the  Florida  case ; 
and,  if  we  are  to  receive  the  intimation  of  Mr.  Justice  Bradley,  it  has 
passed  beyond  dispute  in  your  own  deliberations,  as  receiving  the  con 
currence  of  all,  that  you  have  the  powers  that  the  two  Houses  have  in 
the  act  and  transaction  of  counting  the  votes,  and  no  other  powers ;  not 
that  you  have  the  powers  that  the  two  Houses  of  Congress  together  or 
separately  have  as  the  legislature  of  the  country ;  not  that  you  have 
any  of  the  powers  that  either  of  them  separately  has  in  respect  to  what 
is  accorded  to  either  of  them  separately  in  the  Constitution  outside  of 
legislative  power. 

You  have  no  particle  of  any  authority  that  is  lodged  in  the  two 
Houses  of  Congress  under  any  of  the  general  grants  of  authority  to 
them  as  the  legislature  or  to  either  of  them  separately,  except  what  is 
granted  by  the  Constitution  within  the  very  terms  of  this  article,  that 
the  transaction  being  completed  in  the  States  and  they  having  for 
warded  their  votes  hither  under  such  authenticity  as  entitles  them  to 
the  first  reception  and  brings  them  into  the  presence  of  the  two  Houses 
of  Congress  that  their  contents  may  be  disclosed  and  acted  upon, 
whatever  action  thereupon  proceeds  by  the  two  Houses  there  met  or 
by  the  two  Houses  separating  in  the  discharge  of  and  in  the  continued 
exercise  of  the  function  of  counting  the  votes,  this  is  passed  over  to  you 
that  your  advice  may  be  given  to  them,  as  it  would  proceed  out  of  their 
original,  their  independent  deliberations  and  construction  if  they  had 
limited  themselves  to  the  conduct  of  the  counting  of  the  votes  in  the 
simple  terms  of  the  Constitution.  They  then  proceed  to  count.  They 
count  the  votes.  Having  made  a  law  unto  themselves,  which  they  can 
not  transcend  without  its  repeal,  this  instruction  as  to  what  votes  ought 
to  be  counted  under  the  Constitution  of  the  United  States  they  will  act 
upon  as  determining  what  votes  under  that  Constitution  ought  to  be 
counted  unless  their  united  judgment  shall  contravene  this  great  au 
thority  they  have  given  to  you. 

We  insisted,  therefore,  in  the  Florida  case  that  one  great  considera 
tion  in  determining  what  the  powers  of  Congress  were  in  this  mere  pro 
cedure  was  what  the  nature  of  the  procedure  was,  what  the  constitu 
tional  objects  and  solicitudes  in  providing  for  the  transaction  had  indi- 


ELECTORAL   COUNT   OF    1877.  375 

catecl  as  the  will  of  the  people  when  they  adopted  the  Constitution  of 
the  United  States,  and  we  were  met  by  very  learned  and  very  author 
itative  statements  from  very  eminent  lawyers. 

Mr.  Field,  in  behalf  of  the  House  of  Representatives,  proposed  to 
you  that  you  had  at  least  the  powers  of  a  court  on  quo  warranto.  Mr. 
O'Conor,  with  that  accuracy  and  precision  and  acceptance  of  all  logical 
results  that  proceed  from  his  statements,  demanded  the  same  authority ; 
insisted  that  otherwise  the  correction  of  frauds,  the  redress  of  violence, 
the  curbing  of  excesses  of  authority  would  be  remediless,  and  yet  in 
their  nature  being  festering  wounds  in  the  body-politic  would  work  its 
ruin. 

Those  demands  we  met ;  those  demands  we  answered.  And  now, 
without  one  particle  of  change  in  the  law,  the  Constitution,  or  the  area 
of  this  debate,  we  are  told  by  the  responsible  representatives  of  the 
Houses  of  Congress  through  their  objections  and  by  the  eminent  coun 
sel  that  have  thus  far  put  forth  their  positions,  that  you  have  no  judicial 
power  whatever ;  that  we  were  quite  right  about  that;  there  could  not 
be  any  judicial  power  outside  of  the  courts  inferior  to  the  Supreme 
Court,  the  judges  whereof  were  appointed  by  the  President  and  con 
firmed  by  the  Senate,  and  holding  their  offices  i'or  life  upon  a  stated  com 
pensation.  Why  might  we  not  have  been  saved  the  former  discussion 
if  we  are  to  enter  upon  this  with  any  great  trust  in  its  soundness  or  its 
permanence?  Obedience  to  the  conclusions  of  this  Commission  as  re 
quiring  this  shifting  of  ground  in  our  favor  would  be  a  respectable 
support  for  the  maneuver,  but  I  have  not  heard  that  assigned  as  the 
reason  why  the  argument  in  the  Florida  case  was  abandoned  and  an 
independent  and  inconsistent  one  proposed  here. 

Now,  what  is  the  power !  It  is  what  is  called  a  legislative  power 
that  is  supposed  to  reside  in  this  Commission  in  determining  how  it 
should  advise  that  the  votes  should  be  counted,  it  being  a  legislative 
power  in  the  two  Houses.  Now,  there  are  quite  as  many  constitu 
tional  objections  to  a  legislative  power  vested  in  this  Commission  or 
a  legislative  power  resting  in  the  two  Houses  of  Congress  in  the  mat 
ter  of  counting  the  votes,  as  there  are  to  any  other  form  or  description 
of  power.  The  legislative  power,  the  great  principal  power  of  the 
Government,  is  vested  in  those  Houses  when  they  act  in  such  concur 
rence  as  .the  Constitution  requires  before  any  legislation  is  effected. 
It  is  not,  therefore,  in  that  sense  that  our  learned  friends  attribute  leg 
islative  power  either  to  the  two  Houses  or  to  you.  It  is  in  the  sense  of 
a  political  power,  of  political  action  in  a  political  transaction,  and. 
those  are  the  limits  that  we  had  assigned  in  our  argument  of  the  Flor 
ida  case  to  any  possible  powers  of  the  two  Houses,  to  wit,  that  in  a 
transaction  of  election  which  starts  from  the  primary  polling-places 
and  proceeds  to  the  point  of  developing  and  accrediting  the  elector  up 
to  the  scrutiny,  so  far  as  it  is  open  here,  and  the  counting  of  the  electoral 
votes,  (not  of  votes  for  electors,  but  votes  of  electors,)  it  was  all  a  part  in 
the  series  of  movements  that  had  for  their  purpose  the  transaction  of  the 
political  act  of  bringing  into  office  a  President  of  the  United  States; 
and  that  the  two  Houses  of  Congress,  under  the  Constitution  as  it  reads, 
must  discharge,  when  the  President  of  the  Senate  opened  the  certifi 
cates,  that  duty  on  those  certificates  alone,  unless  by  some  prior  legis 
lation  of  Congress — putting  in  execution,  and  thus  interpreting,  some 
other  powers  that  they  assumed  to  possess,  in  their  construction  of  the 
Constitution — Congress  had  provided  legal  means  for  the  exercise  of 
such  further  powers.  The  terms  of  thisact  carefully  observed  the  lim 
itation  that  this  act  was  not  to  be  interpreted  as  carrying  any  con.- 


376  ELECTORAL    COUNT    OF   1877. 

gressional  powers  that  were  determined  and  created  by  the  act  or  any 
interpretation  to  be  put  upon  it  in  its  own  terms,  but  that  this  act  was 
to  carry  only  such  powers  as  were  in  the  two  Houses  under  existing  law, 
and  as  solely  deterininable  by  the  Constitution  and  existing  law. 

As  a  primary  consideration,  then,  as  in  the  Florida  case,  it  is  to  be 
determined  not  as  an  abstract  question.  Let  me  ask  the  Commission  to 
consider  that  it  is  to  determine  not  what  hypothetical  proofs  might  be 
received,  but  what  proofs  within  the  offers  are  rightfully  to  be  received 
and  added  to  the  elements  and  funds  of  proof  which  the  papers  opened 
by  the  President  of  the  Senate  themselves  disclose. 

What  then  is  the  offer  of  proof,  not  in  its  details,  but  in  its  principles? 
What  is  the  state  of  proof  as  presented  on  the  certificates  in  aid  or 
supplement  or  contradiction  of  which  this  proof  aliunde  is  to  be  intro 
duced  ?  The  first  certificate  contains  in  itself  every  certainty  and  every 
conclusive  credential  that  the  laws  and  the  Constitution  of  the  United 
States  or  of  the  State  of  Louisiana  prescribe.  This  certificate  also  dis 
closes  a  special  state  of  facts  concerning  two  of  the  electors  who  cast 
their  votes;  I  mean  Levissee  and  Brewster;  this  special  state  of  facts,, 
that  being  among  the  electors  that  were  voted  for  and  that  were  covered 
by  the  governor's  certificate,  when  the  electoral  college  met  they  were 
not  in  attendance ;  that  the  statute  prescribed  that  their  attendance 
should  be  waited  for  until  four  o'clock  in  the  afternoon  of  the  day,  and 
that  for  non-attendance  by  itself  and  of  itself  alone  on  the  part  of  any 
person  chosen  or  accredited  by  the  action  of  the  State  authorities,  the 
vacancy  thus  created  should  be  filled  by  the  acting  electors;  that  at  that 
moment,  on  that  fact,  the  college  of  electors  proceeded  and  chose  these 
same  men,  who  thereafter  on  that  title  took  their  seats  in  the  electoral 
college  and  voted,  and  are  to  be  counted  or  disparaged  on  that  showing, 
to  wit,  the  entire  showing  of  this  certificate  opened  by  the  President  of 
the  Senate. 

Beyond  that  there  is  not  in  this  argument  about  evidence  any  par 
ticular  circumstance  that  I  care  to  call  attention  to  in  regard  to  that 
first  certificate ;  nor  do  I  need  certainly  to  make  any  addition  to  the 
observations  already  made  to  discuss  the  second  certificate  at  all. 

What  proof,  then,  is  offered  I  I  now  proceed  to  discuss  it  as  matter 
of  proof  as  to  its  application  and  where  its  effect,  if  at  all,  is  to  be 
expected.  » 

In  the  first  place,  the  offers  of  proof  do  not  seek,  any  of  them,  to  dis 
parage  the  truth  of  that  certificate ;  I  mean  its  truth  as  made  up  of  the 
elements  of  the  governor's  certification  of  the  fact  in  the  State's  action 
that  he  is  to  certify,  nor  any  impeachment  of  the  transaction  which  by 
the  certificate  is  shown  to  have  taken  place  in  the  election.  No  proof 
offered  touches  that  space  in  the  transaction  or  questions  the  governor's 
right  to  certify,  his  right  by  being  governor  to  certify,  or  ,that  the  fact 
in  the  culminating  and  recorded  result  of  the  election  in  the  State  com 
ports  with  the  fact  that  he  did  so,  nor  on  the  point  that  Brewster  and 
Levissee  came  into  the  electoral  college  on  the  transaction  preserved  in 
the  minutes  of  the  electoral  college  as  presented  here.  If  we  look  at  the 
offers  of  proof,  we  see  that  at  once.  So  far  from  introducing,  therefore, 
any  element  of  proof  that  is  to  separate  the  governor's  certificate  from 
the  thing  certified,  or  that  is  to  disparage  the  governor's  right  under  the 
Constitution  of  the  United  States,  these  offers  of  proof  expressly  con 
cede  that  condition  of  things,  and  plant  themselves  wholly  upon  some 
thing  antecedent  in  the  State's  transaction  to  this  action  of  the  governor, 
and  which  is  the  occasion  of  this  action  of  the  governor,  to  wit,  the 


ELECTORAL   COUNT   OF    1877.  377 

action  in  the  State  which  produces  the  recorded  result  on  which  the 
governor  must  certify. 

In  the  first  place,  we  are  saved  any  question,  and  I  think  we  might 
have  been  saved  any  argument,  about  Governor  Kellogg's  being  a  de 
facto  governor,  filling  the  office  and  performing  its  duties,  for  they  offer 
under  their  first  head  to  prove  u  that  said  Kellogg  was  governor  de  facto 
of  said  State  during  the  months  of  November  and  December,  A.  D. 
1876."  Then,  when  you  come  to  other  offers  concerning  the  disqualifi 
cation  of  Levissee  and  of  Brewster,  found  on  the  seventeenth  page,  you 
will  observe  that  there  is  not  the  least  proposition  that  on  the  6th  day 
of  December,  when  these  two  men  came  into  the  office  of  elector  by  the 
choice  of  the  electoral  college  filling  the  vacancies,  they  were  under  any 
disqualification  whatever.  The  proposition  is — I  read  now  from  what  is 
called  the  fourth  proposition — 

That  on  the  7th  clay  of  November,  A.  D.  1876,  A.  B.  Levissee,  who  was  one  of  the  pre 
tended  college  of  electors  of  the  State  of  Louisiana,  *  *  *  was  at  the  time  of  such 
election  a  court  commissioner  of  the  circuit  court  of  the  United  States  for  the  district 
of  Louisiana. 

And  for  Brewster  in  the  same  way.  The  offer  of  proof,  then,  falls  en 
tirely  short  of  disparaging  their  capacity  to  receive  an  election  on  the 
6th  day  of  December,  and  the  proof  does  not  offer  to  contradict  the 
transaction  by  which  they  came  in  through  the  vote  of  the  electoral  col 
lege  as  displayed  in  the  certificate. 

Now,  in  regard  to  the  substantive  matters  of  proof,  so  far  from  being 
obliged  to  rest  upon  the  proposition  that  there  is  no  offer  to  intervese 
with  proof  between  the  recorded  result  of  the  election  and  the  gover 
nor's  certificate  to  that  result,  as  producing  these  electors  and  no 
others,  the  offers  of  proof  are  affirmative  in  their  propositions  that 
that  state  of  facts  does  exist,  and  is  part  of  the  things  that  they  .are 
able  and  ready  to  prove.  I  ask  attention  to  this  principal  offer  of  proof, 
which  is,  I  suppose,  the  one  on  page  13,  the  last  paragraph  but  one  on 
the  page. 

And  that  said  returuing-board,  in  further  pursuance  and  execution  of  said  unlawful 
combination  and  conspiracy,  knowingly,  willfully,  falsely,  and  fraudulently  did  make 
a  certificate  and  return  to  the  secretary  of  state  that  said  Kellogg,  Burch,  Joseph, 
Sheldon,  Marks,  Levissee,  Brewster,  and  Joffrion  had  received  majorities  of  all  the  legal 
votes  cast  at  said  election  of  November  7,  1876,  for  presidential  electors,  they  then 
and  there  well  knowing  that  the  said  McEnery,  Wicklifife,  St.  Martin,  Poohe",  De  Blanc, 
Seay,  Cobb,  and  Cross  had  received  majorities  of  all  the  votes  cast  at  said  election 
for  presidential  electors,  and  were  duly  elected  as  the  presidential  electors  of  said  State. 

And  that  the  said  returuing-board,  in  making  said  statement,  certificate,  and  return 
to  the  secretary  of  state,  were  not  deceived  nor  mistaken  in  the  premises,  bufc  know 
ingly,  willfully,  and  fraudulently  made  what  they  well  knew  when  they  made  it  was 
a  false  and  fraudulent  statement,  certificate,  and  return  ;  and  that  the  said  false  and 
fraudulent  statement,  certificate,  and  return,  made  by  said  return  ing-board  to  the  sec 
retary  of  state  in  that  behalf,  was  made  by  the  members  of  said  returning-board  in 
pursuance  and  execution  of,  and  only  in  pursuance  and  execution  of,  said  unlawful 
combination  and  conspiracy. 

We  have,  then,  in  the  offers  of  proof  a  recognition  of  the  fact  that 
the  governor's  certificate  in  No.  1  is  by  the  acting  governor  of  the  State ; 
that  it  is  of  a  fact  which  has  been  deliberately  produced  and  made  of 
record  in  the  proper  office  of  that  State  ;  that  by  the  authority  intrusted 
with  that  final  act  of  canvass  and  certification  these  electors  did  re 
ceive  a  majority  of  the  legal  votes  in  the  State  of  Louisiana  ;  that  that 
was  done  mala  fide  and  fraudulently.  It  was  then  done.  The  act  was 
consummated.  You  are  relieved,  therefore,  from  any  disturbance  of 
this  definite  and  limited  proposition  of  whether  it  is  competent  for  the 
two  Houses  of  Congress  to  penetrate  the  action  of  the  State  and  deter- 


378  ELECTORAL    COUNT   OF    1877. 

mine,  first,  whether  it  conforms  to  the  real  facts  of  the  election-  as  de- 
ducible  through  successive  steps  from  the  deposit  of  the  votes  in  the 
ballot-box;  and  secondly,  whether,  though  conforming  to  legal  author 
ity,  it  has  been  a  corrupt,  mala  fide  transaction. 

It  is  necessary  for  us,  then,  before  we  can  approach  definitely  the 
consideration  of  whether  any  of  this  proof  can  be  offered,  to  under 
stand  at  least  what  the  laws  of  Louisiana  are  ;  not  that  it  will  follow 
that  we  have  any  right  here  to  consider  the  conformity  of  the  action  of 
the  canvassers  or  any  of  the  subordinate  functionaries  in  the  election 
or  of  the  voters  themselves  to  that  law,  but  that  we  may  see  at  least 
upon  what  state  of  statutory  enactments  these  objectors  seek  to  base 
their  question  of  the  action  had  in  these  subordinate  departments  of 
the  transaction. 

I  confess  to  an  inability  to  understand  that  there  should  really  exist 
any  confusion  on  this  subject  as  to  what  the  statutory  enactments  in 
force — I  mean  on  their  face — were.  This  election,  as  it  took  place  on 
the  7th  of  November,  in  the  primary  deposit  of  the  votes,  was  con 
cluded  later  in  the  year  by  the  final  result  of  the  canvass  certified  and 
recorded.  Some  confusion,  I  am  afraid,  has  been  made  out  of  the  at 
tempt  to  shorten  a  little  the  reprint,  so  useful  in  all  particulars,  made 
under  the  direction  of  the  Commission.  I  have  before  me  the  session 
laws  of  1868.  In  the  acts  of  that  session  are  found  two  independent 
acts  on  independent  subjects,  both  of  which  were  in  force  until  either 
or  both  of  them  were  repealed.  They  were  not  inconsistent;  and  they 
were  not  in  pari  materia,  unless  so  far  as  that  some  portion  of  an  enact 
ment  that  might  have  been  included  in  a  general  law,  -and  was  not,  was 
included  in  the  special  or  particular  law  to  which  I  shall  call  attention. 
The  first  of  these  acts  is  found  at  page  218  of  the  session  laws  and  is 
numbered  164.  Its  title  is,  u  Relative  to  elections  in  the  State  of  Louis 
iana  and  to  enforce  article  103  of  the  constitution  of  the  State." 

Mr.  Commissioner  TH  ITEM  AN.  Where  is  that  in  this  pamphlet 
which  has  been  printed  torus? 

Mr.  EVARTS.  I  do  not  think  it  is  there.  Subsequent  laws  that  are 
supposed  to  have  taken  its  place  have  been  printed,  but  this  has  not 
been  printed  at  all.  A  portion  of  the  revised  statutes  is  printed,  and 
somebody  has  put  at  the  top  of  it  "laws  of  1868."  It  is  not  a  print  of 
any  part  of  the  law  of  1868.  It  is  a  reproduction  of  certain  sections  of 
the  revised  statutes  which  were  passed  in  1870. 

Mr.  Commissioner  ABBOTT.  It  was  stated  to  us  that  this  revision 
and  the  law  of  1868  were  precisely  the  same. 

Mr.  EVARTS.  1  will  proceed  with  my  argument,  if  you  please,  be 
cause  my  object  is  to  show  exactly  how  the  thing  does  run.  That  law 
printed  on  that  page  is  not  any  part  of  the  law  that  I  have  asked  your 
attention  to  thus  far;  it  is  not  a  reproduction  of  that;  it  has  nothing 
to  do  with  it.  There  is  another  law  of  1868. 

Mr.  Commissioner  BRADLEY    That  law  is  a  general  election  law. 

Mr.  EVARTS.  A  general  election  law  to  enforce  article  103  of  the 
constitution.  On  page  245,  -No.  193,  is  another  law,  of  which  I  will  read 
the  title,  to  wit:  "  Relative  to  presidential  electors."  That  is  a  short 
act.  It  contains  in  its  first  section  an  attribution  of  the  conduct  of  their 
election  to  the  provisions  of  the  general  election  law: 

And  such  election  shall  be  held  aud  conducted  in  the  manner  and  form  provided  by 
law  for  general  State  elections. 

Mr.  Commissioner  BRADLEY.  Mr.  Evarts,  while  you  are  on  that,  I 
wish  to  ask  a  question  for  information.  I  have  tried  to  get  hold  of 
those  acts  of  1868  for  about  twenty -four  hours,  but  have  been  unable  to 


ELECTORAL    COUNT    OF    1877  379 

do  so.  Does  that  first  section  commence  in  this  way  :  "  In  every  year 
in  which,"  &cJ 

Mr.  EVARTS.     It  does. 

Mr.  Commissioner  BRADLEY.  And  the  thirty-fifth  section  of  the 
act  of  1868  is  in  the  same  terms  exactly.  These  two  are  copies  of  one 
another,  are  they  not?  I  wish  to  ascertain  that  fact. 

Mr.  EVAETS.     I  will  look.    The  thirty-fifth  section  of  the  act  of  1868? 

Mr.  Commissioner  BRADLEY.     Yes. 

Mr.  EVARTS.  No ;  that  conies  into  the  act  of  1870,  if  at  all.  There  is 
nothing  of  the  kind  in  the  act  of  1868.  There  is  section  32  of  the  act 
of  1868,  which  I  will  read.  I  will  read  not  section  35,  but  section  32, 
which  relates  to  the  subject. 

Mr.  Commissioner  EDMUNDS.  Which  of  these  two  acts  do  you  read 
from? 

Mr.  EVARTS.  The  general  election  law  of  1868,  which  begins  on 
page  218  of  the  session  laws  of  that  year. 

Mr.  Commissioner  THURMAN.     What  is  the  date  of  it  ? 

Mr.  EVARTS.  It  is  the  19th  of  October,  1868.  This  is  section  32, 
which  is  probably  the  section  to  which  Mr.  Justice  Bradley  had  ref 
erence. 

That  in  every  year  in  which  an  election  shall  be  held  for  electors  of  President  and 
Vice-President  of  the  United  States,  such  election  shall  be  held  on  the  Tuesday  next 
after  the  first  Monday  in  the  month  of  November,  in  accordance  with  the  act  of  the 
Congress  of  the  United  States  approved  January  23,  1845,  and  such  election  shall 
be  held  and  conducted  in  the  manner  and  form  provided  by  law  for  general  State 
elections. 

Which  is,  I  believe,  an  accurate  statement. 

Mr.  Commissioner  BRADLEY.     An  exact  copy. 

Mr.  EVARTS.  It  is  identical  with  the  first  section  of  the  presiden 
tial-electors  statute.  Now,  in  this  presidential-electors  act  there  are  two 
provisions  which  do  bear  on  the  questions  which  we  are  to  discuss  as 
to  the  proper  method  of  carrying  on,  certifying,  and  canvassing  the 
election  held  last  November.  There  is  no  doubt  about  that,  if  they  were 
in  force,  and  I  will  ask  attention  to  them.  The  first  is  section  4  on  page 
245  of  the  session  laws  of  1868 : 

Immediately  after  the  receipt  of  a  return  from  each  parish,  or  on  the  fourth  Monday 
of  November  if  the  returns  should  not  sooner  arrive,  the  governor,  in  the  presence  of 
the  secretary  of  state,  the  attorney-general,  a  district  judge  of  the  district  in  which  the 
seat  of  government  may  be  established,  or  any  two  of  them,  shall  examine  the  re 
turns  aud  ascertain  therefrom  the  seven  persons  who  have  been  duly  elected  electors. 

Then  there  are  certain  administrative  provisions  which  are  not  im 
portant.  Then  section  8  on  the  same  page. 

Mr.  Commissioner  BRADLEY.    It  speaks  of  "seven  persons"  there. 

Mr.  EVARTS.  That  word  is  there ;  the  State  then  was  entitled  to 
seven  electors.  The  eighth  section  is : 

If  any  one  or  more  of  tdie  electors  chosen  by  the  people  shall  fail  from  any  cause 
whatever  to  attend  at  the  appointed  place  at  the  hour  of  four  p.  m.  of  the  day  pre 
scribed  for  their  meeting,  it  shall  bo  the  duty  of  the  other  electors  immediately  to 
proceed  to  ballot  to  supply  such  vacancy  or  vacancies. 

Our  learned  aud  ingenious  friend,  Mr.  Carpenter,  brought  your  hon 
ors  to  this  result  from  his  discussion,  that  it  was  wholly  immaterial  to 
the  practical  result  in  this  case  whether  you  hold  that  the  law  was  re 
pealed  or  whether  you  hold  that  it  was  in  force;  he  contending  that,  if 
it  was  repealed  so'as  to  carry  down  the  canvassing  section,  aud  there 
fore  make  the  canvass  proper  by  this  cauvassing-board — I  mean  in  re 
spect  to  its  authority — then  section  8,  being  carried  down,  the  power  to 


380  ELECTORAL   COUNT   OF   1877. 

fill  vacancies  did  not  exist,  and  two  vacancies  were  therefore  left  in  the 
college  of  electors,  which,  as  he  said,  would  be  enough  for  his  purpose, 
and  which  is  true;  two  vacancies  are  enough,  perhaps  one.  But  we 
are  under  no  such  alternative  as  that.  By  the  subsequent  laws,  the 
canvassing  section  was  repealed,  and  by  no  subsequent  laws  was  the 
rest  of  the  electoral  act  affected.  That  is  a  proposition  which  at  once 
liberates  us  and  this  Commission  from  any  confusion  or  from  any  resort 
to  either  of  the  horns  of  the  dilemma. 

On  what  does  our  proposition  rest  ?— for  it  needs  but  to  be  stated  to 
be  understood,  and  the  laws  need  but  to  be  pointed  out  to  carry  the 
evidence  of  what  the  existing  state  of  law  was  in  Louisiana  in  1876. 
There  came  about  in  1870  a  revision  of  the  statutes  of  the  State  of 
Louisiana,  not  a  repeal,  not  a  re-enactment,  but  a  revision  of  the  laws 
that  were  or  were  understood  to  be  in  force,  in  regard  to  which  thejiat 
of  the  legislature  was  to  be  impressed  upon  them  that  they  were  the 
laws  in  force,  a  transaction  entirely  similar  to  that  which  took  place  in 
Congress  in  the  production  of  the  Revised  Statutes  of  the  United  States, 
under  which  we  now  are.  In  this  revision  which  I  read  from,  a  book 
published  in  1876 

Mr.  Commissioner  BRADLEY.    I  have  the  original. 

Mr.  EVARTS.  We  shall  be  greatly  obliged  to  you  if  we  can  get  the 
pages  from  that.  My  friend  who  provided  this  book  could  not  find  the 
other  in  the  Library;  we  were  obliged  to  resort  to  this,-  but  the  sec 
tions,  as  I  understand,  are  the  same.  I  shall  be  very  glad  to  refer  to 
that  volume  instead  of  this  for  those  two  laws,  and  I  will  give  the  cita 
tions  as  they  shall  be  determined;  but  for  the  purpose  of  my  present 
argument,  without  giving  pages,  I  can  now  say  how  the  matter  stood 
on  these  revised  statutes.  In  the  first  place,  there  was  a  statute  entitled 
"Elections,"  and  it  was,  we  will  assume,  the  statute  of  1868.  So  far  as 
I  know,  there  is  nothing  to  be  said  on  this  subject. 

Mr.  Commissioner  EDMUNDS.  You  mean  by  that,  that  there  is  a 
head  in  the  revised  statutes  " Elections"? 

Mr.  EVARTS.  A  head  in  the  revised  statutes  called  "Elections."  I 
will  now  give  the  page,  to  avoid  confusion,  that  is  found  in  this  edition 
of  the  revised  statutes  of  Louisiana  printed  in  the  year  they  were  passed; 
in  1870.  It  is  page  272,  and  it  is  headed  in  the  margin  by  these  figures, 
"  1868,  218,"  which  means  this  law  that  I  have  read. 

Mr.  Commissioner  GARFIELD.  The  same  reference  that  you  made 
to  the  session  acts  of  1868. 

Mr.  EVARTS.  The  same  reference.  Then  there  comes,  after  exhaust 
ing,  I  believe,  the  general  provisions  about  elections,  grouped  under  this 
general  title  of  "  Elections,"  a  statute  concerning  contested  elections, 
which  in  the  same  manner  is  referred  to  as  a  statute  of  1865,  page  408. 

Mr.  Commissioner  EDMUNDS.    Is  that  in  the  same  title  f 

Mr.  EVARTS.     The  same  title. 

Mr.  Commissioner  BRADLEY.    Under  the  same  title,  but  at  the  end. 

Mr.  EVARTS.  Exhausting  the  general  election  law,  you  then  come 
into  an  independent  subject,  and  that  is  "Contested  Elections,"  and 
there  is  reprinted  another  law  not  material  for  us  to  consider,  but  it  is 
reprinted  and  referred  to  as  a  law  already  in  existence. 

Mr.  Commissioner  THURMAN.  Are  you  reading  from  the  revised 
statutes  of  1870? 

Mr.  EVARTS.  I  am ;  and  the  edition  of  1870,  which  is  the  proper  one 
to  refer  to. 

Mr.  Commissioner  THURMAN.     Was  that  passed  as  one  act? 

Mr.  EVARTS.    Passed  as  one  act.    Then  we  have  another  title  in 


ELECTORAL   COUNT    OF   1877.  381 

these  revised  statutes  separated  by  one  hundred  pages,  and  indeed  the 
arrangement  is,  I  think,  alphabetical,  and  the  title  of  this  section  of  the 
revised  statutes  is  "  Presidential  Electors."  That  is  at  page  550.  It 
begins  by  reciting  the  acts  of  Congress,  and  then  it  proceeds  in  ten 
sections,  numbered  from  2823  to  2832,  which  contain  the  election  law, 
and  the  heading  in  the  margin  of  this  is  "  1868,  245."  Nine  of  the  sec 
tions,  to  2831  inclusive,  are  embraced  in  that  notation,  and  in  fact  in  the 
act  of  1868  section  2832  is  noted  as  a  section  proceeding  from  the  act  of 
1855,  481,  and  is  simply,  "  when  a  new  parish  shall  be  established,  it 
shall  form  a  part  of  the  district  to  which  it  belonged  previous  to  its 
change  of  organization." 

Those  two  laws  being  for  our  purposes  as  the  two  laws  of  1868,  were 
in  force  when  these  revised  statutes  came  into  operation,  unless  by  actual 
repeal,  or  by  the  methods  of  legislation  which  operate  repeal,  before 
these  revised  statutes  went  into  operation,  a  repeal  of  one  or  the  other 
of  them  in  some  part  had  taken  place.  These  were  passed  on  the  14th. 
day  of  March,  1870,-  and  on  the  16th  day  of  March,  1870,  a  law  was 
passed,  which  was  printed  and  is  to  be  found  in  the  first  edition  of  this 
compilation  which  is  without  a  cover,  and  I  will  refer  to  the  act  of  1870 
itself  in  pursuance  of  my  previous  intention. 

Mr.  Commissioner  EDMUNDS.  Is  there  any  law  or  provision  of  the 
constitution  in  Louisiana  which  provides  generally  at  what  time  acts 
passed  at  a  session  shall  take  effect  ? 

Mr.  EVARTS.    I  do  not  know  whether  there  is  or  not. 

Mr.  Commissioner  BRADLEY.  These  acts  that  we  refer  to,  all  declare 
the  time  when  they  shall  take  effect. 

Mr.  EVARTS.  I  do  not  understand  that  there  is  any  general  provision, 
and  as  a  matter  of  fact  the  general  declaration  of  the  acts  is  that  they 
shall  take  effect  from  and  after  their  passage.  There  was  passed  in  1870, 
on  the  16th  day  of  March,  an  act  which  is  found  in  the  session  laws  of 
1870,  at  page  145 ;  it  is  numbered  100.  I  will  read  the  title  of  this  act: 

To  regulate  the  conduct  and  to  maintain  the  freedom  and  purity  of  election  ;  to 
prescribe  the  mode  of  making  and  designate  the  officers  who  shall  make  thereturns 
thereof;  to  prevent  fraud,  violence,  intimidation,  &c. ;  limiting  the  powers  and  duties 
of  sheriffs;  and  to  enforce  article  103  of  the  constitution. 

The  title  of  this  act  is  the  same  as  that  of  the  election  act  of  1868  in 
its  general  purpose  to  regulate  elections  and  enforce  article  103  of  the 
Constitution.  This  act  provides,  at  section  54: 

That  the  governor,  the  lieutenant-governor,  the  secretary  of  state,  and  John  Lynch, 
and  T.  C.  Anderson,  or  a  majority  of  them,  shall  be  the  returniug-officers  for  all  elec 
tions  in  this  State. 

There  is  no  other  description  and  no  limitation;  they  are  "the  return- 
ing-officers  for  all  elections  in  this  State;"  and  there  is  at  section  85,  the 
final  section  of  the  act,  this  repealing  clause : 

That  all  laws  or  parts  of  laws  contrary  to  the  provisions  of  this  act,  and  all  laws  re 
lating  to  the  same  subject-matter,  are  hereby  repealed;  and  this  act  shall  take  effect 
from  and  after  its  passage. 

What  went  down  under  that  repeal  ?  In  the  first  place,  upon  general 
principles,  all  of  the  revised  statutes  that  was  on  the  title  of  "Elections" 
and  enforcing  this  article  of  the  constitution,  No.  103,  and  all  parts  of 
other  laws  that  were  within  the  purview  of  the  conduct  of  elections,  any 
election  held  in  that  State,  and  no  other  parts  of  such  laws,  were  re 
pealed  by  that  section.  You  have,  then,  in  the  general  start  of  the  first 
section  of  the  act,  a  provision  "  that  all  elections  for  State,  parish,  and 


382  ELECTORAL    COUNT    OF    1877. 

judicial  officers,  members  of  the  general  assembly,  and  for  members  of 
Congress,  shall  be  held  on  the  first  Monday  in  November 5  and  said 
elections  shall  be  styled  the  general  elections.  They  shall  be  held  in 
the  manner  and  form,  and  subject  to  the  regulations  hereinafter  pre 
scribed,  and  in  no  other." 

Then  the  provisions  go  on.  Section  35  of  this  act,  which  is  the  num 
ber  which  was  in  Mr.  Justice  Bradley's  mind,  is  the  equivalent  of 
section  32  in  the  general  election  act  of  1868,  and  is  identical  with  sec 
tion  1  of  the  electoral  act  of  1868.  It  is  reproduced  here  as  section  35  ; 
so  that  we  have  a  provision  that  all  general  elections  so  called  shall 
take  place  on  the  first  Monday  of  November;  that  an  election  for 
electors  shall  take  place  on  the  first  Tuesday  after  the  first  Monday  in 
November,  according  to  the  provision  of  the  act  of  Congress,  and  then, 
in  a  section  coming  after  the  description  of  general  elections,  and  after 
the  section  that  has  relation  to  presidential  electors,  you  have  the  fifty- 
fourth  section,  which  provides  that  the  canvassing-board  there  provided 
"  shall  be  the  returning-officers,"  not  for  all  general  elections,  but  "  for 
all  elections  held  in  this  State,"  covering  by  necessary  statutory  con 
struction  the  elections  that  had  been  mentioned  preceding,  some  of  which 
were  called  elections  of  State  officers,  members  of  Congress,  &c.,  and 
called  general  elections,  and  one  which  was  called  a  presidential  election. 

The  election  of  1872  was  held  under  that  law.  Did  anybody  in  the 
State  of  Louisiana  conceive  that  the  governor  was  to  canvass  ?  Some 
question  was  raised  about  whether  the  act  of  1872,  which  was  passed  on 
the  20th  of  November,  providing  another  returning-board,  was  in  opera 
tion  ;  but  the  courts  of  the  State,  in  the  authorities  that  have  been  pro 
posed  for  your  honors'  consideration  by  my  learned  associates,  disposed 
of  this  question  as  to  who  were  the  returning-board  and  the  canvassing- 
board,  being  one  and  the  same  thing,  on  November,  1872,  prior  to  the 
20th  of  November  of  that  year.  Therefore  the  whole  operation  of  this 
act  of  1870,  in  repeal  of  this  or  that  portion  of  the  independent  acts — 
the  general-election  act  and  the  presidential-electors'  act — was  not  an 
act  concerning  their  election,  but  concerning  their  discharge  of  their 
duties;  giving  them  nothing  but  the  State  apparatus,  unvaried  except 
in  a  canvassing-board.  Now  what  the  canvassiug-board  of  1868  for 
general  elections  was,  I  have  not  stopped  to  inquire;  whether  it  was 
the  same  governor  or  not,  it  is  not  material  here.  Now  comes  the  act  of 
1872,  which  is  reproduced. 

Mr.  Commissioner  BRADLEY.  Eight  here  is  a  matter  which  I  wish 
to  understand.  The  digest  of  the  statutes,  made  immediately  after  the 
revision  and  published  in  January,  1871,  contains  these  two  titles  which 
the  revision  does,  the  title  "Elections"  and  the  title  "Presidential 
Electors."  The  digest  was  made  by  John  Ray,  under  the  direction  of 
the  committee  of  revision;  and  in  that  digest,  under  the  head  of  "Elec 
tions,"  he  inserts  the  act  of  1870  instead  of  the  act  of  1868,  and  under 
the  head  of  "Presidential  Electors"  inserts  the  same  title  that  the  re 
vision  contained,  with  the  exception  that  the  section  establishing  the 
returning-board  replaces  the  original  canvass.  This  seems  to  indicate 
the  opinion  of  the  profession  at  that  time  as  to  the  state  of  the  law. 
What  effect  it  would  have,  I  do  not  know. 

Mr.  EVARTS.  In  other  words,  what  we  now  contend  for,  that  the 
section  which  gave  a  special  canvassing-board  for  presidential  electors 
was  repealed  by  the  act  of  1870,  and  the  rest  of  the  statute,  and  which 
had  nothing  to  do  with  their  election  but  only  with  their  conduct  as 
electors  after  they  were  elected,  was  left  standing;  and  Mr.  Justice 
Bradley  enables  me  to  refer  to  a  digest  of  the  statutes  of  Louisiana. 


ELECTORAL    COUNT   OF   1877.  £83 

In  volume  2  of  that  digest,  at  page  356,  is  found  the  electoral  law,  and 
it  is  attributed  under  its  various  sections  to  the  acts  on  which  it  is  sup 
posed  to  rest.  The  first  section  is  attributed  to  the  act  of  1870,  page 
145.  This  is  substantially  the  same  section  as  is  found  in  the  act  of 
1868.  Then  the  second  section  is  attributed  to  the  act  of  1868,  page 
245 ;  the  third  the  same.  The  fourth,  which  is  the  provision  of  a  return- 
ing-board,  takes  the  section  that  makes  the  governor,  the  lieutenant- 
governor,  the  secretary  of  state,  John  Lynch,  and  T.  0.  Anderson,  the 
returniug-board,  and  attributes  that  to  the  act  of  1870,  page  145.  And 
then  it  goes  on,  resuming  at  the  fifth  section  its  attribution  to  the  act 
of  1868,  page  245,  and  in  the  sixth  section  is  reproduced  the  provision 
about  electors  filling  their  vacancies.  This  act  is  found  on  page  355 
and  page  358  of  the  second  volume  of  this  digest,  published  under  the 
authority  of  the  State  in  1870. 

Mr.  Commissioner  BAYARD.  Does  it  contain  no  memorandum  of 
the  date  when  it  was  passed  "1 

Mr.  EVARTS.  I  have  stated  that  these  sections  which  are  thus  di 
gested  are  each  referred  to  their  appropriate  originating  statute. 

Mr.  Commissioner  BEAD  LEY.  Here  is  the  act  under  which  the  di 
gest  was  made,  Mr.  Evarts,  showing  that  it  had  a  quasi  authority. 

Mr.  EVARTS.  It  is  very  apparent  that  this  is  no  new  construction 
that  we  are  putting  upon  the  force  of  the  repealing  act.  It  is  the  pub 
lished  construction,  in  the  authorized  publication  of  the  statutes  in  the 
form  of  a  digest,  followed  by  the  courts,  and  accepted  by  the  profes 
sion.  The  novelty  is  in  the  stress  that  now  here  for  the  first  time  seeks 
to  produce  a  collapse  of  statutory  law  in  order  to  destroy  an  election. 
Did  any  of  those  eminent  lawyers  that  attended  in  New  Orleans  through 
the  month  of  November  suggest  to  Governor  Kellogg  to  canvass  these 
votes  for  presidential  electors  ?  And  now  the  vice,  the  fault,  the  irre 
mediable  wound  of  this  election  is  that  Governor  Kellogg  did  not  can 
vass  them  ! 

The  act  of  1872  takes  up  this  whole  subject  and  substitutes  itself  for 
the  act  of  1870  and  repeals  all  existing  regulations  that  properly  are  in 
the  very  matter  of  conduct  and  regulation  of  elections  in  general,  arid 
all  special  provisions  found  in  any  other  act  that  are  at  variance  with 
the  imposition  of  its  form,  its  methods,  and  its  agents  on  all  elections 
held  in  the  State.  But  the  act  of  1870  had  already  excluded  the  section 
of  the  electoral  law  that  related  to  canvass,  and  excluded  that  alone, 
and  left  standing  the  clause  that  relates  to  the  conduct  of  the  electoral 
college,  among  other  things,  in  filling  vacancies. 

Now,  I  have  satisfied  your  honors  that  not  only  was  it  wholly  im 
material  which  of  Mr.  Carpenter's  views  you  adopted,  but  it  was  im 
material  that  you  adopted  them  both,  for  the  subsequent  legislation  had 
left  the  matter  in  this  shape,  that  the  canvassing-board  for  all  elections 
had  been  applied  to  presidential  elections,  and  the  conduct  of  the  elect 
oral  college,  after  it  was  elected,  in  its  transaction  under  the  laws  of 
the  State  and  of  the  United  States,  was  left  wholly  untouched,  as  it  well 
might  be.  What  change  could  you  have  made,  what  change  was  needed  ? 
That  is  not  the  point;  but  the  point  is  that  the  legislature  had  sup 
pressed  presidential  elections  by  having  no  law  under  which  they  could 
be  conducted.  Well,  if  there  is  any  State  that  in  the  election  of  1872 
or  in  anticipation  of  the  election  of  1876  has  had  the  attention  of  all  its 
citizens,  all  its  lawyers,  all  its  judges,  all  its  politicians,  all  its  honest 
men  attracted  to  it,  it  is  the  State  of  Louisiana ;  and  they  all  thought  that 
they  could  elect  presidential  electors,  and  one  political  party  was  per 
fectly  convinced  that  it  had,  and  the  other  political  party  was  perfectly 


384  ELECTORAL    COUNT    OF    1877. 

convinced  that  it  had,  and  the  only  question  was  which  of  the  two  sets 
produced  by  this  birth  was  the  genuine  child. 

Mr.  Commissioner  FRELINGHUYSE^.  Mr.  Evarts,  did  you  refer 
to  the  act  authorizing  the  revision  ? 

Mr.  EVARTS.  I  beg  pardon.  That  is  in  the  first  volume  of  the 
digest.  It  is  an  act  passed  on  the  16th  of  March,  1870,  the  very  day 
this  act  was  passed : 

That  John  Ray  be,  and  is  hereby,  appointed  and  authorized  to  compile  a  digest  of 
the  statutes  of  the  State  of  general  character  from  the  acts  passed  at  the  present  ses 
sion  of  the  general  assembly,  including  the  act  of  revision,  and  to  superintend  the 
printing,  and  that  such  digests  and  codes  be  stereotyped  and  printed  as  required,  &c. 

Mr.  Commissioner  MORTON.  Was  there  a  provision  requiring  that 
digest  to  be  subsequently  submitted  to  the  legislature  before  it  went 
into  force1? 

Mr.  EVARTS.     I  think  not, 

Mr.  Commissioner  BRADLEY.    There  was  not. 

Mr.  EVARTS.  I  cannot  say  without  looking  at  the  act,  because  this 
is  only  one  section  of  the  act  that  answers  the  purpose  of  advertising 
the  book. 

Mr.  Commissioner  BRADLEY.  It  was  submitted  to  the  committee 
of  revision.  The  act  required  that,  and  that  was  all. 

Mr.  EVARTS.  It  was  to  be  submitted  to  the  committee  of  revision, 
Mr.  Justice  Bradley  suggests,  of  that  session  which  conducted  this  whole 
matter.  Here  is  a  little  act,  which  is  at  page  80  of  the  session  laws  of 
1870,  "An  act  giving  precedence  in  authority  to  all  the  other  acts  and 
joint  resolutions  passed  by  the  general  assembly  at  this  session  over 
the  acts  known  as  i  the  revision  of  the  statutes,  and  of  the  civil  code 
and  code  of  practice,'  when  there  exists  any  conflict  in  the  provisions  of 
said  acts  and  revisions." 

I  think  nothing  could  be  made  clearer  than  that.  We  have,  then,  the 
proposition  that  our  act  of  1870  was  passed  two  days  after  the  revision — 
enough  of  itself  to  amend  it.  They  did  not  pass  an  unamendable  revis 
ion.  They  passed  a  revision  that  when  it  came  into  force  had  all  the 
dilapidation  which  has  been  accomplished  in  its  frame  by  all  the  legis 
lation  of  that  session  of  1870.  Such  provisions  are  necessary.  Some 
thing  similar  to  that  was  the  arrangement  in  which  your  recent  great 
work  of  revision  was  carried  on. 

This  law,  then,  as  to  what  its  text  is,  is  understood:  Whatever  there 
is  in  the  election  law  of  Louisiana  that  governs,  gives  authority  in,  pre 
scribes  methods  of,  the  election  of  others  in  that  State,  applies  to  the 
presidential  electors7  elections,  and  nothing  that  reaches  the  conduct  of 
the  electors  after  their  election  is  different  from  the  act  as  it  stood  in 
1868. 

In  the  act  of  1872,  which  governed,  of  course,  the  election  of  1876, 
there  are  provisions,  mainly  of  sections  3  and  26,  which  include  the 
powers,  and  prescribe  the  methods  of  their  execution,  accorded  to  this 
returning-board;  and  those  powers  were  exercisable  according  to  the 
law  of  Louisiana  and  exercisable  in  reference  to  the  election  of  electors 
just  as  well  as  in  regard  to  any  other  officers  of  the  State;  and  in  re 
gard  to  their  exercise  in  respect  to  the  election  of  presidential  electors 
the  Government  of  the  United  States  had  no  more  power  and  authority 
than  it  had  in  regard  to  any  other  election  in  that  State.  Why  should 
it?  It  would  have  been  very  easy  to  have  inserted  in  the  Constitution 
of  the  United  States  a  provision  which,  while  it  fixed  in  the  frame  of 
the  government  the  power  of  election  in  the  States,  had  made  Congress 
the  judges  of  the  electiops,  of  the  returns,  and  of  the  certificates  of 


ELECTORAL    COUNT    OF    1877.  385 

electors.  That  might  have  been  done;  but  if  it  had  been  done,  all  that 
had  been  done  by  the  convention  up  to  that  time  would  have  been  an 
nulled,  for  the  independence  of  the  State's  transaction  would  have  been 
subjected  to  the  political  authority  of  the  United  States,  uugoverned  by 
any  paramount  dominion  over  it ;  and  our  ancestors  that  would  not  let 
the  little  finger  of  Federal  influence  be  inserted  into  the  State  election 
by  having  a  Federal  officer  voted  for  by  it,  is  now  laying  the  thickness 
of  a  hand  on  the  State  election  by  judging  of  the  election,  the  qualifica 
tions,  and  the  returns. 

I  ask  the  eminent  lawyers  who  are  to  stand  by  their  proposition,  if 
there  is  one  particle  of  power  possessed  by  the  Houses  of  Congress,  or 
that  was  ever  exercised  by  them  in  the  experience  of  this  Government, 
in  searching  the  elections,  the  returns,  and  the  qualifications  of  mem 
bers  of  Congress,  that  falls  within  the  whole  range  of  this  proposition 
of  proof?  Is  it  not  offered  to  you  as  the  measure  and  the  means  and 
the  resort  of  your  inspection  of  the  Louisiana  election  of  electors  ! 
Could  you  do  anything  more  ?  Where  do  you  get  the  right  to  do  what 
you  do  about  members  of  Congress  ?  You  could  not  get  it  by  mere  par 
liamentary  law  ;  and  the  framers  of  the  Constitution  put  it  in  that  there 
might  be  no  doubt  about  it ;  for  the  jurisdiction  of  Parliament  to  judge 
of  the  qualifications  of  its  members  is  a  resident  and  remaining  part  of 
its  authority  as  the  great  court  of  the  realm.  For,  according  to  the 
principles  of  the  common  law,  the  execution  of  a  writ  is  to  be  deter 
mined  by  the  court  where  it  is  returnable ;  and  when  the  Crown  issues  its 
writ  to  the  burgesses  and  shires  it  is  returnable  in  Parliament,  and  Par 
liament  judges  of  the  return.  But  when  you  are  making  a  complex 
frame  of  government  and  distributing  authority  between  the  States  and 
the  General  Government,  you  must  determine  exactly  how  far  the  States 
are  to  have  authority  on  the  subject  of  this  election  of  members  of  Con 
gress  and  how  much  is  to  belong  to  the  Federal  Government.  In  other 
words,  while  the  States  are  allowed  to  provide  for  the  election  of  Con 
gressmen  and  while  the  suffrage  is  measured  out  by  the  Constitution  to 
be  the  same  that  they  accord  to  the  lower  house  of  representatives  in 
the  States,  yet  there  is  secured  to  Congress  the  power  of  making  and 
altering  those  regulations;  and  this  final  political  power  acts, irresponsi 
ble  for  the  exercise  of  its  will;  will  governed  by  duty,  if  you  please, 
but  will  not  controlled  by  any  authority  of  law.  And  now  it  is  gravely 
pretended  here,  not  in  terms — for  the  effrontery  of  the  proposition 
would  affright  the  lawyer  that  made  it;  but  on  the  basis  of  that  offer 
of  proof  they  ask  you  to  ascribe  to  the  two  Houses  of  Congress,  when 
met  to  count  the  vote,  with  the  President  of  the  Senate  in  the  chair, 
precisely  the  same  power  in  extent,  in  measure,  in  uncontrolled  execu 
tion,  that  is  attributed  to  the  election  of  members  of  Congress. 

Why  did  not  the  wise  framers  of  the  Constitution  say  so  if  they 
meant  that?  And  how  could  they,  anticipate  that  the  whole  spirit  and 
purpose  of  excluding  Federal  authority  in  the  choice  and  the  election 
and  the  certification  of  the  choice  of  electors  should  be  perverted  into 
the  monstrous  claim  that  an  uncontrolled  political  authority  rests  in  the 
two  Houses  of  Congress  to  sift  and  sift,  discard,  discount,  destroy  the 
election,  and  make  such  men  as  it  chooses,  or  annul  the  vote  of  a  "state 
when  it  will  answer  the  purpose,  as  it  will  here  upon  this  pretension  of 
authority  ? 

If  any  further  elucidation  of  my  general  views  is  needed,  I  must  re 
spectfully  ask  attention  to  the  reported  arguments  of  Mr.  Matthews 
and  myself  in  the  Florida  case. 

I  now  come  to  consider  the  very  matter  of  the  proof  offered.     How 
25  E  c 


386  ELECTORAL    COUNT   OF    1877. 

about  these  Federal  disqualifications  ?  We  talked  about  that  subject  in 
the  Florida  case.  It  so  happened  that  the  proofs  which  were  allowed 
provisionally  did  not  raise  the  question  there  ;  but  our  propositions  are 
unchanged.  In  the  absence  of  congressional  regulation  furnishing  the 
appropriate,  adequate,  seasonable  means  to  purge  the  lists  that  the 
governor  has  certified,  on  the  Federal  disqualifications  that  should  dis 
card  an  electer,  the  two  Houses,  met  in  the  presence  of  the  President 
of  the  Senate,  cannot  execute  the  Constitution ;  and  you  can  do  no 
more.  They  are  elected ;  they  are  acting  ;  they  are  certifying,  for  there 
is  nothing  in  that  idea  of  the  subject  at  all  that  a  man  made  ineligible 
cannot  be  elected.  You  might  as  well  say  that  the  forbidden  fruit  could 
not  be  eaten  because  it  was  forbidden.  I  ask  attention  to  an  authority 
of  great  weight,  the  supreme  court  of  Pennsylvania,  where  Gibson, 
justice,  gives  the  opinion  before  he  was  chief -justice  in  11  Sergeant  & 
Rawle's  Keports,  page  411.  I  cannot  detail  the  particular  circumstances 
of  the  case ;  but  these  observations  are  in  point  in  that  case  and  are 
important  here.  It  is  the  case  of  Baird  vs.  The  Bank  of  Washington  : 

The  bank  was  governed  by  thirteen  directors,  five  of  whom  were  competent  to  the 
business  of  ordinary  discounts,  but  nothing  less  than  a  majority  of  the  whole  number 
constituted  a  quorum  for  transacting  any  other  business.  At  the  meeting  of  the  llth 
of  August,  just  spoken  of,  only  seven  members,  including  George  Baird,  were  present 
•when  the  vote  was  taken  ;  so  that  if  he  were  not  a  director,  either  de  facto  or  dejure, 
there  was  at  that  moment  not  a  quorum  present,  and  hence  a  question  as  to  the  valid 
ity  of  his  appointment  is  thought  to  be  material.  As  has  been  just  said,  to  constitute 
a  quorum  competent  to  fill  vacancies  or  transact  any.  other  business  than  that  of  ordi 
nary  discounts  required  a  majority  of  the  whole  number  of  the  directors ;  and  this 
gentleman  was  elected  at  a  meeting  at  which  only  five  were  present,  so  that  originally 
his  election  was  unquestionably  invalid.  And  this  brings  us  to  the  first  question, 
whether  he  is  to  be  considered  as  an  oflicer  de  facto,  or  as  an  usurper.  The  judge  who 
tried  the  cause  was  of  opinion  that  his  election  was  not  merely  irregular  as  to  time, 
place,  or  notice  of  it,  and  therefore  voidable,  but  that  it  was  absolutely  void ;  and  that 
he  was  an  unauthorized  agent,  who  could  do  no  act  to  bind  the  bank  ;  in  other  words, 
that  he  was  an  usurper. 

In  analogy  to  the  distinction  between  judicial  proceedings  that  are  absolutely  void 
for  want  of  jurisdiction  and  those  that  are  only  voidable  for  irregularity,  there  is 
something  extremely  plausible  in  this  opinion.  Still,  however,  it  will  be  found  that 
the  question  does  not  depend  on  whether  the  appointment  is  void  or  only  voidable,  or 
whether  it  emanated  from  an  authority  which  had  full  power  to  make  it  ;*  but  whether 
the  officer  has  come  in  under  color  of  right  or  in  open  contempt  of  all  right  whatever. 
(The  King  vs.  Leslie,  Aus.  Rep.,  163  j  S.  C.,2  Stra.,  190.)  This  distinction  runs  through 
all  the  cases.  Where  an  abbot  or  parson,  inducted  erroneously,  and  having  made  a 
grant  or  obligation,  is  afterward  deprived  of  his  benefice,  this  shall  bind  ;  but  the 
deed  of  one  who  usurps  before  installation  or  induction,  or  who  enters  and  occupies  in 
the  time  of  vacation  without  election  or  presentation,  is  void.  So,  if  one  occupies  as 
abbot  of  his  own  head,  without  installation  or  induction,  his  deed  shall  not  bind  the 
house. 

McEnery  acted  "of  his  own  head;"  doubtless  a  very  good  head, 
but  uot  his  own  head"  and  nothing  else,  and  the  electors  named 
on  the  second  certificate  were  hurried  to  execute  on  the  6th  of  Decem 
ber  an  office  into  which  they  had  uot  been  inducted,  into  which  they 
had  not  been  installed,  did  it  "of  their  own  head; "but  they  might 
have  been  prompted.  You  can  put  ideas  into  one's  head;  nevertheless 
it  is  his  own  head  that  he  acts  upon. 

In  the  case  at  bar,  the  court  put  the  matter  on  the  ground  that  five  directors  did  uot 
constitute  a  board  for  any  other  business  than  that  of  ordinary  discounrs;  and  that, 
having  no  right  to  go  into  an  election  at  all,  their  act  could  not  give  color  of  right. 
But  in  Harris  vs.  Jays,  Cro.  Eliz.,  G09,  it  was  conceded  that  the  Queen's  auditor  and 
surveyor  had  not  the  right  to  appoint  the  steward  for  the  manor  in  question  ;  yet  it 
was  resolved  that  a  steward  appointed  by  him  was  an  officer  de  facto,  and  that  his  acts 
were  good.  This  is  exactly  in  point.  The  inquiry  then  is,  was  there  the  color  of  an 
election  in  Mr.  Baird's  case?  He  was  elected  by  the  very  body  in  which  the  right  to 
elect  was  vested,  the  only  thing  wanting  to  the  perfect  validity  of  the  act  being  the 
presence  of  two  or  more  electors.  But  the  presence  of  these  would  not  have  changed 


ELECTORAL    COUNT    OF    1877.  387 

the  board  to  another  and  a  distinct  body  ;  it  would  still  have  been  the  president  and 
directors  of  the  Bank  of  Washington.  It  is  impossible,  therefore,  to  say  that  Mr. 
Baird  usurped  the  office  without  the  semblance  of  right. 

Now  this  clause  in  the  judge's  opinion  I  ask  particular  attention  to  : 

This  principle  of  colorable  election  holds  not  only  in  regard  to  the  right  of  electing, 
but  also  of  being  elected.  A  person  indisputably  ineligible  may  be  an  officer  de  facto 
by  color  of  election,  (Knight  vs.  The  Corporation  of  Wells,  Lutw.,  508.)  So,  even 
where  the  office  was  not  vacant,  but  there  was  an  existing  officer  de  jure  at  the  time. 

Perhaps  this  is  the  only  authority  on  this  subject  that  I  shall  need  to 
add  to  those  that  were  adduced  in  the  argument  on  the  Florida  case  and 
that  have  been  presented  by  my  learned  associate  in  this. 

Now  suppose  that  Levissee  and  Brewster  were  each  of  them  ineligible. 
They  are  elected ;  they  are  inducted ;  they  are  in  execution  of  the 
office,  and  the  State  is  not  to  be  stripped  in  an  execution  that  is  satis 
factory  to  itself  by  extraneous  evidence  adduced  at  the  moment  of  count 
ing  the  votes,  that  a  man  was  ineligible.  Congress  must  give  that  con 
sequence  by  some  legislation  and  some  mode  of  determination,  or  it 
cannot  arise. 

But  here  these  men  are  in  by  the  election  to  fill  vacancies.  Well,  the 
Oregon  brief,  contrived  not  only  a  double  but  a  treble  debt  to  pay,  comes 
up  again  to  prove  that  when  an  ineligible  person  is  elected  there  has 
been  no  election,  and  from  that  it  is  argued  that  when  one  out  of  eight 
fails  to  be  elected,  then  there  has  failed  to  be  an  election  within  the 
sense  that  a  legislature  may  fill  the  place  ;  and  then,  to  make  all  this 
applicable  to  the  existing  state  of  law  in  Louisiana,  you  are  asked  to 
believe,  you  are  asked  to  hold,  against  all  the  authorities,  that  an  elector 
ineligible  is  not  elected,  and  that  if  he  has  not  been  elected  there  is  not 
a  vacancy  in  the  college;  when  one  State  has  said,  "  Our  method  of  fill 
ing  any  vacancy  that  shall  happen  for  any  cause,  any  defect  of  full 
numbers  that  shall  show  itself  at  4  o'clock  for  any  reason,  is  that  it  shall 
be  filled  by  the  State  of  Louisiana  in  this  way.  that  those  who  have  been 
chosen  and  attend  shall  fill  the  place,1'  this  cannot  avail.  What  more  do 
we  need  to  say  ?  We  arrive  at  the  same  result.  Our  learned  friends, 
so  precise  in  language,  hold  that  there  not  being  a  vacancy,  that  an  office 
not  being  vacant,  that  there  being  no  vacancy  in  an  office,  is  equivalent 
to  the  office  not  having  been  filled ;  that  if  it  has  not  been  filled  it  is 
not  vacant.  That  is  the  proposition  :  if  it  has  not  been  filled,  it  is  not 
vacant. 

Now,  an  office  is  either  vacant  or  full.  There  are  no  terms  in  law  be 
tween  those  two  qualifications  of  being  vacant  or  full.  It  is  not  half 
full ;  it  is  not  full  with  an  embryo  that  may  grow  ;  it  is  full  or  it  is  va 
cant.  The  Constitution  of  the  United  States  provides  that  in  the  case 
of  a  vacancy  in  the  representative  force  of  a  State  in  Congress  the  gov 
ernor  shall  issue  writs  to  fill  the  vacancy.  That  phrase  is  used.  In 
1837,  at  a  special  session  called  of  Congress,  commencing  I  think  in 
September,  some  States  had  no  Representatives  elected  for  that  Con 
gress.  Congress  began  usually  in  December.  There  was  time  enough 
to  elect  them  to  send  them  in  season,  and  have  the  freshest  choice  of 
the  people.  The  governor  of  Mississippi,  not  desiring  that  State  to  be 
unrepresented  in  that  important  special  session,  issued  his  writs  for  a 
special  election  to  till  the  vacancy.  Was  there  a  vacancy  or  not  ?  Cer 
tainly  our  learned  friends  would  have  found  out  a  void  vacancy  in  that 
case.  Nobody  had  perceived  it.  Messrs.  Gholson  and  Claiborne  were  re 
turned,  and  the  question  came  up  on  their  qualifications,  on  the  validity 
of  the  election,  within  the  power  doubtless  of  Congress ;  and  the  House 
held  that  they  were  duly  elected,  and  gave  them  seats  for  the  full  term. 


388  ELECTORAL    COUNT    OF    1677. 

They  concluded  in  Mississippi  that  they  would  have  another  election  for 
the  rest  of  the  term,  and  they  sent  up  other  persons  chosen  in  November 
at  the  regular  election.  So  in  December  we  had  a  new  choice  of  Con 
gressmen,  and  it  was  concluded  I  think  then  that  the  admission  of 
them  for  the  whole  Congress  was  erroneous. 

Mr.  MATTHEWS.  The  House  rescinded  the  former  resolution,  and 
refused  to  allow  the  newly-elected  members  to  come  in,  on  the  ground 
that  the  people  had  been  misled  as  to  the  time  of  the  election. 

Mr.  EVAKTS.  They  held  them  only  to  be  entitled  to  fill  the  vacancy, 
and  they  did  not  admit  the  new  people,  because  they  were  judges  of  the 
whole  matter,  and  concluded  that  it  was  better  to  have  another  election. 
What  happened  then  is  unimportant ;  but  you  can  have  no  better  case 
than  that.  This  is  to  be  found,  I  think,  in  the  volume  of  Contested 
Elections  of  1834  to  1865,  page  9,  and  in  the  fifth  volume  of  the  Con 
gressional  Globe,  pages  80  to  96,  and  Appendix,  page  85. 

Now,  then,  we  say  in  regard  to  the  Federal  disqualification,  no  proof 
can  reach  the  point,  none  is  offered  that  touches  the  point,  none  would 
be  admissible  if  it  did  touch  the  point,  because  of  the  want  of  legislation 
or  of  means  of  ascertaining  it. 

I  now  come  to  the  question  of  State  disqualification.  The  constitution 
of  this  State  of  Louisiana  has  a  provision  : 

No  person  shall  hold  or  exercise  at  the  same  time  more  than  one  office  of  trust  or 
profit  except  that  of  justice  of  the  peace  or  notary  public. 

Governor  Kellogg  was  governor ;  Governor  Kellogg  was  elector. 
Some  of  these  other  electors  held  minor  offices,  it  is  said.  Proof  of 
this  fact  is  offered  in  regard  to  the  others  in  order  that  State  disqualifi 
cation  may  now  be  inquired  into  and  verified  in  the  counting  of  the 
vote  here.  There  are  sufficient  answers  to  this.  Let  us  look  at  another 
clause  of  this  constitution  which  provides  some  other  disqualifications  : 

ART.  99.  The  following  persons  shall  be  prohibited  from  voting  and  holding  any 
office :  All  persons  who  shall  have  been  convicted  of  treason,  perjury,  forgery,  bribery, 
or  other  crime  punishable  in  the  penitentiary,  and  persons  under  interdiction;  all 
persons  who  are  estopped  from  claiming  the  right  of  suffrage  by  abjuring  their  alle 
giance  to  the  United  States  Government,  or  by  notoriously  levying  war  against  it,  or 
adhering  to  its  enemies,  giving  them  aid  or  comfort,  but  who  ha^e  not  expatriated 
themselves  nor  have  been  convicted.  , 

So  on  with  a  numerous  list  of  disqualifications  for  holding  any  office 
in  the  State.  Suppose  an  imputation  were  made  against  an  elector, 
in  the  certified  forwarded  lists  by  the  electoral  college  and  authenticated 
by  the  governor,  of  any  of  these  disqualifications,  could  you  try  it  1  Cer 
tainly  not.  It  is  a  judicial  inquiry. 

But  this  office  of  elector,  say  Mr.  Trumbull  and  Mr.  Carpenter,  is  not 
a  State  office.  It  is  not  a  "State  office;  he  is  an  elector,  a  representative 
elector.  When  he  comes  into  office  he  holds  the  office  under  the  Con 
stitution  of  the  United  States,  and  he  acquires  the  office  by  the  action 
of  the  State,  the  function,  the  right  to  vote.  He  is  a  representative 
elector.  This  clause  of  the  Constitution  does  not  say  that  no  officer 
under  that  State  shall  hold  a  Federal  office.  The  courts  of  that  State 
have  settled  the  question  that  it  not  only  means  State  officers,  but  it 
means  constitutional  officers.  They  have  not  hampered  all  future  legis 
lation  of  that  State  with  the  inconvenience  of  never  having  a  man  a 
member  of  two  charitable  boards,  as  one  of  these  electors  is  charged  to 
have  been.  They  have  not  hampered  the  future  legislation  of  that 
State  in  the  trammels  of  providing  that  a  citizen  shall  be  made  useful 
in  no  two  occupations,  employments,  or  commissions  ;  but  it  is  consti 
tutional  officers  that  it  applies  to  ;  and  I  ask  attention  to  the  cases  in  5 


ELECTORAL    COUNT    OF    1877.  389 

Louisiana  Annual  Eeports,  155  ;  6  Louisiana  Annual  Reports,  175.  The 
case  in  25  Louisiana  Annual  Reports,  138,  I  think  was  referred  to  by 
Mr.  Shellabarger. 

Mr.  Commissioner  THURMAX.  Do  you  mean  to  be  understood  as 
admitting  that  an.  elector  is  an  officer  at  all,  either  Federal  or  State  ? 

Mr.  EVARTS.  I  do  not  think  he  is.  Certainly  he  is  not  a  State 
officer.  I  do  not  think  he  is  an  officer.  I  think  he  is  a  voter,  having 
qualifications,  and  his  office  is  of  the  same  kind  with  the  office  of  a 
citizen  who  is  an  elector,  so  called  in  the  constitutions  of  most  of  the 
States,  but  whose  qualifications  are  primary.  This  is  a  representative 
elector,  and  the  moment  the  representative  credentials  are  closed  and 
accorded  to  him,  he  is  then  an  elector.  In  other  words,  he  is  not  a  State 
officer. 

Therefore  there  seems  to  be  nothing  in  that  proposition  which  should 
produce  proof,  because  proof  wouldjbe  entirely  ineffectual,  first,  for  the 
reason  that  the  inhibition  does  not  prevail ;  secondly,  for  the  reason, 
which  would  apply  to  the  supervisor  as  well,  that  there  is  no  provision 
by  any  legislation  of  Congress  that  can  give  this  action  of  the  two 
Houses,  either  in  their  joint  assembly  or  in  this  Commission  with  the 
rights  accorded  to  it,  jurisdiction  over  the  question  of  fact  involved  in 
abuses  or  violations  of  the  State  constitution ;  and,  further,  for  the 
reason,  insisted  on  already,  that  these  provisions  of  the  State  constitu 
tion  do  not  touch  the  Constitution  of  the  United  States,  which,  while  it 
was  careful  to  exclude  Federal  intervention  of  office-holders,  was  not 
guilty  of  the  folly  of  saying  that  no  State  should  accredit  as  its  elector 
an  honored  citizen  who  filled  in  the  affections  of  the  people  and  the 
authority  of  the  State  a  place  of  trust.  If  anything,  it  was  desired 
that  these  electors  should  be  State  notables,  men  who  had  the  adhesion 
of  their  fellow-citizens ;  and  to  say  that  we  must  take  the  residuum  of 
public  character  and  of  public  interest  and  of  public  repute  after  all 
the  State's  offices  are  filled,  from  constable  to  governor,  from  whence 
we  cannot  have  an  elector,  is  imputing  a  folly  to  the  frarners  of  our 
Constitution  that  they  are  not  open  to  and  which  cannot  be  forced  upon 
them  by  State  legislation. 

Governor  Ingersoll,  of  Connecticut,  heads  the  electoral  choice  of  that 
State.  Every  man  honors  him  as  a  representative  of  his  State.  He  is 
governor.  He  certifies  to  himself.  He  discharges  a  governor's  duty 
to  certify  to  whomsoever  the  people  choose.  He  does  not  make  himself 
an  elector.  He  certifies  upon  the  recorded  evidence,  as  John  Adams 
declared  that  he  was  President  of  the  United  States  by  the  count  of 
the  votes. 

This  being  so,  we  come  to  the  primary  question  of  interest  to  the 
public,  of  interest  to  all  citizens,  of  interest  to  every  man  who  loves  his 
country,  every  man  who  loves  its  Constitution  in  its  spirit  of  being 
popular  government,  obedient  to  law ;  and  I  am  at  a  loss  to  see  that 
anything  that  I  have  to  say  on  this  subject  should  approve  itself  to  one 
portion  of  this  Commission  and  be  unpalatable  to  another  by  reason 
of  any  political  adhesions  of  one  side  or  the  other.  I  shall  say  nothing 
that  I  would  not  say  as  a  citizen  holding  the  common  ground  with  all 
of  you  who  are  citizens  first  and  partisans  afterward. 

When  I  talk  of  the  mischiefs  in  the  State  of  Louisiana  which  are 
attempted  to  be  curbed  and  robbed  of  their  rapine  by  the  energetic 
laws  of  that  State,  I  do  not  understand  that  to  any  man,  because  his 
inclinations  or  his  convictions  incline  him  in  favor  of  the  elevation 
of  Governor  Tilden,  I  am  to  impute  that  he  looks  with  less  horror  upon 
that  subjugation  of  the  suffrage,  that  degradation  of  "citizenship,  that 


390  ELECTORAL    COUNT    OF    1877. 

confusion  of  society,  that  subversion  of  the  Constitution  than  I  do.  He 
only  wishes  that  it  should  be  curbed  and  redressed  by  law.  And  when 
I  speak  of  the  frauds  as  charged— for  I  must  speak  of  them  as  charged 
at  this  stage  of  the  business,  for  they  have  not  been  proved  at  all — 
when  I  speak  of  them  as  charged,  involving  falsification,  oppression, 
false  counting,  forgery,  conspiracy,  every  shade  of  the  crimen  faki,  am 
I  to  be  charged  in  this  presence  or  any  other  with  having  less  compla 
cency  even  in  the  lowest  grade  of  this  vice  than  those  who  uphold  their 
correction  and  desire  that  they  shall  be  frustrated,  when  I  demand  that 
it  shall  be  done  by  law  ? 

That  is  my  demand.  Is  it  a  partisan  demand?  It  is  the.  same  de 
mand  that  is  made  in  respect  to  the  gross  afflictions  which  every  citizen 
feels  as  beaten  by  the  same  stripes  that  were  inflicted  on  the  backs  of 
those  poor,  unbefriended  negroes.  That  is  citizenship ;  it  is  not  partisan 
ship.  And  when  this  other  vice  is  added  to  violence,  together  ruling 
the  evil  in  the  world — violence  and  fraud— when  that  other  form  is  cor 
rupting  and  afflicting  our  citizenship,  I  feel  it  as  bearing  a  full  share  of 
the  common  shame,  whether  it  be  inflicted  by  the  relentless  and  shame 
less  tyranny  of  the  New  York  dynasty  or  by  the  alleged  frauds  of  the 
Louisiana  dynasty.  But  why  is  it  that  fraud  is  so  detestable?  Why  is 
it  that  the  law  searches  for  it  as  with  candles  and  condemns  it  when  it 
is  brought  into  judgment  ?  Because  it  is  but  another  form  of  violence — 
Fraus  cequiparatur  vi.  That  is  the  reason  why  the  violence  that  ravishes 
is  more  heinous  than  the  fraud  that  secretly  purloins  the  virtue  and  the 
fame  of  American  citizenship. 

We  do  not  wish  to  be  told  that  fraud  is  tvorse  than  violence.  Its  vice 
is  that  it  robs  the  act  of  that  consent  on  which  its  freedom  depends,  to 
the  same  effect  as  violence  does.  Fraud  is  compared,  as  in  a  simile,  to 
the  principal  evil,  itself  described  as  violence.  Here  all  agree  that  under 
the  great  national  transactions  that  closed  the  war  and  under  the  expe 
rience  of  the  condition  of  society  in  Louisiana  thereafter  there  was  ex 
hibited,  not  indeed  a  continuation  of  armed  revolt  against  the  Govern 
ment,  but  far  from  the  repose  that  belongs  to  peace.  There  were  these 
outbreaks  of  a  bastard  and  seditious  soldiery,  the  authors  of  which,  by 
the  laws  of  war,  while  flagrant,  would  all  be  hanged  in  either  camp. 
What  was  the  scene  ?  Was  it  revolt  ?  Was  it  peace  ?  It  was  that  more 
dangerous  condition  of  the  body-politic  which,  unprobed  and  uncured, 
must  breed  a  conflagration  both  of  civil  and  domestic  war.  "  Nee  tumul- 
tus  nee  quies;  quale  magni  met  us  et  magnce  irco  silentium  est." 

It  is  that  brooding  silence  of  preparation  which  is  to  determine 
whether  outbreak  shall  assert,  or  whether  fear  reduced  to  despair  shall 
surrender,  liberty;  and  to  that  state  of  things  the  independent  action  of 
the  State  of  Louisiana  was  directed.  It  was  to  them  a  real  state  of 
things.  It  was  not  a  state  of  things  to  be  smiled  at  at  a  distance,  which 
ever  side  the  smile  came  from.  It  was  the  brooding  of  great  fear  and 
great  wrong  over  a  whole  population,  and  they  undertook  to  put  it  into 
the  frame-work  of  their  constitution  that — 

The  privilege  of  free  suffrage  shall  be  supported  by  laws  regulating  elections  and 
prohibiting  under  adequate  penalties  all  undue  influence  thereon  from  power,  bribery, 
tumult,  or  other  improper  practice. 

In  pursuance  of  that  duty,  imposed  upon  the  legislature  by  the  same 
independent  right,  dealing  with  an  actual  situation,  the  legislature 
undertook  to  support  the  free  suffrage,  and  in  their  judgment,  in  the 
choice  they  made,  who  can  control  them  ?  Shall  the  proud  purity  of 
New  York  City  judge  of  the  means  to  be  used  in  Louisiana  ?  Shall  the 
saint-protected  postures  of  Senators  and  Representatives  and  judges 


ELECTORAL    COUNT    OF    1877.  391 

and  advocates  judge  in  the  silence  of  this  court-room  of  the  means? 
No.  There  is  but  one  limit  to  the  means;  I  mean  one  limit  to  be  im 
posed  outside  that  State;  under  that  clause  of  the  Constitution,  none 
in  the  State,  except  that  these  means  should  be  adequate,  appropriate, 
and  seasonable,  and  they  might  be  used. 

Now,  eminent  statesmen  and  lawyers  say  that,  when  these  methods 
in  this  law  prescribed  are  resorted  to  by  a  State  to  save  itself  from  the 
ruin  of  civil  and  domestic  war,  it  prevents  the  State  from  being  consid 
ered  republican;  and  the  demonstration  and  the  proof  of  what  was 
republican  government  advanced  by  the  learned  counsel,  Judge  Trum- 
bull,  was  that  if  a  government  needed  to  be  supported  by  arms,  it  was 
not  republican.  Well,  was  our  Government  a  monarchy  because  we 
had  to  support  it  by  arms  through  four  years  of  civil  war  ?  What  else 
did  support  it  ?  What  else  prevented  the  pillars  of  this  court-room 
crushing  the  judges  in  their  office?  What  but  armed  men,  servants  of 
the  civil  power,  citizens  in  arms  supporting  their  Government  because 
they  loved  it ;  and  they  loved  it  because  it  was  republican.  I  think 
that  the  quod  erat  demonstrandum  does  not  come  by  that  process. 

What  is  the  proof  offered ;  what  in  principle,  what  in  nature  ?  How, 
far  is  it  within  the  disposition  of  the  offers  made  in  the  Florida  case? 
The  offer  there  was  to  show  that,  though  the  governor's  certificate  was 
conformed  to  the  recorded  canvass  of  the  final  State  authority,  and 
there  was  no  room  for  intervening  proof  between  them,  yet  behind  the 
canvass  a  resort  to  simple  and  record  facts  would  show  that  the  return- 
ing-officers  acted  without  jurisdiction.  That  was  the  principle  of  the 
offer.  Will  any  one  say  that  the  act  of  officers  without  jurisdiction  is 
a  mild  and  moderate  form  of  defective  authority,  compared  with  which 
fraud  was  a  more  evident  and  a  more  palpable  defeat  of  such  action  f 
By  no  means.  When,  therefore,  you  had  an  offer  to  produce  by  proof 
the  county  returns  in  Florida,  in  order  to  base  on  that  fact  an  argu 
ment  that  the  action  of  the  canvassing-board  on  those  returns,  wherein 
it  assumed  to  redress^or  re-arrange  them,  was  without  jurisdiction,  it  car 
ried  every  possible  legal  and  constitutional  ground  of  proof  that  can 
be  conceived.  Let  me  show  that  I  speak  by  the  card,  when  I  refer  to 
the  very  accurate  statement  of  his  proposed  proof  by  Mr..  O'Conor, 
found  on  page  44  of  the  Congressional  Record  of  February  4 : 

In  so  doing — 

That  is,  stating  what  they  did  in  respect  to  the  manipulations  of  the 
county  returns — 

In  so  doing  the  said  State  board  acted  without  jurisdiction,  as  the  circuit  and  su 
preme  courts  of  Florida  decided.  It  was  by  overruling  and  setting  aside  as  not  war 
ranted  by  law  these  rejections  that  the  courts  of  Florida  reached  their  respective  con 
clusions  that  Mr.  Drew  was  elected  governor,  that  the  Hayes  electors  were  usurpers, 
and  that  the  Tilden  electors  were  duly  chosen.  No  evidence  that  in  any  view  could 
be  called  extrinsic  is  believed  to  be  needful  in  order  to  establish  the  conclusions  relied 
upon  by  the  Tilden  electors,  except  duly  authenticated  copies  of  the  State  canvass — 

That  is,  "  the  erroneous  canvass,"  as  Mr.  O'Conor  considered  it — 

and  of  the  returns  from  the  above-named  four  counties,  one  wholly  and  others  in  part 
rejected  by  said  State  canvassers. 

In  order  to  show  that  their  return  rested  on  action  behind  it  that  was 
without  jurisdiction.  Well,  one  ground  covers  all.  Extra  vires,  with 
out  law,  without  authority,  is  as  much  a  condemnation,  if  the  proof  will 
sustain  it,  as  it  is  possible  to  suggest. 

Mr.  Commissioner  THUKMAN.  Mr.  Evarts,  allow  me  to  suggest  to 
you  that,  if  a  majority  of  the  Commission  thought  the  Florida  statute 


392  ELECTORAL    COUNT    OF    Jd77. 

authorized  what  was  done,  then  the  introduction  of  proof  would  have 
b^Cu  iui proper ;  and  therefore  it  does  not  follow,  because  an  argument 
was  made  that  the  board  exceeded  its  jurisdiction  in  thro  wing  out  votes, 
that  this  Commission  so  held,  fora  decision  that  the  true  interpretation 
of  the  statute  would  justify  what  they  did  made  it  immaterial  to  in 
quire  what  the  motive  was. 

Mr.  E  VARTS.  I  can  only  say  that  the  offer  of  proof  was  offered  only 
on  that  ground,  only  on  the  single  ground,  and  the  grounds  here  are  of 
that  nature  and  of  the  nature  of  fraud  or  mala  fides  in  the  transaction 
itself,  which  last  I  shall  consider. 

Mr.  O'Oonor,  as  was  to  be  expected  from  his  clear  relish  of  legal  prop 
ositions,  understood  that  that  involved  in  principle  going  behind  the  re 
turns  at  the  polls,  and  he  argued  that  our  objections  to  that  were  of  that 
somewhat  disfavored  complexion  of  its  being  inconvenient  to  go  into 
those  proofs.  He  did  not,  as  I  think,  correctly  appreciate  our  position; 
but  he  did  not  deny  that  if  he  were  allowed" to  adduce  that  proof,  we 
had  a  right,  on  the  principles  on  which  he  was  allowed  to  introduce  it, 
to  go  to  the  bottom  of  every  precinct  poll,  and  he  met  the  difficulty  of 
time  and  resources  for  it  by  saying  that  the  Commission  here  might  tem 
per  that  jurisdiction  by  going  as  far  as  they  found  it  convenient,  and 
then  stopping ;  that,  I  suppose,  if  they  found  themselves  getting  be 
yond  their  depth  they  might  swim  ashore,  and  leave  to  drown  the  can 
didate  that  at  that  stage  of  the  water  found  it  over  his  head.  But  here 
our  friend,  Mr.  Carpenter,  proposes  another  solution,  that  the  fact 
that  they  have  not  time  to  do  the  thing  is  not  a  reason  for  concluding 
that  perhaps  it  is  not  one  of  the  duties  assigned  to  you,  but  simply  af 
fords  a  reason  for  peremptory  adjournment;  that  the  thing  had  better 
be  undone  than  done;  and  there  is  no  choice  but  one  way  or  the  other; 
for,  if  anything,  these  proffers  go  into  the  whole  untraversed  sea  of 
action,  jurisdiction  based  on  the  action  of  subordinate  officers  in  the  con 
duct  of  the  election  on  days,  on  forms,  on  the  facts  that  must  appear, 
and  the  proofs  that  must  show  the  facts  to  give  jurisdiction,  and  you  are 
turned  into  a  supervising  court  that  takes  up  the  transactions  of  a 
special  jurisdiction  by  certiorari  to  search  it,  and  see  whether  the  jurisdic- 
tional  facts  existed ;  whether  they  existed  in  throwing  out  this  poll,  that 
poll,  the  other  poll;  and  whether,  when  it  is  rectified,  the  object  being 
to  produce  only  then  a  prima  facie  officer,  you  have  been  discharging 
the  duty  that  the  Constitution  imposed  upon  you,  or  whether  it  rested 
on  the  governor  and  the  canvassiug-board  to  determine. 

Well,  now,  the  fraud,  in  the  sense  of  mala  fides,  of  returning-officers 
or  canvassing-boards  is  extraneous  fact,  is  fact  that  does  not  vitiate  as 
much  as  being  ultra  vires  does  or  can.  It  is  more  opprobrious  in  epi 
thet;  it  is  more  damnable  in  its  morality;  but  in  its  legality  it  is  a  step 
lower  than  ultra  vires. 

Now  let  us  look  at  once  and  briefly  at  the  very  proposition  as  to  the 
right  to  trouble  the  State's  elections,  whether  they  have  beeti  honest, 
.whether  they  have  been  wise,  whether  they  have  been  careful,  whether 
they  have  been  prosperous.  Supposing  that  the  Constitution  had  given 
the  casting  of  the  electoral  votes  of  a  State  to  the  governor  of  that 
State ;  he  should  be  the  representative  elector ;  he  should  throw  the 
votes  that  we.re  distributed  to  the  population  of  that  State;  what  right 
would  you  have  had  to  inquire  beyond  the  single  point  who  is  governor, 
who  is  governor  de  facto,  who  is  the  governor  governing  the  State  at 
the  time  that  he  enters  upon  that  transaction  ?  Could  you  inquire 
whether  he  had  been  fraudulently  elected,  whether  in  his  election  the 
liberties  of  the  people  had  been  suppressed,  whether  he  was  in  by  a 


ELECTORAL    COUNT    OF    1877.  393 

fraudulent  conspiracy  by  which  he  bought  his  offtce,  whether  he  had 
taken  part  in  the  plots  that  had  subverted  the  suffrage  and  falsified  the 
action  of  the  people  J?  You  could  not.  It  is  enough  for  you  that  the 
governor  who  governs  is  the  man  who  is  to  represent  the  electoral  votes 
of  that  State.  What  other  right  have  you  in  regard  to  electors  in  in 
quiring  into  the  facts  by  which  the  State  has  transacted  the  business 
of  bringing  into  existence  electors  de  facto  f  I  submit,  on  principle 
none  whatever.  And -on  this  question  of  fraud  or  mala  fides  or  oppres 
sion,  upon  what  possible  principle  can  you  enter  into 'that  inquiry? 
Who  does  not  see  that  if  you  give  the  great  power  of  the  Federal  Union 
a  judgment  in  the  matter  of  how  the  State  has  performed  its  duty  you 
give  the  judgment  that  the  wolf  had  over  the  conduct  of  the  lamb, 
and  can  trace  the  vice  in  that  conduct  to  any  remoteness  of  relation, 
that  you  choose  ? 

I  apprehend  that  nothing  is  sounder  and  safer  than  this,  that  we  are 
to  redress  these  mischiefs  by  law  and  the  Constitution,  although  fraud 
may  make  us  recoil  from  its  touch,  and  although  violence  may  make  us 
shudder  at  its  degradation  of  the  American  name.  I  have  heard  that 
fraud  vitiates  everything,  and  it  is  spoken  of  here  as  if  it  did  it  of  its  own 
force;  that .every  factum  in  which  an  ingredient  of  fraud  entered  thereby 
became  infectum,  and  so  the  bane  always  bred  its  antidote.  Fraud  would 
not  be  so  dangerous  an  element  if  that  were  so.  I  have  heard  that  the 
liberties  of  the  people  are  to  be  paramount  in  every  particular  juncture, 
and  that  laws,  and  constitutions,  and  courts,  and  the  permanence  of  the 
system  of  justice,  and  the  truth  that  will  endure,  are  all  to  be  thrown 
aside  upon  the  mere  intrusion  of  this  afflictive  element  of  fraud,  and 
that  this  course  alone  will  secure  their  liberties  to  the  United  States  and 
their  people.  We  have  a  maxim  of  the  law,  and  of  social  ethics  and 
philosophy,  that  goes  behind  all  this :  Misera  est  servitus,  ubi  jus  vagum 
aut  incertum.  There  is  no  condition  of  a  people  so  abject  as  where  the 
law  does  not  rest  upon  firm  foundation,  and  its  lines  are  not  certainly 
drawn. 

In  the  pressure  of  particular  considerations  that  affect  the  sympathies 
and  the  conscience,  this  is  always  the  appeal.  What,  it  is  said,  is  a  con 
stitution  compared  with  human  interests  and  human  liberty?  Nothing, 
to  be  sure,  except  that  all  our  social  interests  and  all  our  liberties  rest 
on  law  and  the  Constitution.  These  are  not  the  deity,  but  they  are  the 
shrine,  without  whose  shelter  no  human  worshiper  can  detain  the  goddess 
from  the  skies. 

Now,  for  these  poor  people  of  Louisiana,  if  the  Federal  power  now 
undertakes  to  thwart,  to  uproot  this  scheme  of  energetic  law  to  preserve 
society  there  from  destruction,  and  leaves  these  unbefriended,  uneducated, 
simple  black  people  to  the  fate  from  which  the  State  strove  hard  to  save 
them — I  say  that  you  will  have  made  them,  by  that  action,  the  victims 
of  your  Constitution,  for  your  Constitution  gave  them  the  suffrage,  and 
they  are  to  be  slaughtered  for  having  the  gift  found  in  their  hands.  I 
say  that  you  make  them  the  sacrifices  to  the  triumph  of  the  Government 
over  the  rebellion.  I  say  that  such  self-abasement  of  the  powers  of  this 
Government  is  beyond  all  cure.  It  teaches  the  sad  lesson  that  the 
American  people,  in  the  attempt  to  make  good  the  largeness  of  its 
promise  and  to  work  out  the  glory  of  its  proud  manifesto  of  freedom  and 
equality  before  the  law,  finds  itself  thwarted  by  the  exhibition  of  violence 
in  this  turbulent  population,  and  forced,  with  its  own  hand,  to  crush  the 
methods  of  law  by  which  the  State  has  sought,  alas !  how  vainly,  to  curb 
and  redress  this  menace  and  this  mischief  to  its  honor  and  its  peace. 


394  ELECTORAL    COUNT    OF    1877 

Mr.  Commissioner  THURMAN.  I  move  that  the  Commission  take  a 
recess  until  a  quarter  to  two  o'clock. 

The  PRESIDENT.     A  recess  for  half  an  hour1? 

Mr.  Commissioner  THURMAN.    Thirty-two  minutes. 

The  PRESIDENT.  Mr.  Commissioner  Thurman  moves  that  the  Co  in- 
mission  take  a  recess  until  a  quarter  before  two  o'clock. 

The  motion  was  agreed  to. 

The  Commission  re-assembled  at  one  o'clock  and  forty-five  minutes 
p.  m. 

The  PRESIDENT.  Before  proceeding  to  business  I  will  read  a  copy 
of  a  resolve  sent  to  me  by  the  Secretary  of  the  Senate. 

IN  THE  SENATE  OF  THE  UNITED  STATES, 

February  15,  1877. 

Resolved,  That  the  Electoral  Commission  have  leave  to  occupy  the  Senate  chamber 
for  its  sittings  in  the  evening  after  the  Senate  shall  have  taken  a  recess  for  the  day. 
Attest : 

GEORGE  C.  GORHAM, 

Secretary. 

I  suppose  this  will  lie  on  the  table  for  the  present.  That  course  wrill 
be  pursued  if  there  be  no  objection. 

Mr.  CAMPBELL.  What  is  the  length  of  time  that  will  be  allowed 
to  me  ? 

The  PRESIDENT.  The  time  on  your  side,  under  the  order  passed  on 
motion  of  Justice  Strong,  has  expired.  You  have,  however,  two  hours 
and  thirty  minutes  of  the  other  time  left. 

Mr.  CAMPBELL.  Mr.  President  and  gentlemen  of  the  Commission, 
I  differ  so  fundamentally  with  the  learned  counsel  who  preceded  me  upon 
the  principle  of  the  generative  process  by  which  the  electors  of  President 
and  Vice-President  came  into  the  Constitution  that  I  shall  alter  the 
arrangement  of  my  argument  as  I  had  prepared  it  and  follow  the  arrange 
ment  pursued  by  the  learned  counsel  who  last  addressed  the  court.  I  do 
not  understand  that  the  election  of  President  had  its  origin  in  any  State 
constitution  or  that  it  derived  its  existence  from  any  reserved  fund  of 
power  belonging  to  the  States.  My  impression  of  that  office,  my  impres 
sion  of  the  means  by  which  that  office  is  to  be  filled,  is  that  it  is  from 
the  first  to  the  last  a  power  derived  from  the  people  of  the  United  States, 
the  people  of  the  States  united ;  that  it  owes  its  birth  to  no  State  con 
stitution  ;  it  derives  the  power  from  no  State  law  or  State  will.  I  do  not 
assert  that  the  Government  of  the  United  States  came  into  being  only 
with  this  Constitution,  or  that  the  United  States  themselves  came  into 
being  by  the  ratification  of  this  Constitution.  The  Constitution  came 
into  being  by  the  ratification  and  acceptance  of  the  States ;  but  if  the 
States  had  rejected  this  Constitution  there  would  have  been  still  a  United 
States.  The  United  States  came  into  existence  with  the  Declaration  of 
Independence. 

We  are  told  by  Mr.  Justice  Chase,  in  one  of  the  most  interesting  opinions 
that  ever  came  from  the  Supreme  Court,  in  the  case  of  Ware  vs.  Hilton, 
that  during  the  war  of  the  Revolution  the  United  States  exercised  all  the 
powers  of  a  sovereign  government  without  much  inquiry  as  to  where 
the  source  of  their  authority  came  from.  During  the  period  of  the 
Confederation  they  were  still  the  United  States  under  confederate  arti 
cles  ;  but  the  people  of  the  Uuitett  States  constituted  some  sort  of  a 
Union,  a  historical  Union,  stronger  than  the  Union  formed  by  the  con 
federate  compact ;  and  so.  when  they  sent  delegates  to  Philadelphia  who 
formed  and  organized  the  articles  which  compose  the  Federal  Constitu- 


ELECTORAL    COUNT    OP    1877.  395 

tion,  it  was  a  proposition  to  the  States  to  accept  those  articles  and  to 
form  a  Union,  not  for  the  first  time,  but,  as  declared  in  the  very  face  of 
the  Constitution  itself,  "  a  more  perfect  Union."  When  they  spoke  again 
in  the  language  of  this  Constitution,  and  which  language  became  "  the 
supreme  law  of  the  land"  on  the  adoption  of  this  Constitution,  it  was 
no  language  that  they  spoke  to  the  States  on  this  subject  such  as  has 
been  represented  to  the  Commission.  The  people  of  the  United  States 
on  the  face  of  this  Constitution  speak  with  power,  with  sovereign  power: 
"  We,  the  people  of  the  United  States,  do  ordain  and  establish  this  Con 
stitution."  When  they  came  to  the  subject  of  the  Presidency  they  said, 
"  The  executive  power  shall  be  vested  in  a  President  of  the  United  States 
of  America  ;"  and  when  those  words  were  accepted  as  law,  he  was  the 
President  of  the  United  States  of  America ;  and  when  they  came  to 
speak  of  the  manner  of  his  appointment,  it  is  said  "  each  State  shall 
appoint  electors."  Each  State  is  permitted  to  appoint,  each  State  is 
charged  to  appoint,  each  State  is  required  to  appoint,  each  State  is  com 
manded  to  appoint  "  in  such  manner  as  the  legislature  thereof  may  di 
rect."  It  is  not  the  State  saying  "  We  allow  you  to  make  a  president 
of  the  United  States,  provided  you  will  allow  us  and  our  legislature  to 
show  the  manner  and  means  by  which  that  election  shall  be  made."  The 
language  of  the  Constitution  is  imperative ;  it  is  the  absolute  "shall 
appoint." 

Coming  now  to  the  conclusion  of  it,  what  are  the  powers  that  the  two 
Houses  of  Congress  have  exercised  in  relation  to  the  exercise  of  this 
power  ?  Do  the  States  come  before  you  in  the  shape  of  sovereigns,  claim 
ing  of  you  by  any  title  superior  to  that  of  the  Constitution  that  their 
votes  shall  be  counted  ?  Do  they  come  here  and  tell  your  President  of 
the  Senate,  "  Lay  these  votes  before  these  Houses  and'  tell  that  Senate 
and  tell  that  House  of  Representatives  to  count  them  at  the  peril  of  our 
displeasure"!  Has  that  been  the  soul  and  the  temper  with  which  the 
States  have  come  to  the  two  Houses  of  Congress ;  and  has  their  recep 
tion  been  with  any  submissive  tone  and  temper  on  the  part  of  the  two 
Houses  in  joint  convention  ?  W7hy,  sir,  there  is  one  instance,  the  like 
of  which  I  trust  will  never  appear  again,  when  these  two  Houses  of 
Congress  said  to  four  of  the  original  States,  to  that  one  of  the  original 
States  to  which  more  than  any  other  may  be  ascribed  the  production  of 
this  Constitution,  and  said  to  six  others  in  company  with  the  four  orig 
inal  members,  "  We  will  not  count  any  votes  that  may  come  from  those 
States  ;"  said  it  in  advance  of  the  reception  of  any  votes,  without  the 
expectation  of  receiving  any  votes,  but  in  the  vindication  of  their  own 
authority,  expressing  the  will  of  a  proud  and  powerful  people  carrying 
on  hostilities  with  those  States.  Seeing  here  an  apparent  title  on  this 
Constitution  which  might  allow  them  to  present  the  votes  of  electors  for 
President  and  Vice-President,  in  advance  of  any  presentation  of  votes 
Congress  passed  a  resolution  that  such  votes  should  not  be  received. 

There  were  some  chimerical  governments,  so  called,  existing  in  those 
States  that  did  pretend  to  send  electoral  lists  to  the  two  Houses ;  but 
they  were  regarded  as  being  unworthy  of  any  consideration.  The  two 
Houses  knew  perfectly  well  that  the  ten  States  they  excluded  were  not 
in  any  manner  represented  by  those  caricatures  of  governments;  and 
dealing  with  the  principals,  dealing  with  the  States  themselves,  they 
declared  to  them  that  they  could  not  employ  the  power  granted  in  this 
Constitution.  Now,  I  can  suppose  a  case.  Suppose  that  the  legislature 
of  Virginia  had  sent  here  electoral  lists  in  1865  to  vote  for  the  incum 
bent  of  the  office  at  that  time;  suppose  that  she  had  demanded  her 
right  under  this  Constitution;  suppose  she  had  told  you,  "It  was  our 


39 G  ELECTORAL    COUNT    OF    1877. 

Washington  who  signed  tbat  document;  it  was  our  Madison  who  fur 
nished  the  eloquence  that  enabled  it  to  succeed ;  it  was  the  profound 
wisdom  of  George  Mason  that  appears  in  the  lines  of  it ;  we  come  here 
by  that  title ;  here  are  the  votes  of  our  electors,  appointed  by  our  legis 
lature  ;  count  them  f  what  would  have  been  the  answer  ?  It  would  have 
been  as  haughty  and  as  proud  as  the  demand :  "You  are  no  longer  entitled 
to  the  benefits  of  this  Constitution,  because  you  have  attempted  to  abro 
gate  it ;  and  we  will  not  count  your  votes  or  allow  you  even  to  come  so 
far  as  our  Houses  to  present  them ;"  and  this  Government,  these  two 
Houses  speaking  in  that  voice  of  authority  for  the  whole  people  of  the 
United  States,  which  was  vested  in  them  for  that  purpose,  is  now  the 
poor,  feeble,  paltry  imbecile  thing  that  cannot  deal  with  a  certificate  of 
a  fraudulent  returning- board  ! 

But  I  am  told  that  the  action  of  the  legislature  of  the  State  is  con 
clusive  ;  no  examination  can  be  made  into  their  authority,  no  inquiry 
into  the  force  of  their  acts  ;  they  have  the  supreme  authority  to  direct 
on  this  subject;  it  is  their  reserved  right;  you  cannot  touch  it;  you 
cannot  impair  it ;  it  belonged  to  them  before  you  existed ;  while  those 
States  were  living  you  were  unborn,  and  all  that  you  have  has  been  given 
from  them  to  you ;  this  they  ne\ver  gave,  and  here  is  a  gross  usurpation 
if  you  venture  to  inquire  into  the  act  of  that  legislature.  Is  that  true  ? 
The  State  has  the  power  to  appoint ;  the  legislature  the  manner  and 
means  of  that  appointment.  But  is  it  not  a  trust  power  ?  Is  that  power 
given  to  it  for  the  benefit  of  the  State  or  any  gratification  of  the  State, 
or  as  a  bauble  for  the  State  to  play  with  ?  This  joint  convention  has 
the  power  to  look  into  every  act  of  that  legislature ;  and  if  that  legis 
lature  offends  the  spirit  of  the  Union,  if  it  contravenes  the  fundamental 
principles  that  lie  at  the  foundation  of  American  liberty,  it  can  reject 
the  votes.  While  the  learned  gentleman  was  speaking  I  drew  up  the 
form  of  an  act  of  the  legislature  of  Louisiana  to  enable  me  to  put  the 
case  fairly  before  you : 

Be  it  enacted.,  <|-c.,  That  William  Pitt  Kellogg  and  J.  Madison  Wells,  and  their  associ 
ates,  are  made  a  body  corporate,  and  with  all  the  powers  of  a  corporation  under  the 
civil  code  of  Louisiana ;  and  that  there  is  granted  to  them  the  sole  and  exclusive 
power  and  privilege  to  nominate  and  appoint,  in  all  the  forms  and  at  the  times  that 
may  be  designated  in  the  acts  and  statutes  of  the  United  States,  electors  for  President 
and  Vice-President  of  the  United  States,  at  each  presidential  election  under  the  Con 
stitution  of  the  United  States,  which  may  be  apportioned  and  allotted  to  the  State  of 
Louisiana,  or  which  the  State  of  Louisiana  may  be  entitled  to  appoint ;  and  from  time 
to  time  the  legislature  contracts  to  make  such  directions  as  may  be  neceesary  to  make 
this  grant  effective ;  and  the  governor  shall  grant  all  such  certificates  and  commis 
sions,  and  do  all  other  acts  in  furtherance  thereto. 

It  is  not  very  far  from  the  case  before  the  court.  But  if  electoral 
votes  were  presented  by  that  corporation  with  the  seals  and  the  signa 
tures  that  the  laws  of  United  States  have  provided,  is  there  a  member, 
either  of  the  House  of  Representatives  or  of  the  Senate,  not  being  a 
stockholder  in  that  corporation,  who  would  hesitate  for  a  moment  to 
reject  it  with  contumelious  scorn  ?  The  answer  would  be  clear ;  it  would 
be  unequivocal,  and  the  judgment  would  be  a  just  judgment. 

It  is  the  United  States,  now  thirty-eight  in  number,  who  are  inter 
ested  in  the  exercise  of  this  power.  The  subject  of  the  exercise  is  the 
appointment  of  the  Executive  Chief  Magistrate  of  this  Union.  He 
commands  our  armies ;  he  commands  our  navies.  The  might  of  the 
nation  is  under  his  command.  He  represents  us,  through  embassadors 
commissioned  by  him,  in  all  foreign  nations,  and  he  receives  embassa 
dors  and  ministers  from  foreign  nations;  he  conducts  intercourse  with 
them,  negotiates  treaties.  He  comes  down  with  a  veto  upon  the  acts  of 
our  Congress,  the  legislative  department  of  the  Government,  and  an  en- 


ELECTORAL    COUNT    OF    1877.  397 

larged  majority  must  be  given  to  overcome  that  veto.  The  judges  of 
the  Supreme  Court  and  other  courts  are  nominated  and  commissioned 
by  him.  He  is  the  head,  the  most  distinct  representative  of  the  nation 
abroad  and  of  the  nation  at  home  ;  and  we  cannot  consent  to  receive 
appointments  of  electors  who  elect  him,  from  William  Pitt  Kellogg  and 
James  Madison  Wells,  although  sanctioned  by  legislative  enactment. 
You  may  treat  it  with  sorrow  and  you  may  treat  it  with  rebuke,  but 
you  will  be  obliged,  by  your  oath  to  support  the  Constitution,  not  to 
permit  it  to  interfere  in  the  election  of  that  officer. 

The  State  must  appoint,  that  corporate  being  composed  of  persons; 
and  if  it  had  not  a  person  on  it,  still  having  rights  under  the  Constitu 
tion  as  a  territorial  corporate  being;  and  unless  the  voice  that  comes  to 
the  two  Houses  be  the  voice  of  that  State,  whether  expressed  by  its 
legislature  or  expressed  by  its  people,  that  voice  must  come  before  the 
electoral  lists  can  be  received.  You  must  have  assurance  that  it  is  the 
State,  the  member  of  the  Union,  the  equal  of  all  the  other  States  of  the 
Union.  Its  voice  must  be  heard  in  that  vote ;  no  voice  other  will  be  ac 
cepted. 

Such  being  the  fact,  let  us  go  one  step  further.  The  legislature  may 
direct  the  manner.  I  have  put  a  case  in  which  I  have  not  a  question 
every  member  of  this  Commission  would  concur  with  me  that  that  voice 
could  not  be  given  by  a  corporation.  If  this  presidential  appointment 
cannot  go  into  the  market  as  stock  to  be  bought  and  sold,  although 
there  may  be  "  millions  in"  a  presidential  election,  it  must  speak  the 
present  voice  of  the  State ;  it  ought,  if  it  is  to  represent  its  best  feelings, 
its  best  intelligence,  its  highest  honor ;  and  if  you  see  certainly  that 
none  of  these  can  possibly  be  represented  in  the  directions  of  the  legis 
lature,  you  will  discard  the  directions. 

Having  shown,  I  think,  that  the  legislative  directions  must  be  con 
formable  to  the  spirit  of  the  Constitution  and  in  harmony  with  the  gen 
eral  purpose  to  be  accomplished,  it  follows  inevitably  that  these  two 
Houses  of  Congress  must  look  into  the  nature  and  character  of  those  di 
rections.  I  do  not  claim  for  these  two  Houses  any  nice  critical  or  cap 
tious  spirit;  but  a  broad  and  generous  interpretation  is  to  be  given  to 
the  action  of  the  legislature.  It  is  not  an  absolute  or  an  arbitrary 
power  that  is  conferred  upon  the  legislature.  They  do  not  possess  it  in 
full  sovereignty,  as  the  argument  would  seem  to  imply.  They  are 
responsible,  and  responsible  to  the  people  of  the  United  States,  quite  as 
much  as  the  legislature  is  responsible  to  the  people  of  its  own  State. 
Then,  looking  at  those  directions  and  finding  those  directions  to  comport 
with  the  terms  and  spirit  of  the  Constitution,  what  next  is  it  that  these 
Houses  can  do  ? 

The  next  thing  for  them  to  see  is  that  those  directions  have  been  con 
formed  to;  and  precisely  here  another  exercise  of  power  by  the  two 
Houses  of  Congress,  in  my  judgment  a  perfectly  justifiable  and  proper 
exercise  of  power,  was  made  in  the  case  of  Louisiana  in  1873,  as  her 
vote  was  rejected  in  18G5  by  the  two  Houses.  The  case  there  was  a 
quarrel  in  Louisiana  between  two  return  ing-boards.  The  one  returning- 
board  under  which  the  election  was  made,  some  ten  days  after  the  elec 
tion  was  made,  was  annulled  by  the  act  of  the  governor  of  the  State. 
Your  honors  ought  to  know  that  a  most  pernicious  practice  or  priv 
ilege  allowed  to  a  governor,  who  receives  a  bill  within  five  days  of  the 
adjournment  of  the  legislature,  is  to  hold  it  until  the  next  legislature. 
You  will  notice  to  nearly  all  these  laws  the  signature  and  approval  of 
the  governor  were  given  in  what  may  be  termed  ordinarily  the  vacation, 
in  the  time  between  one  legislature  and  another.  The  governor  of  that 


398  ELECTORAL    COUNT    OF    J877. 

State  at  that  time  had  procured,  a  year  or  two  before,  the  act  of  1870 ; 
and  possibly — for  there  is  no  other  material  difference  between  the 
laws — possibly  doubting  his  returning-board  under  that  act,  which 
consisted  of  the  governor,  lieutenant-governor,  and  two  other  persons, 
another  act  was  passed  appointing  another  returning-board,  constituted 
differently  and  selected  differently.  He  held  up  that  act  until  a  bill 
was  filed  for  the  purpose  of  causing  the  returns  that  were  in  his  hands 
as  the  president  of  the  first  board  to  be  produced.  Proceedings  were  be 
gun  to  cause  him  to  recognize  that  board  and  to  put  these  returns  in  their 
hands.  There  had  been  two  boards  constituted.  In  order  to  put  an 
end  to  all  discussion  on  that  subject,  within  a  few  days — four  or  five 
days — after  the  service  of  the  bill,  he  signed  and  promulgated  that  act 
of  1872  which  repealed  all  acts  and  parts  of  acts  in  conflict  with  or  relat 
ing  in  any  manner  to  it. 

He  had  not,  in  my  judgment,  the  slightest  title  to  appoint  the  second 
board,  because  that  board  was  to  be  appointed  by  the  State  senate ; 
but  the  other  board  was  certainly  extinguished,  because  that  act 
repealed  the  act  in  which  it  had  its  existence  and  which  gave  it  any 
power.  The  committee  of  the  Senate  of  the  United  States  which  inves 
tigated  the  subject,  apparently  recognized  his  power  to  fill  the  board 
under  the  second  act.  The  first  board  was  certainly  annihilated ;  and  it 
was  held  that  he  might  fill  the  vacancy,  as  it  was  called,  that  the  act  had 
appointed  the  senate  to  fill.  They  examined  it.  Begular  certificates  and 
regular  votes  were  sent  to  the  Senate ;  but  it  appeared  in  proof  that  War- 
moth's  clerks  had  done  all  the  canvassing  that  was  done  and  furnished 
all  the  estimates  that  were  made;  that  the  returning-board  then,  if  it 
were  a  good  retumiug-board,  had  nothing  to  do  with  the  canvassing  and 
compilation  of  votes  according  to  the  statute.  Thereupon  the  Senate, 
in  a  very  clear  opinion,  and  with  perfect  logic  in  its  conclusions,  said 
that  it  would  not  receive  a  return  computed  and  collected  in  that  man 
ner,  even  though  the  office  had  been  accepted  by  the  electors  claiming 
to  have  been  chosen  and  their  votes  had  been  regularly  returned. 

That  case  is  parallel  with  the  case  we  make  before  the  Commission. 
The  case  we  make  before  you  is  that  the  returniug-board  appointed 
by  that  act,  and  required  by  their  oath  of  office,  which  defined  their 
powers  with  perfect  precision,  to  canvass  and  compile  the  original 
returns,  never  made  such  a  canvass;  we  say  that  that  compilation 
never  took  place ;  that  those  original  returns  were  thrown  aside  and 
another  paper,  called  by  some  of  the  witnesses  a  "  contabulated  state 
ment,"  substituted.  It  was  so  called  by  a  member  of  that  board  before 
a  committee  of  Congress.  He  said  they  never  examined  any  paper  but 
the  "con  tabulated  statement"  of  the  supervisors;  and  all  of  them  con 
cur  in  the  fact  that  a  compilation  and  canvass  of  the  commissioners' 
returns  was  never  made.  If  the  opinions  contained  in  the  report  to 
which  I  have  alluded,  clearly  and  distinctly  expressed  and  adopted  by 
a  very  large  majority  of  the  Senate,  have  any  weight  as  authority,  the 
whole  weight  of  that  authority  is  in  favor  of  the  proposition  I  maintain. 

Proceeding  with  the  constitutional  clause,  the  State  appoints  electors 
in  such  manner  as  the  legislature  may  direct.  Of  course  that  compre 
hends  all  the  directions  of  the  legislature.  "The  manner"  of  an  elec 
tion  includes  all  the  regulations  leading  to  and  proceeding  to  carry  out 
an  election  ;  and  those,  1  say,  are  all  examiuable  here.  Then  the  twelfth 
amendment  becomes  a  part  "of  it. 

The  learned  counsel  who  argued  last  is  unable  to  tell  what  sort  of  a 
creature  an  elector  is.  I  am  not  sure  that  in  his  conception  he  is  a 
human  being.  He  need  not  be  a  citizen  of  the  United 'States  or  of  the 


ELECTORAL    COUNT    OF    1877.  399 

State;  he  is  not  an  officer  of  the  United  States;  he  is  not  an  officer  of 
the  State;  but  whatever  he  be,  the  Constitution  of  the  United  States, 
having  obtained  his  appointment,  not  according  to  any  State  power, 
not  according  to  any  State  direction,  the  State  getting  the  power  to 
appoint  from  the  Constitution,  the  legislature  getting  the  power  to 
direct  from  the  Constitution,  those  directions  become  a  part  of  this 
Constitution;  and  the  power  to  direct  being  so  derived  is  examinable 
by  the  superior  authority,  and  if  conformable  to  the  Constitution  the 
directions  are  as  if  they  had  been  written  in  the  Constitution. 

He  then  becomes  an  elector  in  the  manner  and  by  the  process  directed 
by  the  Constitution  of  the  United  States,  and  he  comes  to  perform  his 
duty,  and  he  is  to  perform  his  duty  by  giving  votes  and  sending  lists  to 
this  body,  and  at  a  certain  day  this  body  meets,  opens  the  votes,  and  is 
to  count  the  voices.  If  those  voices  have  any  uncertain  sound ;  if  they 
are  not  the  clear,  full,  sonorous  voice  of  a  State  coming  to  the  assembly  of 
the  States  on  the  one  hand  and  the  assembly  of  the  people  on  the  other, 
they  will  not  hearken,  they  will  not  accept  the  treble  voice  of  Jacob -if 
it  comes  in  subtle  guise  clothed  in  a  garment  not  suitable.  It  must 
be  a  lawful,  legitimate  voice  before  they  will  give  any  hearkening  to  it. 
This  being  so,  if  it  be  doubtful,  if  it  be  uncertain,  then  the  power  and 
the  duty  and  the  obligation  rest  upon  them  to  do  it,  for  how  else  can  it 
be  done!  Would  the  people  of  the  United  States  agree  that  the  capa 
city  of  the  persons  chosen  for  electors  should  be  determined  by  thirty- 
eight  different  supreme  courts  or  the  circuit  courts  that  exist  through 
thirty-eight  States  J?  Would  the  judgment  of  any  State  court  be  accepted 
as  such  a  judgment  ought  to  be  accepted ;  that  is,  in  the  fullness  of  its  cor 
dial  reception — would  it  be  accepted  as  irrefutable  proof  by  the  people  of 
the  United  States  ?  Would  they  consent  that  the  gentlemen  of  this  Com 
mission  or  the  two  Houses  should  look  to  the  transcript  of  a  record  cer 
tified  from  a  circuit  court  in  Florida  or  Colorado  as  determining  the 
result  of  an  election  and  according  to  the  result  of  their  election  receive 
the  votes  of  such  parties  ?  It  is  perfectly  evident  that  no  such  accept 
ance  could  possibly  be  given. 

Seventy -five  or  eighty  years  ago,  in  the  infancy  of  the  Eepublic,  when 
the  history  of  every  State  and  the  name  of  every  prominent  man  was 
known  to  the  whole  country,  the  character  of  its  tribunals  was  ascer 
tained,  and  there  was  entire  confidence  among  the  bar;  then,  possibly, 
a  State  tribunal  might  have  commanded  some  degree  of  respect  for  its 
decision.  But  now  when  the  breadth  of  a  continent  separates  one  State 
from  another ;  when  it  is  very  hard  to  carry  in  your  minds  the  names 
of  the  States,  and  very  few  of  us  can  state  exactly  where  they  are ; 
under  such  circumstances  it  is  impossible  for  the  States  to  exercise  such 
a  power.  Where,  then,  is  it  proper  that  such  a  power  should  be  placed1? 
I  know  the  enormous  difficulty  that  arises  out  of  its  deposit  here,  because 
of  the  force  of  partisanship,  the  diversity  of  interest,  the  jealousy  of 
the  various  parts  of  the  country,  and  various  other  considerations. 
There  are  objections  to  it;  but  where  else  can  you  place  it?  If  the 
assemblies  of  the  States  and  the  representatives  of  the  people  be 
entirely  unfit  and  incapable,  where  else  are  you  to  look  for  fitness  and 
capacity,  coupled  also  with  power?  Where  else  will  every  man  in  the 
United  States  be  represented  in  the  final  decision  ?  In  the  two  Houses 
every  man  in  the  United  States  has  some  measure  of  representation ; 
in  the  Senate  every  State  stands  on  an  equality ;  and  if  bodies  thus 
composed  be  unfit  and  incapable,  where  else  can  you  find  a  body  to 
make  the  depository  of  this  vast  power? 

We  learn  a  great  deal,  Mr.  President  and  gentlemen,  from  the  expe- 


400  ELECTORAL    COUNT    OF    1877. 

rience  of  our  mother-country.  Her  institutions  have  been  growing  up 
for  hundreds  of  years,  and  the  vicissitudes  and  changes  in  them  have 
been  the  result  of  the  vicissitudes  and  changes  in  the  condition  of  the 
people.  The  learned  counsel  in  speaking  of  a  member,  of  Parliament 
said  the  returns  were  made  into  Parliament ;  that  the  writs  came  there ; 
that  had  they  been  made  elsewhere  the  returns  would  *have  been  exain- 
inable  where  the  writ  was  returned.  That  was  precisely  what  James  I 
said  in  a  famous  incident  in  history,  reported  in  2  State  Trials.  James 
I  in  his  proclamation  for  the  convention  of  his  first  Parliament  lectured 
the  people  as  to  what  sort  of  Parliament  he  wanted.  He  did  not  want 
any  outlaws  or  bankrupts,  among  other  proscribed  classes.  In  a  sharply 
contested  election  Sir  Francis  Goodwin  was  elected,  and  he  was  under 
a  civil  sentence  of  outlawry.  The  king  took  that  to  be  a  base  affront 
on  his  proclamation.  The  Lords  sent  down  to  the  Commons  a  message 
that  they  desired  to  have  a  conference  on  the  subject ;  and  in  the  com 
mittee  of  the  Lords  were  nine  earls,  one  viscount,  six  bishops,  and  thir 
teen  barons,  who  were  attended  by  two  lord  chief-justices,  four  judges, 
Mr.  Sergeant  Crook,  and  Mr.  Attorney-General,  the  attorney-general 
being  Coke.  They  sent  for  the  Commons  to  meet  them,  and  the  Com 
mons  said  they  had  no  business  with  them  on  that  subject ;  that  it  was 
the  privilege  of  the  House  of  Commons  to  examine  its  own  returns. 
Then  the  King  directly  interfered.  They  sent  a  committee  of  sixty  to 
wait  upon  the  King,  and  the  King  told  them: 

His  Majesty  answered:  He  was  loath  be  should  be  forced  to  alter  his  tune ;  and  that 
he  should  now  change  it  into  matter  of  grief  by  way  of  contestation.  He  did  sample 
it  to  the  murmur  and  contradiction  of  the  people  of  Israel.  He  did  not  attribute  the 
cause  of  his  grief  to  any  purpose  in  the  house  to  offend  him ;  but  only  to  a  mistaking 
of  the  law.  For  matters  of  fact,  he  answered  them  all  particularly.  That,  for  his 
part,  he  was  indifferent  which  of  them  were  chosen,  Sir  John  or  Sir  Francis  ;  that 
they  could  suspect  no  special  affection  in  him,  because  this  was  a  counselor  not 
brought  in  by  himself.  That  he  had  no  purpose  to  impeach  their  privilege;  but  since 
they  derived  all  matters  of  privilege  from  him,  and  by  his  grant,  he  expected  they 
should  not  be  turned  against.  That  there  was  no  precedent  did  suit  this  case  fully  : 
Precedents  in  the  time  of  minors,  of  tyrants,  of  women,  of  simple  kings,  not  to  be 
credited,  because  for  some  private  ends.  By  the  law  this  house  ought  not  to  meddle 
with  returns,  being  all  made  into  the  chancery,  and  are  to  be  corrected  or  reformed  by 
that  court  only  into  which  they  are  returned.  (35  Hen.,  6.)  It  was  the  resolution  of 
all  the  judges  that  matter  of  outlawry  was  a  sufficient  cause  of  dismission  of  any 
member  out  of  the  house. 

The  Commons  made  answer,  and  finally  they  went  to  their  house  and 
reduced  their  reasons  to  writing  : 

The  reasons  of  the  proceeding  of  the  house  in  Sir  Francis  Goodwin's  case,  penned 
by  the  committee,  were,  according  to  former  order,  brought  in  by  Mr.  Francis  Moore 
and  read  by  the  clerk,  directed  in  form  of  a  petition. 

In  the  petition,  they  said  that  every  Parliament  writ  contained  this 
clause : 

Et  electionem  tuam,  in  plena  comitatu  factum  distincte  et  apcrte,  sul)  siyillo  tuo  et  sigiUls 
eornm  qui  elections  illi  interfuerint,  nobis  in  canceUarium  nostram  ad  diem  et  locum  in  brevi 
content  certifices  indilate. 

That  they  should  return  the  writ  to  the  chancellor.  The  Commons 
said  that  there  was  a  period  when  that  was  the  case: 

And  also  the  Commons,  in  the  beginning  of  every  Parliament,  have  ever  used  to 
appoint  special  committees,  all  the  Parliament  time,  for  examining  controversies  con 
cerning  elections  and  returns  of  knights  and  burgesses,  during  which  time  the  writs 
and  indentures  remain  with  the  clerk  of  the  Crown,  and  after  the  Parliament  ended, 
and  not  before,  are  delivered  to  the  clerk  of  the  petty-bag  in  chancery,  to  be  kept 
there  ;  which  is  warranted  by  reason  and  precedents:  Reason,  for  that  it  is  fit  that  the 
returns  should  be  in  that  place  examined,  where  the  appearance  and  service  of  the 


ELECTORAL    COUNT    OF    1877.  401 

writ  is  appointed.    The  appearance  and  service  is  in  Parliament,  therefore  the  return 
examinable  in  Parliament. 

From  that  time  forth  the  Commons  have  been  in  the  possession  of 
that  privilege,  and  for  a  long  time  the  privilege  was  greatly  abused ; 
but  in  1774  a  law  placed  it  in  the  hands  of  special  committees  organ 
ized  for  the  purpose  of  giving  judicial  decisions  upon  those  returns. 
De  Loline  says  of  that  law  of  Mr.  Granville,  that  it  was  "one  of  those 
victories  which  the  Parliament  from  time  to  time  gains  over  itself,  in 
which  the  members,  forgetting  all  views  of  private  ambition,  only  thought 
of  their  interest  as  subjects." 

Now,  I  say  that  the  Constitution  of  the  United  States  obviously  in 
tended  when  these  returns  were  brought  to  the  two  Houses  of  Con 
gress,  representing  as  they  did  the  legislative  department  of  the  Gov 
ernment,  and  their  business  being  to  furnish  an  executive  head,  with, 
out  which  no  law  could  be  passed  and  no  administration  conducted- 
that  these  two  Houses  should  examine  fully  and  entirely,  and  just  so 
far  as  it  was  necessary  to  ascertain  that  there  was  a  concurring  will  in 
the  appointment  of  a  majority  of  the  electors.  That  was  the  ques 
tion  to  be  submitted  to  and  determined  by  them,  and  until  that  decision 
was  made  by  the  two  Houses  there  could  be  no  President  appointed  by 
electors,  no  President  could  have  any  commission  from  any  source. 
He  became  the  President  of  the  United  States  of  America  solely,  ex 
clusively  by  the  count  made  by  the  two  Houses  and  their  certificate 
that  he  had  received  a  majority  of  all  the  electors ;  and  before  they  can 
be  possibly  required  to  make  any  such  judgment,  they  are,  in  the 
necessity  of  the  case,  bound  to  find  all  the  just  and  proper  grounds 
on  which  such  a  judgment  shall  be  based.  Hearn  gives  a  very  inter 
esting  account  of  the  struggle,  lasting  more  than  a  century,  of  the  Com 
mons  to  get  into  the  position  which  they  now  occupy,  and  in  the  work 
called  Hearn's  Government  of  England,  discoursing  on  this  case,  he 
says: 

Such  a  power  as  that  claimed  by  the  Crown  was  manifestly  fatal  to  the  intelligent 
action  of  the  House  of  Commons.  This  truth  seems  to  have  been  fully  recognized  by 
all  parties. 

I  return  to  the  point  where  I  commenced,  to  the  inquiry  in  respect 
to  the  directions  made  by  the  State  of  Louisiana  in  reference  to  the 
election  of  President  and  Yice-President.  I  shall  not  follow  the  dis 
cussion  in  respect  to  the  acts  of  the  legislature  and  whether  the  act 
of  the  legislature  of  1868  has  been  repealed  or  not.  I  will  come  di 
rectly  to  the  question,  assuming  it  to  be  true  for  the  present  that  the 
act  of  1872  fully  provides  for  the  election  of  electors  for  President  and 
Vice-President. 

I  call  your  attention  to  the  oath  of  office  that  the  members  of  the  re- 
turniDg-board  are  to  take,  found  on  page  96  of  the  compilation  printed  by 
order  of  the  Commission,  the  latter  part  of  section  2  of  the  act  of  1872  : 

I,  A  B,  do  solemnly  swear  (or  affirm)  that  I  will  faithfully  and  diligently  perform 
the  duties  of  a  returning-officer  as  prescribed  by  law ;  that  I  will  carefully  and  honestly 
canvass  and  compile  the  statements  of  the  votes,  and  make  a  true  and  correct  return 
of  the  election :  So  help  me  God. 

What  statements  of  votes  f  That  is  prescribed  in  the  succeeding  sen 
tence: 

Within  ten  days  after  the  closing  of  the  election  said  returning-officors  shall  meet  in 
New  Orleans  to  canvass  and  compile  the  statements  of  votes  made  by  the  commis 
sioners  of  election,  and  make  returns  of  the  election  to  the  secretary  of  state.  They 
shall  continue  in  session  until  such  returns  have  been  compiled. 

Therefore  it  is  defined  in  the  following  sentence  that  the  statements 
26  EC 


402  ELECTORAL    COUNT    OF    1877. 

of  votes  made  by  the  commissioners  of  election  are  the  statements 
that  the  members  of  the  board  have  sworn  to  compile,  and  they  are 
the  only  papers  that  are  referred  to  or  mentioned  in  that  oath  of  office. 
They  swear  to  "carefully  and  honestly  canvass  and  compile  the  state 
ments  of  the  votes  and  make  a  true  and  correct  return."  It  is  offered 
on  our  part  to  prove  that  they  never  canvassed  and  compiled  a  single 
return  made  by  the  commissioners  of  election.  As  I  mentioned  before, 
they  had  a  "  confabulated  statement7*  of  the  supervisors,  which  was  a 
secondary  paper;  and  here  it  may  be  proper,  and  perhaps  in  answer  to 
a  good  deal  of  the  tirade  that  has  been  spoken  on  the  other  side  in  ref 
erence  to  affairs  in  Louisiana,  it  would  be  right,  for  me  to  tell  you  pre 
cisely  how  this  election  came  about,  and  who  were  the  persons  that 
were  watching  the  precincts  and  controlling  the  election. 

You  will  perceive  that  there  is  a  supervising  registrar  appointed  by 
the  governor  of  the  State,  that  governor  being  then  a  candidate  for 
elector,  and  eventually  a  candidate  for  Senator,  to  the  Congress  of  the 
United  States,  which  since  this  election  he  has,  in  some  manner  or 
other,  got  some  sort  of  election  for  or  title  to.  Fifty-seven  parishes 
in  the  State  and  eighteen  or  twenty  wards  in  the  city  of  New  Orleans 
each  have  a  supervising  registrar.  The  supervising  registrar  has  the 
absolute  power  to  reject  or  admit  any  voter  on  the  list.  The  law,  as 
you  will  perceive,  prohibits  mandamus,  injunction,  or  any  interfer 
ence  of  the  courts  with  his  function,  and  prescribes  that  his  judgment 
shall  be  absolutely  conclusive  upon  the  capacity  of  giving  a  vote. 
Tha-t  supervisor  of  registration  in  each  parish  appoints  three  commis 
sioners  at  each  poll.  He  is  required  to  take  men  of  fair  standing  in 
their  parties,  so  as  to  make  something  like  a  fair  representation.  I  will 
assume  that  he  takes  two  from  his  own  party  and  one  from  the  other. 
There  are  over  seven  hundred  polling-places  in  the  State,  in  round 
numbers.  There  are,  then,  twenty-one  hundred  persons  in  all,  fourteen 
hundred  of  them  of  one  party,  and  those  men  are  to  take  the  vote 
from  the  hands  of  the  voter,  and  it  is  a  criminal  offense  for  anybody 
else  to  touch  the  vote  in  its  passage  from  the  voter's  hand  into  the  box. 
There  are  fourteen  hundred,  then,  members  of  the  supervisor's  party 
distributed  over  the  different  polls  of  the  State.  In  addition  to  that, 
he  has  the  power  to  appoint  a  special  constable  to  attend  the  polls  and 
to  perform  all  the  duties  that  are  required  of  him  by  the  commis 
sioners;  he  may  appoint  just  as  many  as  he  pleases — uone  or  more"  is 
the  language  of  the  law — say  eight  hundred.  That  makes  twenty-nine 
hundred  persons. 

In  addition  to  this,  the  United  States  court  in  New  Orleans  appointed 
sixteen  hundred  supervisors,  two  for  each  poll.  In  addition  to  that, 
the  marshal  of  the  district  appointed  eight  hundred  deputies  for  New 
Orleans  and  fifteen  hundred  deputies  for  the  country,  to  attend  the 
polls  in  the  country.  In  addition  to  that,  under  the  opinion  of  the 
Attorney-General  of  the  United  States,  large  detachments  of  the  Army 
were  placed  in  various  parts  of  the  States,  so  that  they  might  be 
"bystanders,"  I  think  was  the  language  of  the  opinion,  to  serve  as  a 
sort  of  posse  comitatus  in  the  event  that  the  marshal  should  find  any 
use  for  that  sort  of  assistance. 

Taking  out  the  Army,  there  were  about  seventy-five  hundred  persons 
who  were  employed,  lawfully  or  unlawfully,  but  still  with  a  show  of 
authority,  all  coming  either  from  the  governor  or  his  friends.  They 
were  there  engaged  in  watching  the  polls.  Now,  is  this  Commission 
astonished,  under  that  sort  of  array,  that  there  was  not  from  a  single 
poll,  unless  perhaps  one,  a  protest  or  report  by  any  commissioner  of 


ELECTORAL    COUNT    OF    1877.  403 

election  that  there  was  riot,  tumult,  intimidation,  confusion,  or  anything 
else  that  the  statute  speaks  of  at  his  box!  Nor  was  there,  so  far  as  I 
have  been  informed,  a  single  report  from  any  supervisor  of  registration 
that  there  was  tumult,  riot,  or  interference,  or  obstruction  in  the  per 
formance  of  his  duty  as  registrar.  On  the  contrary,  on  the  registration- 
books  there  are  225,000  voters  registered  and  the  census  of  the  State 
was  827,855  population.  Of  the  votes  appearing  on  the  face  of  the 
returns  there  were  83,000  for  one  ticket  and  75,000  for  the  other.  I 
undertake  to  say  that  two-thirds  of  the  States  of  this  Union  that  voted 
at  that  election  have  not  shown  the  same  quantity  of  voting  population 
in  comparison  with  the  population  recorded  on  the  census.  I  have  been 
informed  that  there  is  not  a  single  State. 

With  these  facts  standing  here  upon  the  face  of  the  law,  clearly  to  be 
discerned  and  ascertained,  with  these  votes  given,  no  scene  of  tumult', 
no  scene  of  confusion  reported  by  the  only  authority  that  could  report 
it,  I  ask  on  what  foundation,  on  what  show  of  justice,  right,  or  pro 
priety,  have  these  denunciations  of  the  people  and  society  of  Louisiana 
been  ringing  in  the  ears  of  this  Commission  and  the  persons  here 
present? 

I  can  tell  you  another  fact.  I  can  tell  you  a  fact  more  startling  than 
any  fact  which  has  been  reported  here  and  which  may  serve  at  the  next 
election  for  the  campaign  speeches  of  that  time.  On  the  30th  of  October 
there  issued  out  of  the  circuit  court  of  the  United  States  at  New  Orleans 
ten  thousand  and  upward  of  warrants  of  arrest  to  seize  ten  thousand 
different  individuals,  inhabitants  of  the  city  of  New  Orleans,  for  having 
falsely  registered  themselves  in  1874  as  competent  voters.  They  em 
braced  some  of  the  most  respectable  men  in  the  city,  my  friend  and 
family  physician  among  the  number;  one  of  our  delegates  in  Congress 
among  the  number  of  those  arrested  for  fraudulent  registration.  That 
is  quite  equal  to  the  two  thousand  fights  and  murders  and  bloodshed 
we  have  heard  of.  A  whole  community,  comprising  its  very  best  citi 
zens,  apparently  best  in  standing,  in  property,  in  social  position,  startled 
by  warrants  of  arrest  to  seize  them  and  bring  them  before  an  officer  of 
the  United  States  court  for  fraud !  Never  was  such  a  picture  of  any 
community  as  that.  There  were  ten  thousand  lies  sworn  to  in  order  to 
procure  those  warrants.  There  was  not  a  scintilla  of  proof  nor  any 
desire  to  have  any  proof.  One  thousand  three  hundred  and  sixty  cases 
were  tried  and  dismissed  on  sight;  but  it  served  the  purpose.  The  affi 
davits  were  made  by  two  men — policemen — all  of  them.  I  have  read  a 
portion  of  the  affidavits  myself,  piled  up  in  the  court  covering  a  table 
so  high. 

Mr.  Commissioner  THUEMAN.  Were  the  whole  10,000  men  arrested 
on  those  affidavits? 

Mr.  CAMPBELL.  Yes,  sir.  Two  policemen  in  each  ward  made  the 
affidavits,  I  am  advised.  On  the  affidavits  of  those  two  policemen  a 
red  line  was  drawn  around  the  names  of  the  citizens  on  the  registration- 
list,  and  several  thousand  voters  were  unable  to  restore  their  names  to 
that  list  so  as  to  vote.  The  commissioner  who  issued  those  papers 
brought  his  account  into  court  for  fifteen  thousand  and  odd  dollars 
against  the  United  States  for  his  services,  and  Judge  Billings  told  him  : 
"  On  the  face  of  these  papers  there  is  a  gross  fraud,  and  I  will  not  certify 
to  a  cent."  That  is  the  character  of  the  proceeding. 

I  ask  if  any  such  thing  had  happened  in  the  sober,  steady  States  ot 
Vermont  or  Connecticut,  if  ten  thousand  writs  had  been  issued  charging 
men  with  crimes,  what  would  have  been  the  sentiment  and  what  would 
have  been  the  act  of  those  people  ?  Would  they  have  been  satisfied  to 


404  ELECTORAL    COUNT    OF    J877. 

go  up  and  clear  themselves  of  the  accusation  and  return  quietly  home? 
I  have  the  opinion  that  the  inhabitants  of  the  State  of  Ethan  Allen 
would  have  been  rather  violent ;  at  all  events  there  would  have  been 
ten  thousand  suits  against  the  officers  if  there  had  been  any  means  of 
making  them  answer  for  that  sort  of  dealing.  But  they  were  perfectly 
irresponsible,  they  were  mere  tools ;  I  question  whether  they  understood 
that  there  was  any  impropriety  in  the  proceeding  at  all.  But  I  think 
that  is  sufficient  to  show  a  perfect  answer  to  those  accusations  of  the 
wrong  that  was  done  some  four  or  five  or  six  years  ago,  based  on  news 
paper  statements. 

Of  course,  neither  one  of  these  facts  goes  in  the  least  toward  solving 
the  problem  before  this  tribunal.  The  problem  is  whether  these  com 
missioners  of  elections'  returns  have  been  examined  and  whether  it  is 
necessary  for  their  examination  to  take  place  before  a  valid  return  can 
be  made.  I  hardly  feel  that  I  am  doing  justice  to  the  Commission  and 
adding  anything  to  that  which  has  been  said  on  this  subject,  not  simply 
said  by  my  associates,  but  which  has  been  said  in  the  Congress  of  the 
United  States  in  discussing  this  very  election  law,  which  was  said  with 
so  much  force  in  the  report  made  to  the  House  of  Representatives  and 
that  has  been  read  here,  and  said  with  so  much  force  in  the  discussion 
in  1872  and  1873  and  so  lately  as  in  1875,  and  in  which  there  appeared  to 
be  no  diversity  of  opinion  between  the  different  members  of  the  Senate 
who  composed  this  Commission  or  the  members  of  the  House  who  com 
posed  this  Commission.  The  discussion  both  in  the  House  and  in  the 
Senate  seemed  to  be  concurrent  to  the  same  result  in  reference  to  the 
construction  of  this  law. 

Why,  sir,  if  a  body  is  charged  to  do  a  duty  in  a  particular  manner, 
in  a  specified  manner  and  none  other,  if  their  oath  be  to  do  it  in  that 
manner  and  their  commission  is  to  do  it  in  that  manner  and  none  other, 
how  can  any  effect  be  given  to  the  return  unless  they  follow  that  com 
mission  ?  The  whole  frame  of  this  act  is  to  lift  up  into  prominence  and 
supremacy  the  original  returns  made  by  the  commissioners  of  election, 
and  none  others.  Without  those  returns  the  returuing-board  is  not 
allowed  to  advance  a  step.  "The  first  thing  you  are  do,"  says  the  act 
to  them,  u  is  to  ascertain  from  those  returns  which  are  contested  and 
which  are  not  contested;"  and  in  this  case  neither  the  contested  nor  the 
uucontested  returns  have  been  examined  and  reported  upon.  In  a  late 
case,  in  1875,  reported  in  10  Law  Eeports,  Common  Pleas,  page  744, 
Lord  Chief-Justice  Coleridge  says : 

As  to  the  second,*,  e.,  that  the  election  was  not  really  conducted  under  the  subsisting 
election  laws  at  all,  we  think,  though  there  was  an  election  in  the  sense  of  there  having 
been  a  selection  by  the  will  of  the  constituency,  that  the  question  must  in  like  manner 
be  whether  the  departure  from  the  prescribed  method  of  election  is  so  great  that  the 
tribunal  is  satisfied,  as  matter  of  fact,  that  the  election  was  not  an  election  under  the 
existing  law.  It  is  not  enough  to  say  that  great  mistakes  were  made  in  carrying  out 
the  election  under  those  laws ;  it  is  necessary  to  be  able  to  say  that,  either  willfully  or 
erroneously,  the  election  was  not  carried  out  under  those  laws,  but  under  some  other 
method. 

Mr.  Commissioner  EDMUNDS.  In  what  form  did  that  case  arise, 
Judge  Campbell? 

Mr.  CAMPBELL.  It  arose  on  an  action  for  submitting  an  election 
under  a  late  act  of  Victoria  to  the  judgment  of  the  court  composed  of 
the  Right  Honorable  Lord  Coleridge,  chief-justice,  and  Judges  Keating, 
Brett,  Grove,  Den  man,  Archibald,  Huddlestou,  and  Lindley. 

Mr.  Commissioner  EDMUNDS.     It  is  under  the  English  statute. 

Mr.  CAMPBELL.  Yes,  sir;  the  ballot  act.  The  language  which  I 
have  read  to  the  court  applies  precisely  to  the  act  of  the  returniug- 
officers  in  this  case. 


ELECTORAL    COUNT    OF    1877.  405 

For  instance,  if,  during  the  time  of  the  old  laws,  with  the  consent  of  a  whole  con 
stituency,  a  candidate  had  been  selected  by  tossing  up  a  coin,  or  by  the  result  of  a 
horse-race,  it  might  well  have  been  said  that  the  electors  bad  exercised  their  free  will, 
but  it  should  have  been  held  that  they  had  exercised  it  under  a  law  of  their  own  in 
vention,  and  not  under  the  existing  election  laws,  which  prescribed  an  election  by 
voting.  So  now,  when  the  election  is  to  be  an  election  by  ballot,  if,  either  willfully 
or  erroneously,  a  ivhole  constituency  were  to  vote,  but  not  by  ballot  at  all,  the  election' 
would  be  a  free  exercise  of  their  will,  but  it  would  not  be  an  election  by  ballot,  and 
therefore  not  an  election  under  the  existing  election  law.  But  if,  in  the  opinion  of  the 
tribunal,  the  election  was  substantially  an  election  by  ballot,  then  no  mistakes  or  mis 
conduct,  however  great,  in  the  use  of  the  machinery  of  the  ballot  act,  could  justify 
the  tribunal  in  declaring  the  election  void  by  the  common  law  of  Parliament. 

Now,  apply  that  to  the  case  of  the  returning-board.  The  returning- 
board  has  a  prescribed  duty  to  perform  under  the  act  of  its  organization. 

Mr.  Commissioner  BRADLEY.  Judge  Campbell,  was  that  tribunal 
a  tribunal  erected  for  the  trial  of  elections  of  members  of  Parliament  ? 

Mr.  CAMPBELL.  There  is  a  provision  for  the  election  of  members  of 
Parliament.  This  does  not  arise  in  the  case  of  an  election  for  Parliament. 

Mr.  Commissioner  BRADLEY.  It  is  for  the  trial  of  the  election  of 
other  officers  as  well  ? 

Mr.  CAMPBELL.  Yes,  sir.  This  was  a  municipal  election.  They 
have  a  jurisdiction  over  elections  for  Parliament ;  and  they  certify  their 
opinion  ;  but  this  is  not  such  a  case. 

Mr.  Commissioner  BRADLEY.  Are  the  operative  words  of  the  sec 
tion  of  the  act  which  confers  the  power  on  the  tribunal  in  that  case, 
before  you  ? 

Mr.  CAMPBELL.  No,  sir.  The  question  was  under  the  ballot  act. 
There  were  some  instructions  given  to  the  returuiug-officers  which  would 
give  you  the  information  you  ask  for;  I  will  read  them  from  page  738 
of  the  volume  to  which  I  have  referred  : 

The  returning-officer  will  attend  at ,  at  four  o'clock  p.  m.,  on  the  day  of  elec 
tion,  to  receive  the  ballot-boxes  and  papers  from  the  officers;  when  all  the  boxes  have 
been  delivered  to  him,  he  will  then — 

1.  Open  the  ballot-boxes. 

2.  Count  the  number  of  ballot-papers  in  each  box  separately,  and  record  the  number 
on  the  inclosed  form. 

3.  Mix  all  the  ballot-papers  together,  (keeping  their  faces  upward.) 

4.  Sort  into  separate  packets  the  votes  for  each  candidate   and  the  doubtful  votes. 

5.  Examine  the  doubtful  votes,  and  reject  for  the  following  reasons  only  : 

1.  For  want  of  official  mark;  2.  Voting  for  more  candidates  than  entitled  to  ;  3. 
Writing  or  mark  by  which  voter  could  be  identified;  4.  Unmarked  or  void  for  uncer 
tainty. 

6.  Count  the  votes  for  each  party.     [It  is  very  convenient  to  arrange  them  in  heaps 
of  twenties.] 

7.  Seal  up  in  separate  packets:  1.  The  counted  ballot-papers;  2.  The  rejected  bal 
lot-papers. 

[The  packets  of  tendered  ballot-papers,  marked  copy  of  ward-list  and  counter-foils, 
must  not  be  opened.]  • 

8.  Verify  the  presiding  officer's  ballot-paper  accounts. 

9.  Fill  up  and  sign  return  on  the  printed  forms. 

I  refer  to  this  case  for  the  principle  which  was  announced.  There  had 
been  an  election  and  there  had  been  a  return,  and  there  was  a  contest 
as  to  the  election.  The  principle  is: 

To  render  an  election  void  under  the  ballot  act,  by  reason  of  a  non-observance  of  or 
non-compliance  with  the  rule  or  forms  given  therein,  such  non-observance  or  nori-com- 
pliance  must  be  so  great  as  to  satisfy  the  tribunal  before  which  the  validity  of  r.he  elec 
tion  is  contested  that  the  ejection  has  been  conducted  in  a  manner  contrary  to  the 
principle  of  an  election  by  ballot,  and  that  the  irregularities  complained  of  did  affect 
or  might  have  affected  the  result  of  the  election. 

And  so  I  say  in  regard  to  the  returning-board,  that  if  this  returning- 
board  proceeded  in  a  manner  which  was  in  contradiction  to  the  letter 


406  ELECTORAL    COUNT    OF    1377. 

ami  the  spirit  of  the  act,  so  as  to  satisfy  tbe  revising  tribunal  that  they 
did  not  follow  that  act,  either  from  error  or  from  fraud,  (and  we  charge 
in  this  case  both  error  and  fraud,)  then  the  returns  of  those  officers  can- 
isot  be  accepted  as  valid  and  proper  returns  under  that  act.  Let  me 
lefer  you  to  Adolphus  and  Ellis's  Reports  in  Queen's  Bench,  new  series, 
volume  1?  page  892,  Caudle  vs.  Seymour ;  and  the  object  of  the  citation 
is  to  show  that  there  must  be  a  conformity  with  the  directions  of  the  act, 
that  a  court  or  tribunal  does  not  acquire  jurisdiction  by  the  mere  fact  of 
dealing  with  a  case  that  has  some  connection  with  the  subject  of  the  act, 
but  where  the  act  prescribes  a  mode  of  proceeding  to  an  inferior  court 
that  must  be  pursued.  The  syllabus  of  the  case  is  : 

A  justice's  warrant  commanding  a  constable  to  apprehend  and  bring  before  him  the 
body  of  A  B  to  answer  all  such  matters  and  things  as  on  Her  Majesty's  behalf  shall  be 
objected  against  him  011  oath  by  C  D,  for  an  assault  committed  upon  C  D,  on,  &c.,  is 
bad,  as  not  showing  any  information  on  oath  upon  which  the  warrant  issues. 

A  deposition  on  oath,  taken  by  the  justice's  clerk,  the  justice  not  being  present,  nor 
at  any  time  seeing,  examining,  or  hearing  the  deponent,  is  irregular,  and  no  justification 
of  proceedings  founded  upon  it. 

The  judgment  is  this : 

An  affidavit  is  a  document  which  is  to  speak  for  itself,  and  to  avail  or  not,  merely 
according  to  its  contents;  the  court  does  not  examine  the  party;  but,  in  the  case  of 
depositions,  the  magistrate  does;  and  I  am  not  aware  that  deputing  that  office  to  a 
clerk  has  ever  been  held  equivalent  to  an  examination  by  tbe  magistrate. 

*  ****** 

A  magistrate  has  no  jurisdiction  in  such  a  case  as  this,  without  a  charge  on  oath. 

*  *  *  *  *  #  * 

The  taking  of  affidavits  in  this  court  is  quite  different ;  the  act  is  purely  ministerial ; 
the  party  says  what  he  pleases,  and  the  effect  of  it  comes  to  be  considered  by  the  court 
afterward.  But  a  magistrate  taking  depositions  has  a  discretion  to  exercise ;  he  is 
to  examine  the  witness,  hear  his  answers,  and  judge  of  the  manner  in  which  they  are 
given. 

The  act  was  considered  void  and  an  action  of  trespass  was  brought 
against  him.  In  this  case  I  have  communicated  to  the  court  the  terms 
of  the  act  of  1872  which  required  these  persons  to  compile  and  canvass 
papers  of  a  specific  character,  and  their  whole  duty  is  performed,  when 
they  canvass  and  compile  those  papers,  and  they  have  no  other  duty  to 
perform  until  they  make  that  canvass  and  that  compilation.  If  in  mak 
ing  the  canvass  and  compilation  they  come  across  a  protest  made  on  the 
day  of  the  election  in  the  presence  of  the  commissioners  and  corroborated 
by.  three  parties,  and  they  find  in  that  a  sufficient  warrant  for  further 
examination  and  necessity  for  further  examination,  then  they  have  an 
independent  and  separate  duty  to  perform.  And  here  let  me  state  to 
the  Commission  that  their  duty  upon  the  subject  of  intimidation  and 
their  power  upon  the  inquiry  into  intimidation  is  a  limited  and  spe 
cial  power.  They  do  not  have  the  power  to  go  through  the  country  and 
examine  whether  there  was  intimidation  which  kept  persons  from  the 
polls,  however  such  intimidation  may  have  affected  the  election.  They 
have  not  power  to  examine  into  intimidations  or  tumults  or  riots  occur 
ring  at  a  different  place  than  the  place  of  holding  the  election,  nor  at  a 
time  other  than  the  election-day.  It  is  the  interference  on  the  day  of 
election  by  tumult,  riot,  or  intimidation,  that  the  commissioners  of  elec 
tion  have  the  power  to  report,  and  when  reported  the  returning- board 
have  the  power  to  examine. 

I  do  not  pretend  to  say  but  what  at  the  common  law  and  under  the 
acts  of  the  legislature  of  the  State  of  Louisiana  intimidation  and  threats 
and  violence  in  any  form,  corrupting  practices  in  any  form,  would  invali 
date  an  election.  But  we  are  not  dealing  with  any  inquiries  of  that  kind. 
We  are  dealing  with  the  powers  of  a  returniug-board,  with  a  special,  lim- 


ELECTORAL    COUNT    OF    1877.  407 

ited  commission  addressed  to  them,  and  the  manner  of  performing  that 
commission  carefully  and  rigidly  specified.  The  act  of  Louisiana  is  no 
new  act.  Here  is  an  entire  volume,  an  Election  Manual,  and  these  are  the 
chapters  contained  in  it  relative  to  an  election  :  "acts  of  agency;  brib 
ery;  conduct;  conveyance;  corruption;  influence:  intimidation;  fraud," 
&c.,  and  the  most  extensive  and  ramified  inquiries  are  made  there,  and 
rules  of  the  strongest  and  most  rigid  character  prescribed  in  order  to 
secure  purity  in  elections.  Such  unquestionably  would  be  a  suitable 
subject  for  examination  upon  a  trial  where  a  party  had  received  a  cer 
tificate  of  election  from  any  returning-board.  In  the  State  of  Louisiana, 
in  the  decisions  contained  in  the  twenty-fifth  volume  of  Annual  Re- 
ports,  made  in  1872  and  1873,  there  has  been  a  perfect  abdication  or 
rather  abnegation  of  every  sort  of  jurisdiction  over  elections  in  any 
shape,  although  our  intrusion  act  is  a  literal  copy  from  the  act  of  New 
York,  and  although  the  opinions  of  the  courts  of  New  York  have  ex 
tended  the  operation  of  the  act  to  every  sort  of  inquiry  in  elections. 

The  supreme  court  in  the  State  of  Louisiana  held  in  the  decision 
against  Bonner  that  there  was  no  law  authorizing  the  courts  to  deal 
with  contested  elections,  and  their  decision  was  to  dismiss  the  case  for 
want  of  any  connection  or  control  over  it.  That  was  all  that  is  con 
tained  in  those  decisions.  But,  unquestionably,  in  any  well-ordered 
court  no  such  decision  could  possibly  have  been  made,  and  when  those 
opinions  came  before  the  committee  of  the  Senate  (and  the  report  of  Mr. 
Carpenter  was  submitted  several  years  ago)  that  committee  did  not  hes 
itate  to  say  that  those  opinions  were  contrary  to  law  and  that  the  law 
was  in  the  dissenting  opinion.  In  every  well-ordered  system  of  juris 
prudence,  those  inquiries,  that  delegation  of  power  would  be  co-exten 
sive  with  the  limits  ;  and  any  party  who  had  a  title  to  office  and  wished 
to  establish  that  title  against  a  party  who  had  been  counted  in  unfairly 
or  who  had  procured  his  election  unfairly  and  dishonestly  ought  to  have 
been  heard ;  but  in  the  state  of  the  law  in  Louisiana  no  such  case  could 
have  been  presented — I  mean  the  state  of  the  law  before  that  supreme 
court. 

Mr.  Commissioner  STRONG.  Mr.  Campbell,  with  regard  to  a  portion 
of  your  argument,  I  should  like  to  ask  a  question  if  it  will  not  be  inter 
rupting  you. 

Mr.  CAMPBELL.     Certainly. 

Mr.  Commissioner  STRONG.  What  is  the  position  you  take  in  re 
gard  to  the  power  of  the  State  over  the  final  action  of  its  returning- 
board  f  To  put  the  question  a  little  more  in  the  concrete,  was  it  in  the 
power  of  the  State  of  Louisiana  to  have  directed  the  action  of  the  re- 
turning-board  or  State  cauvassing-board  to  have  been  completed  on  or 
before  the  20th  day  of  November,  and  was  it  in  the  power  of  the  State 
to  constitute  another  tribunal  to  try  contests  between  the  two  sets  of 
electors  which  claimed  under  the  election  f 

Mr.  CAMPBELL.     Unquestionably,  sir. 

Mr.  Commissioner  STRONG.  Then,  as  I  understand  you,  you  con 
tend  that  the  power  of  judging  of  the  honesty  or  accuracy  of  the  decis 
ion  of  the  returniug-board  is  in  the  State. 

Mr.  CAMPBELL,     in  the  case  of  State  officers. 

Mr.  Commissioner  STRONG.     1  am  speaking  of  electors. 

Mr.  CAMPBELL.  That  I  will  come  to  after  awhile.  In  reference 
to  that,  my  own  opinion  is  that  the  State  has  no  jurisdiction  over  the 
elector. 

Mr.  Commissioner  STRONG.  Cannot  review  its  own  election  for 
electors  i 


408  ELECTORAL    COUNT    OF    1877. 

Mr.  CAMPBELL.  It  cannot  review  the  election  for  electors,  in  my 
judgment.  I  say  that  the  election  is  to  be  reviewed  and  examined 
finally  by  the  two  Houses  of  Congress  when  their  certificates  of  returns 
come. 

Mr.  Commissioner  STRONG.  How  then  could  they  constitute  a  re- 
turning-board  to  make  any  decision  at  all  ? 

Mr.  CAMPBELL.  They  make  a  returning-board  with  a  view  of 
compiling  the  returns.  I  am  speaking  of  the  final  disposition  as  a  final 
determination  on  the  subject  of  the  right  of  an  elector  to  cast  a  vote. 
Perhaps  the  question  is  a  doubtful  one,  and  I  have  not  very  fully  con 
sidered  it ;  but  my  view  of  these  electors  under  the  Constitution  is,  that 
the  State  is  the  instrument  and  the  agency,  and  its  laws  are  instru 
mental  for  the  purpose  of  communicating  to  the  two  Houses  of  Con 
gress  the  election  of  electors,  and  the  two  Houses  of  Congress,  in  de 
termining  who  has  a  majority  of  all  the  electors,  necessarily  can  inquire 
whether  those  electors  were  fairly  chosen  or  not. 

Mr.  Commissioner  STRONG.  Pardon  me  for  one  question,  and  that 
is  this:  whether  you  contend  that  Congress  occupies  the  position  of  a 
tribunal  for  contesting  the  election  of  State  electors,  the  same  position 
which  a  tribunal  for  the  trial  of  contested  elections  constituted  by  a 
State  would  have  as  to  anv  State  officer J? 

Mr.  CAMPBELL.     That  Congress  could  ! 

Mr.  Commissioner  STRONG.  Whether  Congress  occupies  that  posi 
tion  ;  in  other  words,  whether  Congress  is  the  tribunal  for  the  trial  of 
contested  elections  of  electors  ! 

Mr.  CAMPBELL.  I  have  no  question  that  Congress  could  create  a 
tribunal  to  inquire  into  the  validity  and  truthfulness  and  regularity  of 
any  election  lor  electors  for  the  purpose  of  determining  the  question 
whether  the  votes  cast  for  President  and  Vice-President  are  cast  by  the 
men  competent  to  do  so.  It  is  the  only  legitimate  place  where  such  a 
tribunal  could  come  from,  because  the  power  to  be  exercised  by  electors 
affects  every  citizen  and  every  interest  in  the  United  States ;  every 
State  in  this  Union  is  interested  in  that  decision,  and  no  State  would  be 
justified  in  allowing  the  determination  of  such  questions  finally  to  rest 
in  a  State  tribunal. 

On  the  subject  of  the  value  of  those  certificates  there  is  one  authority 
that  I  ask  the  attention  of  the  Commission  to.  It  is  in  7  Lansing's  Re 
ports,  page  725,  and  the  same  case  was  affirmed  by  the  court  of  ap 
peals,  page  527  of  the  fifty-fifth  volume  New  York  Reports.  1  prefer  to 
read  from  Lansing  because  it  presents  the  subject  very  succinctly.  We 
have  offered  to  prove  this  certificate  to  be  false.  In  this  case  it  is  said  : 

At  common  law,  where,  as  in  this  case,  the  people  are  a  party,  the  certificate  of  the 
board  of  inspectors  is,  first,  prima  facie  evidence  of  the  truth  of  such  statements  as 
they  are  permitted  or  directed  to  certify.  But  it  is  only  prima  facie  evidence,  it  is  not 
conclusive,  and  like  all  other  merely  presumptive  evidence,  it  is  subject  to  be  over 
come  or  destroyed  by  better,  higher,  or  more  certain  evidence,  and  may  be  entirely  so 
overcome  or  impeached.  In  this  country  it  is  the  actual  expressed  will  of  the  electors, 
not  the  certificate  of  inspectors,  that  confers  the  title  to  an  office.  It  is  truth,  not 
form,  that  confers  the  right. 

On  another  page : 

When  the  truth  has  been  so  far  inquired  into  and  ascertained  as  to  show  that  the 
certificate  is  not  true,  can  it  he  the  duty  of  the  court  to  hold  that,  though  false  and  un 
certain,  it  may  still  be  used  as  evidence  ?  Can  sueh  a  paradox  be  introduced  into  the 
law  as  that  a  thing  false  in  fact  may  be  true  as  evidence  ?  Or  this,  that  an  official 
certificate  proved  to  be  beyond  the  power  of  the  officer  to  make  certain  in  what  it  con 
tains,  shall  still  be  held  to  be  certain  because  it  is  certified?  I  think  not.  If  such 
rules  are  not  found  to  be  established  by  authority,  surely  they  should  not  be  now  first 
introduced  to  thwart  that  inestimable  right  of  a  freeman,  the  right  to  hold  an  office 
when  such  right  is  proved  by  the  evidence  to  be  the  will  of  the  legal  voters. 


ELECTORAL   COUNT    OF    1877.  409 

Mr.  Commissioner  EDMUNDS.  How  did  that  case  arise? 

Mr.  CAMPBELL.  It  arovse  on  a  contest  about  an  election. 

Mr.  Commissioner  BRADLEY.  Under  the  New  York  intrusion  act? 

Mr.  CAMPBELL.  This  action  "  was  in  the  nature  of  a  quo  warranto 
to  try  the  title  of  the  defendant  to  the  office  of  mayor  of  Albany,  to 
which  office  the  defendant  was  declared  to  have  been  elected  on  the 
second  Tuesday  of  April,  1872." 

Mr.  Commissioner  HOAR.  If  it  would  not  be  disagreeable  to  you, 
Judge  Campbell,  I  should  like  to  ask  a  question,  as  I  did  not  precisely 
understand  your  answer  to  Judge  Strong.  Suppose,  when,  in  the  pro 
cess  of  counting,  the  vote  of  the  State  of  Oregon  was  reached,  proof 
should  be  offered  on  behalf  of  one  of  the  candidates  that  at  every  polling 
place  in  the  State  of  Oregon  there  had  been  a  different  number  of  votes 
cast  from  that  certified,  so  as  to  change  the  result  in  the  State,  do  you 
claim  that  it  would  be  the  duty  of  the  two  Houses  to  pause  in  the  pro 
cess  of  counting  the  vote  until  both  sides  should  have  put  in  evidence 
on  that  question  and  the  fact  should  have  been  ascertained  ? 

Mr.  CAMPBELL.  That  is  not  the  case  I  have  been  arguing  at  all.  It 
is  entirely  outside  of  the  proffer  that  we  have  made  in  respect  to  evi 
dence. 

Mr.  Commissioner  HOAR.  But  I  think  it  would  perhaps  help  us  to 
understand  your  view  of  the  power  and  duty  of  the  two  Houses,  to 
inquire  whether  you  thought,  if  such  proof  were  proffered  on  behalf  of 
one  of  the  candidates  as  to  what  the  true  vote  was  in  that  State,  it 
would  be  the  duty  of  the  two  Houses  to  pause  in  the  count  until  that  fact 
had  been  settled  I 

Mr.  CAMPBELL.  If  I  was  a  member  of  one  of  the  two  Houses  I  would 
give  it  all  the  pause  and  inquiry  that  was  allowed  to  me,  and  then  I 
would  decide  it  according  to  the  result  of  that  conclusion. 

I  present  now  the  question  as  to  the  objections  that  were  raised  to 
some  of  the  alleged  electors.  The  statute  law  of  Louisiana,  being  the 
registration  act,  provides: 

That  no  supervisor  of  registration,  appointed  under  this  act,  and  no  clerk  of  such 
supervisor  of  registration,  shall  be  eligible  for  any  office  at  any  election  when  said 
officers  officiate. 

We  charge  that  another  party  held  several  offices,  one  of  them  being 
a  senator  in  the  State  legislature,  and  therefore  was  not  eligible ;  hold 
ing  one  office  created  under  the  Constitution,  as  well  as  several  others 
under  the  law,  they  are  disqualified  under  another  article  of  the  State 
constitution. 

It  was  inquired  yesterday  by  one  of  the  members  of  the  Commission 
if  it  were  competent  for  the  State  to  require  that  an  elector  should  be  a 
citizen  of  the  State.  The  answer  was,  I  believe,  that  the  State  had  no 
right  even  to  put  that  requisition.  The  State  of  Louisiana,  in  the  act  of 
1868  and  in  her  constitution,  has  not  only  required  that  he  should  be  a 
citizen  of  the  State  but  that  he  should  be  an  inhabitant  of  one  of  the 
congressional  districts.  It  has  declared  that  two  of  the  electors  shall 
be  appointed  electors  at  large.  As  to  them  no  requirement  of  residence 
is  made  except  in  the  State.  But  six  of  the  eight  electors  are  required 
to  be  inhabitants  respectively  of  the  various  congressional  districts. 

Mr.  Commissioner  THURMAN.  Are  those  six  chosen  by  districts? 

Mr.  CAMPBELL.  No,  sir;  chosen  by  general  ticket.  But  one  of  the 
questions  which  occur  in  this  case  is  that  in  one  of  the  districts  the 
voters  concluded  they  could  only  vote  for  the  two  electors  at  large  and 
the  inhabitant  of  their  own  district,  and  so  neglected  to  vote  for  any 
other  member  on  the  ticket  except  the  two  electors  at  large  and  their 


410  ELECTORAL    COUNT   OF    1877 

own  district  elector.  The  returning-board,  under  a  general  equity  juris 
diction,  concluded  that  that  meant  the  whole  ticket  and  allotted^  to  the 
other  members  of  the  ticket  just  as  many  votes  as  had  been  given  to  the 
three  in  that  parish. 

Mr.  Commissioner  BRADLEY.  What  was  the  number  of  votes'? 

Mr.  CAMPBELL.  Twelve  hundred.  I  think. 

The  PRESIDENT.  Counted  1,200  votes  not  cast? 

Mr.  CAMPBELL.  The  exact  figures  are  1,362, 1,334, 1,364, 1,364,  and 
298.  They  did  not  allot  them  impartially,  it  appears.  They  allotted 
some  more  than  others,  but  that  was  the  excuse  that  was  made. 

Mr.  Commissioner  EDMUNDS.  Does  that  appear  in  the  eleventh 
point  of  the  offers  of  proof? 

Mr.  CAMPBELL.  Yes,  sir ;  and  that  is  the  point  that  I  am  now 
making. 

Mr.  Commissioner  EDMUNDS.  I  meant  to  inquire  whether  the 
eleventh  offer  of  proof  was  directed  to  that. 

Mr.  CAMPBELL.  Yes,  sir;  the  point  I  am  making  now  is  on  the 
sixteenth,  seventeenth,  and  eighteenth  pages  of  our  offers: 

We  further  offer  to  prove  that  Oscar  Joffrion  was,  on  the  7th  day  of  November,  A. 
D.  1876,  supervisor  of  registration  of  the  parish  of  Pointe  Couple,  and  that  he  acted 
and  officiated  as  such  supervisor  of  registration  for  said  parish  at  the  said  election 
for  presidential  electors  on  that  day ;  and  that  he  is  the  same  person  who  acted  as  one 
of  the  electors  for  said  State,  and  ou  the  6fch  day  of  December,  A.  D.  1876,  as  an  elector 
cas1--  a  vote  for  Rutherford  B.  Hayes  for  President  of  the  United  States  and  for  William 
A.  Wheeler  for  Vice-President  of  the  United  States. 

And  so  on  the  following  page  is  the  objection  to  Morris  Marks,  one 
of  the  pretended  electors,  who — 

Was,  ever  since  has  been,  and  now  is,  holding  and  exercising  ihe  office  of  district 
attorney  of  the  fourth  judicial  district  of  said  State,  and  receiving  the  salary  by  law 
attached  to  said  office. 

Again  : 

We  further  offer  to  prove  that  on  the  7th  day  of  November,  A.  D.  1876,  J.  Henri 
Burch,  who  was  one  of  the  pretended  electors  who  in  said  pretended  electoral  college 
gave  a  vote  for  Rutherford  B.  Hayes  for  President  of  the  United  States  and  a  vote  for 
William  A.  Wheeler  for  Vice-President  of  the  United  States,  was  holding  the  follow 
ing  offices  under  the  constitution  and  laws  of  said  State ;  that  is  to  say :  member 
of  the  board  of  control  of  the  State  penitentiary,  also  administrator  of  deaf  and  dumb 
asylum  of  said  State,  to  both  of  which  offices  lie  had  been  appointed  by  the  governor 
with  the  advice  and  consent  of  the  senate  of  said  State,  both  being  offices  with 
salaries  fixed  by  law,  and  also  the  office  of  treasurer  of  the  parish  school  board  for 
the  parish  of  East  Baton  Rouge ;  and  that  said  Burch,  ever  since  the  said  7th  day  of 
November,  (and  prior  thereto,)  has  exercised  and  still  is  exercising  the  functions  of  all 
said  offices  and  receiving  the  emoluments  thereof. 

The  Constitution  of  the  United  States  requires  the  State  to  appoint 
eight  electors  in  such  manner  as  the  legislature  thereof  may  direct. 
It  has  been  decided  that  they  might  retain  the  power  themselves  and 
appoint  the  electors,  or  they  might  confer  it  ou  the  people,  or  they 
might  elect  them  by  general  ticket;  and  the  question  is  presented 
whether  they  could  as  a  part  of  that  power  designate  the  class  of 
persons  from  whom  the  election  was  to  be  made ;  that  is,  designate 
persons  from  whom  the  election  should  not  be  made.  In  the  exercise 
of  that  power  they  have  specifically  said  that  a  person  who  is  concerned 
with  the  registration,  who  has  the  appointment  of  a  commissioner  of 
election  of  a  parish,  who  is  the  returning-officer  of  that  parish,  shall 
not  be  a  competent  person  to  be  elected.  There  is  an  obvious  propriety 
that  a  supervisor  of  regisration  should  not  be  capable  or  eligible  to  any 
office  while  conducting  the  election.  Such  is  the  common  law,  decided 
very  early : 

The  sheriff  of  Rutlandshire  was  chosen,  and  returned  himself,  one  of  the  members 
for  that  county.  Unanimously  resolved,  that  the  return  was  void. 


ELECTORAL    COUNT    OF    1877.  411 

The  question  arose  in  Mississippi,  and  it  was  there  determined  under 
a  statute  similar  to  ours  that  the  election  of  a  supervisor  of  registration 
to  a  State  office  was  absolutely  null  and  void  : 

We  entirely  concur  in  so  much  of  this  judgment  as  holds  that  the  appointee  was  dis 
qualified  to  take  the  office.  The  law  prescribes  who  may  vote  aa  well  as  who  may 
hold  office. 

The  gentlemen  on  the  other  side  have  insisted  that  on  the  subject  of 
the  appointment  of  these  electors  the  State  has  plenary  power;  that 
even  Congress  in  determining  who  shall  be  President  and  Vice-President, 
in  the  counting  of  the  votes,  have  no  power  or  authority  to  go  behind 
the  certificate  of  the  State  and  judge  who  has  been  elected.  I  do  not 
go  to  that  length  ;  but  I  say  that  the  term  "  manner  of  election/7  "  in 
such  manner  as  the  legislature  may  direct,"  does  include  sufficient 
authority  to  determine  who  shall  and  who  shall  not  be  elected.  They 
may  say  that  an  infant  should  not  be  elected ;  they  may  say  that  an 
alien  should  not  be  elected;  they  may  say  that  persons  convicted  of 
felony  should  not  be  elected ;  they  may  disqualify  from  election  the 
persons  who  have  the  control  and  the  power  to  make  the  returns  of  the 
election,  and  who  would  be  in  such  condition  in  respect  to  the  election 
that  fair  and  impartial  action  could  not  reasonably  be  expected  from 
them ;  and  under  that  view  of  the  case  they  have  disqualified  the  whole 
body  of  State  registrars  from  acting  as  returning-officers  for  themselves, 
or  being  in  any  manner  candidates  at  the  place  where  they  are  elected. 

In  the  same  respect  is  the  governor  of  the  State,  a  candidate  for  the 
office  of  elector.  He  has  the  appointment  of  every  registrar  in  the 
State,  and  is  therefore  directly  interested  in  having  such  a  registration 
as  would  render  him  a  successful  candidate;  and  how  potential  such  an 
interest  is  will  be  sufficiently  clear  by  evidence.  Here  is  a  circular  that 
passed  to  every  supervisor  of  registration  ;  this  one  is  addressed  to  the 
supervisor  of  registration  in  the  parish  of  Assumption : 

HEADQUARTERS  REPUBLICAN  PARTY  OF  LOUISIANA, 
ROOMS  JOINT  COMMITTEE  ON  CANVASSING  AND  REGISTRATION. 

MECHANICS'  INSTITUTE,  September  25,  1876. 

DEAR  SIR  :  It  is  well  known  to  this  committee  that,  from  examination  of  the  cen 
sus  of  1875,  the  republican  vote  in  your  parish  is  2,200  and  the  republican  majority  is 
900. 

You  are  expected  to  register  and  vote  the  full  strength  of  the  republican  party  in 
your  parish. 

Your  recognition  by  the  next  State  administration  will  depend  upon  your  doing 
your  full  duty  in  the  premises,  and  you  will  not  be  held  to  have  done  your  full  duty 
unless  the  republican  registration  in'  your  parish  reaches  23200  and  the  republican  vote 
is  at  least  2,100. 

All  local  candidates  and  committees  are  directed  to  aid  you  to  the  utmost  in  obtain 
ing  the  result,  and  every  facility  is  and  will  be  afforded  you  ;  but  you  must  obtain  the 
results  called  for  herein  without  fail.  Once  obtained,  your  recognition  will  be  ample 
and  generous. 

Very  respectfullv,  your  obedient  servant, 

D.  J.  M.  A.  JEWETT, 

Secretary. 
SUPERVISOR  OF  REGISTRATION, 

Parish  of  Assumption,  Louisiana. 

Your  honors,  therefore,  must  see  that  there  was  an  adequate  reason 
for  an  enlightened  legislature  to  put  that  restriction  upon  the  appoint 
ment  of  supervisors  of  registration  and  also  for  putting  the  governor 
out,  having  obtained  the  place  of  governor,  to  prevent  him  from  hold 
ing  any  other  office,  so  that  he  should  not  contribute  to  his  election  to 
another  office  to  take  effect  after  the  expiration  of  his  term  as  governor. 
That  impartial  administration  in  the  matter  of  elections,  that  purity  o 


412  ELECTORAL    COUNT    OF    1877. 

elections  which  is  an  object  of  so  much  consideration  in  the  constitution 
and  laws  of  that  State,  could  never  be  secured  if  such  practices  as  we 
bring  to  jour  notice  should  be  tolerated.  Therefore  we  think  that,  if 
the  Com  mission  was  to  reject  all  these  electors  for  the  reasons  set  forth, 
it  would  be  a  vindication  of  the  will  of  the  people  as  manifested  in  their 
organic  law  and  in  their  statutes. 

These  considerations  are  as  much  as  the  length  of  time  I  have  will 
enable  me  to  submit  to  the  court.  Upon  the  whole  case,  I  feel  it  to  be 
my  duty  to  say  that  the  State  of  Louisiana  is  much  more  concerned  in 
the  assertion  of  her  power  and  of  her  right  to  vindicate  the  purity  of 
elections  in  the  State  than  she  is  in  the  election  of  any  candidate  for 
President  or  Vice-President.  The  court  must  observe,  from  what  I  have 
already  exhibited  of  the  laws  of  the  State,  that  the  State  is  in  the  pos 
session  of  an  oligarchy  of  unscrupulous,  dishonest,  corrupt,  overreaching 
politicians  and  persons  who  employ  the  powers  of  the  State  for  their 
own  emolument.  There  is  no  responsibility  on  their  part  to  any  moral 
law  or  constitutional  or  legal  obligation.  For  years  they  have  usurped 
the  powers  of  the  State  by  means  that  have  brought  upon  them  the  con 
demnation  of  the  Senate  of  the  United  States,  of  the  House  of  Repre 
sentatives  of  the  United  States,  and,  I  may  say,  of  the  whole  people  of 
the  United  States.  Those  practices  have  been  covered,  immunity  has 
been  granted  to  them  because  of  their  intercourse  and  connection  with 
the  politics  and  the  parties  of  the  Union  ;  and  without  that  connection 
they  would  not  stand  in  that  State  for  a  single  hour.  By  their  associa 
tion  they  have  prostrated  every  material  and  endangered  every  moral 
interest  within  the  limits  of  the  State. 

Eeading  a  few  days  ago  a  work  upon  the  present  state  of  Turkey, 
written  by  a  member  of  the  British  Parliament  who  went  there  to  see  for 
himself  the  situation,  I  was  struck  with  the  way  he  described  the  gov 
ernment  of  Turkey.  It  was  not  a  government  of  Mohammedans  nor  a 
government  of  Christians.  He  said  that  there  was  a  ring  in  Constanti 
nople  composed  of  apostates  and  renegades  and  adventurers  from  every 
state  in  Europe;  that  all  reform  was  trampled  upon  by  them  because  it 
interfered  with  their  powers  and  their  privileges  and  their  opportunities 
to  enrich  themselves ;  that  they  inspired  and  inspirited  the  massacres 
of  Bulgaria  and  the  oppression  of  the  Servians ;  that  reformation  in 
Turkey  was  to  be  accomplished  by  no  other  means  than  the  expulsion 
of  that  ring.  My  residence  in  Louisiana  for  ten  years  enables  me  to  fully 
understand  the  perils  and  clangers  arid  miseries  under  which  that  empire 
labors,  and  which  threaten  the  whole  peace  of  Europe.  The  rings  in 
Louisiana  have  affected  the  peace  of  this  country.  The  fact  that  this 
tribunal  is  now  sitting,  and  that  the  whole  people  of  this  land  lq,ok  with 
breathless  expectation  to  see  whether  their  purposes  have  been  accom 
plished  by  results,  has  been  brought  about  mainly  by  the  toleration  of 
misgovernment  in  that  State. 

Mr.  EVARTS.  Mr.  President,  there  are  two  authorities  that  I  will 
ask  to  hand  to  you :  one  is  the  case  of  Morgan  vs.  Quackenbush,  22 
Barbour's  Supreme  Court  Reports,  page  73  : 

That  the  duty  of  the  common  council,  in  making  the  first  canvass,  was  purely  min 
isterial,  and  consisted  in  a  simple  matter  of  arithmetic ;  they  not  being  at  liberty  to 
receive  evidence  of  anything  outside  of  the  returns  of  the  inspectors.  That  in  receiv 
ing  affidavits  tending  to  show  fraudulent  practices  at  the  polls,  and  in  omitting  to  can 
vass  the  votes  of  two  election  districts,  on  that  ground,  they  acted  illegally,  and 
assumed  to  exercise  a  judicial  power  which  the  legislature  had  not  vested  in  them. 
But  that,  having  jurisdiction  to  make  the  canvass,  their  certificate  entitled  P  to  the 
office  until  the  other  error  should  be  corrected  by  legal  proceedings. 

Mr.  HOADLY.    Permit  me  to  ask  a  question.    Did  the  law  under 


ELECTORAL    COUNT    OP    1877.  413 

which  that  case  was  conducted  prescribe  the  kind  of  testimony  on  which 
the  tribunal  couJd  act"? 

Mr.  E  VARTS.     What  tribunal  I 

Mr.  HOADLY.    The  tribunal  there  of  which  you  read. 

Mr.  EVAETS.  That  I  do  not  know.  The  statement  of  their  powers 
is  given,  and  it  is  said  they  exceeded  them,  and  that  action  was  illegal. 
Whatever  their  powers  were  they  exceeded  them,  and  that  action  was 
illegal. 

1  also  refer  to  the  case  of  Brown  vs.  The  City  of  Lowell,  in  8  Metcalf, 
page  175,  as  pertinent  to  the  inquiry  of  what  the  operation  is  in  respect 
of  an  act  that  is  to  take  effect  at  a  future  day  as  compared  with  an  act 
passed  after  the  date  of  the  first  and  between  its  date  and  the  time  it 
comes  into  effect. 

Mr.  Commissioner  EDMUNDS.  That  question  is  considered  in  3  Dal 
las,  the  case  of  Ware  vs.  Hilton. 

Mr.  EVARTS.     It  is  sufficient  for  me  refer  to  it, 

Mr.  CAMPBELL.  1  understand  I  have  a  few  minutes  more.  There 
is  a  point  that  I  omitted  to  deal  with,  which  was  the  vacancy  in  the 
board  not  being  filled. 

The  PRESIDENT.    You  have  ten  minutes  yet. 

Mr.  CAMPBELL.  I  wish  to  refer  your  honors  to  an  authority  on  that 
point,  Grant  on  Corporations,  page  155 : 

When  a  meeting  at  which  a  specific  thing  is  to  be  done  is  to  consist  of  the  difivrent 
integral  parts  of  a  corporation,  and  each  of  these  integral  parts  consists  of  a  definite 
number  of  corporators,  then  the  meeting  will  not  be  properly  constituted  unless  it  be 
attended  by  a  majority  of  the  members  of  each  integral  part  respectively.  Where  an 
act  is  to  be  done  by  a  select  body  consisting  of  a  definite  number  of  corporators,  it 
will  not  be  valid  unless  a  majority  of  the  select  body  are  present  at  the  meeting  to  do 
the  act.  If  the  act  is  to  be  done  by  an  indefinite  body,  it  is  valid  if  passed  by  a  ma 
jority  of  those  present  at  the  meeting,  however  small  a  fraction  they  may  be  of  the 
body  at  large. 

In  this  case  the  language  of  the  act  is  : 

That  five  persons,  to  be  elected  by  the  senate  from  all  political  parties,  shall  be  the 
returning-officers  for  all  elections  in  the  State,  a  majority  of  whom  shall  constitute  a 
quorum,  and  have  power  to  make  the  returns  of  all  elections.  In  case  of  any  vacancy 
by  death,  resignation,  or  otherwise,  by  either  of  the  board,  then  the  vacancy  shall  be 
filled  by  the  residue  of  the  board  of  returning-officers. 

And  the  word  "then"  imports  time,  and  when  the  vacancy  occurs 
that  it  shall  be  filled.  In  this  case  the  vacancy  occurred  three  years 
ago,  in  1874.  Eepeated  requests  and  demands  were  made  upon  this 
board  to  fill  that  vacancy,  but  that  vacancy  was  not  filled,  and  has  not 
been  filled.  The  reason  given  for  it  in  the  testimony  which  we  shall 
offer,  if  permitted,  is  from  the  corrupt  motive  of  escaping  observation. 
It  was  perfectly  within  their  means  to  have  filled  it ;  it  was  their  duty 
to  have  filled  it;  and  they  acted  corruptly  in  not  filling  it.  It  was  said 
yesterday  by  one  of  the  counsel  that  they  had  offered  it  repeatedly  and 
it  had  been  repeatedly  refused.  No  person  to  whom  the  offer  was  ever 
made  has  ever  been  brought  before  any  committee  to  testify  that  the 
offer  had  been  made  to  him  and  that  he  had  refused  it.  The  members 
of  the  board  themselves,  at  least  one  of  them,  did  testify  that  it  was  not 
filled  for  the  reason  that  they  did  not  wish  to  be  subjected  to  any  sort 
of  observation  in  the  performance  of  that  work.  It  stood  upon  that 
ground.  It  is  such  malpractice  as  to  vitiate  their  subsequent  proceed 
ings  in  the  non-performance  of  that  duty,  as  well  as  the  legal  require 
ment  on  them  to  perform  it. 

Mr.  Commissioner  EDMUNDS.  Supposing,  Judge  Campbell,  that 
they  were  not  legally  required  to  perform  it  in  the  sense  of  making  their 
after-acts  invalid,  then  would  their  failure  to  perform  what  the  law  did 


414  ELECTORAL    COUNT    OF    1877. 

not  compel  them  to  do,  from  bad  motive,  change  the  validity  of  their 
subsequent  acts  1 

Mr.  CAMPBELL.  They  were  bound  under  the  terms  of  the  law  to 
have  tilled  the  vacancy.  Observe  the  language: 

In  case  of  any  vacancy  by  death,  resignation,  or  otherwise,  by  either  of  the  board, 
then  the  vacancy  shall  be  filled  by  the  residue  of  the  board  of  returuing-oiiicers. 

Mr.  Commissioner  EDMUNDS.  I  do  not  think  you  understood  my 
question.  Supposing  you  to  be  correct,  that  it  was  their  duty  to  nil  the 
vacancy,  that  they  had  no  power  to  take  any  step  in  the  performance  of 
their  duties  until  it  was  filled,  then  do  you  claim  that  their  subsequent 
acts  would  be  invalid,  no  matter  what  the  motive  was  ?  But,  supposing 
on  the  other  hand  that  it  was  not  a  duty  to  fill  it,  in  the  sense  of  their 
incapacity  to  proceed  afterward,  would  the  presence  of  the  corrupt  mo 
tive  make  any  difference  in  the  validity  of  their  subsequent  acts?  That 
is 'the  question  I  should  like  to  have  your  view  upon. 

Mr.  CAMPBELL.  I  suppose  that  the  failure  to  perform,  any  duty 
enjoined  by  the  law,  from  a  corrupt  motive  which  affects  the  election, 
would  have  the  effect.  A  case  in  50  New  Hampshire,  140,  was  this  : 

It  appeared  that  there  were  declared  as  cast  at  one  of  the  precincts  27  more  votes 
for  county  commissioner  than  were  marked  on  the  check-list.  The  court  said,  "  if 
from  the  fact  of  this  discrepancy  the  court  ought  to  find  that  it  was  the  result  of 
fraud  in  the  managers  of  the  election,  the  court  would  hesitate  long  to  count  any  of 
the  votes  cast  at  an  election  so  tainted,  on  the  ground  that,  with  such  proof  of  fraud 
ulent  and  corrupt  purposes,  no  confidence  could  be  entertained  in  coming  to  any  reli 
able  conclusion  as  to  what  votes  were  actually  given."  And  the  safe  rule  probably  is, 
that  where  an  election-board  are  found  to  have  willfully  and  deliberately  committed  a 
fraud,  even  though  it  affect  a  number  too  small  to  change  the  result,  it  is  sufficient  to 
destroy  all  confidence  in  their  official  acts,  and  to  put  the  party  claiming  anything 
under 'the  election  conducted  by  them  to  the  proof  of  his  votes  by  evidence  other  than 
the  return. 

I  read  from  the  American  Law  of  Elections  by  McCrary,  section  184. 
I  know  of  no  case  which  is  a  precise  parallel  to  the  one  before  the  Com 
mission,  where  the  fraud  has  originated  in  the  failure  to  fill  a  vacancy; 
but  as  the  legislature  contemplated  that  there  should  be  five  persons  and 
that  the  board  should  always  be  of  five,  comprising  all  political  parties, 
the  fraudulent  refusal  to  do  that  would  render  them  incompetent  to 
perform  further  acts. 

The  PRESIDENT.  The  time  is  exhausted  on  the  side  of  objectors 
to  certificate  No.  1,  and  an  hour  and  two  minutes  are  left  to  the  other 
side. 

Mr.  MERRICK.  Mr.  President  and  gentlemen,  may  I  be  allowed  to 
file  a  brief  on  the  subject  last  referred  to  by  Judge  Campbell  ?  * 

The  PRESIDENT.     I  think  you  may  submit  it  to  the  Commission. 

Mr.  MERR1CK.  I  beg  to  call  the  attention  of  the  Commission  to  it. 
Tt  contains  some  authorities  directly  in  point  on  the  question  that  this 
board  under  the  law,  while  composed  of  four,  did  not  possess  legal  au 
thority  to  act.  Among  those  authorities  is  an  opinion  in  a  case  from 
Mr.  Justice  Miller.  I  will  state  to  the  Commission  with  the  permis 
sion 

The  PRESIDENT.  It  is  suggested  that  I  have  computed  the  time 
wrong;  that  I  have  given  the  objectors  to  certificate  No.  2  too  much. 
I  will  not  stop  to  revise  it  now.  I  shall  stand  by  what  I  have  stated 
until  1  see  that  I  was  wrong.  The  journal-clerk  thinks  I  have  allowed 
an  hour  too  much. 

Mr.  EVARTS.  I  think  you  said  we  had  an  hour  and  two  minutes 
left. 

*  This  brief  will  be  found  in  the  Appendix  of  Briefs,  marked  "  Brief  No.  5." 


ELECTORAL    COUNT    OF    1877.  415 

The  PRESIDENT.     He  thinks  you  have  just  three  minutes  left. 

Mr.  TRUMBULL.  I  desire  to  call  attention  for  one  moment,  by  per 
mission  of  the  Commission,  to  the  question  of  time.  It  will  be  recol 
lected  that  yesterday  my  time  was  occupied  for  at  least  half  an  hour 
with  a  discussion  that  occurred  between  members  of  the  Commission  and 
in  reading  some  incidental  papers  called  for  by  the  Commission.  At 
the  time  something  was  said  about  the  propriety  of  not  deducting  that 
from  the  time  used  by  us,  and  it  seems  to  me  that  it  is  depriving  us  of 
some  little  time  that  we  may  want  to  use,  to  enforce  the  rule  under  such 
circumstances  as  against  the  time  that  I  occupied. 

The  PRESIDENT.  I  made  no  deduction  for  interruptions.  I  left 
that  for  the  Commission  to  decide.  It  is  proper,  therefore,  that  you 
should  ask  the  Commission,  if  you  see  fit,  to  make  an  allowance.  I 
made  none. 

Mr.  TRUMBULL.  I  do  not  desire  at  this  moment  to  make  any  re 
marks,  but  Mr.  Merrick  does. 

Mr.  MERRICK.  I  merely  desire,  may  it  please  your  honors,  to  make 
a  statement  in  reply  to  a  statement  made  by  Mr.  Evarts,  that  during 
the  entire  progress  of  the  investigation  of  this  subject  that  took  place 
in  Louisiana  no  protest  was  made,  and  no  objection  intimated,  to  the 
power  of  this  board  to  canvass  the  electoral  vote. 

Mr.  EVARTS.  I  did  not  state  it  in  that  form.  I  stated  that  no  claim 
was  made  that  Governor  Kellogg  was  to  canvass  it.  I  said  nothing 
about  a  protest. 

Mr.  MERRICK.  Then  I  misunderstood.  A  protest  was  duly  filed 
by  those  representing  the  democratic  party  against  the  power  of  the 
returuiiig-board  in  Louisiana  to  canvass  the  electoral  vote  on  the  first 
day  of  the  session. 

Mr.  EVARTS.     I  said  nothing  on  that  subject  whatever. 

The  PRESIDENT.  I  think  I  am  not  authorized  now  to  receive  any 
further  discussion;  the  discussion  of  the  pending  proposition  is  con 
cluded.  Shall  notice  be  now  given  that  there  will  be  no  further  public 
proceedings  to-day  ?  [Putting  the  question.]  It  is  so  ordered. 

After  the  doors  were  closed,  at  four  o'clock  and  thirty  minutes  p.  m., 

Mr.  Commissioner  EDMUNDS  moved  that  the  Commission  take  a 
recess  for  fifteen  minutes  j  which  was  agreed  to. 

On  motion  of  Mr.  Commissioner  STRONG,  the  vote  on  the  motion 
was  reconsidered. 

Mr.  Commissioner  EDMUNDS  moved  that  the  Commission  take  a 
recess  for  one  hour  ; 

And  after  debate, 

The  motion  was  withdrawn. 

Mr.  Commissioner  FIELD  moved  that  the  Commission  adjourn  until 
to- morrow. 

The  motion  was  decided  in  the  negative ; 

Yeas 7 

Nays \ 8 

Those  who  voted  in  the  affirmative  were :  Messrs.  Abbott,  Bayard, 
Bradley,  Field,  Hunton,  Payne,  and  Thurmau. — 7. 

Those  who  voted  in  the  negative  were:  Messrs.  Clifford,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,-  Miller,  Morton,  and  Strong. — 8. 

So  the  motion  was  not  agreed  to. 

Mr.  Commissioner  HOAR  moved  that  the  vote  on  the  question  of  the 
admission  of  testimony  in  the  matter  pending  be  taken  at  four  o'clock 
p.  in.  to-morrow ; 

And  after  debate, 


416  '     ELECTORAL    COUNT    OF    1877. 

The  motion  was  withdrawn. 

Mr.  Commissioner  GARFIELD  moved  that  the  Commission  take  a 
recess  until  six  o'clock  and  thirty  minutes  p.  m. 

Mr.  Commissioner  HUNTON  moved,  as  a  substitute,  that  the  Com 
mission  take  a  recess  until  seven  o'clock  p.  in. 

Pending  which, 

Mr.  Commissioner  HUNTOX  moved  that  when  the  Commission  ad 
journ  it  be  until  ten  o'clock  a.  m.  to-morrow ;  and  that  the  vote  on  the 
question  of  the  admission  of  testimony  in  the  matter  pending  be  taken 
to-morrow  at  four  o'clock  p.  m. 

After  remarks, 

The  question  being  on  the  adoption  of  the  motion  of  Mr.  Commis 
sioner  Huntou, 

It  was  decided  in  the  affirmative. 

On  motion  of  Mr.  Commissioner  HOAR, 

Ordered,  That  the  Secretary  notify  counsel  to  be  present  at  four  o'clock  and  fifteen 
minutes  p.  ui.  to-morrow  to  proceed  under  the  direction  of  the  Commission. 

Mr.  Commissioner  HUNTON  moved  that  the  Stenographer  be  allowed 
to  attend  the  secret  sessions  of  the  Commission  and  take  notes  thereof. 

The  question  being  on  its  adoption,  it  was  determined  in  the  negative : 

Yeas 5 

Nays 9 

Those  who  voted  in  the  affirmative  were :  Messrs.  Abbott,  Bayard, 
Field,  Huiiton,  and  Payne. — 5. 

Those  who  voted  in  the  negative  were :  Messrs.  Bradley,  Clifford, 
Edmunds,  Frelinghuysen,  Garfield,  Hoar,  Miller,  Strong,  and  Thur- 
man. — 9. 

So  the  motion  was  not  agreed  to. 

And,  on  motion  of  Mr.  Commissioner  PAYNE,  (at  five  o'clock  and 
twenty-two  minutes  p.  m.,)  the  Commission  adjourned. 

FRIDAY,  February  16,  1877. 

The  Commission  met  at  ten  o'clock  a.  m.,  pursuant  to  adjournment, 
with  closed  doors,  for  the  purpose  of  consultation  on  the  question  sub 
mitted  relative  to  the  offers  of  proof  connected  with  the  objections 
raised  to  the  certificates  of  electoral  votes  from  the  State  of  Louisiana. 

After  debate, 

Mr.  Commissioner  HOAR  submitted  the  following  order: 

Ordered,  That  the  evidence  offered  be  not  received. 

Mr.  Commissioner  ABBOTT  oifered  the  following  as  a  substitute  for 
the  proposed  order : 

Resolved,  That  evidence  will  be  received  to  show  that  so  much  of  the  act  of  Louis 
iana  establishing  a  returning-board  for  that  State  is  unconstitutional,  and  the  acts  of 
said  returuiug-board  are  void. 

The  question  being  era  the  adoption  of  the  substitute,  it  was  decided 
in  the  negative : 

Yeas -.' 7 

Nays .. 8 

Those  who  voted  in  the  affirmative  were :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Huuton,  Payne,  and  Thurman — 7. 

Those  who  voted  in  the  negative  were:  Messrs.  Bradley,  Edmunds, 
Freliughuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 


ELECTORAL   COUNT   OF   1877.  417 

Mr.  Commissioner  ABBOTT  offered  the  following  as  a  substitute : 

Resolved,  That  evidence  will  be  received  to  show  tbat  the  returning-board  of  Lou 
isiana,  at  the  time  of  canvassing  and  compiling  the  vote  of  that  State  at  the  last  elec 
tion  in  that  State,  was  not  legally  constituted  under  the  law  establishing  it,  in  this: 
that  it  was  composed  of  four  persons  all  of  one  political  party,  instead  of  live  persons 
of  different  political  parties,  as  required  by  the  law  establishing  said  board. 

The  question  being  on  the  adoption  of  the  substitute,  it  was  decided 
in  the  negative : 

Yeas 7 

Nays , 8 

Those  who  voted  in  the  affirmative  were :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurinan  —  7. 

Those  who  voted  in  the  negative  were:  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

Mr.  Commissioner  ABBOTT  offered  the  following  as  a  substitute: 

Besolved,  That  the  Commission  will  receive  testimony  on  the  subject  of  the  frauds 
alleged  in  the  specifications  of  the  counsel  for  the  objectors  to  certificates  numbered  1 
and  3. 

The  question  being  on  the  adoption  of  the  substitute,  it  was  decided 
in  the  negative : 

Yeas 7 

Nays 8 

Those  who  voted  in  the  affirmative  were :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurinan — 7. 

Those  who  voted  in  the  negative  were :  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

Mr.  Commissioner  ABBOTT  offered  the  following  as  a  substitute: 

r~  Resolved,  That  testimony  tending  to  show  that  the  so-called  returning-board  of  Lou 
isiana  had  no  jurisdiction  to  canvass  the  votes  for  electors  of  President  and  Vice-Pres- 
ident  is  admissible. 

The  question  being  on  the  adoption  of  the  substitute,  it  was  deter 
mined  in  the  negative  : 

Yeas 7 

Kays 8 

Those  who  voted  in  the  affirmative  were:  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurinan — 7. 

Those  who  voted  in  the  negative  we^e :  Messrs.  Bradley,  Edmunds, 
Freliughuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

Mr.  Commissioner  ABBOTT  offered  the  following  as  a  substitute: 

Resolved,  That  evidence  is  admissible  that  the  statements  and  affidavits  purporting 
to  have  been  made  and  forwarded  to  said  returning-board  in  pursuance  of  the  provi 
sions  of  section  26  of  the  election  law  of  1872,  alleging  riot,  tumult,  intimidation,  and 
violence  at  or  near  certain  polls  and  in  certain  parishes,  were  falsely  fabricated  and 
forged  by  certain  disreputable  persons  under  the  direction  and  with  the  knowledge  of 
said  returning-board,  and  that  said  returning-board  knowing  said  statements  and  affi 
davits  to  be  false  and  forged,  and  that  none  of  the  said  statements  or  affidavits  were 
made  in  the  manner  or  form  or  within  the  time  required  by  law,  did  knowingly,  will 
fully,  and  fraudulently  fail  and  refuse  to  canvass  or  compile  more  than  ten  thousand 
votes  lawfully  cast,  as  is  shown  by  the  statements  of  votes  of  the  commissioners  of 
election. 

The  question  being  on  the  adoption  of  the  substitute,  it  was  decided 
in  the  negative  : 

Yeas 7 

Nays 8 

27  EC 


418  ELECTORAL   COUNT   OF   J877. 

Those  who  voted  in  the  affirmative  were :  Messrs.  Abbott,  Bayard, 
Cli'fford,  Field,  Huntou,  Payne,  and  Thurrnan — 7. 

Those  who  voted  in  the  negative  were :  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong— 8. 

Mr.  Commissioner  HUNTON  offered  the  following  as  a  substitute  : 

Ecsolved,  That  evidence  be  received  to  prove  that  the  votes  cast  and  given  at  said 
election  on  the  7th  of  November  last  for  the  election  of  electors  as  shown  by  the  re 
turns  made  by  the  commissioners  of  election  from  the  several  polls  or  voting-places  in 
said  State  have  never  been  compiled  or  canvassed,  and  that  the  said  retuming-board 
never  even  pretended  to  compile  or  canvass  the  returns  made  by  said  commissioners 
of  election,  but  that  said  returning-board  only  pretended  to  canvass  the  returns  made 
by  said  supervisors. 

The  question  being  on  the  adoption  of  the  substitute,  it  was  decided 
in  the  negative : 

Yeas „ 7 

Nays 8 

Those  who  voted  in  the  affirmative  were :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Huuton,  Payne,  and  Thurraan — 7. 

Those  who  voted  in  the  negative  were :  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

Mr.  Commissioner  BAYAKD  offered  the  following  as  a  substitute  : 

Eesohed,  That  no  person  holding  an  office  of  trust  or  profit  under  the  United  States 
is  eligible  to  be  appointed  an  elector,  and  that  this  Commission  will  receive  evidence 
tending  to  prove  such  ineligibility  as  offered  by  counsel  for  objectors  to  certificates  1 
and  3. 

The  question  being  on  the  adoption  of  the  substitute,  it  was  decided 
in  the  negative : 

Yeas .,... 7 

Nays 8 

Those  who  voted  in  the  affirmative  were :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurman — 7. 

Those  who  voted  in  the  negative  were  :  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

Mr.  Commissioner  FIELD  offered  the  following  as  a  substitute: 

Resolved,  That  in  the  opinion  of  the  Commission  evidence  is  admissible  upon  the 
several  matters  which  counsel  for  the  objectors  to  certificates  numbered  1  and  a  offered 
to  prove. 

The  question  being  on  the  adoption  of  the  substitute,  it  wTas  decided 
in  the  negative: 

Yeas 7 

Nays 8 

Those  who  voted  in  the  affirmative  were :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurman — 7. 

Those  who  voted  in  the  negative  were  :  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

The  question  then  recurring  on  the  adoption  of  the  order  submitted 
by  Mr.  Commissioner  Hoar, 

Mr.  Commissioner  PAYNE  moved  to  strike  out  the  word  "  not." 

The  question  being  on  the  adoption  of  the  amendment,  it  was  deter 
mined  in  the  negative : 

Yeas .- 7 

Nays .,. 8 

Those  who  voted  in  the  affirmative  were:  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurman — 7, 


ELECTORAL   COUNT   OF   1877.  419 

Those  who  voted  in  the  negative  were :  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

The  question  then  recurring  on  the  adoption  of  the  order  submitted 
by  Mr.  Commissioner  Hoar  in  the  following  words  : 

Ordered,  That  the  evidence  offered  be  not  received, 

It  was  determined  in  the  affirmative  : 

Yeas —  ^ -  - .  >  S 

Nays 7 

Those  who  voted  in  the  affirmative  were  :  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

Those  who  voted  in  the  negative  were  :  Messrs.  Abbott,  Bayard,  Clif 
ford,  Field,  Htmton,  Payne,  and  Thnrman — 7. 

On  motion  of  Mr.  Commissioner  FIELD,  it  was — 

Ordered,  That  the  injunction  of  secrecy  be  removed  from  the  proceedings  of  the  Com 
mission. 

The  order  was  agreed  to. 

The  doors  were  thereupon  opened  at  five  o'clock  and  five  minutes  p.  m., 
and  the  respective  counsel  appeared. 

The  action  of  the  Commission  on  the  various  motions  and  orders  sub 
mitted  was  read. 

Mr.  Commissioner  HOAR.  Mr,  President.,  I  desire  to  inquire  of  the 
Chair  whether  any  of  the  time  that  counsel  were  entitled  to  under  the 
order  of  the  Commission  remains,  or  whether  it  has  been  exhausted. 
The  Chair  was  not  certain  yesterday  on  that  point. 

The  PRESIDENT.  The  time  on  the  side  of  the  objectors  to  certifi 
cates  Nos.  1  and  3  was  exhausted.  In  regard  to  the  time  remaining  on 
the  part  of  the  objectors  to  certificate  No.  2,  I  find  that  I  made  an  error 
in  my  announcement  yesterday,  by  the  correction  of  my  associate,  Judge 
Miller,  and  the  journal  clerk.  By  these  corrections  I  am  advised  that 
ten  minutes  are  left  to  that  side,  but,  substantially,  the  time  is  ex 
hausted. 

Mr.  Commissioner  PAYNE.  I  move  that  the  time  be  extended  to 
counsel  on  each  side  for  one  hour  on  the  general  question. 

Mr.  Commissioner  GARFIELD.     I  heard  no  request  for  that. 

The  PRESIDENT.  Mr.  Payne 'moves  that  one  hour  on  each  side 
bo  allowed  to  counsel  for  the  discussion  of  the  main  question  that 
remains. 

Mr.  Commissioner  GARFIELD.  I  wish  to  say  that  the  order  under 
which  four  hours  and  a  half  of  time  were  allowed  to  each  side  for  the 
discussion  of  the  whole  question  was  proceeding  to  be  executed  when 
it  was  intercepted  by  an  offer  of  testimony,  and  it  was  then  agreed 
that  two  additional  hours  should  be  given  to  each  side  for  the  discus 
sion  of  that  question.  After  that  agreement  was  entered  into,  it  was 
also  agreed  that  the  counsel  might  draw  on  their  final  time  on  the 
whole  question  and  use  it  on  that  interlocutory  question,  if  they  chose 
to  do  so. 

The  PRESIDENT.    And  they  did  use  it  up. 

Mr.  Commissioner  GARFIELD.  They  did  use  it  up,  and  they  dis 
cussed  the  whole  question,  together  with  the  interlocutory  question. 
The  counsel  have  not  asked  for  additional  time;  and  if  they  had,  I 
should  myself  consider  that  we  ought  to  stand  by  our  order.  I  shall 
vote  against  the  motion  of  Mr.  Payne. 

The  PRESIDENT.  The  motion  is  that  an  hour  on  each  side  be 
allowed  for  argument. 


420  ELECTORAL    COUNT    OF    1877. 

Mr.  Commissioner  MORTON.  Unless  counsel  desire  that,  I  shall  cer 
tainly  vote  against  it. 

Mr.  EVARTS.  I  think  that  counsel  distinctly  presented  to  the  Com 
mission,  and  certainly  felt  thoroughly,  that  the  discussion  thus  opened 
to  them  covered  the  whole  merits  of  the  case.  That  was  our  view7. 

The  PRESIDENT.     You  are  satisfied,  then  ! 

Mr.  EVARTS.    We  are  satisfied  with  the  discussion  as  it  now  stands. 

The  PRESIDENT.  I  will  put  the  same  inquiry  to  counsel  on  the 
other  side. 

Mr.  CAMPBELL.  The  time  which  was  granted  by  the  Commission 
was  granted  with  a  view  to  the  discussion  of  the  questions  arising  on 
the  case  presented.  We  have  nothing  to  add  to  the  case  we  have  sub 
mitted  to  the  Commission. 

Mr.  Commissioner  PAYNE.    Then  I  withdraw  the  motion. 

Mr.  Commissioner  ABBOTT.  I  understand  you  to  say.  Judge  Camp 
bell,  that  the  Commission  having  ruled  out  all  the  evidence  you  offered, 
you  have  nothing  further  to  add  before  the  deed  is  done. 

Mr.  CAMPBELL.     Nothing,  sir. 

The  PRESIDENT.     The  motion  of  Mr.  Payne  is  withdrawn. 

Mr.  Commissioner  MORTON.  I  move  that  a  committee  of  three  mem 
bers  of  the  Commission  be  appointed  to  prepare  the  report,  and  that  we 
take  an  intermission  of  one  hour  for  that  purpose. 

Mr.  Commissioner  THURMAN.     What  is  that  motion  ? 

The  PRESIDENT.  The  motion  is  that  a  committee  of  three  be 
appointed 

Mr.  Commissioner  STRONG.  Allow  me  to  suggest  that  the  only 
question  formally  passed  on  is  the  question  of  the  admissibility  of  the 
evidence  that  was  offered.  We  have  not  passed  on  the  merits  of  the 
case,  formally  at  least.  I  think  we  ought  first  to  go  into  deliberation 
for  that  purpose. 

Mr.  Commissioner  MORTON.    I  withdraw  the  motion. 

Mr.  Commissioner  STRONG.  It  is  possible  that  on  a  discussion  of 
the  merits  of  the  case  among  ourselves  we  may  come  to  a  conclusion 
which  nobody  is  now  authorized  to  anticipate. 

Mr.  Commissioner  HOAR.  I  move  that  the  Commission  go  into  con 
sultation. 

The  motion  was  agreed  to;  and  (at  five  o'clock  and  twenty-five  min 
utes  p.  m.)  the  Commission  proceeded  to  consultation  with  closed  doors. 

Mr.  Commissioner  MORTON  offered  the  following  resolution  : 

Resolved,  That  the  persons  named  as  electors  in  certificate  No.  1  were  the  lawful  elect 
ors  of  the  State  of  Louisiana,  and  that  their  votes  are  the  votes  provided  by  the  Con 
stitution  of  the  United  States,  and  should  be  counted  for  President  and  Vice-President. 

Mr.  Commissioner  THURMAN  offered  the  following  as  a  substitute  : 

Strike  out  all  after  the  word  "resolved,"  and  insert : 

That  inasmuch  as  the  votes  of  the  people  of  Louisiana  for  electors  of  President  and 
Vice-President  in  November  last  have  never  been  legally  canvassed  and  declared, 
therefore  the  votes  purporting  to  be  votes  of  electors  of  that  State  for  President  and 
Vice-President  ought  not  to  be  counted,  and  no  electors  of  President  and  Vice-President 
can  be  regarded  as  chosen  in  that  State. 

The  question  being  on  the  adoption  of  the  substitute,  it  was  decided 
in  the  negative : 

Yeas 7 

Nays *•* 8 

Those  who  voted  in  the  affirmative  were:  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Huiiton,  Payne,  and  Thurman — 7. 

Those  who  voted  jn  the  negative  were :  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 


ELECTORAL   COUNT   OF    1877.  421 

Mr.  Commissioner  HUISTTO^T  moved  to  amend  by  striking  out  all 
after  the  word  "  resolved"  and  inserting : 

That  the  votes  purporting  to  be  the  electoral  votes  of  the  State  of  Louisiana  be  not 
counted. 

The  question  being  on  the  adoption  of  the  amendment,  it  was  decided 
in  the  negative : 

Yeas 7 

Nay  s , 8 

Those  who  voted  in  the  affirmative  were :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Himton,  Payne,  and  Thurman — 7. 

Those  who  voted  in  the  negative  were :  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong— 8. 

And  the  question  recurring  on  the  adoption  of  the  resolution  of  Mr. 
Commissioner  Morton,  it  was  decided  in  the  affirmative: 

Yeas 8 

Nays 7 

Those  who  voted  in  the  affirmative  were  :  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

Those  who  voted  in  the  negative  were:  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Huriton,  Payne,  and  Thurman — 7. 

Mr.  Commissioner  MILLER  moved  that  Commissioners  Strong,  Fre- 
linghuyseu,  and  Bradley  be  a  committee  to  draft  a  report,  as  required 
by  law,  of  the  action  of  the  Commission  in  the  matter  pending. 

Mr.  Commissioner  GARFIELD  moved  that  said  committee  consist  of 
Commissioners  Edmunds,  Bradley,  and  Miller,  the  committee  appointed 
to  prepare  the  report  of  the  Commission  in  the  case  of  the  State  of 
Florida. 

On  motion, 

Mr.  Commissioner  Edmunds  was  excused  from  serving  on  said  com 
mittee  on  account  of  ill-health. 

And  on  motion  of  Mr.  Commissioner  FRELINGHUYSEIS", 

Commissioners  Miller,  Hoar,  and  Bradley  were  appointed  as  said  com 
mittee. 

On  motion  of  Mr.  Commissioner  MILLER,  (at  six  o'clock  and  five 
minutes  p.  m.,)  the  Commission  took  a  recess  until  seven  o'clock  p.  m. 

The  recess  having  expired,  on  motion  of  Mr.  Commissioner  HOAR, 
the  Commission  took  a  further  recess  until  seven  o'clock  and  fifteen 
minutes  p.  m. 

After  the  recess, 

Mr.  Commissioner  MILLER,  on  behalf  of  the  committee  to  prepare  ^ 
report  of  the  action  of  the  Commission  in  the  matter  of  the  electoral 
vote  of  the  State  of  Louisiana,  offered  the  following : 

Ordered,  That  the  following  be  adopted  and  signed  by  those  members  of  the  Com 
mission  agreeing  therein,  as  the  decision  of  the  Commission  on  the  matters  submit 
ted  to  it  touching  the  electoral  votes  of  the  State  of  Louisiana,  and  the  brief  grounds 
of  said  decision,  and  be  transmitted  by  the  President  of  the  Commission,  with  all 
the  accompanying  papers,  to  the  President  of  the  Senate,  to  be  laid  before  the  two 
Houses  of  Congress  at  the  meeting  provided  for  in  said  act. 

ELECTORAL  COMMISSION, 
Washington,  D.  €.,  February  16,  A.  D.  1877. 

To  the  President  of  the  Senate  of  the  United  States,  presiding  in  the  meeting  of  the 
two  Houses  of  Congress,  under  the  act  of  Congress  entitled  "An  act  to  provide  for 
and  regulate  the  counting  of  votes  for  President  and  Vice-President,  and  the  decis 
ion  of  questions  arising  thereon,  for  the  tt^rni  commencing  March  4,  A.  D.  1377," 
approved  January  29,  A.  D.  1877. 

The  Electoral  Commission  mentioned  in  said  feet  having  received  certain  certificates 
and  papers  purporting  to  be  certificates,  and  napers  accompanying  the  same,  of  the 
electoral  votes  from  the  State  of  Louisiana,  and  the  objections  thereto,  submitted  to  it, 


422  ELECTORAL    COUNT    OF    1877. 

under  said  act,  now  report,  that  it  has  duly  considered  the  samp,  pursuant  to  said  act, 
and  has,  by  a  majority  of  votes,  decided,  and  does  hereby  decide,  that  the  votes  of 
William  P.  Kellogg,  J.  Henri  Burch,  Peter  Joseph,  Lionel  A.  Sheldon,  Morris  Marks, 
Aaron  B.  Levissee,  Orlando  H.  Brewster,  and  Oscar  Joffrion,  named  in  the  certificate 
of  William  P.  Kellogg,  governor  of  said  State,  which  votes  are  certified  by  said  persons, 
us  appears  by  the  certificates  submitted  to  the  Commission,  as  aforesaid,  and  marked 
Nos.  one  (1)  and  three  (3)  by  said  Commission,  and  herewith  returned,  are  the  votes 
provided  for  by  the  Constitution  of  the  United  States,  and  that  the  same  are  lawfully 
to  be  counted  as  therein  certified,  namely :  Eight  (8)  votes  for  Rutherford  B.  Hayes, 
of  the  State  of  Ohio,  for  President,  and  eight  (8)  votes  for  William.  A.  Wheeler,  of  the 
State  of  New  York,  for  Yice-Presideut. 

The  Commission  has,  by  a  majority  of  votes,  also  decided,  and  does  hereby  decide 
and  report,  that  the  eight  persons  first  above  named  were  duly  appointed  electors  in 
a?ud  by  the  said  State  of  Louisiana. 

The  brief  ground  of  this  decision  is  that  it  appears,  upon  such  evidence  as  by  the 
Constitution  and  ihelaw  named  in  said  act  of  Congress  is  competent  and  pertinent  to 
the  consideration  of  the  subject,  that  the  beforemeutioned electors  appear  to  have  been 
lawfully  appointed  such  electors  of  President  and  Vice-President  of  the  United  States 
for  the  term  beginning  March  4,  A.  D.  1877,  of  the  State  of  Louisiana,  and  that  they 
voted  as  such  at  the  time  and  in  the  manner  provided  for  by  the  Constitution  of  the 
United  States  and  the  law. 

And  the  Commission  has  by  a  majority  of  votes  decided,  and  does  hereby  decide, 
that  it  is  not  competent,  under  the  Constitution  and  the  law  as  it  existed  at  the  date  of 
the  passage  of  said  act,  to  go  into  evidence  aliunde  the  papers  opened  by  the  President 
of  the  Senate  in  the  presence  of  the  two  Houses  to  prove  that  other  persons  than  those 
regularly  certified  to  by  the  governor  of  the  State  of  Louisiana,  on  and  according  to 
the  determination  and  declaration  of  their  appointment  by  the  returnmg-offieers  for 
elections  in  the  said  State  prior  to  the  time  required  for  the  performance  of  their  duties, 
had  been  appointed  electors,  or  by  counter-proof  to  show  that  they  had  not,  or  that 
the  determination  of  the  said  returuiug-officers  was  not  in  accordance  with  the  truth 
and  the  fact,  the  Commission  by  a  majority  of  votes  being  of  opinion  that  it  is  not 
within  the  jurisdiction  of  the  two  Houses  of  Congress  assembled  to  count  the  votes  for 
President  and  Vice-President  to  enter  upon  a  trial  of  such  question. 

The  Commission  by  a  majority  of  votes  is  also  of  opinion  that  it  is  not  competent  to 
prove  that  any  of  said  persons  so  appointed  electors  as  aforesaid  held  an  office  of  trust 
or  profit  under  the  United  States  at  the  time  when  they  were  appointed,  or  that  they 
were  ineligible  under  the  laws  of  the  State,  or  any  other  matter  offered  to  be  proved 
aliunde  the  said  certificates  and  papers. 

The  Commission  is  also  of  opinion  by  a  majority  of  votes  that  the  returning-officers 
of  elections  who  canvassed  the  votes  at  the  election  for  electors  in  Louisiana  were 
ti  legally-constituted  body,  by  virtue  of  a  constitutional  law,  and  that  a  vacancy  in 
said  body  did  not  vitiate  its  proceedings. 

The  Commission  has  also  decided,  and  does  hereby  decide,  by  a  majority  of  votes, 
and  report,  that  as  a  consequence  of  the  foregoing  and  upon  the  grounds  before  stated, 
the  paper  purporting  to  be  a  certificate  of  the  electoral  vote  of  said  State  of  Louisiana, 
objected  to  by  T.  O.  Howe  and  others,  marked  <{N.  C.  No.  '2"  by  the  Commission,  and 
herewith  returned,  is  not  the  certificate  of  Lthe  votes  provided  for  by  the  Constitution 
of  the  United  States,  and  that  they  ought  not  to  be  counted  as  such. 

Done  at  Washington  the  day  and  year  first  above  written. 

The  question  being  on  the  adoption  of  the  report  of  the  committee, 
it  was  decided  in  the  affirmative : 
YEAS S 

N  A  Y  S 7 

Those  who  voted  in  the  affirmative  were  :  Messrs.  Bradley,  Edmunds, 
Frelinghuyseu,  Gariield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

Those  who  voted  in  the  negative  were:  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Huntou,  Payne,  and  Thurman— 7. 

So  the  report  of  the  committee  was  adopted  j  and  the  decision  and 
report  were  thereupon  signed  by  the  members  agreeing  therein,  as  fol 
lows  : 

SAM.  F.  MILLER. 

W.  STRONG. 

JOSEPH  P.  BRADLEY. 

GEO.  F.  EDMUNDS. 

O.  P.  MORTON. 

FRED'K  T.  FRELINGHUYSEN. 

JAMES  A.  GARF1ELD. 

GEORGE  F.  HOAR. 


ELECTORAL   COUNT   OF    1877.  423 

On  motion  of  Mr.  Commissioner  GARFIELD,  it  was 

Ordered,  That  when  the  Commissioners  adjourn,  it  be  until  to-morrow  at  four  o'clock 
p.  in. 

Mr.  Commissioner  MILLER  offered  the  following  : 

Ordered,  That  the  President  of  the  Commission  sign  and  transmit  to  the  President  of 
the  Senate  the  following  letter,  to  wit : 

"  WASHINGTON,  D.  C.,  February  16,  A.  D.  1877. 

"SiR:  I  am  directed  by  the  Electoral  Commission  to  inform  the  Senate  that  it  has 
considered  and  decided  upon  the  matters  submitted  to  it,  under  the  act  of  Congress 
concerning  the  same,  touching  the  electoral  votes  from  the  State  of  Louisiana,  and 
herewith,  by  direction  of  said  Commission,  I  transmit  to  you  the  said  decision,  in  writ 
ing,  signed  by  the  members  agreeing  therein,  to  be  read  at  the  meeting  of  the  tw» 
Houses,  according  to  said  act.  All  the  certificates  and  papers  sent  to  the  Commission 
by  the  President  of  the  Senate  are  herewith  returned. 

"  Hon.  THOMAS  W.  FERRY, 

"  President  of  the  Senate." 

The  question  being  on  the  adoption  of  the  order,  it  was  determined 
in  the  affirmative,  and  the  letter  was  accordingly  signed  as  follows : 

"  NATHAN  CLIFFORD, 
"  President  of  the  Commission." 

Mr.  Commissioner  MILLER  offered  the  following  order: 

Ordered,  That  the  President  of  the  Commission  sign  and  transmit  to  the  Speaker  of 
the  House  of  Representatives  the  following  letter: 

"  WASHINGTON,  D.  C.,  February  16,  1877. 

"SiR:  I  am  directed  by  the  Electoral  Commission  to  inform  the  House  of  Repre 
sentatives  that  it  has  considered  and  decided  upon  the  matters  submitted  to  it,  under 
the  act  of  Congress  concerning  the  same,  touching  the  electoral  votes  from  the  State 
of  Louisiana,  and  has  transmitted  said  decision  to  the  President  of  the  Senate,  to  be 
read  at  the  meeting  of  the  two  Houses,  according  to  said  act." 

"  Hon.  SAMUEL  J.  RANDALL, 

"  Speaker  of  the  House  of  Representatives" 

The  question  being  on  the  adoption  of  the  order,  it  was  decided  in 
the  affirmative ;  and  the  letter  was  accordingly  signed  as  follows : 

"NATHAN  CLIFFORD, 
"  President  of  the  Commission." 

On  motion  of  Mr.  Commissioner  ABBOTT, 

Ordered,  That  the  injunction  of  secrecy  imposed  on  all  former  consultations  of  the 
Commission  be  removed. 

At  eight  o'clock  and  fifty-seven  minutes  p.  in.  the  Commission  ad 
journed. 

PROCEEDINGS  OF  THE  TWO  HOUSES. 

IN  SENATE,  Saturday,  February  17,  1877. 

The  recess  taken  on  the  previous  day  having  expired,  the  Senate 
resumed  its  session  at  ten  o'clock  a.  in.  on  Saturday,  the  17th  of  Feb 
ruary. 

The  PRESIDENT  pro  tempore  laid  before  the  Senate  the  following 
communication,  which  was  read  : 

WASHINGTON,  D.  C.,  February  17,  1877. 

SIR:  I  am  directed  by  the  Electoral  Commission  to  inform  the  Senate  that  it  has 
considered  and  decided  upon  the  matters  submitted  to  it  under  the  act  of  Congress 
concerning  the  same,  touching  the  electoral  votes  from  the  State  of  Louisiana,  and 
herewith,  by  direction  of  said  Commission,  I  transmit  to  you  the  said  decision,  in 
Avriting,  signed  by  the  members  agreeing  therein,  to  be  read  at  the  meeting  of  the  t  vo 
Houses,  according  to  said  act.  All  the  certificates  and  papers  sent  to  the  Commission 
by  the  President  of  the  Senate  are  herewith  returned. 

NATHAN  CLIFFORD, 

President  of  the  Commission. 
Hon.  THOMAS  W.  FERRY, 

President  of  the  Senate. 


424  ELECTORAL    COUNT    OF    1877. 

Oil  motion  of  Mr.  Senator  HAMLIN,  it  was 

Resolved,  That  the  Secretary  be  directed  to  inform  the  House  of  Representatives  that 
the  President  of  the  Electoral  Commission  has  notified  the  Senate  that  the  Commission 
had  arrived  at  a  decision  of  the  question  submitted  to  them  in  relation  to  the  electoral 
vote  of  the  State  of  Louisiana,  and  that  the  Senate  is  now  ready  to  meet  the  House  to 
receive  the  same  and  to  proceed  with  the  count  of  the  electoral  vote  for  President  and 
Vice- President. 

After  waiting  some  time,  the  following  message  was  received  from  the 
House  of  Eepresentatives,  by  Mr.  George  M.  Adams,  its  Clerk  : 

Mr.  President :  I  am  directed  to  inform  the  Senate  that  the  House  of  Representatives 
will  be  prepared  at  11  o'clock  on  Monday  to  receive  the  Senate  in  the  hall  for  the  pur 
pose  of  proceeding  under  the  provisions  of  the  act  to  provide  for  and  regulate  the 
counting  of  votes  for  President  and  Vice-President. 

On  motion  by  Mr.  Senator  WHYTE,  at  two  o'clock  and  forty-five  min 
utes  p.  m., 

The  Senate  took  a  recess  until  Monday  next,  at  ten  o'clock  a.  m. 

IN  THE  HOUSE  OF  EEPRESENTATIVES, 

Saturday,  February  17,  1877. 

The  recess  taken  on  the  previous  day  having  expired,  the  House  of 
Eepreseutatives  resumed  its  session  on  Saturday,  the  17th  of  Februarv, 
at  ten  o'clock  a.  m.,  and  immediately,  on  motion  of  Mr.  Eepresentative 
Clymer,  took  a  further  recess  until  twelve  o'clock  in.;  at  which  hour  the 
Speaker  called  the  House  to  order,  and,  after  prayer  and  the  reading  of 
the  Journal,  laid  before  the  House  the  following  communication,  which 
was  read : 

WASHINGTON,  D.  C.,  February  17,  1877. 

SIR  :  I  am  directed  by  the  Electoral  Commission  to  inform  the  House  of  Representa 
tives  that  it  has  considered  and  decided  upon  the  matters  submitted  to  it  under  the 
act  of  Congress  concerning  the  same,  touching  the  electoral  votes  from  the  State  of 
Louisiana,  and  has  transmitted  said  decision  to  the  President  of  the  Senate  to  be  read 
at  the  meeting  of  the  two  Houses  according  to  said  act. 

NATHAN  CLIFFORD, 

President  of  the  Commission. 
Hon.  SAMUEL  J.  RANDALL, 

Speaker  of  the  House  of  Representatives. 

Mr.  Eepresentative  LAMAB  submitted  the  following  resolution,  and 
demanded  the  previous  question  thereon,  viz  : 

Resolved,  That  the  Clerk  of  the  House  notify  the  Senate  that  the 
House  of  Eepresentatives  will  be  prepared  at  eleven  o'clock  a.  m.  on  Mou- 
day  to  receive  the  Senate  in  the  hall  for  the  purpose  of  proceeding  un 
der  the  provisions  of  the  act  to  provide  for  and  regulate  the  counting 
the  votes  for  President  and  Vice-President. 

Mr.  Eepresentative  KASSCXN  made  the  point  of  order  that  before 
action  was  taken  on  the  pending  resolution,  a  message  from  the  Senate 
must  be  received,  the  Secretary  of  the  Senate  being  now  at  the  door  of 
the  House  with  a  message  from  that  body  pertinent  to  the  said  com 
munication. 

The  SPEAKEE  overruled  the  point  of  order,  on  the  ground  that  the 
pending  resolution  was  also  pertinent  to  the  subject-matter  of  said 
communication,  and  that  the  previous  question  had  been  demanded 
thereon. 

The  question  then  recurring  on  the  demand  for  the  previous  question, 
the  same  was  seconded  and  the  main  question  ordered;  and  being  put, 
the  resolution  was  adopted — yeas  152,  nays  111. 


ELECTORAL    COUNT    OF    1677.  425 

The  following  message  was  received  from  the  Senate  by  Mr.  George 
C.  Gorhain,  its  Secretary,  viz: 

Mr.  Speaker :  I  am  directed  by  the  Senate  to  inform  the  House  that  the  president  of 
the  Electoral  Commission  has  notified  the  Senate  that  the  Commission  had  arrived  at 
a  decision  on  the  question  submitted  to  them  in  relation  to  the  electoral  votes  of  the 
State  of  Louisiana,  and  that  the  Senate  is  now  ready  to  meet  the  House  to  receive  the 
same  and  proceed  with  the  count  of  the  electoral  vote  for  President  and  Vice-Presi 
dent. 

On  motion  of  Mr.  Representative  LAMAR,  the  House  (at  one  o'clock 
arid  twenty  minutes  p.  in.)  took  a  recess  until  Monday  next,  at  ten 
o'clock  a.  in. 

ELECTORAL  COMMISSION. 

SATURDAY,  February  17,  1877. 

The  Commission  met  at  four  o'clock  p.  m.,  pursuant  to  adjournment ; 
and,  on  motion  of  Mr.  Commissioner  STRONG,  the  Commission  ad 
journed  until  Monday,  the  19th  instant,  at  four  o'clock  p.  m. 

MONDAY,  February  19, 1877. 

The  Commission  met  at  four  o'clock  p.  m.,  pursuant  to  adjournment; 
and,  on  motion  of  IMr.  Commissioner  STRONG,  the  Commission  ad 
journed  until  Tuesday,  the  20th  instant,  at  four  o'clock  p.  m. 

PROCEEDINGS  OF  THE  TWO  HOUSES. 

JOINT  MEETING. 

MONDAY,  February  19,  1877. 

Each  House  resumed  its  session  at  ten  o'clock  a.  m.  At  eleven  o'clock 
a.m.  the  Senate  appeared  in  the  hall  of  the  House  of  Representatives, 
and  was  announced  by  the  Doorkeeper  of  the  House. 

The  Senate  entered  the  hall  preceded  by  its  Sergeant-at-Arms,  and 
headed  by  its  President  pro  tempore  and  its  Secretary,  the  members  and 
officers  of  the  House  rising  to  receive  them. 

The  PRESIDENT^ro  tempore  of  the  Senate  took  his  seat  as  Presiding 
Officer  of  the  joint  meeting  of  the  two  Houses,  the  Speaker  of  the  House 
occupying  a  chair  upon  his  left. 

The^  PRESIDING  OFFICER.  The  joint  meeting  of  Congress  for 
counting  the  electoral  vote  resumes  its  session. 

The  objections  presented  to  the  certificates  from  the  State  of  Louisiana 
having  been  submitted  to  the  Commission,  the  two  Houses  have  recon 
vened  to  receive  and  consider  the  decision  of  that  tribunal.  The  de 
cision,  which  is  in  writing,  by  a  majority  of  the  Commission,  and  signed 
by  the  members  agreeing  therein,  will  now  be  read  by  the  Secretary  of 
the  Seriate,  and  be  entered  in  the  Journal  of  each  House. 

The  Secretary  of  the  Senate  read  as  follows : 

ELECTORAL  COMMISSION, 
Washington,  D.  C.,  February  16,  A.  D.  1877. 

To  the  President  of  the  Senate  of  the  United  States,  presiding  in  the  meeting  of  the 
two  Houses  of  Congress  under  the  act  of  Congress  entitled  "An  act  to  provide  for 
and  regulate  the  counting  of  the  votes  for  President  and  Vice-President,  and  the 
decision  of  questions  arising  thereon,  for  the  term  commencing  March  4,  A.D.  1877," 
approved  January  29,  A.  D.  1877 : 

The  Electoral  Commission  mentioned  in  said  act,  having  received  certain  certificates 
and  papers  purporting  to  be  certificates,  and  papers  accompanying  the  same,  of  the 
electoral  votes  from  the  State  of  Louisiana,  and  the  objections  thereto  submitted  to  it, 


426  ELECTORAL   COUNT   OF   1877. 

under  said  act,  now  report,  that  it  has  duly  considered  the  same  pursuant  to  said 
act,  and  has  by  a  majority  of  votes  decided,  and  does  hereby  decide,  that  the  votes  of 
William  P.  Kellogg,  J.  Henri  Burch,  Peter  Joseph,  Lionel  A.  Sheldon,  Morris  Marks, 
Aaron  B.  Levissee,  Orlando  H.  Brewster,  and  Oscar  JofMon,  named  in  the  certificate  of 
William  P.  Kellogg,  governor  of  said  State,  which  votes  are  certified  by  said  persons, 
as  appears  by  the  certificates  submitted  to  the  Commission,  as  aforesaid,  and  marked 
Nos.  one  (1)  and  three  (3)  by  said  Commission,  and  herewith  returned,  are  the  votes 
provided  for  by  the  Constitution  of  the  United  States,  and  that  the  same  are  lawfully 
to  be  counted  as  therein  certified,  namely: 

Eight  (8)  votes  for  Rutherford  B.  Hayes,  of  the  State  of  Ohio,  for  President ;  and 
Eight  (8)  votes  for  William  A.  Wheeler,  of  the  State  of  New  York,  for  Vice-President. 
The  Commission  has  by  a  majority  of  votes  also  decided,  and  does  hereby  decide  and 
report,  that  the  eight  persons  first  above  named  were  duly  appointed  electors  in  and 
by  the  said  State  of  Louisiana. 

The  brief  ground  of  this  decision  is,  that  it  appears,  upon  such  evidence  as  by  the 
Constitution  and  the  law  named  in  said  act  of  Congress  is  competent  and  pertinent  to 
the  consideration  of  the  subject,  that  the  before-mentioned  electors  appear  to  have 
been  lawfully  appointed  such  electors  of  President  and  Vice-President  of  the  United 
States  for  the  term  beginning  March  4,  A.  D.  1877,  of  the  State  of  Louisiana,  and  that 
they  voted  as  such  afthe  time  and  in  the  manner  provided  for  by  the  Constitution  OA 
the  United  States  and  the  law. 

And  the  Commission  has  by  a  majority  of  votes  decided,  and  does  hereby  decide,  that 
it  is  not  competent  under  the  Constitution  and  the  law  as  it  existed  at  the  date  of  the 
passage  of  said  act,  to  go  into  evidence  allunde  the  papers  opened  by  the  President  of 
the  Senate  in  the  presence  of  the  two  Houses,  to  prove  that  other  persons  than  those 
regularly  certified  to  by  the  governor  of  the  State  of  Louisiana,  on  and  according  to 
the  determination  and  declaration  of  their  appointment  by  the  returuing-officers  for 
elections  in  the  said  State  prior  to  the  time  required  for  the  performance  of  their 
duties,  had  been  appointed  electors,  or  by  counter-proof  to  show  that  they  had  not,  or 
that  the  determination  of  the  said  returning-officers  was  not  in  accordance  with  the 
truth  and  the  fact ;  the  Commission,  by  a  majority  of  votes,  being  of  opinion  that  it  is 
not  within  the  jurisdiction  of  the  two  Houses  of  Congres.8  assembled  to  count  tha  votes 
for  President  and  Vice-President  to  enter  upon  a  trial  of  such  questions. 

The  Commission,  by  a  majority  of  votes,  is  also  of  opinion  that  it  is  not  competent  to 
prove  that  any  of  said  persons  so  appointed  electors  as  aforesaid  held  an  office  of  trust  or 
profit  under  the  United  States  at  the  time  when  they  were  appointed,  or  that  they 
were  ineligible  under  the  laws  of  the  State,  or  any  other  matter  offered  to  be  proved 
aliunde  the  said  certificates  and  papers. 

The  Commission  is  also  of  opinion  by  a  majority  of  votes  that  the  returning-officers 
of  elections  who  canvassed  the  votes  at  the  election  for  electors  in  Louisiana  were  a 
legally  constituted  body,  by  virtue  of  a  constitutional  law,  and  that  a  vacancy  in  said 
body  did  not  vitiate  its  proceedings. 

The  Commission  has  also  decided,  and  does  hereby  decide,  by  a  majority  of  votes,  and 
report,  that  as  a  consequence  of  the  foregoing  and  upon  the  grounds  before  stated  the 
paper  purporting  to  be  a  certificate  of  the  electoral  vote  of  said  State  of  Louisiana, 
objected  to  by  T.  O.  Howe  and  others,  marked  "  N.  C.  No.  2"  by  the  Commission,  and 
herewith  returned,  is  not  the  certificate  of  the  votes  provided  ibr  by  the  Constitution 
of  the  United  States,  and  that  they  ought  not  to  be  counted  as  such. 
Done  at  Washington  the  day  and  year  first  above  written. 

SAM.  F.  MILLER. 

W.  STRONG. 

JOSEPH  P.  BRADLEY. 

GEO.  F.  EDMUNDS. 

O.  P.  MORTON. 

FRED'K  T.  FRELINGHUYSEN. 

JAMES  A.  GARFIELD. 

GEORGE  F.  HOAR. 

The  PRESIDING-  OFFICER.  Are  there  any  objections  to  the  decis" 
ion  of  the  Commission  f 

Mr.  Representative  GIBSON  submitted  the  following  objections  to 
the  decision  and  report  of  the  Commission,  which  were  read  by  the 
Clerk  of  the  House,  viz  : 

The  following  objections  are  interposed  by  the  undersigned,  Senators  and  Repre" 
sentatives,  to  the  decision  made  by  the  Commission  constituted  by  the  act  entitled 
"An  act  to  provide  for  and  regulate  the  counting  of  votes  for  President  and  Vice-Presi 
dent  and  the  decision  of  question  arising  thereon,  for  the  term  commencing  March  4, 


ELECTORAL   COUNT   OF    1877.  427 

A.  D.  1877,'  us  to  the  true  and  lawful  electoral  vote  of  the  State  of  Louisiana,  for  the 
following  reasons,  viz : 

First.  For  that,  the  said  Commission  as  guides  to  their  action  adopted  and  rejected 
resolutions  as  follows : 

"  FRIDAY,  February  16, 1877. 

"The  Commission  met  at  10  o'clock  a.  m.,  pursuant  to  adjournment,  with  closed  doors, 
for  the  purpose  of  consultation  on  the  question  submitted  relative  to  the  offers  of  proof 
connected  with  the  objections  raised  to  the  certificates  of  electoral  votes  from  the  State 
of  Louisiana. 

''After  debate, 

"Mr.  Commissioner  HOAR  submitted  the  following  order  : 

"  Ordered,  That  the  evidence  offered  be  not  received. 

"  Mr.  Commissioner  ABBOTT  offered  the  following  as  a  substitute  for  the  proposed 
order : 

"  Resolved,  That  evidence  will  be  received  to  show  that  so  much  of  the  act  of  Louisiana 
establishing  a  returning-board  for  that  State  is  unconstitutional,  and  the  acts  of  said 
returning-board  are  void. 

"  The  question  being  on  the  adoption  of  the  substitute,  it  was  decided  in  the  negative  : 

Yeas 7 

Nays '. 8 

"Those  who  voted  in  the  affirmative  were  :  Messrs.  Abbott,  Bayard,  Clifford,  Field, 
Huntou,  Payne,  and  Thurman — 7. 

"  Those  who  voted  in  the  negative  were  :  Messrs.  Bradley,  Edmunds,  Frelinghuyseu, 
Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

"  Mr.  Commissioner  ABBOTT  offered  the  following  as  a  substitute : 

"Resolved,  That  evidence  will  be  received  to  show  that  the  returning-board  of  Louis 
iana,  at  the  time  of  canvassing  and  compiling  the  vote  of  that  State  at  the  last  election 
in  that  State,  was  not  legally  constituted  under  the  law  establishing  it,  in  thia :  that 
it  was  composed  of  four  persons  all  of  one  political  party,  instead  of  five  persons  of 
different  political  parties,  as  required  by  the  law  establishing  said  board. 

"  The  question  being  on  the.adoptiou  of  the  substitute,  it  was  decided  in  the  negative  : 

Yeas '. 7 

Nays 8 

"Those  who  voted  in  the  affirmative  were  :  Messrs.  Abbott,  Bayard,  Clifford,  Field, 
Hunton,  Payne,  and  Thurrnaii— 7. 

"Those  who  voted  in  the  negative  were  :  Messrs.  Bradley,  Edmunds,  Frelinghuysen, 
Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

"Mr.  Commissioner  ABBOTT  offered  the  following  as  a  substitute  : 

"Resolved,  That  the  Commission  will  receive  testimony  on  the  subject  of  the  frauds 
alleged  in  the  specifications  of  the  counsel  for  the  objectors  to  certificates  Nos.  1  and  3. 

"  The  question  being  on  the  adoption  of  the  substitute,  it  was  decided  in  the  negative : 

Yeas 7 

Nays 8 

"  Those  who  voted  in  the  affirmative  were  :  Messrs.  Abbott,  Bayard,  Clifford,  Field, 
Hunton,  Payne,  and  Thurman — 7. 

"  Those  who  voted  in  the  negative  were  :  Messrs.  Bradley,  Edmunds,  Frelinghuysen, 
Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

"Mr.  Commissioner  ABBOTT  offered  the  following  as  a  substitute: 

"Resolved,  That  testimony  tending  to  show  that  the  so-called  returuing-board  of  Louis 
iana  had  no  jurisdiction  to  canvass  the  votes  for  electors  of  President  and  Vice- Presi 
dent  is  admissible. 

'"  The  question  being  on  the  adoption  of  the  substitute,  it  was  determined  in  the  nega 
tive: 

Yeas 7 

Nays 8 

"Those  who  voted  in  the  affirmative  were  :  Messrs.  Abbott,  Bayard,  Clifford,  Field, 
Hunton,  Payne,  and  Thurman — 7. 

"Those  who  voted  in  the  negative  were:  Messrs.  Bradley,  Edmunds,  Frelinghuysen, 
Garfield,  Hoar,  Miller,  Morton,  and  Strong— 8. 

"  Mr.  Commissioner  ABBOTT  offered  the  following  as  a  substitute  : 

"  Resolved,  That  evidence  is  admissible  that  the  statements  and  affidavits  purporting 
to  have  been  made  and  forwarded  to  said  returning-board  in  pursuance  of  the  provis 
ions  of  section  26  of  the  election  law  of  1872,  alleging  riot,  tumult,  intimidation,  and 
violence  at  or  near  certain  polls  and  in  certain  parishes,  were  falsely  fabricated  and 
forged  by  certain  disreputable  persons  under  the  direction  and  with  the  knowledge 
of  said  returuing-board,  and  that  said  returuiug-board,  knowing  said  statements  and 
affidavits  to  be  false  and  forged,  and  that  none  of  the  said  statements  or  affidavits 
were  made  in  the  manner  or  form  or  within  the  time  required  by  law,  did  knowingly, 


428  ELECTORAL    COUNT    OF    1877. 

willfully,  and  fraudulently  fail  and  refuse  to  canvass  or  compile  more  than  ten  thou 
sand  votes  lawfully  cast,  as  is  shown  by  the  statements  of  votes  of  the  commissioners 
of  election. 

"  The  question  being  oil  the  adoption  of  the  substitute,  it  was  decided  in  the  ne^a- 
tive : 

Yeas 7 

Nays 8 

"Those  who  voted  in  the  affirmative  were:  Messrs.  Abbott,  Bayard,  Clifford,  Field* 
Hunton,  Payne,  and  Thurmau — 7. 

"  Those  who  voted  in  the  negative  were  :  Messrs.  Bradley,  Edmunds,  Frelinghuysen, 
Garh'eld,  Hoar,  Miller,  Morton,  and  Strong — 8. 

11  Mr.  Commissioner  HUNTON  offered  the  following  as  a  substitute  : 

"  Resolved,  That  evidence  be  received  to  prove  that  the  votes  cast  and  given  at  said 
election  on  the  7th  of  November  last  for  the  election  of  electors  as  shown  by  the  re 
turns  made  by  the  commissioners  of  election  from  the  several  polls  or  voting-places  iu 
said  State  have  never  been  compiled  or  canvassed,  and  that  the  said  returuirig-board 
never  even  pretended  to  compile  or  canvass  the  returns  made  by  said  commissioners  of 
election,  but  that  the  said  returniiig-board  only  pretended  to  canvass  the  returns  made 
by  said  supervisors. 

"  The  question  being  on  the  adoption  of  the  substitute,  it  was  decided  in  the  nega 
tive  : 

Yeas 7 

Nays 8 

"  Those  who  voted  in  the  affirmative  were  :  Messrs.  Abbott,  Bayard,  Clifford,  Field? 
Hnnton,  Payne,  and  Thurman — 7. 

"  Those  who  voted  iu  the  negative  were:  Messrs.  Bradley,  Edmunds, Frelinghuysen, 
Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

"  Mr.  Commissioner  BAYARD  offered  the  following  as  a  substitute  : 

"  Resolved,  That  no  person  holding  an  office  of  trust  or  profit  under  the  United  States 
is  eligible  to  be  appointed  an  elector,  and  that  this  Commission  will  receive  evidence 
tending  to  prove  such  ineligibility  as  offered  by  counsel  for  objectors  to  certificates 
1  and  3. 

"  The  question  being  on  the  adoption  of  the  substitute,  it  was  decided  in  the  nega 
tive: 

Yeas 7 

Nays 8 

"  Those  who  voted  in  the  affirmative  were  :  Messrs.  Abbott,  Bayard,  Clifford,  Field, 
Hunton,  Payne,  and  Thurman — 7. 

"  Those  who  voted  in  the  negative  were:  Messrs.  Bradley,  Edmunds,  Frelinghuysen, 
Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

"  Mr.  Commissioner  FELD  offered  the  following  as  a  substitute  : 

"Resolved,  That  in  the  opinion  of  the  Commission  evidence  is  admissible  upon  the 
several  matters  which  counsel  for  the  objectors  to  certificates  Nos.  1  and  3  offered  to 
prove. 

"The  question  being  on  the  adoption  of  the  substitute,  it  was  decided  in  the  nega 
tive  : 

Yeas..  7 

Nays 8 

"  Those  who  voted  in  the  affirmative  were  :  Messrs.  Abbott,  Bayard,  Clifford,  Field, 
Hunton,  Payne,  and  Thurman — 7.  ^  .., 

"  Those  who  voted  in  the  negative  were :  Messrs.  Bradley,  Edmunds,  Frelinghuysen, 
Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

"  The  question  then  recurring  on  the  adoption  of  the  order  submitted  by  Mr.  Commis 
sioner  Hoar, 

"Mr.  Commissioner  PAYNE  moved  to  strike  out  the  word  'not.' 

"  The  question  being  on  the  adoption  of  the  amendment,  it  was  determined  in  the 
negative : 

Yeas 7 

Nays 8 

"  Those  who  voted  in  the  affirmative  were  :  Messrs.  Abbott,  Bayard,  Clifford,  Field, 
Hunton,  Payne,  and  Thurman— 7. 

"  Those  who  voted  in  the  negative  were :  Messrs.  Bradley,  Edmunds,  Frelinghuysen, 
Garfield,  Hoar,  Miller,  Morton,  and  Strong— 8. 

"  The  question  then  recurred  on  the  adoption  of  the  order  submitted  by  Mr.  Commis 
sioner  Hoar  in  the  following  words  : 

"  Ordered,  That  the  evidence  offered  be  not  received. 


ELECTORAL    COUNT    OF    1877.  429 

"  The  question  being  on  the  adoption  of  the  order,  it  was  determined  in  the  affirma 
tive: 

Yeas 8 

Nays 7 

"Those  who  voted  in  the  affirmative  were :  Messrs.  Bradley,  Edmunds,  Frelinghuysen, 
Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

"Those  who  voted  in  the  negative  were:  Messrs.  Abbott,  Bayard,  Clifford,  Field, 
Hunton,  Payne,  and  Tlmrman — 7. 

"  On  motion  of  Mr.  Commissioner  FIELD,  it  was — 

"Ordered,  That  the  injunction  of  secrecy  be  removed  from  the  proceedings  of  the  Com 
mission. 

"  The  doors  were  thereupon  opened,  and  the  respective  counsel  appeared. 

"  The  action  of  the  Commission  on  the  various  motions  and  orders  submitted  was 
read. 

"  Mr.  Commissioner  HOAR.  Mr.  President,  I  desire  to  inquire  of  the  Chair  whether  any 
of  the  time  that  counsel  were  entitled  to  under  the  order  of  the  Commission  remains, 
or  whether  it  has  been  exhausted  ?  The  Chair  was  not  certain  yesterday  on  that 
point. 

"  The  PRESIDENT.  The  time  on  the  side  of  the  objectors  to  certificates  Nos.  1  and  3  was 
exhausted.  In  regard  to  the  time  remaining  on  the  part  of  the  objectors  to  certificate 
No.  2,  I  find  that  I  made  an  error  in  my  announcement  yesterday,  by  the  correction  of 
niy  associate,  Judge  Miller,  and  the  journal  clerk.  By  these  corrections  I  am  advised 
that  ten  minutes  are  left  to  that  side,  biit  substantially  the  Time  is  exhausted. 

"  Mr.  Commissioner  PAYNE.  I  move  that  the  time  be  extended  to  counsel  on  each  side 
for  one  hour  on  the  general  question. 

"Mr.  Commissioner  GARFIELD.  I  heard  no  request  for  that. 

"  The  PRESIDENT.  Mr.  Payne  moves  that  one  hour  on  each  side  be  allowed  to  counsel 
for  the  discussion  of  the  main  question  that  remains. 

"  Mr.  Commissioner  GARFIELD.  I  wish  to  say  that  the  order  under  which  four  hours 
and  a  half  of  time  were  allowed  to  each  side  for  the  discussion  of  the  whole  question 
was  proceeding  to  be  executed  when  it  was  intercepted  by  an  offer  of  testimony,  and 
it  was  then  agreed  that  two  additional  hours  should  be  given  to  each  side  for  the  dis 
cussion  of  that  question.  After  that  agreement  was  entered  into,  it  was  also  agreed 
that  the  counsel  might  draw  on  their  final  time  on  the  whole  question,  and  use  it  on 
that  interlocutory  question  if  they  chose  to  do  so. 

"The  PRESIDENT.  And  they  did  use  it  up. 

"Mr.  Commissioner  GARFIELD.  They  did  use  it  up,  and  they  discus-sod  the  whole  ques 
tion,  together  with  the  interlocutory  question.  The  counsel  have  not  asked  for  addi 
tional  time  ;  and  if  they  had,  I  should  myself  consider  that  we  ought  to  stand  by  our 
order.  I  shall  vote  against  the  motion  of  Mr.  Payne. 

"  The  PRESIDENT.  The  motion  is  that  an  hour  on  each  side  be  allowed  for  argument. 

"Mr.  Commissioner  MORTON.  Unless  counsel  desire  that,  I  shall  certainly  vote 
against  it. 

"  Mr.  EVARTS.  I  think  that  counsel  distinctly  presented  to  the  Commission  and  cer 
tainly  felt  thoroughly,  that  the  discussion  thus  opened  to  them  covered  'the  whole 
merits  of  the  case.  That  was  our  view. 

"  The  PRESIDENT.  You  are  satisfied,  then  ? 

"  Mr.  EVARTS.  We  are  satisfied  with  the  discussion  as  it  now  stands. 

"  The  PRESIDENT.  I  will  put  the  same  inquiry  to  counsel  on  the  other  side. 

"  Mr.  CAMPBELL.  The  time  which  was  granted  by  the  Commission  was  granted  with  a 
view  to  the  discussion  of  the  questions  arising  on  the  case  presented.  We  have  noth 
ing  to  add  to  the  case  we  have  submitted  to  the  Commission. 

"  Mr.  Commissioner  PAYNE.  Then  I  withdraw  the  motion. 

"  Mr.  Commissioner  ABBOTT.  I  understand  you  to  say,  Judge  Campbell,  that  the  Com 
mission  having  ruled  out  all  the  evidence  you  offered,  you  have  nothing  further  to  add 
before  the  deed  is  done. 

"  Mr.  CAMPBELL.  Nothing,  sir. 

"  The  PRESIDENT.  The  motion  of  Mr.  Payne  is  withdrawn. 

"  Mr.  Commissioner  MORTON.  I  move  that  a  committee  of  three  members  of  the  Com 
mission  be  appointed  to  prepare  the  report,  and- that  we  take  an  intermission  of  one 
hour  for  that  purpose. 

"  Mr.  Commissioner  TIIURMAN.  What  is  that  motion  ? 

"The  PRESIDENT.  The  motion  is  that  a  committee  of  three  be  appointed 

"Mr.  Commissioner  STRONG.  Allow  me  to  suggest  that  the  question  formally  passed  on, 
was  a  question  of  the  admissibility  of  the  evidence  that  was  offered.  We  have  not 
passed  on  the  merits  of  the  case,  formally  at  least.  I  think  we  ought  first  to  go  iuto  de 
liberation  for  that  purpose. 

"Mr.  Commissioner  MORTON.  I  withdraw  the  motion. 

"  Mr.  Commissioner  STRONG.  It  is  possible  that  on  a  discussion  of  the  merits  of  the 


430  ELECTORAL    COUNT    OF    1877. 

case  among  ourselves  we  may  come  to  a  conclusion  which  nobody  is  now  authorized 
to  anticipate. 

"Mr.  Commissioner  HOAR.  I  move  that  the  Commission  go  into  consultation. 

"  The  motion  was  agreed  to  ;  and  (at  5  o'clock  and  25  minutes  p.  m.)  the  Commission 
proceeded  to  consultation  with  closed  doors. 

"  Mr.  Commissioner  MORTON  offered  the  following  : 

"Resolved,  That  the  persons  named  as  electors  in  certificate  No.  1  were  the  lawful 
electors  of  the  State  of  Louisiana,  and  that  their  votes  are  the  votes  provided  by  the 
Constitution  of  the  United  States,  and  should  be  counted  for  President  and  Vice-Presi 
de  nt. 

"  Mr.  Commissioner  TIIURMAX  offered  the  following  as  a  substitute : 

"  Strike  out  all  after  the  word  ' Resolved,'  and  insert : 

"  '  That  inasmuch  as  the  votes  of  the  people  of  Louisiana  for  electors  of  President  and 
Vice-President  in  November  last  have  never  been  legally  canvassed  and  declared, 
therefore  the  votes  purporting  to  be  votes  of  electors  of  that  State  for  President  and 
Vice-President  ought  not  to  be  counted,  and  no  electors  of  President  and  Vice-Presi- 
dent  can  be  regarded  as  chosen  in  that  State.' 

"  The  question  being  on  the  adoption  of  the  substitute,  it  was  decided  in  the  nega 
tive: 

Yeas 7 

Nays 8 

"Those  who  voted  in  the  affirmative  were:  Messrs.  Abbott,  Bayard,  Clifford,  Field, 
Hunton,  Payne,  and  Thurman — 7. 

"Those  who  voted  in  the  negative  were:  Messrs.  Bradley,  Edmunds,  Frelinghuyten, 
Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

"Mr.  Commissioner  HUNTON  moved  to  amend  by  striking  out  all  after  the  word 
' Resolved'  and  inserting — 

"  '  That  the  votes  purporting  to  be  the  electoral  votes  of  the  State  of  Louisiana  be  not 
counted.' 

"  The  question  being  on  the  adoption  of  the  amendment,  it  was  decided  in  the  nega 
tive: 

Yeas 7 

Nays 8 

"Those  who  voted  in  the  affirmative  were:  Messrs.  Abbott,  Bayard,  Clifford,  Field, 
Hnnton,  Payne,  and  Thnrman — 7. 

"  Those  who  voted  in  the  negative  were :  Messrs.  Bradley,  Edmunds,  Frelinghuysen, 
Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

"And  the  question  recurring  on  the  adoption  of  the  resolution  of  Mr.  Commissioner 
Morton,  it  was  decided  in  the  affirmative: 

Yeas „ 8 

Nays 7 

"  Those  who  voted  in  the  affirmative  were :  Messrs.  Bradley,  Edmunds,  Frelinghuysen, 
Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

"  Those  who  voted  in  the  negative  were :  Messrs.  Abbott,  Bayard,  Clifford,  Field,  Hun- 
ton,  Payne,  and  Thurman — 7." 

Second.  For  that  the  said  Commission  refused  to  receive  evidence  offered,  as  in  the 
Annexed  paper  stated,  or  any  part  of  said  evidence,  and  decided  that  the  votes  men 
tioned  in  the  certificates  numbered  1  and  3  shall  be  counted  for  Hayes  and  Wheeler, 
said  evidence  to  the  contrary  notwithstanding. 

W.  H.  BARNUM,  Conn.,       \VM.  W.  EATON,  Conn.,         GEO.  R.  DENNIS,  Md. 
CHAS.  W.  JONES,  Fla.,         S.  B.  MAXEY,  Tex.,  G.  GOLDTHWAITE,  Ala,, 

FRANCIS  KERNAN,  N.  Y.,    T.  F.  RANDOLPH,  N.  J.,         A.  S.  MERRIMON,  N.  C., 
FRANK  HEREFORD,  W.Va.,R.  E.  WITHERS,  Va.,  T.  M.  NORWOOD,  Ga., 

HENRY  COOPER,  Tenn.,      J.  E.  BAILEY,  Tenn.,  T.  C.  McCREERY,  Ky., 

LEWIS  V.  BOGY,  Mo.,  H.  G.  DAVIS,  W.  Va.,  J.  E.  McDONALD,  Ind., 

Senators. 

LUCIEN  L.  AINSWORTII,  AYLETT  H.  BUCKNER,       ALEX.  G.  COCHRANE, 

JOHN  D.  C.  ATKINS,  GEORGE  C.  CABELL,  FRANCIS  D.  COLLINS, 

JOHN  C.  BAGBY,  JOHN  H.  CALDWELL,          PHILIP  COOK, 

HENRY  B.  BANNING,  WILLIAM  P.  CALDWELL,  JACOB  P.  COWAN, 

GEORGE  M.  BEEBE,  MILTON  A.  CANDLE  R,         SAMUEL  S.  COX, 

RICHARD  P.  BLAND,  GEORGE  W.  CATE,  DAVID  B.  CULBERSON, 

JAMES  H.  BLOUNT,  BERNARD  G. CAULFIELD,JOSEPH  J.  DAVIS, 

ANDREW  R.  BOONE,  CHESTER  W.  CHAPIN,        REZIN  A.  DE  BOLT, 

TAUL  BRADFORD,  JOHN  B.  CLARKE,  GEORGE  G.  DIBRELL, 

JOHN  M.  BRIGHT,  JOHN  B.  CLARK,  JR.,  MILTON  J.  DURHAM, 

JOHN  YOUNG  BROWN,  HIESTER  CLYMER,  JOHN  R,  EDEN, 


ELECTORAL    COUNT   OF    1877. 


431 


ALBERT  G.  EGBERT, 
E.  JOHN  ELLIS, 
CHARLES  J.  FAULKNER, 
WILLIAM  H.  FELTON, 
DAVID  DUDLEY  FIELD, 
JESSE  J.FINLEY, 
WILLIAM  H.  FORNEY, 
BENJAMIN  J.  FRANKLIN, 
BEN  ON  I  S.  FULLER, 
LUCIEN  C.  GAUSE, 
RANDALL  L.  GIBSON, 
JOHN  M.  GLOVER, 
JOHN  GOODE,  JR., 
JOHN  R.  GOOD1N, 
•THOMAS  M.  GUNTER. 
ANDREW  H.  HAMILTON, 
ROBERT  HAMILTON, 
AUG.  A.  HARDEN  BE  RGH, 
HENRY  R.  HARRIS, 
JOHN  T.  HARRIS, 
CARTER  H.  HARRISON, 
JULIAN  HARTRIDGE, 
WILLIAM  HARTZELL, 
RQBERT  A.  HATCHER, 
ELI  J.  HENKLE, 
ABRAM  S.  HEWITT, 
GOLDSMITH  W.  HEWITT, 
BENJAMIN  H.  HILL, 
WILLIAM  S.  HOLMAN, 
CHARLES  E.  HOOKER, 
JAMES  H.  HOPKINS, 
JOHN  F.  HOUSE, 
ANDREW  HUMPHREYS, 
FRANK  H.  HURD, 
GEORGE  A.  JENKS, 
FRANK  JONES, 
THOMAS  L.  JONES, 
EDWARD  C.  KEHR, 
J.  PROCTOR  KNOTT, 


LUCIUS  Q.  C.  LAMAR, 
FRANKLIN  LANDERS, 
GEORGE  M.  LANDERS, 
LAFAYETTE  LANE, 
WILLIAM  M.  LEVY, 
BURWELL  B.  LEWIS, 
JOHN  K.  LUTTRELL, 
WILLIAM  P.  LYNDE, 
L.  A.  MACKEY, 
LEV!  MAISH, 
WILLIAM  McFARLAND, 
JOHN  A.  McMAHON, 
HENRY  B.  METCALFE, 
CHARLES  W.  M1LLIKEN, 
ROGER  Q.  MILLS, 
HERNANDO  D.  MONEY, 
CHARLES  H.  MORGAN, 
WILLIAM  R.  MORRISON, 
WILLIAM  MUTCHLER, 
LAWRENCE  T.  NEAL, 
JEPTHA  D.  NEW, 
JOHN  F.  PHILIPS, 
EARLEY  F.  POPPLETON, 
JOSEPH  POWELL, 
SAMUEL  J.  RANDALL, 
DAVID  REA, 
JOHN  H.  REAGAN, 
JOHN  REILLY, 
JAMES  B.  REILLY, 
AMERICUS  V.  RICE, 
HAYWOOD  Y.  RIDDLE, 
JOHN  ROBBINS, 
WILLIAM  M.  ROBBINS, 
MILES  ROSS, 
JOHN  S.  SAVAGE, 
MILTON  SAYLER, 
ALFRED  M.  SCALES, 
JOHN  G.  SCHUMAKER, 
JAMES  SHEAKLEY, 


OTHO  R.  SINGLETON, 
WILLIAM  F.  SLEMONS, 
MILTON  I.  SOUTHARD, 
WILLIAM  A.  J.  SPARKS, 
WILLIAM  M.  SPRINGER, 
WILLIAM  H.  STANTON, 
WILLIAM  S.  STENGER, 
ADLAI  E.  STEVENSON, 
WILLIAM  H.  STONE, 
THOMAS  SWANN, 
JOHN  K.  TARBOX, 
FREDERICK  H.  TEESE, 
WILLIAM  TERRY, 
CHARLES  P.  THOMPSON, 
PHILIP  F.  THOMAS, 
J.  W.  TH  ROC  KM  ORION, 
JOHN  R.  TUCKER, 
JACOB  TURNEY, 
JOHN  L.  VANCE, 
ROBERT  B.  VANCE, 
ALFRED  M.  WADDELL, 
ANSEL  T.  WALLING, 
ELIJAH  WARD, 
LEV  I  WARNER, 
WILLIAM  W.  WARREN, 
HENRY  WATTERSON, 
ERASTUS  WELLS, 
WASH.  C.  WH1TTHORNE, 
PETER  D.  WIGGINTON, 
ALPHEUS  S.  WILLIAMS, 
JAMES  WILLIAMS, 
JERE  N.  WILLIAMS, 
BENJAMIN  A.  WILLIS, 
WILLIAM  W.  WILSHIRE, 
BENJAMIN  WILSON, 
FERNANDO  WOOD, 
JESSE  J.  YEATES, 
CASEY  YOUNG, 

Reprcsentati  ves . 


The  " annexed  paper"  referred  to  in  the  foregoing  is  as  follows  : 

I. 

We  offer  to  prove  that  William  P.  Kellogg,  who  certifies  as  governor  of  the  State  of 
Louisiana,  to  the  appointment  of  electors  of  that  State,  which  certificate  is  now  before 
this  Commission,  is  the  same  William  P.  Kellogg  who,  by  said  certificate,  was  certified 
to  have  been  appointed  one  of  said  electors.  In  other  words,  that  Kellogg  certified  his 
own  appointment  as  snch  elector. 

That  said  Kellogg  was  governor  dc  facto  of  said  State  during  all  the  months  of 
November  and  December,  A.  D.  1876. 

CONSTITUTION  OF  LOUISIANA. 

ART.  117.  No  person  shall  hold  or  exercise  at  the  same  time  more  than  one  office  of 
trust  or  profit,  except  that  of  justice  of  the  peace  or  notary  public." 

II. 

We  offer  to  prove  that  said  William  P.  Kellogg  was  not  duly  appointed  one  of  the 
electors  of  said  State  in  A.  D.  1870,  and  that  the  certificate  is  untrue  in  fact. 
To  show  this  we  offer  to  prove — 

(1)  By  certified  copies  of  the  lists  made  out,  signed,  and  sworn  to  by  the  commission 
ers  of  election  in  each  poll  and  voting-place  in  the  State,  and  delivered  by  said  com 
missioners  to  the  clerk  of  the  district  court  wherein  said  polls  were  established,  except 
in  the  parish  of  Orleans,  and  in  that  parish  delivered  to  the  secretary  of  state,  that  at 
the  election  for  electors  in  the  State  of  Louisiana,  on  the  7th  day  of  November  last,  the 
said  William  P.  Kellogg  received  for  elector  6,300  votes  less  than  were  at  said  election 
cast  for  each  and  every  of  the  following-named  persons,  that  is  to  say :  John  McEnery, 
R.  C.  Wickliffe,  L.  St.  Martin,  E.  P.  Pochd,  A.  De  Blanc,  W.  A.  Seay,  R.  G.  Cobb,  K.  A. 
Cross.     (Sec.  43,  act  1872.) 

(2)  In  connection  with  the  certified  copies  of  said  lists  we  offer  to  prove  that  the 


432  ELECTORAL   COUNT    OF    1877. 

returning-board,  which  pretended  to  canvass  the  said  election  nnder  the  act  approved 
November  20,  1^72,  did  not  receive  from  any  poll,  voting-place,  or  parish  in  said  State, 
nor  have  before  them,  any  statement  of  any  supervisor  of  registration  or  commissioner 
of  election  in  form  as  required,  by  section  26  of  said  act,  on  affidavit  of  three  or  more 
citizens,  of  any  riot,  tumult,  acts  of  violence,  intimidation,  armed  disturbance,  bribery, 
or  corrupt  influences  which  prevented  or  tended,  to  prevent  a  fair,  free,  and  peaceable 
vote  of  all  qualified  electors  entitled  to  vote  at  such  poll  or  voting-place. 

(3)  We  further  offer  to  show  that  in  many  instances  the  supervisors  of  registration 
of  the  several  parishes  willfully  and  fraudulently  omitted  from  their  consolidated  state 
ment,  returned  by  them  to  the  State  returning-board,  the  result  and  all  mention  of  the 
votes  given  at  certain  polls  or  voting-places  within  their  respective  parishes,  as  shown, 
to  them  by  the  returns  and  papers  returned  to  said  supervisors  by  the  commissioners 
of  election,  as  required  by  law;  and  that  in  consequence  of  this  omission  the  said  con 
solidated  statements,  on  their  face,  omitted  of  majorities  against  the  said  Kellogg,  and 
in  favor  of  each  and  every  the  said  McEnery,  Wickliffe,  St.  Martin,  Poche,  De  Blanc, 
Seay,  Cobb,  and  Cross,  amounting  to  2,267,  but  that  said  supervisors  of  registration 
did,  as  by  law  required,  return  to  the  said  returning-board,  with  their  consolidated 
statements,  the  lists,  papers,  and  returns  received  by  them  according  to  law  from  the 
commissioners  of  election  at  the  several  polls  and  voting-places  omitted  as  aforesaid 
from  said  consolidated  statements  of  said  supervisors. 

And  that  the  said  returning-board  willfully  and  fraudulently  neglected  and  refused 
to  make  any  canvass  of  the  majorities  so  omitted,  or  estimate  them  in  any  way  in  their 
pretended  determination  that  the  said  Kellogg  was  duly  elected  an  elector  at  the  elec 
tion  aforesaid. 

(4)  We  offer  to  show  that  by  the  consolidated  statements  returned  to  said  returning- 
board  by  the  supervisors  of  registration  of  the  several  parishes  of  the  State  of  the  re 
sult  of  the  voting  at  the  several  polls  or  voting-places  within  their  parishes  respect 
ively,  it  appeared  that  said  Kellogg  received  at  said  election  3,459  less  votes  for  elector 
than  said  McEnery,  Wickliffe,  St.  Martin,  Poche",  De  Blanc,  Seay,  Cobb,  and  Cross,  and 
each  and  every  of  them. 

(5)  We  further  offer  to  show  that  the  said  returning-board  willfully  and  fraudulently 
estimated  and  counted  as  votes  in  favor  of  said  Kellogg  234  votes  which  were  not 
shown  to  have  been  given  at  any  poll  or  voting-place  in  said  State,  either  by  any  con 
solidated  statement  returned  to  said  returuiug-board  by  any  of  the  said  supervisors, 
nor  by  the  statements,  lists,  tally-sheets,  or  returns  made  by  any  commissioners  of 
election  to  any  of  said  supervisors,  or  which  were  before  said  returning-board. 

(6)  We  offer  to  prove  that  the  votes  cast  and  given  at  said  election  on  the  7th  of 
November  last  for  the  election  of  electors,  as  shown  by  the  return  made  by  the  com 
missioners  of  election  from  the  several  polls  or  voting-places  in  said  State,  have  never 
been  compiled  nor  canvassed ;  and  that  the  said  returning-board  never  even  pretended 
to  compile  or  canvass  the  returns  made  by  said  commissioners  of  election,  but  that 
said  returniug-board  only  pretended  to  canvass  the  returns  made  by  the  said  super 
visor. 

Act  of  1872,  section  43 :  "  Supervisor  must  forward."  Act  of  1872,  section  2  :  "  Board 
must  canvass." 

(7)  We  offer  to  prove  that  the  votes  given  for  electors  at  the  election  of  November  7 
last  at  the  several  voting-places  or  polls  in  said  State  have  never  been  opened  by  the 
governor  of  the  said  State  in  presence  of  the  secretary  of  state,  the  attorney-general, 
and  a  district  judge  of  the  district  in  which  the  seat  of  government  was  established, 
nor  in  the  presence  of  any  of  theai ;  nor  has  the  governor  of  said  State  ever,  in  presence 
as  aforesaid,  examined  the  returns  of  the  commissioners  of  election  for  said  election  to 
ascertain  therefrom,  nor  has  he  ever,  in  such  presence,  ascertained  therefrom,  the  per 
sons  who  were,  or  whether  any  one  was,  duly  elected  electors  or  elector  at  said  elec 
tion  ;  nor  has  he  ever  pretended  so  to  do.     (Revised  Statutes,  section  2826.) 

(8)  We  further  offer  to  prove — 

That  the  said  William  P.  Kellogg,  governor  as  aforesaid,  when  he  made,  executed, 
and  delivered  the  said  certificate,  by  which  he  certified  that  himself  and  others  had 
been  duly  appointed  electors  as  aforesaid,  well  knew  that  said  certificate  was  untrue 
in  fact  in  that  behalf,  and  that  he,  the  said  Kellogg,  then  well  knew  that  he,  the  said 
Kellogg,  had  not  received,  of  the  legal  votes  cast  at  the  election  of  November  7,  1876, 
for  electors,  within  five  thousand  of  as  many  of  such  votes  as  had  at  said  election  been 
east  and  given  for  each  and  every  of  the  said  McEnery,  Wickliffe,  St.  Martin,  Poohe", 
De  Blanc,  Seay,  Cobb,  and  Cross;  and  that  he,  the  said  Kellogg,  when  he  made  and 
executed  the  aforesaid  certificate,  well  knew  that  of  the  legal  votes  cast  at  the  popular 
election  held  in  the  State  of  Louisiana  on  the  7th  day  of  November  last,  for  the  elec 
tion  of  electors  in  said  State,  as  shown  by  the  lists,  returns,  and  papers  sent,  according 
to  law,  by  the  commissioners  of  election,  who  presided  over  and  conducted  the  said 
election  at  the  several  polls  and  voting-places  in  said  State,  to  the  supervisors  of  regis 
tration,  and  as  shown  by  the  said  lists,  returns,  papers,  and  ballots  deposited  by  said 
commissioners  of  elections  in  the  office  of  the  clerks  of  the  district  courts,  except  the 


ELECTORAL   COUNT   OF    1877.  433 

parish  of  Orleans,  and  deposited  for  the  parish  of  Orleans  in  the  office  of  secretary  of 
state,  according  to  law,  that  each  and  every  the  said  McEnery,  Wickliffe,  St.  Martin, 
Pochd,  De  Blanc,  Seay,  Cobb,  and  Cross  had  received  more  than  five  thousand  of  the 
legal  votes  cast  at  said  election  for  electors  more  than  had  been  cast  and  given  at  said 
election  for  the  said  Kellogg  as  elector,  and  that  the  said  McEnery,  Wickliffe,  St.  Mar 
tin,  Poche",  De  Blanc,  Seay,  Cobb,  and  Cross  had  been  thus  and  thereby  duly  appointed 
electors  for  said  State  in  the  manner  directed  by  the  legislature  of  said  State. 

(9)  We  further  offer  to  prove — 

That  at  the  city  of  New  Orleans,  in  the  State  of  Louisiana,  in  the  month  of  October, 
A.  D.  1876,  the  said  William  P.  Kellogg,  J.  H.  Burch,  Peter  Joseph,  L.  A.  Sheldon,  Mor 
ris  Marks,  A.  B.  Levissee,  O.  H.  Brewster,  Oscar  Joffrion,  S.  B.  Packard,  John  Ray, 
Frank  Morey,  Hugh  J.  Campbell,  D.  J.  M.  A.  Jewett,  H.  C.  Dibble,  Michael  Hahn,  B. 
P.  Blanchard,  J.  R.  G.  Pitkin,  J.  Madison  Wells,  Thomas  C.  Anderson,  G.  Casanave,  L. 
M.  Kenner,  George  P.  Davis>  W.  L.  Catlin,  C.  C.  Nash,  George  L.  Smith,  Isadore  McCor- 
mick,  and  others  entered  into  an  unlawful  and  criminal  combination  and  conspiracy  to 
and  with  each  other,  and  each  to  and  with  each  of  the  others,  to  cause  it  to  be  certified 
and  returned  to  the  secretary  of  state  by  the  returning-board  of  said  State,  upon  their 
pretended  compilation  and  canvass  of  the  election  for  electors,  to  be  thereafter  held  on 
the  7th  day  of  November,  A.  D.  1876,  that  the  said  Kellogg,  Burch,  Joseph,  Sheldon, 
Marks,  Levissee,  Brewster,  and  Joffrion  had  received  a  majority  of  all  votes  given  and 
cast  at  said  election  for  electors,  whether  such  should  be  the  fact  or  not ;  and 

That  afterward,  to  wit,  on  the  17th  day  of  November,  A.  D.  1876,  after  said  election 
had  been  held  and  it  was  well  known  to  all  of  said  conspirators  that  said  Kellogg  and 
others  had  not  been  elected  at  said  election,  but  had  been  defeated,  and  their  oppo 
nents  had  been  elected  at  said  election,  the  said  returning-board  assembled  at  the  city 
of  New  Orleans,  the  seat  of  government  of  said  State,  to  pretend  to  compile  and  can 
vass  the  statements  of  votes  made  by  the  commissioners  of  election  from  the  several 
polls  and  voting-places  in  said  State  for  presidential  electors,  and  make  returns  of  said 
election  to  the  secretary  of  state,  as  required  by  an  act  of  the  legislature  of  that  State, 
approved  November  20,  1872;  that,  when  said  returning-board  so  assembled,  said 
Wells,  said  Anderson,  said  Kenner,  and  said  Casauave,  who  were  all  members  of  one 
political  party,  to  wit,  the  republican  party,  were  the  only  members  of  said  board, 
there  being  one  vacancy  in  said  board,  which  vacancy  it  was  the  duty  of  said  Wells, 
said  Anderson,  said  Kenner,  and  said  Casanave,  as  members  of  said  board,  to  fill,  then 
and  there,  by  the  election  or  appointment  of  some  person  belonging  to  some  other  po 
litical  party  than  the  republican  party;  but  that  the  said  Wells,  Anderson,  Kenner, 
and  Casanave,  then  and  there,  in  pursuance  of  said  unlawful  and  criminal  combination 
aforesaid,  then  a;id  there  neglected  and  refused  to  fill  said  vacancy,  for  the  reason,  as 
assigned  by  them,  that  they  did  not  wish  to  have  a  democrat  to  watch  the  proceedings 
of  said  board ;  and  that  although  frequently  during  the  session  of  said  board,  assembled 
for  the  purpose  aforesaid,  they,  the  said  Wells,  Anderson,  Kenuer,  and  Casanave,  were 
duly,  and  in  writing,  requested  by  said  McEnery,  Wickliffe,  St.  Martin,  Poche",  De 
Blanc,  Seay,  Cobb,  and  Cross  to  fill  said  vacancy,  they  refused  to  do  so,  and  never  did 
fill  the  same,  but  proceeded  as  such  board,  in  pursuance  of  said  combination  and.con- 
spiracy,  to  make  a  pretended  compilation  and  canvass  of  said  election  without  filling 
the  vacancy  in  said  returning-board ;  and 

That  said  Wells,  Anderson,  Keuner,  and  Casanave,  while  pretending  to  be  in  session 
as  a  returning-board  for  the  purpose  of  compiling  and  canvassing  the  said  election,  and 
in  pursuance  of  said  combination  and  conspiracy,  employed  persons  of  notoriously  bad 
character  to  act  as  their  clerks  and  assistants,  to  wit,  one  Davis,  a  man  of  notoriously 
bad  character,  who  was  then  under  indictment  in  the  criminal  courts  of  Louisiana,  and 
said  Catlin,  said  Blanchard,  and  said  Jewett,  three  of  said  conspirators  who  were  then 
under  indictment  for  subornation  of  perjury  in  the  criminal  courts  of  Louisiana;  the 
said  Jewett  being  also  under  indictment  in  one  of  the  criminal  courts  of  Louisiana  for 
obtaining  money  under  false  pretenses ;  and  Isadore  McCormick,  who  was  then  under 
indictment  in  a  criminal  court  of  said  State  charged  with  murder. 

And  that,  in  pursuance  of  said  unlawful  combination  and  conspiracy  aforesaid,  the 
said  Wells,  Anderson,  Kenner,  and  Casanave,  acting  in  said  return  ing-board,  confided 
to  their  said  clerks  and  employe's,  said  co-conspirators,  the  duty  of  compiling  and  can 
vassing  all  returns  which  were  by  said  retuming-board  ordered  to  be  canvassed  and 
compiled;  and,  although  thereto  particularly  requested  by  a  communication,  as  fol 
lows — 
"  To  the  honorable  returning-board  of  the  State  of  Louisiana: 

"GENTLEMEN:  The  undersigned,  acting  as  counsel  for  the  various  candidates  upon 
the  democratic-conservative  ticket,  State,  national,  and  municipal,  with  respect  show  : 

"That  the  returns  from  various  polls  and  parishes  are  inspected  by  this  board  and 
the  vote  announced  by  it  is  merely  that  for  governor  and  electors ; 

"  That  the  tabulation  of  all  other  votes  is  turned  over  to  a  corps  of  clerks,  to  be  done 
outside  of  the  presence  of  this  board ; 

28  EC 


434  ELECTORAL   COUNT   OF   1877. 

"  That  all  of  said  clerks  are  republicans,  and  that  the  democratic-conservative  can 
didates  have  no  check  upon  them,  and  no  means  to  detect  errors  and  fraudulent  tabu 
lations,  or  to  call  the  attention  of  this  board  to  any  such  wrongs,  if  any  exist ; 

"  That  by  this  system  the  fate  of  all  other  candidates  but  governor  and  electors  is 
placed  in  the  hands  of  a  body  of  republican  clerks,  with  no  check  against  erroneous  or 
dishonest  action  on  their  part ; 

"  That  fair  play  requires  that  some  check  should  be  placed  upon  said  clerks  and 
some  protection  afforded  to  the  said  candidates  against  error  or  dishonest  action  on  the 
part  of  said  clerks  ;' 

"  Wherefore  they  respectfully  ask  that  they  be  permitted  to  name  three  respectable 
persons,  and  that  to  such  parties  be  accorded  the  privilege  of  being  present  in  the  room 
or  rooms  where  said  tabulation  is  progressing,  and  of  inspecting  the  tabulation  and 
comparing  the  same  with  the  returns,  and  also  of  fully  inspecting  the  returns,  and 
previous  to  the  adoption  by  this  board  of  said  tabulation,  with  a  view  to  satisfy  all 
parties  that  there  has  been  no  tampering  or  unfair  practice  in  connection  therewith. 
"  Very  respectfully, 

"F.  C.  ZACHARIE. 
"  CHARLES  CAVANAC. 
"  E.  A.  BURKE. 
"J.  R.  ALCfiE  GAUTHREAUX. 
"  HENRY  C.  BROWN. 
"FRANK  McGLOIN. 
"  I  concur  herein. 

"H.  M.  SPOFFORD, 

"  Of  Counsel"— 

they,  the  said  Wells,  Anderson,  Kenner,  and  Casanave,  acting  as  said  board,  expressly 
refused  to  permit  any  democrat,  or  any  person  selected  by  democrats,  to  be  present 
with  said  clerks  and  assistants  while  they  were  engaged  in  the  compilation  and  can 
vass  aforesaid,  or  to  examine  into  the  correctness  of  the  compilation  and  canvass  made 
by  said  clerks  and  assistants  as  aforesaid. 

And  that  said  returning-board,  in  pursuance  of  said  unlawful  combination  and  con 
spiracy  aforesaid,  and  for  the  purpose  of  concealing  the  animus  of  said  board  and  in 
spiring  confidence  in  the  public  mind  in  the  integrity  of  their  proceedings,  on  the  18th 
day  of  November,  A.  D.  1876,  adopted  and  passed  a  preamble  and  resolution,  as  follows : 

"Whereas  this  board  has  learned  with  satisfaction  that  distinguished  gentlemen  of 
national  reputation  from  other  States,  some  at  the  request  of  the  President  of  the 
United  States  and  some  at  the  request  of  the  national  executive  committee  of  the  dem 
ocratic  party,  are  present  in  the  city,  with  the  view  to  witness  the  proceedings  of  this 
board  in  canvassing  and  compiling  the  returns  of  the  recent  election  in  this  State  for 
presidential  electors,  in  order  that  the  public  opinion  of  the  country  may  be  satisfied 
as  to  the  truth  of  the  result  and  the  fairness  of  the  means  by  which  it  may  have  been 
attained;  and 

"  Whereas  this  board  recognizes  the  importance  which  may  attach  to  the  result  of 
their  proceedings,  and  that  the  public  mind  should  be  convinced  of  its  justice  by  a 
knowledge  of  the  facts  on  which  it  may  be  based  :  Therefore, 

"  Be  it  resolved,  That  this  board  does  hereby  cordially  invite  and  request  five  gentle 
men  from  each  of  the  two  bodies  named,  to  be  selected  by  themselves  respectively,  to 
attend  and  be  present  at  the  meetings  of  this  board  while  engaged  in  the  discharge  of 
its  duties  under  the  law  in  canvassing  and  compiling  the  returns  and  ascertaining  and 
declaring  the  result  of  said  election  for  presidential  electors,  in  their  capacity  as  pri 
vate  citizens  of  eminent  reputation  and  high  character,  and  as  spectators  and  witnesses 
of  the  proceedings,  in  that  behalf,  of  this  board." 

But  that  said  returning-board,  being  convinced  that  a  compilation  and  canvass  of 
votes  given  at  said  election  for  presidential  electors,  made  fairly  and  openly,  would 
result  in  defeating  the  object  of  said  conspiracy,  and  compelling  said  returuing-board 
to  certify  that  said  McEnery,  Wickliffe,  St.  Martin,  Poch(5,  De  Blanc,  Seay,  Cobb,  and 
Cross  had  been  at  said  election  duly  chosen,  elected,  and  appointed  electors  by  the  said 
State  of  Louisiana  ;  and,  in  pursuance  of  said  unlawful  combination  and  conspiracy, 
did  afterward,  to  wit,  on  the  20th  day  of  November,  A.  D.  1876,  adopt  and  pass  the 
following  rules  for  the  better  execution  and  carrying  into  effect  said  combination  and 
conspiracy ;  that  is  to  say : 

(7) 

"  The  return  ing- officers,  if  they  think  it  advisable,  may  go  into  secret  session  to  con 
sider  any  motion,  argument,  or  proposition  which  may  be  presented  to  them  ;  any 
member  shall  have  the  right  to  call  for  secret  session  for  the  above  purpose." 

(10) 

"  That  the  evidence  for  each  contested  poll  in  any  parish,  when  concluded,  shall  be 
laid  aside  until  all  the  evidence  is  in  from  all  the  contested  polls  in  the  several  parishes- 


ELECTORAL   COUNT   OF   1877.  435 

where  there  may  be  contests,  and  after  the  evidence  is  all  in  the  returning-officers  will 
decide  the  several  contests  in  secret  session  ;  the  parties  or  their  attorneys  to  be 
allowed  to  submit  briefs  or  written  arguments  up  to  the  time  fixed  for  the  returning- 
officers  going  into  secret  session,  after  which  no  additional  argument  to  be  received, 
unless  by  special  consent.'7 

That  the  proceedings  thus  directed  to  be  had  in  secret  were  protested  against  by  the 
said  McEuery,  Wickliffe,  St.  Martin,  Poche",  De  Blanc,  Seay,  Cobb,  and  Cross;  but  said 
board  thereafter  proceeded  and  pretended  to  complete  their  duties  as  such  returning- 
board,  and  did  perform,  execute,  and  carry  out  the  most  important  duties  devolving 
upon  said  board  in  secret,  with  closed  doors,  and  in  the  absence  of  any  member  of 
their  board  belonging  to  the  democratic  party  or  any  person  whatever  not  a  member 
of  said  board  not  belonging  to  the  republican  party. 

That  the  said  Wells,  Anderson,  Kenner,  and  Casanave,  acting  as  said  returning- 
board,  while  engaged  in  the  compilation  and  canvass  aforesaid,  were  applied  to  to  per 
mit  the  United  States  supervisors  of  elections,  duly  appointed  and  qualified  as  such, 
to  be  present  at  and  witness  such  compilation  or  canvass. 

That  application  was  made  to  said  returning-board  in  that  behalf,  as  follows  : 
"  To  the  president  and  members  of  the  returning-board  of  the  State  of  Louisiana : 

"  GENTLEMEN  :  The  undersigned,  of  counsel  for  United  States  supervisors  of  election, 
duly  appointed  and  qualified  as  such,  do  hereby  except,  protest,  and  object  to  any 
ruling  made  this  20th  day  of  November,  1876,  or  that  hereafter  may  be  made,  whereby 
they  are  deprived  of  the  right  of  being  present  during  the  entire  canvass  and  compi 
lation  of  the  results  of  the  election  lately  held  in  the  State  of  Louisiana,  wherein  elect 
ors  for  President  and  Vice-President  and  members  of  the  Forty-fifth  Congress  were 
balloted  for,  and  the  result  of  which  said  board  are  now  canvassing. 

"  That  under  the  fifth  section  of  the  United  States  act  of  February  28, 1871,  they  are 
to  be  and  remain  where  the  ballot-boxes  are  kept,  at  all  times  after  the  polls  are  open, 
until  each  and  every  vote  cast  at  said  time  and  place  shall  be  counted,  and  the  can 
vass  of  all  votes  polled  to  be  wholly  completed,  and  the  proper  and  requisite  certificate 
or  returns  made,  whether  said  certificate  or  returns  be  required  under  any  law  of  the 
United  States,  or  any  State,  territorial,  or  municipal  law. 

"  That  under  said  law  of  the  United  States,  District  Attorney  J.  R.  Beckwith,  under 
date  of  October  30,  1872,  gave  his  written  official  opinion  for  the  instruction  and  guid 
ance  of  persons  holding  the  office  now  held  by  protestants,  wherein  said  United  States 
district  attorney  said: 

"  l  It  cannot  be  doubted  that  the  duty  of  the  supervisors  extends  to  the  inspection  of 
the  entire  election  from  its  commencement  until  the  decision  of  its  result.  If  the 
United  States  statutes  were  less  explicit,  there  still  could  be  no  doubt  of  the  duty  and 
authority  of  the  supervisors  to  inspect  and  canvass  every  vote  cast  for  each  and  every 
candidate,  State,  parochial,  and  Federal,  as  the  law  of  the  State  neither  provides  nor 
allows  any  separation  of  the  election  for  Representatives  in  Congress,  &c.,  from  the 
election  of  State  and  parish  officers.  The  election  is  in  law  a  single  election,  and  the 
power  of  inspection  vested  in  law  in  the  supervisors  appointed  by  the  court  extends 
to  the  entire  election,  a  full  knowledge  of  which  may  well  become  necessary  to  defeat 
fraud.' 

"  In  which  opinion  the  attorney-general  of  the  State  of  Louisiana  coincided.  Where 
upon  protestants  claim  admittance  to  all  sessions  of  the  returning-board,  and  protest 
against  their  exclusion  as  unwarranted  by  law,  as  informed  by  their  attorneys  has 
been  done  and  is  contemplated  to  be  done  hereafter  in  said  proceedings  of  said  board. 

<F.  C.  ZACHARIE, 
<E.  A.  BURKE, 
CHAS.  CAVANAC, 
FRANK  McGLOIN, 
'J.  R.  A.  GAUTHREAUX, 
'ri.  C.  BROWN, 

"  Of  Counsel." 

But  that  said  Wells,  Anderson,  Kenner,  and  Casanave,  acting  as  such  returning- 
board,  in  further  pursuance  and  execution  of  said  unlawful  combination  and  con 
spiracy,  then  and  there  refused  to  permit  said  United  States  commissioners  of  election 
to  be  present  for  the  purpose  aforesaid,  but  proceeded  in  their  absence  to  the  pretended 
compilation  and  canvass  aforesaid. 

That  the  said  returning-board,  while  in  session  as  aforesaid,  for  the  purpose  afore 
said,  to  wit,  on  the  20th  day  of  November,  1876,  adopted  the  following  rule  to  govern 
their  proceedings  ;  that  is  to  say  : 

(9) 

"  No  exparte  affidavits  or  statements  shall  be  received  in  evidence,  except  as  a  basis 
to  show  that  such  fraud,  intimidation,  or  otTier  illegal  practice  had  at  some  poll 
requires  investigation  ;  but  the  returns  and  [affidavits  authorized  by  law,  made  by 


436  ELECTORAL    COUNT    OF    1877. 

officers  of  election,  or  in  verification  of  statements  as  required  by  law,  shall  be  received 
in  evidence  as  primafade" 

But  that  said  board  subsequently,  while  sitting  as  aforesaid,  for  the  purposes  afore 
said,  having  become  convinced  that  they  could  not,  upon  other  than  exparte  testimony, 
so  manipulate  the  said  compilation  and  canvass  as  to  declare  that  said  Kellogg,  Burch, 
Joseph,  Sheldon,  Marks,  Levissee,  Brewster,  and  Joffrion  were  elected  electors  at  said 
election,  and  in  further  pursuance  of  said  unlawful  combination  and  conspiracy  did 
subsequently  modify  said  rule,  and  declare  and.  decide  that,  as  such  returning-board, 
they  would  receive  ex  parte  affidavits,  under  which  last  decision  of  said  board  over 
two  hundred  pages  of  ex  parte  testimony  was  received  by  said  board  in  favor  of  said 
Kellogg  and  others  ;  and  afterward,  when  the  said  McEnery  and  others  offered  ex  parte 
evidence  to  contradict  the  exparte  evidence  aforesaid,  the  said  returning-board  reversed 
its  last  decision,  and  refused  to  receive  ex  parte  affidavits  in  contradiction  as  aforesaid. 

And  that  in  pursuance  of  said  unlawful  combiuation  and  conspiracy  the  said  return 
ing-board,  in  violation  of  a  law  of  said  State,  approved  November  20,  1872,  neglected 
and  refused  to  compile  and  canvass  the  statements  of  votes  made  by  the  commissioners 
of  election  which  were  before  them  according  to  law  for  canvass  and  compilation  as 
aforesaid  in  regard  to  the  election  of  presidential  electors,  but  that  said  board  did,  in 
pursuance  and  further  execution  of  said  combination  and  conspiracy,  canvass  and 
compile  only  the  consolidated  statements  and  returns  made  to  them  by  the  supervisors 
of  registration  of  the  several  parishes  of  said  State. 

And  that  said  returniug-board,  in  pursuance  and  further  execution  of  said  unlaw 
ful  combination  and  conspiracy,  did  knowingly,  willfully,  and  fraudulently  refuse  to 
compile  and  canvass  the  votes  given  for  electors  at  said  election  in  more  than  twenty 
parishes  of  said  State,  as  was  shown  and  appeared  by  and  upon  the  consolidated  state 
ment  and  return  made  to  them  by  said  supervisors  of  said  parishes. 

And  that  said  returning  board  did,  in  said  canvass  and  compilation,  count  and  esti 
mate,  as  a  foundation  for  their  determination  in  the  premises,  hundreds  of  votes 
which  had  not  been  returned  and  certified  to  them  either  by  the  commissioners  of 
election  in  said  State  or  by  the  supervisors  of  registration  in  said  State,  they,  the  said 
members  of  said  board,  then  and  there  well  knowing  that  they  had  no  right  or 
authority  to  estimate  the  same  for  the  purpose  aforesaid. 

And  that  said  returning-board,  in  further  pursuance  and  execution  of  said  unlawful 
combination  and  conspiracy,  knowingly,  willfully,  falsely,  and  fradulently  did  make 
a  certificate  and  return  to 'the  secretary  of  state  that  said  Kellogg,  Burch,  Joseph, 
Sheldon,  Marks,  Levissee,  Brewster,  and  Joffrion  had  received  majorities  of  all  the 
legal  votes  cast  at  said  election  of  November  7,  1876,  for  presidential  electors,  they 
then  and  there  well  knowing  that  the  said  McEnery,  Wickliffe,  St.  Martin,  Pochd, 
De  Blanc,  Seay,  Cobb,  and  Cross  had  received  majorities  of  all  the  votes  cast  at  said 
election  for  presidential  electors,  and  were  duly  elected  as  the  presidential  electors  of 
said  State. 

And  that  the  said  returning-board,  in  making  said  statement,  certificate,  and  return 
to  the  secretary  of  state  were  not  deceived  or  mistaken  in  the  premises,  but  knowingly, 
willfully,  and  fraudulently  made  what  they  well  knew  when  they  made  it  was  a  false 
and  fraudulent  statement,  certificate,  and  return  ;  and  that  the  said  false  and  fraudu 
lent  statement,  certificate,  and  return,  made  by  said  returning-board  to  the  secretary 
of  state  in  that  behalf,  was  made  by  the  members  of  said  returuing-board  in  pursuance 
and  execution  of,  and  only  in  pursuance  and  execution  of,  said  unlawful  combination 
and  conspiracy. 

And  that  said  returning-board,  while  in  session  as  aforesaid  for  the  purpose  aforesaid, 
in  further  pursuance  and  execution  of  said  unlawful  combination  and  conspiracy,  did 
alter,  change,  and  forge,  or  cause  to  be  altered,  changed,  and  forged,  the  consolidated 
statement  and  return  of  the  supervisor  of  registration  for  the  parish  of  Veruou,  in  said 
State,  in  the  manner  following,  to  wit:  The  said  consolidated  statement,  as  made  and 
returned  to  said  board,  showed  that  of  the  legal  votes  given  in  said  parish  for  electors 
at  said  election  of  November  7,  1876,  said  McEnery  received  647,  said  Wickliffe  received 
647,  said  St.  Martin  received  647,  said  Pochd  received  647,  said  De  Blanc  received  647, 
said  Seay  received  647,  said  Cobb  received  647,  said  Cross  received  647  ;  and  that  said 
Kellogg  received  none,  said  Burch  received  none,  said  Joseph  received  2,  said  Brewster 
received  2,  said  Marks  received  2,  said  Levissee  received  2,  said  Joffrion  received  2,  said 
Sheldon  received  2 ;  and  said  board  altered,  changed,  and  forged,  or  caused  to  be  altered , 
changed,  and  forged,  said  consolidated  statement  so  as  to  make  the  same  falsely  and 
fraudulently  show  that  the  said  McEuery  received  469,  said  Wickliffe  received  469,  said 
St.  Martin  received  469,  said  Poch6  received  469,  said  De  Blanc  received  469,  said  Seay 
received  469,  said  Cobb  received  469,  said  Cross  received  469 ;  and  that  said  Kellogg 
received  178,  said  Burch  received  178,  said  Joseph  received  178,  said  Sheldon  received 
180,  said  Marks  received  180,  said  Levissee  received  180,  said  Brewster  received  180, 
said  Joffrion  received  180 ;  and  thatsa,id  returning-board,  while  in  session  as  aforesaid, 
for  the  purpose  aforesaid,  to  pretend  to  justify  the  alteration  and  forgery  of  said  con 
solidated  statement,  procured  and  pretended  to  act  upon  three  forged  affidavits,  pur- 


Ei  ECTORAL    COUNT    OF    1S77.  437 

porting  to  have  been  made  and  sworn  to  by  Samuel  Carter,  Thomas  Brown,  and  Samuel 
Collins,  they,  the  said  members  of  sail  returning-board,  then  and  there  well  knowing 
that  said  pretended  affidavits  were  false  and  forged,  and  that  no  such  persons  were  in 
existence  as  purported  to  make  said  affidavits.  And  that  said  members  of  said  return 
ing-board,  acting  as  said  board,  in  pursuance  and  execution  of  said  unlawful  combina 
tion  and  conspiracy,  did,  in  their  pretended  canvass  and  compilation  of  the  legal  votes 
given  at  said  election  on  the  7th  day  of  November,  A.  D.  1876,  for  presidential  electors 
in  said  State  of  Louisiana,  as  shown  to  them  by  the  statements,  papers,  and  returns 
made  according  to  law  by  the  commissioners  of  election  presiding  over  and  conducting 
said  election  at  the  several  polls  and  voting-places  in  said  State,  all  of  which  votes  were 
legally  cast  by  legal  voters  in  said  State  at  said  election,  knowingly,  willfully,  and 
fraudulently,  and  without  any  authority  of  law  whatever,  excluded  and  refused  to 
count  and  estimate  or  compile  or  canvass  votes  given  at  said  election  for  electors,  as 
follows,  which  papers,  statements,  and  returns  were  before  them,  and  which  it  was 
their  duty  by  law  to  compile  and  canvass,  that  is  to  say :  for  said  John  McEnery,  10,280  ; 
for  said  R.  C.  Wickliffe,  10,293 ;  for  said  L.  St.  Martin,  10,291 ;  for  said  F.  P.  Poche",  10,280  ; 
for  said  A.  De  Blanc,  10,289 ;  for  said  W.  A.  Seay,  10,291 ;  for  said  R.  A.  Cobb,  10,261 ; 
for  said  K.  A.  Cross,  10,288 ;  they,  the  said  members  of  said  returning-board,  then  and 
there  well  knowing  that  all  of  said  votes  which  they  neglected  and  refused  to  canvass 
and  compile  had  been  duly  and  legally  cast  at  said  election  for  presidential  electors  by 
legal  voters  of  said  State ;  and  then  and  there,  well  knowing  that  had  they  considered, 
estimated,  and  counted,  compiled,  and  canvassed  said  votes  as  they  then  and  there  well 
knew  it  was  their  duty  to  do,  it  would  have  appeared,  and  they  would  have  been  com 
pelled  to  certify  and  return  to  the  secretary  of  state,  that  said  Kellogg  had  not  been 
duly  elected  or  appointed  an  elector  for  said  State;  but  that  at  said  election  the  said 
McEnery,  the  said  Wickliffe,  the  said  St.  Martin,  the  said  Poche",  the  said  De  Blanc,  the 
said  Seay,  the  said  Cobb,  and  the  said  Cross  had  been  duly  elected  and  appointed  presi 
dential  electors  in  said  State. 

And  that  by  false,  fraudulent,  willful,  and  corrupt  acts  and  omissions  to  act  by  said 
returning-board  as  aforesaid  in  the  matter  aforesaid,  and  by  said  nonfeasance,  mis 
feasance,  and  malfeasance  of  said  returning-board,  as  hereinbefore  mentioned,  the  said 
returning-board  made  to  the  secretary  of  state  of  said  State  the  statement,  certificate, 
and  return  upon  which  the  said'  Kellogg,  as  de  facto  governor  of  said  State,  pretended 
to  make  his  said  false  certificate,  certifying  that  himself  and  others  had  been  duly  ap 
pointed  electors  for  said  State,  as  hereinbefore  mentioned  ;  and  that  said  statement, 
certificate,  and  return  made  by  said  returning-board,  and  that  the  said  certificate  made 
by  the  said  Kellogg  as  de  facto  governor,  each,  every,  and  all  were  made  in  pursuance 
and  execution  of  said  unlawful  and  criminal  combination  and  conspiracy,  as  was  well 
known  to  and  intended  by  each  and  every  of  the  members  of  said  returning-board 
when  they  made  their  said  false  statement,  certificate,  and  return  to  the  secretary  of 
state  of  said  State,  and  by  the  said  Kellogg  when,  as  governor  de  facto  of  said  State, 
he  made  his  said  false  certificate  hereinbefore  mentioned. 

III. 

We  further  offer  to  prove — 

That  Oscar  Joffrion  wras  on  the  7th  day  of  November,  A.  D.  1876,  supervisor  of  reg 
istration  of  the  parish  of  Point  Coupee,  and  that  he  acted  and  officiated  as  such  super 
visor  of  registration  for  said  parish  at  the  said  election  for- presidential  electors  on  that 
day ;  and  that  he  is  the  same  person  who  acted  as  one  of  the  electors  for  said  State, 
and  on  the  6th  day  of  December,  A.  D.  1876,  as  an  elector  cast  a  vote  for  Rutherford 
B.  Hayes  for  President  of  the  United  States,  and  for  William  A.  Wheeler  for  Vice- 
President  of  the  United  States. 

IV. 

We  further  offer  to  prove— 

That  on  the  7th  day  of  November,  A.  D.  1376,  A.  B.  Lsvissee,  who  was  one  of  the 
pretended  college  of  electors  of  the  State  of  Louisiana,  and  who  in  said  college  gave 
a  vote  for  Rutherford  B.  Hayes  for  President  of  the  United  States  and  for  William  A. 
Wheeler  for  Vice  President  of  the  United  States,  was  at  the  time  of  such  election  a 
court  commissioner  of  the  circuit  court  of  the  United  States  for  the  district  of  Louisi 
ana,  which  is  an  office  of  honor,  profit,  and  trust  under  the  Government  of  the  United 
States. 

V. 

We  further  offer  to  prove — 

That  on  the  7th  day  of  November,  A.  D.  1876,  0.  H.  Brewster,  who  was  one  of  the 
pretended  electors  in  the  pretended  college  of  electors  of  the  State  of  Louisiana,  and 


438  ELECTORAL    COUNT    OF    1877. 

t 

who  in  said  college  gave  a  vote  for  Rutherford  B.  Hayes  for  President  of  the  United 
States  and  for  William  A.  Wheeler  for  Vice-President  of  the  United  States,  was  at  the 
time  of  such  election  as  aforesaid  holding  an  office  of  honor,  profit,  and  trust  under  the 
Government  of  the  United  States,  to  wit,  the  office  of  surveyor-general  of  the  land- 
office  for  the  district  of  Louisiana. 

VI. 

We  further  offer  to  prove  — 

That  on  the  7th  day  of  November,  1 876,  Morris  Marks,  one  of  the  pretended  electors 
who,  in  said  college  of  electors,  cast  a  vote  for  Rutherford  B.  Hayes  for  President  of  the 
United  States  and  a  vote  for  William  A.  Wheeler  for  Vice-President  of  the  United 
States,  was,  ever  since  has  been,  and  now  is  holding  and  exercising  the  office  of  dis 
trict  attorney  of  the  fourth  judicial  district  of  said  State Jaud  receiving  the  salary  by 
law  attached  to  said  office. 

VII. 

We  further  offer  to  prove — 

That  on  the  7th  day  of  November,  A.  D.  1876,  J.  Henri  Burch,  who  was  one  of  the 
pretended  electors,  who  in  said  pretended  electoral  college  gave  a  vote  for  Rutherford 
B.  Hayes  for  President  of  the  United  States  and  a  vote  for  William  A.  Wheeler  for 
Vice-President  of  the  United  States  was  holding  the /folio  wing  offices  under  the  consti 
tution  and  laws  of  said  State ;  that  is  to  say :  member  of  the  board  of  control  of  the 
State  penitentiary,  also  administrator  of  deaf  and  dumb  asylum  of  said  State,  to  both 
of  which  offices  he  had  been  appointed  by  the  governor,  with  the  advice  and  consent 
of  the  senate  of  said  State,  both  being  offices  with  salaries  fixed  by  law,  and  also  the 
office  of  treasurer  of  the  parish  school-board  for  the  parish  of  East  Baton  Rouge ;  and 
that  said  Burch,  ever  since  the  said  7th  day  of  November,  (and  prior  thereto,)  has  ex 
ercised  and  still  is  exercising  the  functions  of  all  said  offices  and  receiving  the  emolu 
ments  thereof. 

VIII. 

We  further  offer  to  prove  the  canvass  and  compilation  actually  made  by  said  return, 
ing-board,  showing  what  parishes  and  voting-places  and  polls  were  compiled  and  can 
vassed,  and  what  polls  or  voting-places  were  excluded  by  said  returning-board  from 
their  canvass  and  compilation  of  votes  given  for  presidential  electors ;  and  we  also 
offer  to  show  what  statements  and  returns  of  the  commissioners  of  election  and  of  the 
supervisors  of  registration  were  duly  before  said  returning-board. 

IX. 

We  further  offer  to  prove  that  a  member  of  said  returning-board  offered  to  receive  a 
bribe,  in  consideration  of  which  the  board  would  certify  the  election  of  the  Tilden 
electors. 

X. 

We  offer  to  prove  that  the  statements  and  affidavits  purporting  to  have  been  made 
and  forwarded  to  said  returniiig-board,  in  pursuance  of  the  provisions  of  section  26  of 
the  election-law  of  1872,  alleging  riot,  tumult,  intimidation,  and  violence  at  or  near 
certain  polls  and  in  certain  parishes,  were  falsely  fabricated  and  forged  by  certain  dis 
reputable  persons  under  the  direction  and  with  the  knowledge  of  said  retnrning-board, 
and  that  said  returning-board,  knowing  said  statements  and  affidavits  to  be  false  and 
forged,  and  that  none  of  said  statements  or  affidavits  were  made  in  the  manner  or  form 
required  by  law,  did  knowingly,  willfully,  and  fraudulently  fail  and  refuse  to  canvass 
or  compile  more  than  10,000  votes  lawfully  cast,  as  is  shown  by  the  statements  of  votes 
of  the  commissioners  of  election. 

XI. 

We  further  offer  to  prove- 
That  said  returning-board  did  willfully  and  fraudulently  pretend  to  canvass  and 
compile,  and  did  promulgate  as  having  been  canvassed  and  compiled,  certain  votes  for 
the  following-named  candidates  for  electors  which  were  never  cast,  and  which  did  not 
appear  upon  any  tally-sheet,  statement  of  votes,  or  consolidated  statement  or  other 
return  before  said  board,  namely  :  J.  H.  Burch,  241 ;  Peter  Joseph,  1,362 ;  L.  A.  Sheldon, 
1,364;  Morris  Marks,  1,334;  A.  B.  Levissee,  829;   O.  H.  Brewster,  776;  Oscar  Joffnou  ( 
1,364. 


ELECTORAL   COUNT    OF   1877.  439 

The  PRESIDING  OFFICER.  Are  there  further  objections  to  the 
decision  of  the  Commission  f 

Mr.  Senator  WALLACE.  I  offer  the  objection  which  I  send  to  the 
desk,  signed  by  Senators  and  Representatives. 

The  PRESIDING  OFFICER.  The  objection  will  be  read  by  the 
Secretary  of  the  Senate. 

The  Secretary  of  the  Senate  read  as  follows : 

The  undersigned,  Senators  and  members  of  the  House  of  Representatives,  object  to 
the  decision  of  the  Electoral  Commission  as  to  the  electoral  votes  of  the  State  of 
Louisiana,  because — 

First,  The  said'  decision  was  made  in  violation  of  the  law  under  which  said  Com 
mission  acts,  in  this,  that  by  said  act  the  said  Commission  is  required  to  decide  whether 
any  and  what  votes  from  such  State  are  the  votes  provided  for  by  the  Constitution  of 
the  United  States,  and  how  many  and  what  persons  were  duly  appointed  electors  in 
said  State;  yet  said  Commission  refused  to  examine  and  ascertain  who  were  duly 
appointed  electors  in  and  by  the  State  of  Louisiana,  and  what  votes  from  such  State 
are  within  the  provisions  of  the  Constitution  of  the  United  States. 

Second.  Because  the  act  creating  said  Commission  was  passed  to  the  end  that  the 
Commission  would  hear  and  examine  evidence  and  honestly  decide  which  electors  in 
any  disputed  State  were  fairly  and  legally  chosen ;  whereas  the  said  Commission  re 
fused  to  hear  and  consider  evidence  offered  to  show  that  the  electors  whose  votes  the 
said  Commission  has  decided  shall  be  counted  were  not  duly  chosen,  but  falsely  and 
fraudulently  acted  as  such  electors,  as  well  as  the  evidence  offered  to  show  that  the 
pretended  certificates  of  election  of  said  electors  were  produced  by  corruption  and 
were  wholly  untrue. 

Third.  Because  the  said  decision  is  in  disregard  of  truth,  justice,  and  law,  and  es 
tablishes  the  demoralizing  and  ominous  doctrine  that  fraud,  forgery,  bribery,  and  per 
jury  can  lawfully  be  used  as  a  means  to  make  a  President  of  the  United  States  against 
the  well-known  or  easily  ascertained  will  of  the  people  and  of  the  States. 

JNO.  W.  JOHNSTON, 
WM.  A.  WALLACE, 
J.  E.  BAILEY, 

L  T    R   "R     \'  K1    V  GEO>  R'  DENNIS, 

-O  It  A.  It    I  FRANCIS  KERNAN, 

JAMES  K.  KELLY, 

\  rVTVFT?<3T  T  \-  ELI  SAULSBURY, 

L  1     O  F  Senator*. 

JAMES  H.  HOPKINS, 
(^  \  T   T1W  \19\~  r    i  ANDREW  R.  BOONE, 

_,rV-Lar  '  JitiN  iA.  CHAS.  B.  ROBERTS, 

^_  __  _  THOS.  S.  ASHE, 

H.  D.  MONEY, 
HIESTER  CLYMER, 

Representatives. 

The  PRESIDING  OFFICER.  Are  there  further  objections  to  the  de 
cision  of  the  Commission! 

Mr.  Representative  COCHRANE.  I  desire  to  offer  a  farther  objection 
to  the  decision. 

The  PRESIDING  OFFICER.  The  Clerk  of  the  House  will  read  the 
objection.  • 

The  Clerk  of  the  House  read  as  follows : 

The  undersigned,  Senators  and  Representatives,  do  object  to  the  counting  of  the 
votes  as  recommended  by  eight  members  of  the  Joint  Commission,  and  do  protest 
against  counting  the  electoral  vote  of  the  State  of  Louisiana,  for  the  reasons  following, 
to  wit: 

First.  It  was  not  denied  before  the  Commission  that  the  Tilden  electors  received  a 
large  majority  of  the  votes  cast. 

Second.  It  was  not  denied  before  the  Commission  that  Wells  and  his  associates,  who 
style  themselves  a  returning-board,  were  guilty  of  gross  fraud  ;  that  their  certificate 
given  to  the  Hayes  electors  was  false  and  fraudulent :  and  that  their  action  in  canvass 
ing  the  votes  was  in  violation  of  the  constitution  and  laws  of  the  State  of  Louisiana. 


440  ELECTORAL    COUNT    OF    1877. 

Third.  The  action  of  the  eight  members  of  said  joint  commission  in  declining  to 
hear  evidence  of  the  above  and  other  facts  was  a  violation  of  the  letter  and  spirit  of 
the  act  under  which  said  Commission  was  created  and  of  the  spirit  of  the  Constitution 
of  the  United  States. 

R.  E.  WITHERS, 
JOHN  W.  JOHNSTON, 
GEORGE  R.  DENNIS, 
HENRY  COOPER, 
S.  B.  MAXEY, 

Senators. 

M.  I.  SOUTHARD, 
ALEXANDER  G.  COCHRANE, 
JOHN  II.  CALDWELL, 
JAMES  SHEAKLEY, 
A.  H.  BUCKNER, 
WM.  MUTCHLER, 
BENJAMIN  WILSON, 

Eepresentatives. 

The  PEESIDING  OFFICEE.  Are  there  further  objections  to  the 
decision  of  the  Commission  ?  [A  pause.]  There  are  none.  Objec 
tions  to  the  decision  of  the  Commission  having  been  submitted  and 
read,  the  Senate  will  now  withdraw  to  its  chamber,  that  the  two  Houses 
separately  may  consider  and  decide  upon  the  objections. 

Accordingly  (at  twelve  o'clock  and  fifty-three  minutes  p.  m.)  the  Senate 
withdrew. 

IN  SENATE,  Monday,  February  19, 1877. 

The  Senate  having  returned  to  its  chamber  from  the  joint  meeting  at 
twelve  o'clock  and  fifty-five  minutes  p.  m.,  the  President  pro  tempore 
took  the  chair  and  called  the  body  to  order. 

The  decision  of  the  Commission  and  the  various  objections  thereto 
presented  in  joint  meeting  having  been  read, 

Mr.  Senator  SHEEMAN  submitted  the  following  resolution;  which 
(after  debate  and  the  rejection  of  an  amendment  proposed  to  it)  was 
agreed  to  by  a  vote  of  yeas  41,  nays  28,  viz : 

Resolved,  That  the  decision  of  the  Commission  upon  the  electoral  vote  of  the  State  of 
Louisiana  stand  as  the  judgment  of  the  Senate,  the  objections  made  thereto  to  the  con 
trary  notwithstanding. 

On  motion  of  Mr.  Senator  HAMLIN,  it  was 

Ordered,  That  the  Secretary  notify  the  House  of  Representatives  thereof,  and  that 
the  Senate  is  now  ready  to  receive  the  House  to  proceed  with  the  count  of  the  electoral 
votes  for  President  and  Vice-President. 

On  motion  of  Mr.  Senator  WHYTE,  (at  three  o'clock  and  thirty-five 
minutes  p.  m.,)  it  being  stated  that  the  House  of  Eepresentatives  had 
taken  a  recess,  the  Senate  took  a  recess  until  Tuesday,  February  20,  at 
ten  o'clock  a.  m. 

IN  THE  HOUSE  OF  EEPRESENTATIVES, 

Monday,  February  19,  1877. 

The  Senate  withdrew  from  the  hall  of  the  House  at  twelve  o'clock  and 
fifty-three  minutes  p.  m.,  whereupon  the  House  of  Eepresentatives  was 
called  to  order  by  the  Speaker  and  resumed  its  session. 

On  motion  of  Mr.  Eepreseutative  WOOD,  of  New  York,  the  House, 
(at  one  o'clock  and  twenty-five  minutes  p.  m.,)  by  a  vote  of  yeas  140, 
nays  130,;took  a  recess  until  Tuesday,  February  20,  at  ten  o'clock  a.  m. 


ELECTORAL    COUNT    OF    1S77.  441 

IN  SENATE,  Tuesday,  February  20, 1877. 

The  Senate  resumed  its  session  at  ten  o'clock  a.  m.,  transacting  no 
business;  and  at  one  o'clock  and  thirty  minutes  p.  m.  it  was  advised  of 
the  resolution  of  the  House  of  Representatives  on  the  decision  of  the 
Electoral  Commission  relative  to  the  electoral  vote  of  Louisiana,  where 
upon  the  Senate  proceeded  to  the  hall  of  the  House  of  Representatives. 

IN  THE  HOUSE  OF  REPRESENTATIVES, 

Tuesday,  February  20,  1877. 

The  House  of  Representatives  resumed  its  session  at  ten  o'clock  a.  m. 
A  quorum  not  being  present,  a  call  of  the  House  was  ordered,  which 
resulted  in  securing  the  presence  of  a  quorum. 

A  message  was  received  from  the  Senate  announcing  its  action  on  the 
objections  to  the  decision  of  tlie  Electoral  Commission  relative  to  the 
electoral  vote  of  Louisiana. 

Mr.  Representative  GIBSON  submitted  the  following  resolution; 
which,  after  debate,  was  agreed  to  by  a  vote  of  yeas  173,  nays  99,  viz  : 

Ordered,  That  the  votes  purporting  to  be  electoral  votes  for  President  and  Vice-Presi- 
dent  which  were  given  by  William  P.  Kellogg,  J.  Henri  Burch,  Peter  Joseph,  Lionel  A. 
Sheldon,  Morris  Marks,  Aaron  B.  Levissee,  Orlando  H.  Brewster,  and  Oscar  Joffriou, 
claiming  to  be  electors  for  the  State  of  Louisiana,  be  not  counted. 

It  was  further 

Ordered,  That  the  Clerk  inform  the  Senate  of  the  action  of  this  House,  and  that  the 
House  is  now  ready  to  meet  the  Senate  in  this  hall  to  proceed  with  the  counting  of 
the  electoral  votes  for  President  and  Vice-President. 

JOINT  MEETING. 

TUESDAY,  February  20, 1877. 

At  one  o'clock  and  thirty-five  minutes  p.  m.  the  Senate  entered  the 
hall  of  the  House  of  Representatives,  preceded  by  its  Sergeant-at-Arms 
and  .headed  by  its  President  pro  tempore  and  its  Secretary,  the  members 
and  officers  of  the  House  rising  to  receive  them. 

The  PRESIDENT  pro  tempore  of  the  Senate  took  his  seat  as  Presid 
ing  Officer  of  the  joint  meeting  of  the  two  Houses,  the  Speaker  of  the 
House  occupying  a  chair  upon  his  left. 

The  PRESIDING  OFFICER.  The  joint  meeting  of  Congress  for 
counting  the  electoral  vote  resumes  its  session.  The  two  Houses  acting 
separately  have  considered  and  decided  upon  the  objections  to  the 
decision  of  the  Commission  upon  the  certificates  from  the  State  of 
Louisiana.  The  Secretary  of  the  Senate  will  read  the  resolution  of  the 
Senate. 

The  Secretary  of  the  Senate  read  as  follows : 

Resolved,  That  the  decision  of  the  Commission  upon  the  electoral  vote  of  the  State 
of  Louisiana  stand  as  the  judgment  of  the  Senate,  the  objections  made  thereto  to  the 
contrary  notwithstanding. 

The  PRESIDING  OFFICER.    The  Clerk  of  the  House  will  now  read 
the  action  of  the  House  of  Representatives. 
The  Clerk  of  the  House  read  as  follows : 

Ordered,  That  the  votes  purporting  to  be  electoral  votes  for  President  and  Vice-Pres^ 
ident  which  were  given  by  William  P.  Kellogg,  J.  Henri  Burch,  Peter  Joseph,  Lione1 
A.  Sheldon,  Morris  Marks,  Aaron  B.  Levissee,  Orlando  H.  Brewster,  and  Oscar  Joffriou? 
claiming  to  be  electors  for  the  State  of  Louisiana,  be  not  counted. 

The  PRESIDING  OFFICER.  The  two  Houses  not  concurring  in  a 
contrary  opinion,  the  decision  of  the  Commission  stands,  and  the  count 
ing  will  now  proceed  in  conformity  therewith.  The  tellers  will  announce 
the  vote  of  the  State  of  Louisiana. 


442  ELECTORAL   COUNT    OF    1377. 

Mr.  Senator  ALLISON,  (one  of  the  tellers.)  The  State  of  Louisiana 
casts  8  votes  for  Eutherford  B.  Hayes,  of  Ohio,  for  President,  and  8  votes 
for  William  A.  Wheeler,  of  New  York,  for  Vice-President. 

UNDISPUTED  STATES. 

The  count  then  proceeded,  the  certificates  from  the  States  of — 

Maine,  casting  7  votes  for  Hayes  and  Wheeler ; 

Maryland,  casting  8  votes  for  Tilden  and  Hendricks ;  and 

Massachusetts,  casting  13  votes  for  Hayes  and  Wheeler — 
being  opened  by  the  Presiding  Officer  and  read  by  the  tellers,  and  the 
votes  thereof  counted  without  objection. 

MICHIGAN. 

The  PRESIDING  OFFICER.  The  Chair  hands  to  the  tellers  the 
certificate  of  the  electoral  vote  of  the  State  of  Michigan,  received  by 
messenger,  and  the  corresponding  one  received  by  mail. 

Mr.  Senator  ALLISON  (one  of  the  tellers)  read  the  certificate  in 
extenso. 

Mr.  Representative  TUCKER.  I  offer  objections,  signed  by  Senators 
and  Representatives  according  to  law,  to  the  electoral  vote  of  Daniel  L. 
Crossman,  of  the  State  of  Michigan,  and*  also  send  up  a  duplicate. 

The  PRESIDING  OFFICER.  The  objection  presented  by  the  Rep 
resentative  from  Virginia  will  be  read  by  the  Clerk  of  the  House. 

The  Clerk  of  the  House  of  Representatives  read  as  follows: 

The  undersigned,  Senators  and  Representatives,  object  to  the  vote  of  Daniel  L. 
Crossman  as  an  elector  for  the  State  of  Michigan  upon  the  grounds  following,  to  wit : 

That  a  certain  Benton  Hanchett,  of  Saginaw,  Michigan,  was  voted  for  and  certified 
to  have  been  elected  and  appointed  an  elector  for  the  State  of  Michigan  ;  that  the  said 
Benton  Hanchett  was  on  the  7th  day  of  November,  1876,  the  day  of  the  presidential 
election,  and  for  a  long  period  prior  thereto  had  been,  and  up  to  and  after  the  6th  day 
of  December,  1876,  the  day  on  which  the  electors  voted  according  to  law,  continued 
to  be  an  officer  of  the  United  States,  and  held  the  office  of  United  States  commissioner 
under  and  by  appointment  of  the  United  States  court  for  Michigan,  which  was  an 
office  of  trust  and  profit  under  the  United  States,  and  that  as  such  officer  he  could  not 
be. constitutionally  appointed  an  elector  under  the  Constitution  of  the  United  States. 

And  further,  that  by  the  laws  of  the  State  of  Michigan  there  is  power  to  fill  vacan 
cies  in  the  office  of  electors  under  and  by  virtue  of  the  following  statute,  and  not 
otherwise : 

''The  electors  of  President  and  Vice-President  shall  convene  at  the  capital  of  the 
State  on  the  first  Wednesday  of  December  ;  and  if  there  shall  be  any  vacancy  in  the 
office  of  an  elector,  occasioned  by  death,  refusal  to  act,  neglect  to  attend,  by  the  hour 
of  twelve  o'clock  at  noon  of  that  day,  or  on  account  of  any  two  of  such  electors  hav 
ing  received  an  equal  and  the  same  number  of  votes,  the  electors  present  shall  pro 
ceed  to  fill  such  vacancy  by  ballot  and  plurality  of  votes,  and  when  all  the  electors 
shall  appear  or  vacancies  shall  be  filled  as  above  provided,  they  shall  proceed  to  per 
form  the  duties  of  such  electors,  as  required  by  the  Constitution  and  laws  of  the  United 
States." — Compiled  Laws  of  1871 ;  compiler's  section,  115. 

And  the  undersigned  further  state  that  there  was  no  vacancy  in  the  office  of  elector 
for  which  said  Hanchett  was  voted  and  to  which  he  was  not  appointed  by  reason  of 
the  disqualification  aforesaid  ;  nor  was  any  vacancy  therein  occasioned  by  the  death, 
refusal  to  act,  or  neglect  to  attend  of  any  elector  at  the  hour  of  twelve  o'clock  at 
noon  of  the  6th  day  of  December,  1876,  nor  on  account  of  any  two  electors  having  an 
equal  vote,  nor  in  any  manner  provided  for  by  the  statute  aforesaid.  And  the  under 
signed  therefore  object  that  the  election  of  Daniel  L.  Crossman  by  the  electors  present 
at  Lansing,  the  capital  of  Michigan,  on  the  6th  day  of  December,  1876,  was  wholly  with 
out  authority  of  law,  and  was  void,  and  he  was  not  appointed  an  elector  in  such  man 
ner  as  the  legislature  of  Michigan  directed. 

Wherefore  they  say  that  said  Daniel  L.  Crossman  was  not  a  duly-appointed  elector 
for  the  State  of  Michigan,  and  that  his  vote  as  an  elector  should  not  be  counted. 

And  the  undersigned  hereunto  annex  the  evidence  taken  before  the  committee  of  the 


ELECTORAL    COUNT    OF    1877.  443 

House  of  Representatives  on  the  powers,  privileges,  and  duties  of  the  House,  to  sustain 
said  objection. 

T.  M.  NORWOOD,  Georgia ; 

WILLIAM  A.  WALLACE,  Pennsylvania; 

W.  H.  BARNUM,  Connecticut ; 

FRANK  HEREFORD,  West  Virginia  ; 

Senators. 

A.  S.  WILLIAMS,  Michigan ; 

J.  R.  TUCKER,  Virginia ; 

JOHN  L.  VANCE,  Ohio; 

J.  A.  McMAHON, 

A.  V.  RICE, 

WILLIAM  A.  J.  SPARKS, 

JOHN  S.  SAVAGE, 

LEVI  MAISH, 

FRANK  H.  KURD, 

Representatives. 

COMMITTEE  ox  PRIVILEGES,  January  30,  1877. 

BENTON  HANCHETT  sworn  and  examined. 
By  Mr.  TUCKER  : 

Question.  Where  is  your  residence  ? — Answer.  Saginaw,  Michigan. 

Q.  Were  you  a  candidate  for  the  position  of  presidential  elector  in  Michigan  at  the 
late  election  ?— A.  I  was. 

Q.  On  what  ticket  ? — A.  On  the  republican  ticket. 

•Q.  Were  you  elected  ? — A.  I  was. 

Q.  Did  you  vote  in  the  college  of  electors? — A.  I  did  not. 

Q.  Were  you  present  ? — A.  No,  sir  ;  I  was  not  present. 

Q.  Did  you  absent  yourself? — A.  I  remained  away;  I  did  not  attend. 

Q.  For  what  reason  did  you  remain  away  ? — A.  The  facts  are  these  :  In  the  spring  of 
3863,  when  I  was  living  at  Owassee,  in  the  county  of  Shiawasse,  Michigan,  some  state 
ments  were  made  to  rue  in  reference  to  a  man  living  in  an  adjoining  town,  who,  I 
think,  sold  liquor  and  paid  no  taxes  under  the  revenue  law.  The  parties  desired  me  to 
write  to  the  district  attorney,  living  in  Detroit,  in  reference  to  the  matter.  I  did  so. 
I  received  a  reply  from  the  district  attorney  saying  that  he  would  have  me  appointed 
a  commissioner  by  the  United  States  court,  and  he  inclosed  to  me  instructions  what  to 
do  in  the  case.  About  the  same  time  that  I  received  that,  I  received  a  letter  from  the 
•clerk  of  the  court  saying  that  I  had  been  appointed,  and,  I  believe,  inclosing  the  form 
of  oath  for  me  to  take  as  commissioner,  and,  I  believe,  I  took  it  and  returned  it  to 
him.  I  have  no  recollection  on  the  subject,  but  I  suppose  I  did  of  course.  I  forwarded 
instructions  to  the  district  attorney  in  reference  to  the  matter  and  issued  a  warrant 
for  the  man.  He  came  in  and  paid  it,  the  matter  dropped,  and  there  my  services  as 
•commissioner  ended,  to  the  best  of  my  recollection.  It  was  not  an  office  which  I 
wanted  to  hold,  but  I  performed  that  duty.  In  the  fall  of  1865  I  went  from  that 
county  to  where  I  now  reside,  in  Saginaw.  The  matter  had  entirely  passed  out  of  my 
mind.  I  have  never  acted  since.  Two  or  three  days  before  the  time  appointed  for  the 
meeting  of  the  electors,  my  attention  was  called  to  the  subject  in  two  ways.  One 
"was  that  some  person  spoke  to  me  and  said,  "  You  are  a  United  States  commissioner," 
-and  the  other  was  that  I  had  noticed  that  an  objection  had  been  made  to  one  of  the 
electors  in  New  Jersey  on  that  ground.  This  called  my  mind  to  the  circumstances 
which  I  have  related  to  you,  and  in  order  to  avoid  any  doubt  that  might  arise  on  the 
subject,  I  determined  not  to  meet  with  the  electors  and  did  not. 

Q.  You  were,  then,  duly  appointed  United  States  commissioner  in  1863,  and  acted 
wnder  the  appointment  by  issuing  a  warrant  against  a  party.  Have  you  ever  resigned 
it  f — A.  No,  sir,  I  never  made  any  resignation.  I  declined  to  act,  aud  that  was  all 
there  was  to  it. 

Q.  How  did  you  decline  to  act  ? — A.  Some  persons  applied  to  me  to  do  further  duties 
as  commissioner,  and  I  stated  that  I  would  not  act. 

Q.  And  you  never  resigned  your  position  ? — A.  I  never  resigned  my  position  form 
ally. 

Q.  Then  you  failed  to  perform  the  duties  of  the  office  after  the  particular  case  men 
tioned  ? — A.  Yes,  sir. 

Q.  But  you  never  resigned  the  position  ? — A.  I  never  resigned  the  position. 

Q.  Do  you  know  who  was  appointed  in  your  place  in  the  college  of  electors  *— A.  I 
know  by  hearsay. 

Q.  Who  was  he?— A.  Mr.  Daniel  L.  Crossman,  of  Williamstown.' 

By  Mr.  LAWRENCE  : 
Q.  Did  you  resign  the  office  of  elector  ? — A.  No,  sir. 


444  ELECTORAL    COUNT    OF    1877. 

Q.  You  just  failed  to  attend  ? — A.  I  just  failed  to  attend. 

The  PRESIDING  OFFICER.  Are  there  further  objections  to  the 
certificate  from  the  State  of  Michigan  ? 

There  was  no  further  objection. 

The  PRESIDING  OFFICER.  An  objection  having  been  submitted 
by 'the  member  from  Virginia,  the  Senate  will  now  withdraw  to  its 
chamber,  that  the  two  chambers  may  separately  consider  and  decide 
upon  the  objection. 

The  Senate  accordingly  withdrew  to  its  chamber  at  two  o'clock  and 
twenty-five  minutes  p.  m. 

IN  SENATE,  Tuesday,  February  20, 1877. 

The  Senate  returned  to  its  chamber  from  the  joint  meeting  at  two 
o'clock  and  twenty-eight  minutes  p.  m.,  when  the  President  protempore 
took  the  chair  and  caused  the  objection  to  the  vote  of  D.  L.  Grossman, 
as  one  of  the  electors  for  the  State  of  Michigan,  to  be  read ; 

Whereupon 

Mr.  Senator  ALLISON  submitted  the  following  resolutions  ; 

Resolved,  That  the  objection  made  to  the  vote  of  Daniel  L.  Grossman,  one  of  the 
electors  of  Michigan,  is  not  good  in  law,  and  is  not  sustained  by  any  lawful  evidence. 

Resolved,  That  said  vote  be  counted  with  the  other 'votes "of  the  electors  of  said 
State,  notwithstanding  the  objections  made  thereto. 

After  debate, 

Mr.  Senator  WHTTE  moved  an  amendment  to  strike  out  all  after  the 
first  word  "  Resolved,"  and  insert : 

That  while  it  is  the  sense  of  the  Senate  that  no  Senator  or  Representative  or  person 
holding  an  office  of  trust  and  profit  under  the  United  States  shall  be  appointed  an 
elector,  and  that  this  provision  of  the  Constitution  shall  be  carried  in  its  whole  spirit 
into  rigid  execution,  yet  that  the  proof  is  not  such  as  to  justify  the  exclusion  of  the 
vote  of  Daniel  L.  Grossman  as  one  of  the  electors  of  the  State  of  Michigan,  and  that  his 
vote  should  be  counted. 

The  amendment  was  rejected  by  a  vote  of  27  yeas,  39  nays. 

Mr.  Senator  McDONALD  moved  to  amend  the  first  resolution  by 
striking  out  the  words  "  is  not  good  in  law,  and." 

The  amendment  was  rejected  by  a  vote  of  26  yeas,  38  nays. 

The  question  recurring  on  the  resolutions  submitted  by  Mr.  Senator 
Allison, 

A  division  of  the  question  was  called  for  by  Mr.  Senator  Cooper. 

The  first  resolution  was  agreed  to  by  a  vote  of  40  yeas,  19  nays. 

The  second  resolution  was  unanimously  agreed  to — 63  yeas,  0  nay. 

A  message  was  directed  to  be  sent  to  the  House  of  Representatives, 
announcing  the  action  of  the  Senate  and  its  readiness  to  meet  that 
House  in  order  to  proceed  with  the  count. 

At  five  o'clock  and  thirteen  minutes  p.  m.,  the  Senate  was  advised  of 
the  action  of  the  House  of  Representatives,  and  immediately  proceeded 
to  the  House  hall  to  resume  the  joint  meeting. 

IN  THE  HOUSE  OF  REPRESENTATIVES. 

Tuesday,  February  20,  iS77. 

The  Senate  having  withdrawn  from  the  hall  of  the  House  of  Repre 
sentatives  at  two  o'clock  and  twenty-five  minutes  p.  m.,  the  House  re 
sumed  its  session. 

Mr.  Representative  SOUTHARD  moved  that  the  House  take  a  recess 
until  Wednesday,  February  21,  at  ten  o'clock  a.  m. 
Mr.  Representative  HALE  made  the  point  of  order  that  the  motion  was 


ELECTORAL   COUNT    OF    1877.  445 

not  in  order  under  section  4  of  the  electoral  act,  approved  January  29, 
1877. 

The  Speaker  overruled  the  point  of  order,  holding  that  nothing  in  the 
section  referred  to,  or  in  any  part  of  the  act,  prohibited  the  taking  of 
a  recess  at  this  stage  of  the  proceedings. 

The  motion  for  a  recess  was  then  rejected  by  a  vote  of  57  yeas,  192 
nays. 

A  message  from  the  Senate  was  received  announcing  its  action  in  the 
case  of  Daniel  L.  Grossman,  whose  vote  as  an  elector  of  the  State  of 
Michigan  had  been  objected  to. 

Mr.  Representative  TUCKER  submitted  the  following  resolution : 

Resolved  lij  the  House  of  Representatives,  That  Daniel  L.  Grossman  was  not  appointed 
an  elector  by  the  State  of  Michigan,  as  its  legislature  directed,  and  that  the  vote  of 
said  Daniel  L.  Crossman,  as  an  elector  of  said  State,  be  not  counted. 

After  debate, 

Mr.  Representative  JENKS  offered  the  following  as  a  substitute  for 
the  resolution : 

Whereas  the  fact  being  established  that  it  is  about  twelve  years  since  the  alleged 
ineligible  elector  exercised  any  of  the  functions  of  a  United  States  commissioner,  it  is 
not  sufficiently  proven  that  at  the  time  of  his  appointment  he  was  an  officer  of  the 
United  States  :  Therefore, 

Eesolued,  That  the  vote  objected  to  be  counted. 

The  substitute  was  agreed  to  without  a  division  ;  and  the  resolution 
as  amended  was  agreed  to  without  a  division. 

A  message  was  directed  to  be  sent  to  the  Senate  informing  it  of  the 
action  of  the  House,  and  that  the  House  was  ready  to  receive  the  Seri 
ate  to  proceed  with  the  count. 

JOINT  MEETING. 

TUESDAY,  February  20, 1877. 

At  5  o'clock  and  16  minutes  p.  in.,  the  Senate  entered  the  hall  of 
the  House  of  Representatives,  preceded  by  the  Sergeant-at-Arms  and 
headed  by  its  President  pro  tempore  and  its  Secretary,  the  members 
and  officers  of  the  House  rising  to  receive  them. 

The  President  pro  tempore  of  the  Senate  took  his  seat  as  Presiding 
Officer  of  the  joint  meeting  of  the  two  Houses,  the  Speaker  of  the  House 
occupying  a  chair  upon  his  left. 

The  PRESIDING  OFFICER.  The  joint  meeting  of  Gongress  for 
counting  the  electoral  vote  resumes  it  session.  The  two  Houses  retired 
to  consult  separately  and  decide  upon  the  vote  of  the  State  of  Michi 
gan.  The  Secretary  of  the  Senate  will  read  the  resolutions  adopted  by 
the  Senate. 

The  Secretary  of  the  Senate  read  as  follows: 

Resolved,  That  the  objection  made  to  the  vote  of  Daniel  L.  Crossman,  one  of  the 
electors  of  Michigan,  is  not  good  in  law,  and  is  not  sustained  by  any  lawful  evidence. 

Resolved,  That  said  vote  be  counted  with  the  other  votes  of  the  electors  of  said 
State,  notwithstanding  the  objections  made  thereto. 

The  PRESIDING  OFFICER.  The  Clerk  of  the  House  of  Repre 
sentatives  will  now  read  the  resolution  adopted  by  the  House  of  Repre 
sentatives.  * 

The  Clerk  of  the  House  read  as  follows : 

Whereas  the  fact  being  established  that  it  is  about  twelve  years  since  the  alleged 
ineligible  elector  exercised  any  of  the  functions  of  a  United  States  commissioner,  it  is 
not  sufficiently  proven  that  at  the  time  of  his  appointment  he  was  an  officer  of  the 
United  States  :  Therefore, 

Resolved,  That  the  vote  objected  to  be  counted. 


446  ELECTORAL   COUNT   OF   1877. 

The  PEESIDING  OFFICER.  Neither  House  having  concurred  in  a 
mere  affirmative  vote  to  reject  the  vote  of  the  State  of  Michigan,  the 
entire  vote  of  that  State  will  be  counted  as  cast. 

Mr.  Senator  ALLISON,  (one  of  the  tellers.)  In  the  State  of  Michi 
gan  11  votes  were  cast  for  Rutherford  B.  Hayes,  of  Ohio,  for  Presi 
dent,  and  11  votes  for  William  A.  Wheeler,  of  New  York,  for  Vice- 
President. 

UNDISPUTED  STATES. 

The  count  then  proceeded,  the  certificates  from  the  States  of — 
Minnesota,  casting  5  votes  for  Hayes  and  Wheeler  ; 
Mississippi,  casting  8  votes  for  Tilden  and  Hendricksj 
Missouri,  casting  15  votes  for  Tilden  and  Hendricks  j  and 
Nebraska,  casting  3  votes  for  Hayes  and  Wheeler — 

being  opened  by  the  Presiding  Officer  and  read  by  the  tellers,  and  the 

votes  thereof  counted  without  objection. 

NEVADA. 

The  PRESIDING  OFFICER.  Having  opened  the  certificate  from 
the  State  of  Nevada,  the  Chair  hands  it  to  the  tellers,  who  will  an 
nounce  the  vote  of  that  State.  Is  there  objection  to  the  counting  of 
the  vote  of  that  State  ? 

Mr.  Representative  SPRINGER.  I  submit  the  following  objections 
to  the  counting  of  the  vote  of  one  of  the  electors  of  the  State  of 
Nevada. 

The  Clerk  of  the  House  read  the  objection,  as  follows  : 

The  undersigned  Senators  and  Representatives  object  to  the  vote  of  R.  M.  Daggett 
as  an  elector  from  the  State  of  Nevada,  upon  the  grounds  following,  namely : 

That  the  said  R.  M.  Daggett  was,  on  the  7th  day  of  November,  1876,  and  had  been  for 
a  long  period  prior  thereto,  and  thereafter  continued  to  be,  a  United  States  commis 
sioner  for  the  circuit  and  district  courts  of  the  United  States  for  the  said  State,  and 
held  therefore  an  office  of  trust  and  profit  under  the  United  States,  and  as  such  could 
not  be  constitutionally  appointed  an  elector  under  the  Constitution  of  the  United 
States : 

Wherefore  the  undersigned  say  that  the  said  R.  M.  Daggett  was  not  a  duly-appointed 
elector,  and  that  his  vote  as  an  elector  should  not  be  counted. 

And  the  undersigned  hereto  annex  the  evidence  taken  before  the  Committee  of  the 
House  of  Representatives  on  the  Powers,  Privileges,  and  Duties  of  the  House  to  sustain 
said  objection. 

W.  H.  BARNUM,  Connecticut, 
WILLIAM  A.  WALLACE,  Pennsylvania, 
FRANK  HEREFORD,  West  Virginia, 

Senators. 

J.  R.  TUCKER.  Virginia, 
JOHN  L.  VANCE,  Ohio, 
WM.  A.  J.  SPARKS, 
JNO.  S.  SAVAGE, 
LEVI  MAISH, 
G.  A.  JENKS, 
WILLIAM  M.  SPRINGER, 

Representatives. 

COMMITTEE  ON  PRIVILEGES, 

Washington,  February  9,  1877.. 
R.  M.  DAGGETT  sworn  and  examined. 

By  Mr.  TUCKER: 

Question.  Were  you  a  candidate  for  the  office  of  presidential  elector  in  the  State  of 
Nevada  at  the  presidential  election  in  November,  1876  ? — Answer.  I  was. 

Q.  Were  you  present  in  the  college  at  the  time  of  the  vote  for  President  and  Vice- 
President  f—  A.  Yes. 


ELECTORAL    COUNT    OF    1877.  447 

Q.  Did  you  cast  a  vote  for  President  and  Vice- President  ? — A.  I  did. 

Q.  For  whom  did  you  vote  ? — A.  I  voted  for  Hayes  and  Wheeler. 

Q.  Mr.  Hayes  for  President  and  Mr.  Wheeler  for  Vice-President  ? — A.  Yes,  sir. 

Q.  Are  you  the  messenger  who  brought  the  vote  to  Washington  by  the  appointment 
of  the  college  ? — A.  I  am. 

Q.  Did  you  hold  any  office  under  the  United  States  prior  to  the  election  ? — A.  Yes. 

Q.  What  office  was  that  ? — A.  I  was  clerk  of  the  Federal  courts ;  the  district  and 
circuit  courts  of  the  State  of  Nevada. 

Q.  When  were  you  appointed  ?— A.  I  think  in  1868. 

Q.  Was  that  under  the  State  government? — A.  Yes  ;  Nevada  became  a  State  in  1864,. 
I  believe. 

Q.  Do  you  hold  that  office  now  ? — A.  I  do  not. 

Q.  Who  holds  that  office? — A.  I  think  it  is  a  man  named  McLean. 

Q.  When  was  he  appointed  ? — A.  I  don't  know  exactly  when  he  was  appointed. 

Q.  By  whom  were  you  appointed  ? — A.  I  was  appointed  first  by  Associate  Justice- 
Field  of  the  circuit  court,  and  subsequently  by  Judge  Sawyer  of  the  circuit  court  and 
by  Judge  Hillyer  for  the  district. 

Q.  The  appointment  was  made  not  by  the  judge  but  by  the  court,  was  it  not?— A. 
Made  by  the  judge. 

Q.  In  court? — A.  No,  I  believe  not;  it  may  have  been. 

Q.  Wheie  were  you  when  you  received  the  appointment? — A.  I  was  in  Virginia 
City ;  for  the  circuit  court. 

Q.  How  was  the  appointment  notified  to  you  ? — A.  It  was  sent  to  me  by  mail. 

Q.  Did  you  appear  in  court  and  take  the  oath  and  give  the  bond  required  by  law? — 
A.  Yes,  sir ;  subsequently. 

Q.  You  were  the  keeper  of  the  records  of  the  court.  Was  not  your  appointment 
made  a  matter  of  record  in  that  court  ? — A.  I  presume  so. 

Q.  And  your  qualification  was  also  entered  upon  the  record  ?— A.  Yes>  sir, 

Q.  When  did  you  cease  to  be  the  clerk  of  the  court,  or  cease  to  perform  its  duties  ? — 
A.  I  ceased  on  the  6th  day  of  November,  the  day  before  the  election. 

Q.  What  made  you  cease  to  perform  its  duties  ?— A.  Because  it  was  a  question  in  my 
mind  whether  I  would  be  eligible  as  an  elector  if  I  continued  to  hold  the  office,  and  I 
therefore  resigned. 

Q.  How  did  you  resign  ?— A.  I  resigned  by  telegraph. 

Q.  A  telegram  to  whom  ? — A.  To  Judge  Sawyer  in  San  Francisco,  and  also  to  Judge 
Hillyer  in  Carson.  I  was  then  living  in  Virginia  City. 

Q.  Where  is  Virginia  City  ?— A.  It  is  about  twelve  miles  from  Carson. 

Q.  Carson  is  the  capital,  where  the  Federal  court  holds  its  sessions  ?— A.  Yes,  sir. 

Q.  Where  is  the  telegram  which  you  sent  to  either  of  those  judges  ? — A.  I  do  not 
know.  It  is  not  with  me.  I  did  not  bring  it. 

Q.  Have  you  got  a  copy  of  the  telegram  ? — A.  I  think  not. 

1.  Who  has  ?    To  whom  did  you  send  it  ? — A.  I  sent  it  to  Judge  Sawyer. 
).  Directed  to  what  point  ?— A.  To  San  Francisco. 

).  Does  he  live  in  San  Francisco  ? — A.  Well,  he  is  judge  of  the  district  comprising 
those  three  States,  California,  Nevada,  and  Oregon. 

Q.  Does  he  reside  in  San  Francisco  ? — A.  Most  of  the  tjjne. 

Q.  You  say  you  sent  a  telegram  to  another  judge ;  whom  ? — A.  Judge  Hillyer,  of  Car 
son,  the  district  judge. 

Q.  And  you  have  no  copy  of  that  telegram  ?— A.  I  have  not.  I  did  not  think  of 
saving  it. 

Q.  Did  you  ever  receive  an  answer  to  that  telegram  ? — A.  I  received  an  answer  from 
Judge  Sawyer  the  same  day,  about  an  hour  afterward. 

Q.  Where  is  that  telegram  ?— A.  I  left  it  in  Virginia  City ;  I  did  not  think  of  bring 
ing  it.  I  believe  I  have  it. 

Q.  Why  did  not  you  bring  it  ? — A.  Well,  I  did  not  know  that  there  would  be  any 
question  about  it. 

Q.  Did  not  you  know  what  you  were  sent  for  ?— A.  I  was  only  subprcnaed  here  two 
or  three  days  ago. 

By  Mr.  FIELD  : 

Q.  You  telegraphed  Judge  Sawyer  on  the  6th  of  November  ?— A.  Yes,  sir. 

Q.  Can  you  not  give  the  exact  words  of  the  telegram?— A.  I  think  I  can. 

Q.  Give  the  exact  words,  then. — A.  I  think  the  telegram  read  this  way  :  "  Honorable 
Aloiizo  Sawyer,  San  Francisco  :  I  have  this  day  filed  my  resignation  as  clerk  of  the 
circuit  court  of  the  ninth  circuit,  and  request  the  acceptance  of  my  resignation."  I,  at 
the  same  time  that  I  sent  that  telegram  to  Judge  Sawyer,  sent  to  Carson  my  resigna 
tion. 

Q.  No  ;  do  not  say  you  sent  your  resignation.  I  am  only  asking  about  the  telegram* 
to  Judge  Sawyer.  Have  you  given  the  whole  of  that? — A.  Yes,,  sir;  I  think  that  is- 
about  the  substance  of  it,  and  I  think  pretty  nearly  the  words. 

Q.  You  received  from  him  an  answer  ? — A.  Yes,  sir. 


448  ELECTORAL   COUNT   OF    1877. 

Q.  On  the  same  day,  about  an  hour  afterward  ?— A.  An  hour  or  two  afterward. 
Q.  That  you  have  got,  I  suppose  ? — A.  I  think  it  is  among  my  papers  in  Virginia 
City. 

Q.  Do  you  remember  the  exact  words  of  that  ? — A.  Pretty  nearly. 
Q.  Give  them.— A.  "Your  resignation  as  clerk  of  the  circuit  court  is  accepted. 
Alonzo  Sawyer." 

Q.  Have  you  ever  had  any  other  communication  with  Judge  Sawyer  on  the  subject  ?— 
A.  I  have  not. 

Q.  You  have  never  written  him  ? — A.  I  never  have. 

Q.  Nor  received  a  letter  from  him  ?— A.  Never. 

Q.  You  did  not  send  to  him  a  copy  of  your  written  resignation? — A.  By  telegraph? 

Q.  No.    You  say  you  wrote  something  ;  you  did  not  send  him  a  copy  of  that  ?— A. 
No  ;  do  you  mean,  sent  it  by  mail  ? 

Q.  Yes ;  or  any  way. — A.  I  did  send  it. 

Q.  How  ? — A.  I  sent  it  to  Carson  the  same  day. 

Q.  I  am  talking  about  Judge  Sawyer.    Did  you  send  to  Judge  Sawyer  any  copy  or 
any  paper  ? — A.  Yes. 

Q.  What  did  you  send  him  ? — A.  My  resignation. 

Q.  In  what  form  ? — A.  In  the  usual  form  of  resignations. 

Q.  You  sent  him  a  copy  of  your  written  paper  ? — A.  My  written  paper;  my  resigna 
tion,  you  mean  ? 

Q.  Yes  ;  do  not  yon  understand  me  ?    Did  you  send  Judge  Sawyer  anything  in  the 
world  but  the  telegram  ?. — A.  Yes. 

Q.  What  else  ? — A.  I  sent  him  my  resignation. 

Q.  You  mean  a  written  paper  ?— A.  Yes,  sir. 

Q.  Did  you  send  him  the  original  that  was  filed  or  a  copy  ? — A.  I  sent  him  the  orig 
inal.  I  only  made  one. 

Q.  You  made  one ;  then  you  did  not  file  it  ?— A.  I  sent  it  down  to  be  filed. 

Q.  You  sent  it  to  him  to  file  by  mail  ? — A.  I  did  not  send  it  to  San  Francisco. 

Q.  Where  did  you  send  it  ? — A.  I  sent  it  to  Carson. 

Q.  Now  I  think  I  get  an  answer.  Did  you  send  anything  to  Judge  Sawyer  ? — A. 
Yes. 

Q.  What  ? — A.  I  sent  that  resignation. 

Q.  That  paper? — A.  Yes. 

Q.  To  Judge  Sawyer,  at  San  Francisco  ? — A.  I  did  not  say  that  I  did  send  it  to  San 
Francisco. 

Q.  Well,  he  was  there,  was  he  not  ? — A.  He  was  there  that  day,  I  think. 

Q.  Then  that  day  you  did  not  send  it.  Did  you  send  it  to  San  Francisco  the  next 
day  ? — A.  I  did  not  send  it  to  San  Francisco. 

Q.  At  all  ?— A.  Not  at  all. 

Q.  Did  you  ever  send  the  original  paper  anywhere  ? — A.  Yes. 

Q.  Where  did  that  go  ?— A.  To  Carson. 

Q.  How  did  you  send  that  ? — A.  I  sent  it  by  mail. 

Q.  You  mailed  it  in  Virginia  City  direct  to  Carson,  did  you  ? — A.  Yes,  sir. 

Q.  When  did  you  mail  it  in  Virginia  City  ? — A.  I  mailed  it  on  the  6th. 

Q.  What  time  or  hour  on  the  6th  ? — A.  Along  about  eleven  o'clock  in  the  day. 

Q.  When  did  the  next  post  leave  Virginia  City  for  Carson  ?— A.  At  about  half-past 
two  in  the  afternoon. 

Q.  You  say  you  telegraphed  to  Judge  Hillyer  ? — A.  Yes,  sir. 

Q.  Have  you  that  telegram  ? — A.  They  were  very  much  alike,  except  the  change  of 
name. 

Q.  As  near  as  you  can  remember,  were  they  exactly  the  same  ? — A.  Yes,  sir ;  pre 
cisely  the  same,  with  such  changes  as  there  would  necessarily  be  in  telegraphing  to  a 
different  person. 

Q.  Did  you  receive  an  answer  from  him  ? — A.  I  did  not. 

Q.  He  never  answered  you  at  all  ? — A.  No. 

Q.  By  letter  or  telegraph  f — A.  No. 

Q.  Has  the  circuit  court  ever  been  in  session  since  that  time? — A.  Yes. 

Q.  When  ?— A.  On  the  6th  of  November. 

Q.  In  session  where  ? — A.  In  Carson  City. 

Q.  Were  you  there  ? — A.  I  was  not. 

Q.  When  were  you,  next  after  the  6th  of  November,  in  the  court  ? — A.  I  have  not 
been  there  since. 

Q.  Personally,  therefore,  you  do  not  know  who  transacted  the  business,  as  clerk,  in 
the  circuit  court  on  the  7th  day  of  November  ?— A.  I  do  not. 

Q.  Did  you  yourself  give  any  directions  about  the  business  of  the  court  to  be  trans 
acted  on  that  next  day  ? — A.  I  did  not. 

Q.  Have  you  ever  since  ? — A.  I  have  not. 

Q.  Who  is  doing  the  business  of  the  clerk  ? — A.  There  is  a  clerk  there — Mr.  McLean  ; 
I  have  forgotten  his  first  name. 


ELECTORAL    COUNT    OF    1877.  449 

Q.  Do  you  know  whether  he  has  been  appointed  by  the  circuit  court  ? — A.  Yes ;  I 
am  certain  he  has. 

Q.  Well,  you  understand  that  he  has  ? — A.  Yes,  sir. 

Q.  When  was  he  appointed  ? — A.  That  I  do  not  know  exactly. 

Q.  What  month  ! — A.  O,  he  was  appointed  in  November. 

Q.  Do  you  know  that  ?— A.  Yes. 

Q.  You  know  that  ?— A,  Well,  I  do  not  know  it,  because  I  never  saw  the  appointment. 

Q.  And  you  have  never  seen  any  record  of  his  appointment  I — A.  No  ;  I  never  have. 

Q.  Was  Mr.  McLean  your  deputy  ? — A.  No,  he  was  not. 

Q.  Did  your  deputy  make  the  entries  and  keep  the  minutes  of  the  court  until  Mr, 
McLean  took  possession  of  the  office  ? — A.  I  presume  he  did.  I  do  not  know.  I  never 
was  there  afterward. 

Q.  Did  you  make  any  communications  to  him  ? — A.  I  did  not. 

Q.  Where  is  the  paper  that  you  call  your  written  resignation  ? — A.  It  must  be  on  file 
in  Carson,  in  the  clerk's  office. 

Q.  That  is  to  say,  as  far  as  you  know? — A.  So  far  as  I  know. 

Q.  Give  the  language,  as  near  as  you  can,  of  that  written  paper  which  you  call  your 
resignation. — A.  I  think  it  was  addressed  to  Judge  Sawyer,  and  ran  about  in  this  style  : 
"  Having  been  nominated  as  presidential  elector,  I  hereby  tender  my  resignation  as 
clerk  of  the  circuit  court,  ninth  circuit,  and  trust  the  resignation  may  be  immediately 
accepted.''  I  think  that  is  about  the  purport  of  it. 

Q.  You  inclosed  that  in  an  envelope,  did  you  ? — A.  Yes, 

Q.  Directed  to  whom  ? — A.  To  Judge  Sawyer. 

Q.  At  Carson  City  ? — A.  At  Carson  City. 

Q.  It  was  sealed  up,  directed  to  Judge  Sawyer,  and  put  into  the  mail  ?— A.  Yes. 

Q.  Judge  Sawyer  was  then  in  San  Francisco  ? — A.  Yes  ;  he  was  then  in  San  Fran 
cisco. 

Q.  Do  you  know  of  your  own  knowledge  that  Judge  Sawyer  has  ever  been  in  Carson 
City  since  ? — A.  Yes. 

Q.  Were  you  there  ? — A.  I  was  not. 

Q.  Do  not  you  know  what  I  mean  by  your  own  knowledge  ?  Did  you  see  him  ? — A. 
No,  I  did  not  see  him, 

Q.  Very  well ;  you  do  not  know  of  your  own  knowledge  that  he  has  ever  been  there 
since? — A.  Not  by  seeing  him. 

Q.  That  is  your  knowledge.  You  do  not  know,  then,  of  your  own  knowledge  that 
Judge  Sawyer  ever  saw  that  package  or  letter  ? — A.  I  do  not. 

Q.  You  do  not  know  of  your  own  knowledge  that  it  is  not  now  in  the  post-office? 
A.  I  do  not. 

Q.  Have  your  accounts  as  clerk  ever  been  settled  ? — A.  Yes  ;  I  think  so. 

Q.  You  think  so;  do  you  know? — A.  I  did  not  attend  to  the  business  much;  iny 
deputy  always  did  it. 

Q.  What  deputy?— A.  Mr.  Edwards. 

Q.  Is  he  still  there? — A.  He  is  in  Carson. 

Q.  Is  he  still  in  the  office  of  the  clerk  ?— A.  I  do  not  know. 

Q.  Do  you  know  whether  he  has  ever  been  out  of  it  ? — A.  I  do  not  know ;  I  pre 
sume  he  was  out  of  it  after  I  resigned. 

Q.  Do  you  know  that  he  was  ever  out  of  it?  Were  you  there?  Do  you  know 
whether  he  did  not  attend  in  court  every  day  and  transact  business? — A.  I  do  not,  of 
my  own  knowledge. 

Q.  Did  not  you  as  clerk  receive  money  to  be  deposited  to  your  credit  in  bank  ? — 
A.  Frequently. 

Q.  In  what  bank? — A.  I  have  forgotten  where  the  deposits  were  made.  We  shifted 
them  around  quite  often. 

Q.  In  different  banks  ? — A.  Yes,  sir. 

Q.  Give  us  the  names  of  some  of  them?— A.  The  Bank  of  California,  and  Wells, 
Fargo  &  Co. 

Q.  What  amount  of  money  had  you  standing  in  your  name  or  to  your  credit  as  clerk 
of  the  circuit  court  of  the  United  States  ? — A.  I  think  not  a  dollar. 

Q.  It  had  all  been  previously  paid  out  ? — A.  Yes. 

Q.  Paid  out  for  what  purposes? — A.  Paid  out  in  the  regular  course  of  business. 

Q.  You  think  there  were  no  moneys  on  deposit  to  your  credit  as  clerk  at  that  time  ?— • 
A.  I  think  not ;  I  am  not  positive. 

Q.  Has  your  bond  ever  been  discharged  ? — A.  Not  that  I  know  of. 
Q.  I  repeat  now  what  I  asked  you  before :  Have  your  accounts  as  clerk  to  your 
knowledge  ever  been  settled  ?— A.  We  made  our  quarterly  settlements. 
Q.  That  is  not  an  answer  to  my  question. — A.  You  mean  since  that  time  ? 
Q.  Have  your  "accounts  ever  been  finally  settled? — A.  Well,  I  do  not  know  that 
there  was  any  accounts  to  settle. 
Q.  You  received  fees  ? — A.  I  received  fees. 
Q.  And  you  were  paid  through  fees  ?— A.  Paid  through  fees. 

29  E  c 


450  ELECTORAL   COUNT   OF    1877. 

Q.  Up  to  a  certain  amount,  or  all  the  fees  ?— A.  Up  to  a  certain  amount. 

Q.  Very  well,  then,  there  must  have  been,  of  course,  an  account  to  be  kept  of  the 
amount  of  fees  received,  and  so  far  as  they  exceeded  the  limit  you  paid  them  over  to 
the  Treasury,  did  you  not  ? — A.  I  should  have  done  so  had  they  ever  exceeded  the 
amount. 

Q.  When  were  your  periodical  accounts  regularly  settled  ? — A.  They  were  settled 
semi-aunually. 

Q.  In  what  months  ? — A.  In  June  and  December,  the  31st. 

Q.  Then  you  settled  an  account  on  the  31st  of  June,  1876  ? — A.  Yes. 

Q.  Have  you  ever  settled  an  account  since  ? — A.  I  have  not. 

Q.  Could  you  state,  if  you  were  asked,  the  items  on  different  sides  of  the  account?— 
A.  O,  no  ;  I  could  not. 

Q.  Have  you  ever  had  any  communication  with  Mr.  Edwards  since  the  6th  of 
November? — A.  1  have  not;  I  have  never  been  in  Carson  since  but  once;  that  was  at 
the  meeting  of  the  college,  and  I  did  not  see  him. 

Q.  Did  you  have  any  communication  with  him  on  the  6th  of  November  ? — A.  No, 
sir;  I  was  in  Virginia  City. 

Q.  When  first  after  the  6th  of  November  did  you  visit  Carson  City  ? — A.  Not  until 
the  meeting  of  the  college. 

Q.  That  was  on  the  6th  of  December? — A.  I  think  so. 

Q.  In  what  business  have  you  been  engaged  since? — A.  Well,  I  am  in  the  mining 
business  principally,  and  always  have  been. 

Q.  Do  you  say  that  the  circuit  court  has  been  in  session  since  the  6th  of  Novem 
ber?— A.  Yes. 

Q.  Was  it  not  the  district  court  ? — A.  The  circuit  court  was  in  session  also. 

Q.  Are  you  sure? — A.  I  am  pretty  positive. 

Q.  What  are  the  times  for  the  meeting  of  the  circuit  court  in  Nevada  ? — A.  I  don't 
remember  just  now  ;  they  made  some  changes,  I  think,  in  the  last  Congress. 

Q.  As  the  law  stood  on  the  first  of  November,  what  was  the  time  for  the  meeting  of 
the  court ;  not  the  district,  but  the  circuit  court  ? — A.  My  opinion  is  that  the  circuit 
court  was  to  meet  on  the  6th  of  November.  That  is  my  impression  now,  and  that  is 
what  I  thought  at  the  time. 

Q.  Your  impression  from  what? — A.  From  the  law.  The  first  Monday,  I  think,  in 
November. 

Q.  Yon  can  easily  tell,  cannot  you,  by  looking  at  the  law  ? — A.  Yes,  I  can  tell. 

Q.  I  wish  you  would  tell  us,  then,  before  you  leave  the  city. — A.  I  will  do  so. 

By  Mr.  TUCKER  : 

Q.  You  did  not  file  the  paper  that  you  call  your  resignation,  in  the  clerk's  office  on 
the  6th  of  November? — A.  I  transmitted  it  for  filing,  or  rather  to  the  judge. 

Q.  To  Judge  Sawyer,  at  Carson  ? — A.  Yes. 

Q.  He  was  that  day  at  San  Francisco  ? — A.  I  understood  that  he  was. 

Q.  Well,  you  got  a  telegram  from  him  from  there  ?— A.  Yes. 

Q.  How  long  would  it  take  Judge  Sawyer  to  come  by  the  quickest  route  from  San 
Francisco  to  Carson  ? — A.  Twenty  hours,  I  believe. 

Q.  Coming  by  steamer  ? — A.  No  ;  by  rail. 

Q.  You  do  not  know  when  he  did  come  ? — A.  I  do  not. 

Q.  Then,  if  he  had  left  San  Francisco  on  the  6th,  he  would  not  get  to  Carson  until 
what  time  ? — A.  He  could  have  got  there  on  the  7th. 

Q.  What  time  on  the  7th  ?— A.  It  would  have  been  along  in  the  evening. 

Q.  When  you  communicated  with  the  judges,  as  you  say,  on  the  6th,  did  you  com 
municate  to  your  deputy,  Edwards,  that  you  were  no  longer  clerk  of  the  court  ? — A.  I 
did  not. 

By  Mr.  BURCHARD  : 

Q.  You  did  not  exercise  the  duties  of  the  clerk  since  the  time  of  your  telegram  ?— A. 
I  have  not. 

Q.  And  they  have  been  performed,  as  I  understand,  by  a  successor  appointed  by  the 
court  ? — A.  Yes,  sir. 

Q.  Your  recollection  is  that  the  district  and  circuit  court  were  then  iu  session 
that  day  in  Carson  City? — A.  I  believe  that  was  the  day  fixed  for  it. 

Q.  Where  do  I  understand  you  to  say  Judge  Hillyer  was  ? — A.  He  was  in  Carson. 

Q.  Is  there  a  railroad  from^Virginia  City  to  Carson  ? — A.  Yes. 

Q.  How  far  is  it,  in  time,  by  rail  ? — A.  Well,  the  railroad  is  a  little  long  and  pretty 
crooked,  about  twenty-four  miles ;  they  make  it  generally  in  about  two  hours  and  a 
half,  sometimes  a  little  less. 

Q.  The  telegram  was  sent  at  what  time  to  Judge  Hillyer  ? — A.  I  think  along  about 
noon  some  time. 

Q.  You  put  your  resignation  in  the  mail  before  the  hour  of  sending  the  mail 
from  Virginia  City  to  Carson  ? — A.  Yes ;  in  order  that  it  might  reach  there  ou  that  day, 
the  6th. 


ELECTORAL    COUNT    OF    1877.  451 

Q.  Do  you  remember  whether  the  envelope  was  addressed  to  your  deputy,  or  a  clerk, 
or  to  the  judge  himself? — A.  It  was  addressed  to  the  judge  himself. 

Q.  And  you  sent  a  resignation  to  each  judge,  if  I  understand? — xY.  To  each. 

By  Mr.  FIELD  : 

Q.  Not  a  written  paper  to  each  ? — A.  Yes,  I  sent  a  resignation  to  each. 
Q.  The  telegram,  you  said,  you  sent  to  each  ? — A.  I  sent  the  resignation  also. 

By  Mr.  B  ORCHARD  : 

Q.  Then  you  sent  a  resignation  to  each  of  the  judges,  through  the  mail,  on  the  6th  ? — 
A.  Yes,  and  at  the  same  time  I  telegraphed  them  that  I  had  so  sent  it. 

Q.  And  Judge  Hillyer  was  then,  as  I  understand,  holding  court  at  Carson  City  I— A. 
The  circuit  court,  I  think,  was  to  meet. 

By  Mr.  MAISH  : 

Q.  He  was  the  district  judge  ? — A.  Yes,  sir  ;  but  I  had  understood  that  Judge  Saw 
yer  was  in  San  Francisco.  I  had  learned  it  from  some  source,  and  therefore  telegraphed 
to  him  there. 

By  Mr.  FIELD  : 

Q.  Let  me  see  if  I  understand  you  about  this  resignation  directed  to  the  district 
judge.  Did  you  send  exactly  the  same  paper  to  the  district  judge  that  you  had  sent 
the  circuit  judge  ? — A.  Not  the  same  paper. 

Q.  Was  it  a  copy  of  th'e  same  paper  ? — A.  Pretty  nearly. 

Q.  Can  yon  give  the  contents  of  the  paper? — A.  A  moment  ago  I  gave  it,  and  the 
other  was  pretty  nearly  a  copy  of  it,  with  the  exception  of  such  changes  as  would 
necessarily  be  made. 

Q.  Did  you  put  that  in  an  envelope  directed  to  somebody  ? — A.  I  did. 

Q.  How  was  it  directed  f — A.  To  Judge  Hillyer. 

Q.  Give  the  direction  all  together.— A.  "  Hon.  E.  W.  Hillyer,  U.  S.  District  Judge, 
Carson  City." 

Q.  Was  the  inside  also  directed  in  the  same  way  to  Judge  Hillyer? — A.  Yes. 

Q.  With  the  same  designation  of  office  and  everything  else  as  in  the  other  ?— A.  Yes. 

Q.  You  do  not  know  whether  he  ever  received  that  letter  or  not  ? — A.  I  think  he 
told  me  he  had  received  it. 

Q.  That  is  not  evidence.     Do  you  know  it  in  any  way  ? — A.  O,  no. 

Q.  You  think  that  he  afterward  told  you  he  had  received  it  ?— A.  Yes,  in  Virginia 
City. 

Q.  When  do  you  think  he  told  you  ? — A.  Well,  probably  a  week  after,  or  possibly 
two  weeks. 

Q.  You  do  not  know  that  Judge  Hillyer  was  in  Carson  City  on  the  6th  or  7th  of 
November,  do  you  ?  Knowledge  is  what  I  ask  for. — A.  I  was  not  there. 

Q.  Well,  you  do  not  know,  then,  in  any  way,  that  they  were  received,  either  of 
them  ? — A.  That  seems  to  be  the  kind  of  information  you  want.  I  do  not. 

Q.  And  if  he  did  receive  that  letter  to  him,  you  do  not  know  when  he  received  it  ?— 
A.  Of  course  not ;  I  don't  know  that  he  received  it  at  all,  unless  I  take  his  word  for  it. 

Q.  And  you  have  no  information  of  his  having  received  it  within  two  weeks  ? — A. 
What  kind  of  information  ? 

Q.  From  him  ? — A.  I  tell  you  I  think  he  told  me  so. 

Q.  Within  two  weeks  he  told  you  that  he  had  received  it ;  that  was  the  information, 
was  it  not  ? — A.  Yes,  sir.  He  talked  about  sending  the  bankruptcy  letters  down — 
they  were  in  Virginia  City ;  that  is  the  reason  I  happened  to  be  there.  He  said  he 
would  send  Mr.  McLean  up  and  remove  the  bankruptcy  records.  They  had  been  in 
Virginia  City  for  seven  years,  and  I  had  been  attending  to  that  branch  of  the  business. 

By  Mr.  TUCKER  : 

Q.  In  your  possession  ? — A.  In  my  possession. 
By  Mr.  FIELD  : 

Q.  And  remained  in  your  possession  until  when  ? — A.  They  were  locked  up  until  Mr. 
McLean  came  up,  some  two  or  three  days  afterward. 

Q.  They  remained  in  your  possession  until  two  or  three  weeks  after  ? — A.  No ;  not 
so  long. 

Q.  For  how  long  ?— A.  Well,  some  days. 

Q.  Some  days  after  the  7th  of  November  they  remained  in  your  possession  ? — A.  Yes. 
sir. 

Q.  And  then  you  gave  them  up  ? — A.  Yes. 

Q.  Were  those  records  locked  up  on  the  6th  of  November? — A.  Yes;  they  were 
always  locked  up. 

Q.  Did  they  remain  locked;  had  they  been  touched  ?— A.  Not  that  I  know  of. 

Q.  Who  had  charge  of  them  ?— A.  I  had. 


452  P:LECTORAL  COUNT  OF  1377. 

Q.  Nobody  else  under  yon  ? — A.  Mr.  Strother,  the  register  in  bankruptcy,  had  au 
office  in  the 'same  place,  and  sometimes  he  had  access  to  the  documents. 

Q.  Was  that  bankruptcy  business  going  on  all  the  time  from  the  6fch  of  November 
to  the  6th  of  December? — A.  It  was  not.  There  was  no  work  done  in  the  office,  or 
in  any  part  of  the  office. 

Q.  Where  was  that  bankruptcy  business  going  on  ? — A.  It  was  not  going  on  at  all. 

Q.  There  was  none  ?— A.  There  was  none. 

Q.  But  Mr.  Strother  remained  there,  did  he  not? — A.  He  was  a  register  in  bank 
ruptcy  in  the  same  office. 

Q.  And  he  was  there  all  the  time  ?— A.  Not  all  the  time. 

Q.  Well,  he  was  off  and  on  ? — A.  Off  and  on. 

Q.  From  the  6th  until  the  present  time  ? — A.   Yes,  sir. 

Q.  Was  he  kept  in  office  by  Mr.  McLean  ? — A.  He  is  a  register  in  bankruptcy,  ap 
pointed  by  the  judge. 

By  Mr.  TUCKER  : 

Q.  When  did  you  mail  your  letter  to  Judge  Hillyer  ? — A.  I  mailed  it  about  the  time 
I  sent  the  dispatch,  or  pretty  soon  afterward. 

Q.  What  time  did  you  send  the  dispatch  ? — A.  Some  time  about  twelve  o'clock  ;  be 
tween  eleven  and  one,  sometime. 

Q.  When  did  the  mail  leave  Virginia  City  for  Carson? — A.  I  think  there  are  two 
mails  ;  one  in  the  morning,  and  one  at  2.30  p.  m.,  or  at  1 .30 ;  I  am  not  sure  which — 
along  in  the  afternoon. 

By  Mr.  BURCHARD  : 

Q.  Is  there  any  special  provision  of  law  in  regard  to  the  appointment  of  district  or 
circuit  clerks  in  Nevada  ? — A.  No. 

Q.  Nothing  but  the  general  provision  that  the  clerk  shall  be  appointed -for  each  dis 
trict  court  by  the  judge  thereof,  and  that  the  clerk  shall  be  appointed  for  the  circuit 
court  by  the  circuit  judge  of  the  same  ? — A.  Yes. 

Q.  Your  appointment  was  made  by  the  judge? — A.  Yes. 

By  Mr.  LAWRENCE  : 

Q.  Did  you  put  on  to  the  two  letters  that  you  sent  to  Carson  City  the  proper  postage- 
stamps  ?— A.  Yes. 

Q.  What  time  would  these  letters  reach  Carson  in  the  ordinary  course  of  the  mail  ?— 
A.  They  ought  to  have  reached  there  along  in  the  evening  of  the  6th,  about  five  or  six 
o'clock. 

Q.  Did  the  fees  of  the  office,  or  either  of  your  offices,  ever  exceed  the  limits  fixed  by 
law  ? — A.  No.  I  lost  $500  a  year  running  the  office  for  eight  years. 

Q.  At  the  time  yon  resigned,  was  there  any  excess  of  fees  above  the  limit  prescribed 
bylaw? — A.  O,  no. 

Q.  You  would  owe  the  Government  nothing,  then  ? — A.  O,  no. 

By  Mr.  BURCHARD  : 

Q.  What  do  you  mean  ? — A.  Well,  there  was  nothing  in  the  office.  I  had  to  pay  Ihe 
rent ;  the  Government  did  not ;  that  is  what  was  the  matter,  and  I  kept  it  on  to  accom 
modate  a  deputy. 

By  Mr.  TUCKER  : 

Q.  You  have  spoken  of  the  time  of  mailing  these  letters;  are  you  certain  yon  mailed 
them  in  time  for  the  evening  mail  on  the  6th  <?— A.  That  was  my  purpose  in  putting 
them  in;  I  presumed  so  at  the  time  ;  I  did  not  doubt  it  at  the  time  ;  exactly  at  what 
time  the  cars  went  I  am  now  unable  to  say,  but  I  put  them  in  the  office  on  the  supposi 
tion  that  I  would  get  them  there  in  time. 

By  Mr.  LAWRENCE  : 
Q.  You  signed  your  name  to  both  resignations  ? — A.  I  did. 

By  Mr.  TUCKER  : 

Q.  How  many  hours  does  it  take  the  mail  to  go  from  Virginia  City  to  Carson  ? — A. 
About  two  hours  and  a  half,  sometimes  a  little  less  ;  it  is  twenty-four  miles  by  rail. 

The  PRESIDING  OFFICER.  Are  there  any  further  objections  to 
the  certificate  of  the  State  of  Nevada  ?  The  Chair  hears  none.  The 
Senate  will  now  withdraw  to  its  chamber  that  the  two  Houses  may 
separately  consider  and  decide  upon  this  objection. 

The  Senate  accordingly  (at  5  o'clock  and  45  minutes  p.  m.)  withdrew. 


ELECTORAL  COUNT   OF   1877.  453 

IN  SENATE,  Tuesday,  February  20, 1877. 

The  Senate  returned  from  the  joint  meeting  to  its  chamber  at  5  o'clock 
and  47  minutes  p.  m.,  when  the  President  pro  tempore  took  the  chair 
and  caused  the  objection  to  the  vote  of  R.  M.  Daggett,  as  one  of  the 
electors  from  the  State  of  Nevada,  to  be  read. 

Whereupon, 

Mr.  Senator  JONES,  of  Nevada,  offered  the  following  resolution',  which 
was  agreed  to  without  debate  and  without  a  division,  viz: 

Resolved,  That  the  vote  of  R.  M.  Daggett  be  counted  with  the  other  votes  of  the 
electors  of  Nevada,  notwithstanding  the  objections  made  thereto. 

On  motion  of  Mr.  Senator  HAMLIN  it  was 

Ordered,  That  the  Secretary  notify  the  House  of  Representatives  thereof,  and  that  the 
Senate  is  now  ready  to  meet  the  House  to  continue  the  count  of  the  electoral  votes  for 
President  and  Vice- President. 

The  Senate  (being  advised  that  a  recess  had  been  taken  by  the  House 
of  Representatives)  took  a  recess  at  6  o'clock  and  15  minutes  p.  m.  until 
Wednesday,  February  21,  at  10  o'clock  a.  m. 

IN  THE  HOUSE  OF  REPRESENTATIVES, 

Tuesday,  February  20,  1877, 

The  Senate  having  withdrawn  from  the  hall  of  the  House  at  5  o'clock 
and  45  minutes  p.  m.,  the  House  of  Representatives  was  called  to  order 
by  the  Speaker,  and  resumed  its  session. 

Mr.  Representative  WOOD,  of  New  York,  moved  that  the  House  take 
a  recess  till  to-morrow  morning  at  10  o'clock. 

The  yeas  and  nays  being  called  for,  the  motion  was  agreed  to  by  a 
vote  of  97  yeas,  88  nays;  and  (at  6  o'clock  and  10  minutes  p.  m.)  the 
House  took  a  recess  until  Wednesday,  February  21,  at  10  o'clock  a.  m. 

ELECTORAL  COMMISSION. 

TUESDAY,  February  20,  1877. 

The  Commission  met  at  4  o'clock  p.  m.,  pursuant  to  adjournment. 

The  Journal  of  the  16th,  17th,  and  19th  instant,  respectively,  was 
read  and  approved. 

Mr.  Commissioner  ABBOTT  moved  that  each  Commissioner  have 
leave  until  March  10,  proximo,  in  which  to  file  for  publication  in  the 
Record  an  opinion  respecting  the  cases  that  have  at  present  been  acted 
on  by  the  Commission. 

Alter  debate, 

The  motion  was  withdrawn. 

On  motion  of  Mr.  Commissioner  GARFIELDJ  the  Commission  took  a 
recess  until  6  o'clock  and  30  minutes. 

And  before  the  expiration  of  the  recess, 

On  motion  of  Mr.  Commissioner  STRONG,  (at  6  o'clock  and  15  min 
utes  p.  rn.)  the  Commission  adjourned  until  to-morrow  at  11  o'clock  a.  in. 

PROCEEDINGS  OF  THE  TWO  HOUSES. 

IN  SENATE,  Wednesday,  February  21,  1877. 

The  Senate  resumed  its  session  at  10  o'clock  a.  m.,  transacting  no  busi 
ness.  Being  notified  at  11  o'clock  and  38  minutes  of  the  action  of  the 
House  of  Representatives  on  the  objection  to  the  vote  of  R.  M.  Daggett, 
as  aii  elector  for  the  State  of  Nevada,  and  of  its  readiness  to  receive  the 
Senate  to  proceed  with  the  count,  the  Senate  proceeded  to  the  hall  of 
the  House  of  Representatives. 


454  ELECTORAL  COUNT  OF  1877. 

IN  THE  HOUSE  OF  REPRESENTATIVES, 

Wednesday,  February  21,  1877. 

The  House  of  Representatives  resumed  its  session  at  10  o'clock  a.  m. 
The  objection  made  to  the  counting  of  the  vote  of  R.  M.  Daggett  as 
one  of  the  electors  for  the  State  of  Nevada,  with  the  evidence  in  support 
thereof,  was  read. 
Whereupon, 

Mr.  Representative  SPRINGER  offered  the  following  resolution ; 
which,  after  debate,  was  adopted  without  a  division,  viz: 

Resolved,  That  the  vote  of  R.  M.  Daggett,  one  of  the  electors  of  the  State  of  Nevada, 
be  counted,  the  objections  to  the  contrary  notwithstanding. 

A  message  was  ordered  to  be  sent  to  the  Senate  announcing  this 
action,  and  the  readiness  of  the  House  to  receive  the  Senate  to  proceed 
with  the  count. 

JOINT  MEETING. 

WEDNESDAY,  February  21,  1877. 

At  11  o'clock  and  40  minutes  a.  m.  the  Senate  entered  the  hall  of 
the  House  of  Representatives,  preceded  by  its  Sergeant-at-Arms  and 
headed  by  its  President  pro  tempore  and  Secretary,  the  members  and 
officers  of  the  House  rising  to  receive  them. 

The  PRESIDENT  pro  tempore  of  the  Senate  took  his  seat  as  Presid 
ing  Officer  of  the  joint  meeting  of  the  two  Houses,  the  Speaker  of  the 
House  occupying  a  chair  upon  his  left. 

The  PRESIDING  OFFICER.  The  joint  meeting  of  Congress  for 
cunting  the  electoral  vote  resumes  its  session.  The  two  Houses  acting 
separately  having  determined  on  the  objection  submitted  to  the  certificate 
fiorn  the  State  of  Nevada,  the  Secretary  of  the  Senate  will  report  the 
resolution  of  the  Senate. 

The  Secretary  of  the  Senate  read  as  follows  : 

Resolved,  That  the  vote  of  R.  M.  Daggett  be  counted  with  the  other  votes  of  the 
electors  of  Nevada,  notwithstanding  the  objections  made  thereto. 

The  PRESIDING  OFFICER.     The  Clerk  of  the  House  will  now 
report  the  resolution  of  the  House. 
The  Clerk  of  the  House  read  as  follows  : 

Resolved,  That  the  vote  of  R.  M.  Daggett,  one  of  the  electors  of  the  State  of  Nevada, 
be  counted,  the  objections  to  the  contrary  notwithstanding. 

The  PRESIDING  OFFICER.  Neither  House  having  decided  to  re 
ject  the  vote  objected  to  from  the  State  of  Nevada,  the  full  vote  of  that 
State  will  be  counted.  The  tellers  will  announce  the  vote  of  the  State 
of  Nevada. 

Mr.  Representative  STONE,  (one  of  the  tellers.)  The  State  of  Ne 
vada  casts  3  votes  for  Rutherford  B.  Hayes,  of  Ohio,  for  President  of 
the  United  States,  and  3  votes  for  William  A.  Wheeler,  of  New  York, 
for  Vice-Presideiit. 

UNDISPUTED  STATES. 

•The  count  then  proceeded,  the  certificates  from  the  States  of — 

New  Hampshire,  casting  5  votes  for  Hayes  and  Wheeler; 

New  Jersey,  casting  9  votes  for  Tilden  and  Ilendricks; 

New  York,  casting  35  votes  for  Tilden  and  Ilendricks; 

North  Carolina,  casting  10  votes  for  Tilden  and  Hendricks;  and 

Ohio,  casting  22  votes  for  Hayes  and  Wheeler, — 

being  opened  by  the  Presiding  Officer  and  read  by  the  tellers,  and  the 
votes  thereof  counted  without  objection. 


ELECTORAL    COUNT    OF    1877.  455 

OREGON. 

The  PRESIDING  OFFICER.  Having  opened  a  certificate  received 
by  messenger  from  the  State  of  Oregon,  the  Chair  hands  the  same  to 
the  tellers,  to  be  read  in  the  presence  and  hearing  of  the  two  Houses, 
with  the  corresponding  one  received  by  mail. 

Mr.  Senator  MITCHELL.  I  ask  that  all  the  papers  in.  this  case  be 
read  in  fall. 

The  PRESIDING  OFFICER.     They  will  be  so  read. 

Mr.  Representative  STONE  (one  of  the  tellers)  read  the  certificate 
and  accompanying  papers,  as  follows : 

CERTIFICATE  No.  1. 

UNITED  STATES  OF  AMERICA, 

State  of  Oregon,  County  of  Multnomali,  ss  : 

We,  J.  C.  Cartwright,  W.  H.  Odell,  and  J.  W.  Watts,  being  each  duly  and  sev 
erally  sworn,  say  that,  at  the  hour  of  12  o'clock  in.  of  the  (6th)  sixth  day  of  Decem 
ber,  A.  D.  1876,  we  duly  assembled  at  the  State  capitol,  in  a  room  in  the  capitol  build 
ing  at  Salem,  Oregon,  which  was  assigned  to  us  by  the  secretary  of  state  of  the  State 
of  Oregon.  That  we  duly,  on  said  day  and  hour,  demanded  of  the  governor  of  the 
State  of  Oregon  and  of  the  secretary  of  state  of  the  State  of  Oregon  certified  lists  of 
the  electors  for  President  and  Vice-President  of  the  United  States  for  the  State  of 
Oregon,  as  provided  by  the  laws  of  the  United  States  and  of  the  State  of  Oregon,  but 
both  L.  F.  Grover,  governor  of  the  State  of  Oregon,  and  S.  F.  Chad  wick,  secretary  of 
state  of  said  State,  then  and  there  refused  to  deliver  to  us,  or  either  of  us,  any  such 
certified  lists  or  any  certificate  of  election  whatever.  And  being  informed  that  such 
lists  had  been  delivered  to  one  E.  A.  Cronin  by  said  secretary  of  state,  we  each  and  all 
demanded  such  certified  lists  of  said  E.  A.  Cronin,  but  he  then  and  there  refused  to 
deliver  or  to  exhibit  such  certified  lists  to  us,  or  either  of  us.  Whereupon  we  have 
procured  from  the  secretary  of  state  certified  copies  of  the  abstract  of  the  vote  of  the 
State  of  Oregon  for  electors  of  President  and  Vice-President  at  the  presidential  elec 
tion  held  in  said  State  November  7,  A.  D.  1876,  and  have  attached  them  to  the  certified 
list  of  the  persons  voted  for  by  us  and  of  the  votes  cast  by  us  for  President  and  Vice- 
President  of  the  United  States,  iu  lieu  of  a  more  formal  certificate. 

W.  H.  ODELL. 

J.  W.  WATTS. 

JOHN  C.  CARTWRIGHT. 

Sworn  and  subscribed  to  before  me  this  6th  day  of  December,  A.  D.  1876. 
[SEAL.]  THOS.  H.  CANN, 

Notary  Public  for  State  of  Oregon. 


UNITED  STATES  OF  AMERICA,  STATE  OF  OREGON, 

Secretary's  Office,  Salem,  December  6,  1876. 

I,  S.  F.  Chadwick,  do  hereby  certify  that  I  am  the  secretary  of  the  State  of  Ore 
gon  and  the  custodian  of  the  great  seal  thereof ;  that  T.  H.  Cann,  esq.,  resident  of  Ma 
rion  County,  in  said  State  of  Oregon,  was  on  the  6th  day  of  December,  A.  D.  1876,  a 
notary  public  within  and  for  said  State,  and  duly  commissioned  such  by  the  governor 
of  the  State  of  Oregon  under  its  great  seal,  and  was  duly  qualified  to  act  as  such  no 
tary  public  by  the  laws  of  this  State,  as  it  fully  appears  by  the  records  of  this  office; 
that  as  said  notary  public  the  said  T.  H.  Cann  had,  on  the  day  aforesaid,  to  wit,  De 
cember  6,  A.  D.  1876,  full  power  and  authority,  by  the  laws  of  the  State  of  Oregon,  to 
take  acknowledgments  of  all  instruments  in  writing  and  administer  oaths;  that  the 
anaexed  certificate  is  made  in  conformity  with  the  laws  of  this  State;  that  the  signa 
ture  thereto  of  T.  H.  Cann  is  the  genuine  signature  of  T.  H.  Caun,  notary  public  ;  that 
the  seal  affixed  to  said  acknowledgment  is  the  official  seal  of  said  T.  H.  Cann,  notary 
public  ;  and  that  full  faith  and  credit  should  be  given  to  his  official  acts  as  notary  public 
aforesaid. 

In  witness  whereof  I  have  hereto  set  my  hand  and  affixed  the  great  seal  of  the  State 
of  Oregon  the  day  and  year  first  above  written. 

[SEAL.]  S.  F.  CHADWICK, 

Secretary  of  the  State  of  Oregon. 


456 


ELECTORAL    COUNT    OF    1877 


Abstract  of  votes  cast  at  the  presidential  election  held  in  Hie  State  of  Oregon,  November  ~t  1876, 

for  presidential  electors. 


Counties. 

B 
£ 

j 

1 

$ 

^ 

J.  C.  Cartwright. 

Henry  Klippel. 

d 

1 

0 

iti 

m 

1 

1 

p4 
£ 

,14 

el 
O 
P 

F.  Sutherland. 

B.  Carl. 

Baker 

318 

319 

319 

549 

550 

540 

1 

1 

1 

Ben  toil    

615 

615 

615 

567 

567 

567 

77 

77 

77 

949 

950 

950 

724 

724 

724 

17 

17 

17 

Clatsop                             

432 

432 

432 

386 

385 

386 

157 

156 

157 

179 

179 

179 

22 

OQ 

22 

Coos 

571 

571 

571 

512 

516 

515 

Curry  ._  

131 

131 

131 

124 

124 

124 

3 

3 

3 

Douglas 

1,002 

I  002 

1  003 

847 

847 

847 

43 

43 

43 

Grant  

315 

314 

316 

279 

279 

277 

3 

3 

3 

Jackson 

535 

585 

586 

827 

840 

840 

5 

5 

5 

Josephine    .   . 

209 

209 

209 

252 

252 

252 

4 

4 

4 

Lane  

949 

949 

949 

946 

946 

946 

33 

33 

33 

Lake                                            .  . 

173 

173. 

173 

258 

258 

258 

Linn  ,  

1,323 

1,  324 

1,323 

1,404 

1,404 

1,  404 

140 

141 

140 

Marion 

1  780 

1  782 

1  781 

1   154 

1  151 

1  155 

91 

23 

go 

]Viultnoiaah  .... 

2,  124 

2,  122 

2,  122 

1,525 

1,528 

1,  525 

2 

2 

2 

Polk 

607 

608 

(i08 

542 

542 

542 

54 

55 

54 

Tillamook  

119 

119 

119 

76 

76 

76 

1 

1 

1 

T^matilla 

486 

48$ 

486 

742 

742 

742 

42 

42 

42 

{Jnion           

366 

306 

366 

525 

525 

525 

32 

32 

3^ 

491 

491 

493 

6sJl 

621 

619 

Washington 

693 

692 

6'J3 

423 

424 

423 

Yamhill  

611 

810 

812 

674 

674 

674 

6 

6 

6 

Total.  .  . 

15.  206 

15.  206 

15.  214 

14.136 

14.  157 

14,  149 

509 

510 

507 

Simpson,  1;  Gray,  lj  Salisbury,!;  McDowell,  1. 

SALEM,  STATE  OF  OREGON  : 

I  hereby  certify  that  the  foregoing  tabulated  statement  is  the  result  of  tlie  vote  cast 
for  presidential  electors  at  a  general  election  held  in  and  for  the  State  of  Oregon  on 
the  7th  day  of  November,  A.  D.  1876,  as  opened  and  canvassed  in  the  presence  of  his 
excellency  L.  F.  Grover,  governor  of  said  State,  according  to  law,  on  the  4th  day  of 
December,  A.  D.  1876,  at  2  o'clock  p.  in.  of  that  day?  by  the  secretary  of  state. 

[SEAL.]  S.  F.  CHADWICK, 

,  Secretary  of  State  of  Oregon* 

UNITED  STATES  OF  AMERICA, 
STATE  OF  OREGON,  SECRETARY'S  OFFICE, 

Salem,  December  6,  1876. 

I,  S.  F.  Chadwick,  secretary  of  the  State  of  Oregon,  do  hereby  certify  that  I  am  the 
custodian  of  the  great  seal  of  the  State  of  Oregon.  That  the  foregoing  copy  of  the 
abstract  of  votes  cast  at  the  presidential  election  held  in  the  State  of  Oregon,  Novem 
ber  7,  1876,  for  presidential  electors,  has  been  by  me  compared  with  the  original  ab 
stract  of  votes  east  for  presidential  electors  aforesaid  on  file  in  this  office,  and  said 
copy  is  a  correct  transcript  therefrom  and  of  the  whole  of  the  said  original  abstract 
of  votes  cast  for  presidential  electors. 

In  witness  whereof  I  have  hereto  set  my  baud  and  affixed  the  great  seal  of  the  State- 
of  Oregon  the  day  and  year  above  written. 

[SEAL.]  S.  F.  CHADWICK, 

Secretary  of  the  State  of  Oregon, 


List  of  votes  cast  at  an  election  for  electors  of  President  and  Vice-  President  of 
States  in  ike  State  of  Oregon  held  on  the  7th  day  of  November,  1876. 


United 


PRESIDENTIAL  ELECTORS. 


W.  H.  Odell  received  fifteen  thousand  two  hundred  and  six  (15/200)  votes. 
J.  W.  Watts  received  fifteen  thousand  two  hundred  and  six  (15,200)  votes. 
J.  C.  Cartwright  received  fifteen  thousand  two  hundred  and  fourteen  (15/414)  votes. 


ELECTORAL   COUNT   OF    1877.  457 

E.  A.  Cronin  received  fourteen  thousand  one  hundred  and  fifty-seven  (14,157)  votes. 
H.  Klippel  received  fourteen  thousand  one  hundred  and  thirty-six  (14,136)  votes. 
W.  B.  Laswell  received  fourteen  thousand  one  hundred  and  forty-nine  (14,14U)  votes. 
Daniel  Clark  received  five  hundred  and  nine  (509)  votes. 

F.  Sutherland  received  five  hundred  and  ten  (510)  votes. 
Bart  Curl  received  five  hundred  and  seven  (507)  votes. 

S.  W.  McDowell  received  three,  (3,)  Gray  one,  (1,)  Simpson  one,  (1,)  and  Salisbury 
one  (1)  vote. 

I,  S.  F.  Chadwick,  secretary  of  state  in  and  for  the  State  of  Oregon,  do  hereby  cer 
tify  that  the  within  and  foregoing  is  a  full,  true,  and  correct  statement  of  the  entire 
vote  oast  for  each  and  all  persons  for  the  office  of  electors  of  President  and  Vice-Pres 
ident  of  the  United  States  for  the  State  of  Oregon  at  the  general  election  held  in  said 
State  on  the  7th  day  of  November,  A.  D.  1876,  as  appears  by  the  returns  of  said  elec 
tion  now  on  file  in  my  office. 

[SEAL.]  S.  F.  CHADWICK, 

Secretary  of  State  of  Oregon. 

UNITED  STATES  OF  AMERICA, 

State  of  Oregon,  County  of  Marion,  ss  : 

We,  W.  H.  Odell,  J.  C.  Cartwright,  and  J.  W.  Watts,  electors  of  President  and  Vice- 
President  of  the  United  States  for  the  State  of  Oregon,  duly  elected  and  appointed  in  the 
year  A.  D.  1876,  pursuant  to  the  laws  of  the  United  States  and  in  the  manner  directed 
by  the  laws  of  the  State  of  Oregon,  do  hereby  certify  that  at  a  meeting  held  by  us  at 
Salem,  the  seat  of  government  in  and  for  the  State  of  Oregon,  on  Wednesday,  the  6th 
day  of  December,  A.  D.  1876,  for  the  purpose  of  casting  our  votes  for  President  and 
Vice-President  of  the  United  States — 

A  vote  was  duly  taken,  by  ballot,  for  President  of  the  United  States,  in  distinct  bal 
lots  for  President  only,  with  the  following  result : 

The  whole  number  of  votes  cast  for  President  of  the  United  States  was  three  (3) 
votes. 

That  the  only  person  voted  for  for  President  of  the  United  States  was  Rutherford 
B.  Hayes,  of  Ohio. 

That  for  President  of  the  United  States  Rutherford  B.  Hayes,  of  Ohio,  received  three 
(3)  votes. 

In  testimony  whereof  we  have  hereunto  set  our  hands  on  the  first  Wednesday  of 
December,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and  seventy-six. 

W.  H.  ODELL. 
J.  C.  CARTWRIGHT. 
J.  W.  WATTS. 

UNITED  STATES  OP  AMERICA, 

State  of  Oregon,  County  of  Marion,  ss: 

We,  W.  H.  Odell,  J.  C.  Cartwright,  and  J.  W.  \Vatts,  electors  of  President  and  Vice- 
President  of  the  United  States  for  the  State  of  Oregon 7.  duly  elected  and  appointed,  in 
the  year  A.  D.  1876,  pursuant  to  the  laws  of  the  United  States,  and  in  the  manner 
directed  by  the  laws  of  the  State  of  Oregon,  do  hereby  certify  that  at  a  meeting  held 
by  us  at  Salem,  the  seat  of  government  in  and  for  the  State  of  Oregon,  on  Wednesday, 
the  6th  day  of  December,  A.  D.  1876,  for  the  purpose  of  casting  our  votes  for  President 
and  Vice-President  of  the  United  States — 

A  vote  was  duly  taken,  by  ballot,  for  Vice-President  of  the  United  States,  in  distinct 
ballots  for  Vice-President  only,  with  the  following  result : 

The  whole  number  of  votes  east  for  Vice-President  of  the  United  States  was  three 
(3)  votes. 

That  the  only  person  voted  for  for  Vice-President  of  .the  United  States  was  William 
A.  Wheeler,  of  New  York. 

That  for  Vice-President  of  the  United  States  William  A.  Wheeler,  of  New  York,  re 
ceived  three  (3)  votes. 

In  testimony  whereof  we  have  hereunto  set  our  hands  on  the  first  Wednesday  of 
December,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and  seventy-six. 

W.  H.  ODELL. 
J.  C.  CARTWRIGHT. 
J.  W.  WATTS. 

SALEM,  OREGON,  December  6,  1876—12  o'clock  m. 

This  being  the  day  and  hour  fixed  by  the  statutes  of  the  United  States  and  of  the 
State  of  Oregon  for  the  meeting  of  the  electors  of  President  and  Vice-President  of  the 
United  States  for  the  State  of  Oregon,  the  electors  for  President  and  Vice-President  of 
the  United  States  for  the  State  of  Oregon  met  at  Salem,  the  seat  of  government  of 


458  ELECTORAL   COUNT    OF   1877. 

said  State  of  Oregon,  at  twelve  o'clock  noon  of  the  6th  day  of  December,  A.  D.  1876, 
sai  1  day  being  the  first  Wednesday  in  December. 

Present,  W.  H.  Odell  and  J.  C.  Cartwright. 

The  meeting  was  duly  organized  by  electing  W.  H.  Odell  chairman  and  J.  C.  Cart- 
wright  secretary. 

The  resignation  of  J.  W.  Watts,  who  was  on  November  7,  A.  D.  1876,  duly  elected 
an  elector  of  President  and  Vice-President  of  the  United  States  for  the  State  of  Oregon, 
was  presented  by  W.  H.  Odell,  and,  after  being  duly  read,  was  unanimously  accepted. 

There  being  but  two  electors  present,  to  wit,  W.  H.  Odell  and  J.  C.  Cartwright,  and 
the  State  of  Oregon  being  entitled  to  three  electors,  the  electors  present  proceeded  to 
and  did  declare  that  a  vacancy  existed  in  the  electoral  college,  and  then  and  there, 
under  and  by  virtue  of  the  provisions  of  section  fifty-nine,  (59,)  title  nine,  (9.)  chapter 
fourteen,  (14,)  of  the  General  Laws  of  Oregon,  (Deady  and  Lane's  Compilation,)  the 
said  electors,  W.  H.  Odell  and  J.  C.  Cartwright,  immediately,  by  viva  voce  vote,  pro 
ceeded  to  fill  said  vacancy  in  the  electoral  college. 

J.  W.  Watts  received  the  unanimous  vote  of  all  the  electors  present,  and  was  there 
upon  declared  duly  elected  to  the  office  of  elector  of  President  and  Vice-President  of 
the  United  States  for  the  State  of  Oregon. 

Whereupon  the  said  electors,  on  motion,  proceeded  to  vote  by  ballot  for  President  of 
the  United  States. 

The  whole  number  of  votes  cast  for  President  of  the  United  States  was  three  (3) 
votes. 

The  only  person  voted  for  for  President  of  the  United  States  was  Rutherford  B. 
Hayes,  of  Ohio. 

For  President  of  the  United  States  Rutherford  B.  Hayes,  of  Ohio,  received  three  (3) 
votes. 

The  said  electors  then,  on  motion,  proceeded  to  vote  by  ballot  for  Vice-President  of 
the  United  States. 

The  whole  number  of  votes  cast  for  Vice-President  of  the  United  States  was  three 
(3)  votes. 

The  only  person  voted  for  for  Vice-President  of  the  JQnited  States  was  William  A. 
Wheeler,  of  New  York. 

For  Vice-Presideut  of  the  United  States,  William  A.  Wheeler,  of  New  York,  received 
three  (3)  votes. 

The  electors,  on  motion,  then  unanimously,  by  writing  under  their  hands,  appointed 
W.  H.  Odell  to  take  charge  of  and  deliver  to  the  President  of  the  Senate,  at  the  seat 
of  Government,  Washington,  D.  C.,  one  of  the  certificates  containing  the  lists  of  the 
votes  of  said  electors  for  President  and  Vice-President. 

On  motion,  it  was  ordered  that  one  of  the  certified  copies  of  the  abstract  and  can 
vass  of  the  entire  vote  of  the  State  of  Oregon,  cast  at  the  presidential  election  held 
November  7,  A.  D.  1876,  for  electors  of  President  and  Vice-President  of  the  United 
States  for  Oregon,  as  certified  and  delivered  to  the  electors  by  S.  F.  Chadwick,  secre 
tary  of  state  of  the  State  of  Oregon,  be  attached  to  each  certificate  and  return  of  the 
list  of  persons  voted  for  by  the  electors  here  present  for  President  and  Vice-President 
of  the  United  States. 

The  electors  then  adjourned. 

W.  H.  ODELL, 

Chairman, 
JOHN  C.  CARTWRIGHT, 

Secretary. 

We  hereby  certify  that  the  within  and  foregoing  is  a  true,  full,  and  correct  statement 
of  all  the  acts  and  proceedings  of  the  electors  of  President  and  Vice-President  for  the 
State  of  Oregon  at  a  meeting  of  said  electors  held  at  Salem,  in  the  State  of  Oregon, 
on  the  6th  day  of  December,  A.  D.  1876,  at  12  o'clock  noon  of  said  day. 

W.  H.  ODELL,  Elector. 
JOHN  W.  WATTS,  Elector. 
JOHN  C.  CARTWRIGHT,  Elector. 
SALEM,  OREGON,  December  Gtli,  1876. 

We,  the  duly  appointed  and  elected  electors  of  President  and  Vice-President  of  the 
United  States  for  the  State  of  Oregon,  do  hereby  designate  and  appoint  W.  H.  Odell 
to  take  charge  of  and  deliver  to  the  President  of  the  Senate  of  the  United  States,  at 
the  seat  of  Government,  to  wit,  at  Washington,  District  of  Columbia,  before  the  first 
Wednesday  in  January,  A.  D.  1877,  the  certificates  and  papers  relating  to  the.  vote  for 
President  and  Vice-Presideut  of  the  United  States,  cast  by  us  at  Salem,  in  the  State  of 
Oregon,  on  the  6th  day  of  December,  A.  D.  1876. 

W.  H.  ODELL. 

J.  C.  CARTWRIGHT. 

J.  W.  WATTS. 


ELECTORAL   COUNT   OF   1877.  459 

Ballots. 

For  President  of  the  United  States,  Rutherford  B.  Hayes,  of  Ohio. 

(Indorsed)  W.  H.  ODELL. 

For  President  of  the  United  States,  Rutherford  B.  Hayes,  of  Ohio. 

(Indorsed)  JNO.  C.  CARTWRIGHT. 

For  President  of  the  United  States,  Rutherford  B.  Hayes,  of  Ohio. 

(Indorsed)  J.  W.  WATTS. 

For  Vice-President  of  the  United  States,  William  A.  Wheeler,  of  New  York. 

(Indorsed)  W.  H.  ODELL. 

For  Vice-President  of  the  United  States,  William  A.  Wheeler,  of  New  York. 

(Indorsed)  JOHN  C.  CARTWRIGHT. 

For  Vice-President  of  the  United  States,  William  A.  Wheeler,  of  New  York. 

(Indorsed)  J.  W.  WATTS. 

To  the  honorable  Electoral  College  in  and  for  the  State  of  Oregon  for  President  and  Vice- 
President  of  the  United  States : 

Whereas  I,  J.  W.  Watts,  did  receive  a  majority  of  the  legal  votes  cast  for  presidential 
electors  at  an  election  held  for  President  and  Vice-President  of  the  United  States  on 
the  7th  day  of  November,  A.  D.  1876,  as  appears  from  the  official  returns  on  file  in  the 
secretary  of  state's  office  in  and  for  said  State ;  and  whereas  there  has  arisen  some 
doubts  touching  my  eligibility  at  the  time  of  such  election  :  Therefore,  I  hereby  tender 
my  resignation  of  the  office  of  presidential  elector. 
Very  respectfully, 

J.  W.  \VATTS. 
SALEM,  OK.,  December  6th,  1876. 

During  the  reading, 

The  PKESIDING  OFFICER.  Does  the  Senator  from  Oregon  desire 
the  reading  of  the  tabular  statement  accompanying  the  papers'? 

Mr.  Senator  MITCHELL.  I  do  not  think  it  will  be  necessary  to  read 
all  the  figures,  but  simply  the  results.  I  presume  the  whole  will  go  into 
the  Record. 

Mr.  Representative  LANE.    I  object  to  any  portion  being  omitted. 

The  reading  was  concluded. 

The  PRESIDING  OFFICER.  Having  opened  another  certificate 
received  by  messenger  from  the  State  of  Oregon,  the  Chair  hands  it  to 
the  tellers  to  be  read  in  the  presence  and  hearing  of  the  two  Houses, 
handing  also  the  corresponding  one  received  by  mail. 

Mr.  Senator  INGALLS  (one  of  the  tellers)  read  as  follows : 

CERTIFICATE  No.  2. 

STATE  OF  OREGON,  EXECUTIVE  OFFICE, 

Salem,  December  Qth,  1876. 

I,  L.  F.  Grover,  governor  of  the  State  of  Oregon,  do  hereby  certify  that,  at  a  general 
election  held  in  said  State  on  the  seventh  day  of  November,  A.  D.  1876,  William  H. 
Odell  received  15,206  votes,  John  C.  Cartwright  received  15,214  votes,  E.  A.  Cronin. 
received  14,157  votes  for  electors  of  President  and  Vice-President  of  the  United  States; 
being  the  highest  number  of  votes  cast  at  said  election  for  persons  eligible,  under  the 
Constitution  of  the  United  States,  to  be  appointed  electors  of  President  and  Vice-Pres 
ident  of  the  United  States,  they  are  hereby  declared  duly-elected  electors  as  aforesaid 
for  the  State  of  Oregon. 

In  testimony  whereof  I  have  hereunto  set  my  hand  and  caused  the  seal  of  the  State 
of  Oregon  to  be  affixed  this  the  day  and  year  first  above  written. 

LA  FAYETTE  GROVER, 

Gov.  of  Oregon. 
Attest : 

[SEAL.]        S.  F.  CHAD  WICK, 

Secretary  of  State  of  Oregon. 

This  is  to  certify  that  on  the  6th  day  of  December,  A.  D.  1876,  E.  A.  Cronin,  one  of 
the  undersigned,  and  John  C.  Cartwright  and  William  H.  Odell,  electors,  duly  ap 
pointed  on  the  7th  day  of  November,  A.  D.  1876,  as  appears  by  the  annexed  certificate 


460  ELECTORAL   COUNT   OF   1877. 

to  cast  the  vote  of  the  State  of  Oregon  for  President  and  Vice-President  of  the  United 
States,  convened  at  the  seat  of  government  of  said  State,  and  for  the  purpose  of  dis 
charging  their  duties  as  such  electors;  that  thereupon  said  John  C.  Cartwright  and 
William  H.  Odell  refused  to  act  as  such  electors ;  that  upon  such  refusal  the  under 
signed,  J.  N.  T.  Miller  and  John  Parker,  were  duly  appointed  electors,  as  by  the  laws 
of  Oregon  in  such  cases  made  and  provided,  to  fill  the  vacancies  caused  by  the  said 
refusal ;  that  thereupon  the  said  electors,  E.  A.  Croniu,  J.  N.  T.  Miller,  and  John  Parker 
proceeded  to  vote  by  ballot,  as  by  law  provided,  for  President  and  Vice-President  of 
the  United  States,  they  being  duly  qualified  to  act  as  such  electors,  and  the  electoral 
college  of  said  State  having  been  duly  organized  ;  that  upon  the  ballots  so  taken  Ruth 
erford  B.  Hayes,  of  the  State  of  Ohio,  received  two  (2)  votes  for  President,  and  Samuel 
J.  Tilden,  of  the  State  of  New  York,  received  one  (1)  vote  for  President,  and  that 
William  A.  Wheeler,  of  the  State  of  New  York,  received  two  (2)  votes  for  Vice-Presi 
dent,  and  Thomas  A.  Hendricks,  of  the  State  of  Indiana,  received  one  (1)  vote  for 
Vice-President ;  that  the  said  votes  were  all  the  votes  cast  and  the  said  persons  were 
all  the  persons  voted  for.  And  we  further  certify  that  the  lists  hereto  attached  are 
true  and  correct  lists  of  all  the  votes  given  for  each  of  the  persons  so  voted  for  for 
President  and  Vice-President  of  the  United  States. 

Done  at  the  city  of  Salem,  county  of  Marion,  and  State  of  Oregon,  this  Gth  day  of 
December,  A.  D.  1876. 

E.  A.  CRONIN, 
J.  N.  T.  MILLER, 
JOHN  PARKER, 
Electors  for  the  State  of  Oregon  to  cast  the  vote  of  said  State 

for  President  and  Vice-President  of  the  United  States. 

List  of  all  the  persons  voted  for  by  the  electoral  college  of  the  State  of  Oregon,  and 
of  the  number  of  votes  cast  for  each  person,  at  the  city  of  Salem,  the  seat  of  govern 
ment  of  said  State,  on  Wednesday,  the  Gth  day  of  December,  A.  D.  1876,  as  provided  by 
law,  for  President  of  the  United  States  : 

Rutherford  B.  Hayes,  of  Ohio,  received  two  (*2)  votes 2 

Samuel  J.  Tildeu,  of  New  York,  received  one  (1)  vote 1 

Attest : 

E.  A.  CRONIN, 
J.  N.  T.  MILLER, 
JOHN  PARKER, 

Electors. 

List  of  all  the  persons  voted  for  by  the  electoral  college  of  the  State  of  Oregon,  and 
of  the  number  of  votes  cast  for  each  person,  at  the  city  of  Salem,  the  seat  of  govern 
ment  of  said  State,  on  Wednesday,  the  Gth  day  of  December,  A.  D.  1876,  as  provided  by 
law,  for  Vice-President  of  the  United  States: 

William  A.  Wheeler,  of  New  York,  received  two  (2)  votes 2 

Thomas  A.  Hendricks,  of  Indiana,  received  one  (1)  vote 1 

Attest : 

E.  A.  CRONIN, 
J.  N.  T.  MILLER, 
JOHN  PARKER, 

Electors. 

We,  the  undersigned,  duly  appointed  electors  to  cast  the  votes  of  the  State  of  Oregon 
for  President  and  Vice-President  of  the  United  States,  hereby  certify  that  the  lists  of 
all  the  electoral  votes  of  the  said  State  of  Oregon  given  for  President  of  the  United 
States,  and  of  all  the  votes  given  for  Vice-President  of  the  United  States,  are  contained 
herein. 

E.  A.  CRONIN, 
J.N.T.  MILLER, 
JOHN  PARKER, 

Electors. 

The  PRESIDING  OFFICER.  Are  there  any  objections  to  the  certifi 
cates  from  the  State  of  Oregon  I 

Mr.  Senator  MITCHELL.  On  behalf  of  the  Senators  and  Representa 
tives  whose  names  are  signed  thereto,  I  present  an  objection  to  the  lists 
and  certificates  signed  by  E.  A.  Cronin,  J.  N.  T.  Miller,  and  John  Parker, 
claiming  to  be  electors  for  the  State  of  Oregon,  and  to  the  votes  cast 
by  them  respectively  for  President  and  Vice-Presideut. 


ELECTORAL    COUNT    OF    1877.  461 

The  PRESIDING  OFFICER,     The  Secretary  of  the  Senate  will  read 
the  objection  submitted  by  the  Senator  from  Oregon. 
The  Secretary  of  the  Senate  read  as  follows: 

OBJECTION  No.  1. 

The  undersigned  Senators  and  members  of  the  House  of  Representatives  of  the  United 
States  object  to  the  list  of  names  of  the  electors  E.  A.  Cronin,  J.  N.  T.  Miller,  and  John 
Parker,  one  of  whom,  E.  A.  Cronin,  is  included  in  the  certificate  of  La  Fayette  Grover, 
governor  of  Oregon  ;  and  to.  the  electoral  votes  of  said  State  signed  by  E.  A.  Cronin,  J, 
N.  T.  Miller,  and  John  Parker  ;  being  the  certificate  second  presented  by  the  President 
of  the  Senate  to  the  two  Houses  of  Congress  in  joint  convention,  for  the  reasons  fol 
lowing: 

1.  Because  neither  of  said  persons,  E.  A.  Cronin,  J.  N.  T.  Miller,  nor  John  Parker,  was 
ever  appointed  elector  of  President  or  Vice-Presideut  by  the  State  of  Oregon,  either  in 
the  manner  directed  by  the  legislature  of  such  State  or  in  any  other  manner  whatso 
ever. 

2.  Because  it  appears  from  the  records  and  papers  contained  in  and  attached  to  the 
certificate  of  W.H.  Odell,  John  C.  Cartwright,  and  John  W.  Watts,  as  presented  by  tlie 
President  of  the   Senate  to  the  two  Houses  of  Congress  in  joint  convention,  that  said 
W.  H.  Odell,  John  C.  Cartwright,  and  John  W.  Watts  were  duly  and  legally  appointed 
electors  for  President  and  Vice-Presideut  by  the  State  of  Oregon^  in  the  manner  directed 
by  the  legislature  thereof,  and  duly  cast  their  votes  as  such. 

3.  Because  it  does  not  appear  from  the  face  of  the  certificate  of  La  Fayette  Grover, 
governor  of  the  State  of  Oregon,  attached  to  and  made  apart  of  the  returns  of  the  votes 
cast  by  E.  A.  Crouin,  J.  N.  T.  Miller,  and  John  Parker,  that  such  certificate  was  issued 
by  the  governor  to  the  three  persons  having  the  highest  number  of  votes  for  electors 
for  the  State  of  Oregon,  and  were  duly  chosen  and  appointed  by  said  State,  according 
to  the  laws  thereof;  but  was  issued  by  him  to  the  persons  whom  he  deemed  to  be  eligible 
to  said  appointment,  although  one  of  such  persons,  E.  A.  Crouiu,  was  not  appoiiited 
thereto  according  to  the  laws  of  said  State. 

4.  Because  it  appears  from  the  certificate  of  S.  F.  Chadwick,  secretary  of  state,  under 
the  seal  of  the  State,  attached  to  and  made  a  part  of  the  returns  and  certificate  of  W. 
H.  Odell,  John  C.  Cartwright,  and  John  W.  Watts,  that  said  persons,  W.  H.  Odell,  John 
C.  Cartwright,  and  John  W.  Watts,  received   the  highest  number  of  votes  at  the  elec 
tion  on  the  7th  day  of  November,  1876,  for  the  office  of  electors  of  President  and  Vice- 
Prtsident ;  and  that  the  secretary  of  state  on  the  4th  day  of  December  following,  offici 
ally  declared  in  pursuance  of  law'that  they,  Odell,  Cartwright,  and  Watts,  had  received 
the  highest  number  of  votes ;  and  that  therefore  the  certificate  of  the  governor,  in  so  far 
as  it  omitted  to  certify  the  name  of  John  W.  Watts  as  one  of  the  electors  appointed, 
and  in  so  far  as  such  certificate  contained  the  name  of  E.  A.  Cronin  as  one  of  the  elect 
ors  appointed,  fails  to  conform  to  the  act  of  Congress  in  such  case  made  and  provided 
and  the  laws  of  Oregon  in  that  behalf,  and  that  such  certificate  is,  as  to  said  Croniu, 
without  authority  and  of  no  effect. 

5.  Because  it  appears  from  both  certificates  that  W.H.  Odell  and  John  C.  Cartwright, 
a  majority  of  the  electoral  college,  were  duly  appointed  electors-by  the  State  of  Oregon 
in  the  manner  directed  by  the  legislature  thereof;  that  their  record  presented  to  the 
President  of  the  Senate,  and  by  him  to  the  two  Houses  of  Congress,  showrs  that  a 
vacancy  in  the  office  of  elector  existed  on  the  day  fixed  by  law  for  the  meeting  of  the 
electors,  and  that  such  vacancy  was  filled  by  the  appointment  of  John  W.  Watts. 

JOHN  H.  MITCHELL, 
A.  A.  SARGENT, 

United  States  Senators. 
WILLIAM  LAWRENCE, 
HORATIO  C.  BURCHARD, 
JAMES  W.  MoDILL, 
Members  House  of  Eeprescnlativcs. 

The  PRESIDING  OFFICER.  Are  there  further  objections  to  the 
certificates  from  the  State  of  Oregon? 

Mr.  Senator  KELLY.  I  present  objections  to  the  electoral  vote  for 
President  and  Vice-President  as  cast  by  J.  G.  Oartwright,  W.  H.  Odell, 
and  J.  W.  Watts. 

The  PRESIDING  OFFICER.  The  objections  will  be  read  by  the 
Clerk  of  the  House. 

The  Clerk  of  the  House  read  as  follows : 

OBJECTION  No.  2. 

In  the  matter  of  the  electoral  vote  of  the  State  of  Oregon  for  President  and  Vice- 


462  ELECTORAL    COUNT    OF    1877. 

President  of  the  United  States,  the  undersigned,  United  States  Senators  and  members 
of  the  House  of  Representatives,  make  the  following  objections  to  the  papers,  purport 
ing  to  be  the  certificates  of  the  electoral  votes  of  the  State  of  Oregon,  signed  by  John 
C.  Cartwright,  William  H.  Odell,  and  John  W.  Watts  : 

I.  The  said  papers  have  not  annexed  to  them  a  certificate  of  the  governor  of  Oregon, 
as  required  to  be  made  and  annexed  by  sections  136  and  138  of  the  Revised  Statutes  of 
the  United  States. 

II.  The  said  papers  have  not  annexed  to  them  a  list  of  the  names  of  the  said  Cart- 
wright,  Odell,  and  Watts  as  electors,  to  which  the  seal  of  the  State  of  Oregon  was 
affixed  by  the  secretary  of  state  and  signed  by  the  governor  and  secretary,  as  required 
by  section  60  of  chapter  xiv,  title  9,  of  the  general  laws  of  Oregon. 

III.  The  said  J.  W.  Watts,  therein  claimed  to  be  one  of  the  said  electors,  was,  in 
the  month  of  February,  1873,  appointed  a  postmastsr  at  La  Fayette,  in  the  State  of  Ore 
gon,  and  was  duly  commissioned  and  qualified  as  such  postmaster,  that  being  an  office 
of  trust  and  profit  under  the  laws  of  the  United  States,  and  continued  to  be  and  act  as 
such  postmaster  from  February,  1873,  until  after  the  13th  day  of  November,  1876,  and 
was  acting  as  such  postmaster  on  the  7th  day  of  November,  1876,  when  presidential 
electors  were  appointed  by  the  State  of  Oregon  ;  and  that  he,  the  said  John  W.  Watts, 
was  ineligible  to  be  appointed  as  one  of  the  said  presidential  electors. 

IV.  When  the  governor  of  Oregon  caused  the  lists  of  the  names  of  the  electors  of 
said  State  to  be  made  and  certified,  such  lists  did  not  contain  the  name  of  the  said 
John  W.  Watts,  but  did  contain  the  names  of  John  C.  Cartwright,  William  H.  Odell,  and 
E.  A.  Cronin,  who  were  duly  appointed  electors  of  President  and  Yice-Presideut  of  the 
United  States  in  the  State  of  Oregon  on  the  7th  day  of  November,  1876. 

V.  It  was  the  right  and  duty  of  the  governor  of  Oregon,  under  the  laws  of  that 
State,  to  give  a  certificate  of  election  or  appointment  as  electors  to  John  C.  Cartwright, 
William  H.  Odell,  and  E.  A.  Croniu,  they  being  the  three  persons  capable  of  being  ap 
pointed  presidential  electors  who  received  the  highest  number  of  votes  at  the  election 
held  in  Oregon  on  the  7th  day  of  November,  1876. 

VI.  The  said  John  C.  Cartwright  and  William  H.  Odell  had  no  right  or  authority  in 
law  to  appoint  the  said  John  W.  Watts  to  be  an  elector  on  the  6th  day  of  December, 
1876,  as  there  was  no  vacancy  in  the  office  of  presidential  elector  on  that  day. 

VII.  The  said  John  C.  Cartwright  and  William  H.  Odell  had  no  right  or  authority  in 
law  to  appoint  the  said  John  W.  Watts  to  be  an  elector  on  the  6th  day  of  December, 
1876,  inasmuch  as  they  did  not  on  that  day  compose  or  form  any  part  of  the  electoral 
college  of  the  State  of  Oregon  as  by  law  constituted. 

VIII.  The  said  John  C.  Cartwright  and  William  H.  Odell  had  no  authority  to  ap 
point  the  said  John  W.  Watts  to  be  an  elector  on  the  6th  day  of  December,  1876,  be 
cause  the  said  Watts  was  still  on  that  day  the  postmaster  at  La  Fayette,  in  the  State 
of  Oregon,  and  was  still  on  that  day  holding  the  said  office  of  profit  and  trust. 

JAMES  K.  KELLY, 

United  States  Senator,  Ch'egon. 
HENRY  COOPER, 

United  Slates  Senator,  Tennessee. 
LEWIS  V.  BOGY, 

United  States  Senator,  Missouri. 

j.  E.  MCDONALD, 

United  States  Senator,  Indiana. 
J.  W.  STEVENSON, 

United  States  Senator,  Kentucky. 
DAVID  DUDLEY  FIELD,  of  New  York. 
J.  R.  TUCKER,  of  Virginia. 
LAFAYETTE  LANE,  of  Oregon. 
G.  A.  JENKS,  of  Pennsylvania. 
ANSEL  T.  WALLING,  of  Ohio. 
H1ESTER  CLYMER,  of  Pennsylvania. 
P.  D.  WIGGINTON,  of  California. 
E.  F.  POPPLETON,  of  Ohio. 
JOHN  L.  VANCE,  of  Ohio. 
FRANK  H.  HURD,  of  Ohio. 
J.  K.  LUITRELL,  of  California. 

The  PRESIDING  OFFICER.  Are  there  further  objections  to  the 
certificates  from  the  State  of  Oregon  ? 

Mr.  Representative  LAWRENCE.  I  present  additional  objections  to 
the  certificates  and  papers  purporting  to  be  certificates  of  the  electoral 
vote  of  the  State  of  Oregon  cast  by  E.  A.  Crouin,  J.  N.  T.  Miller,  and 
John  Parker. 


ELECTORAL   COUNT    OF    1877.  463 

The  PRESIDING  OFFICEE.    The  Secretary  of  the  Senate  will  read 
the  objections. 
The  Secretary  of  the  Senate  read  as  follows  : 

OBJECTION  No.  3. 

The  undersigned  Senators  and  members  of  the  House  of  Representatives  of  the 
United  States  object  to  the  certificates  and  papers  purporting  to  be  certificates  of  the 
electoral  votes  of  the  State  of  Oregon  cast  by  E.  A.  Cronin,  J.  N.  T.  Miller,  and  John  Par 
ker,  and  by  each  of  them,  and  to  the  list  of  votes  by  them  and  each  of  them  signed  and 
certified  as  given  for  President  of  the  United  States  and  for  Vice-Presideut  of  the 
United  States,  for  the  following  reasons : 

1.  The  said  E.  A.  Cronin,  J.  N.  T.  Miller,  and  John  Parker  were  not,  nor  was  either 
of  them,  appointed  an  elector  of  President  and  Vice-President  of  the  United  States 
for  the  State  of  Oregon. 

2.  For  that  W.  H.  Odell,  J.  C.  Cartwright,  and  J.  W.  Watts  were  duly  appointed  elect 
ors  of  President  and  Vice-President  of  the  United  States  for  the  State  of  Oregon,  and  as 
such  electors,  at  the  time  and  place  prescribed  by  law,  cast  their  votes  for  Ruther 
ford  B.  Hayes  for  President  of  the  United  States  and  for  William  A.  Wheeler  for  Vice- 
President  of  the  United  States ;  and  the  list  of  votes  signed,  certified,  and  transmitted 
by  such  electors  to  the  President  of  the  Senate  are  the  only  true  and  lawful  lists  of 
votes  for  President  and  Vice-President  of  the  United  States. 

3.  That  the  said  W.  H.  Odell,  J.  C.  Cartwright,  and  J.  W.  Watts  received  the  highest 
number  of  all  the  votes  cast  for  electors  of  President  and  Vice-President  of  the  United 
States  by  the  qualified  voters  of  the  State  of  Oregon  at  the  election  held  in  said  State 
on  the  7th  day  of  November,  A.  D.  1876,  and  the  secretary  of  state  of  Oregon  duly  can 
vassed  said  votes  and  made  and  certified  under  his  hand  and  the  great  seal  of  the  State 
of  Oregon  and  delivered  to  said  W.  H.  Odell,  J.  C.  Cartwright,  and  J.  W.  Watts  two 
lists  of  the  electors  of  President  and  Vice-Presideut  of  the  United  States  elected  by  the 
qualified  voters  of  said  State  at  said  election,  and  showing  that  said  W.  H.  Odell,  J.  C. 
Cartwright,  and  J.  W.  Watts  were  the  persons  having  the  highest  number  of  votes  of  said 
qualified  voters  at  such  election,  and  were  elected,  which  certificate  is  dated  the  6th  day  of 
December,  A.  D.  1876,  and  which  has  been  read  before  the  two  Houses  of  Congress; 
by  reason  of  all  which  said  Odell,  Cartwright,  and  Watts  were  the  lawful  electors 
Of  President  and  Vice-Presideut  of  the  United  States  for  the  State  of  Oregon. 

JOHN  H.  MITCHELL, 
A.  A.  SARGENT, 

Senators. 

WILLIAM  LAWRENCE, 
GEO.  W.  McCRARY, 
EUGENE  HALE, 
N.  P.   BANKS, 
Members  of  the  House  of  Representatives. 

The  PKESIDING  OFFICER.  Are  there  further  objections  to  the  cer 
tificates  from  the  State  of  Oregon  "?  If  there  be  no  further  objections, 
the  certificates  objected  to,  with  the  accompanying  papers,  together 
with  the  objections,  will  be  submitted  to  the  Commission  for  its  judg 
ment  and  decision.  The  Senate  will  now  retire  to  its  chamber. 

At  twelve  o'clock  and  fifty  minutes  p.  m.  the  Senate  withdrew. 

ELECTOEAL  COMMISSION. 

WEDNESDAY,  February  21,  1877. 

The  Commission  met  at  11  o'clock  a.  in.,  pursuant  to  adjournment, 
all  the  members  being  present. 

On  motion,  the  Commission  took  a  recess  until  1  o'clock  p.  in. 
The  Commission  re-assembled  at  1  o'clock  p.  m. 
The  Journal  of  yesterday  was  read  and  approved. 

OREGON. 

Mr.  George  C.  Gorham,  Secretary  of  the  Senate,  appeared  and  pre 
sented  the  following  communication ;  which  was  read : 

HALL  OF  THE  HOUSE  OF  REPRESENTATIVES, 

February  21,  1877. 
lo  me  President  of  the  Commission  : 

More  than  one  return  or  paper  purporting  to  be  a  return  or  certificate  of  the  elec 
toral  votes  of  the  State  of  Oregon  having  been  received  and  this  day  opened  in  the 


464  ELECTORAL    COUNT    OF    1877. 

presence  of  the  two  Houses  of  Congress,  and  objections  thereto  having  been  made,  the 
said  returns,  with  all  accompanying  papers,  and  also  the  objections  thereto,  are  here 
with  submitted  to  the  judgment  and  decision  of  the  Commission,  as  provided  by  law. 

T.  W.  FERRY, 
President  of  the  Senate. 

Mr.  Commissioner  ABBOTT.  I  move,  Mr.  President,  that  all  the 
papers  received  be  printed. 

Mr.  Commissioner  EDMUNDS.  I  hope  that  order  will  not  be  entered, 
because  I  trust  we  shall  be  able  to  use  the  papers  here,  as  they  are  evi 
dently  tolerably  brief,  and  no  doubt  both  sides  understand  exactly  what 
are  the  points.  I  hope  the  papers  will  be  here  for  the  mere  purpose  of 
examining  them;  and  upon  them  it  is  understood  a  question  of  law 
arises.  The  only  doubt  about  the  printing  is  that  it  may  involve  a 
delay  until  to-morrow. 

The  PRESIDENT.     The  question  is  on  the  motion  to  print. 

Mr.  Commissioner  ABBOTT.     I  think  they  ought  to  be  printed. 

The  PRESIDENT.  One  of  the  assistant  secretaries  has  suggested  to 
me  that  they  are  pretty  long. 

Mr  Commissioner  MILLER.  If  by  printing  is  meant  that  they  shall 
be  printed  when  it  is  convenient  to  send  them  out,  I  see  no  objection  ; 
but  it  it  is  meant  that  they  shall  be  sent  out  at  once  to  be  printed,  I  for 
one  object  to  it.  I  think  we  ought  to  get  along  with  this  case;  but  if 
we  can  have  them  printed  by  to-night  or  to-morrow  morning,  very  well, 
we  going  on  in  the  mean  time. 

Mr.  Commissioner  ABBOTT.  I  want  to  get  along  with  this  case  as 
fast  as  anybody  else.  Nobody  is  more  desirous  of  getting  on  fast  than 
I. am,  and  I  believe  I  have  given  evidence  of  it  generally;  but  I  do  not 
think  with  the  bundle  of  papers  here  submitted,  which  we  are  to  pass 
on,  that  we  ought  to  pass  on  them  without  seeing  them  in  print.  I 
think  it  is  better  to  get  along  rightly  than  to  get  along  too  fast  and  not 
get  along  rightly. 

Mr.  Commissioner  EDMUNDS.  May  I  ask  if  there  are  not  dupli 
cates  of  each  set?  I  have  no  doubt  there  are.  Now,  Mr.  President,  if 
I  can  have  the  attention  of  my  brother,  Judge  Abbott,  I  understand, 
as  undoubtedly  the  fact  is,  that  there  are  duplicates  of  each  of  the  con 
flicting  certificates;  arid,  that  being  the  case,  I  have  no  objection  to  the 
order  to  print,  because  only  one  set  need  go  away,  reserving  the  ques 
tion  of  what  shall  be  done  if  the  printing  is  not  completed  in  time. 

The  PRESIDENT.    The  question  is  on  the  motion  to  print. 

The  motion  was  agreed  to. 

Mr.  Commissioner  EDMUNDS.  Now,  Mr.  President,  I  ask  that  the 
papers  be  read,  that  we  may  see  what  we  have  before  us. 

The  PRESIDENT.  Mr.  Commissioner  Edmunds  moves  that  one  set 
of  the  papers,  as  he  understands  there  are  t\vo,  be  read. 

Mr.  Commissioner  EDMUNDS.  By  that  I  mean  one  copy  of  each 
set. 

The  PRESIDENT.  The  question  is  on  the  motion  of  Mr.  Commis 
sioner  Edmunds. 

The  motion  was  a'greed  to. 

The  PRESIDENT.    The  Secretary  will  read  the  papers. 

The  Secretary  read  the  various  certificates  and  objections. 

The  PRESIDENT.  Two  objectors  to  certificate  No.  1  are  entitled  to 
be  heard.  Who  represent  the  objectors? 

Mr.  Senator  KELLY.  Mr.  President  and  gentlemen  of  the  Commis 
sion,  I  will  open  the  case  on  the  part  of  the  objectors  to  the  first  cer 
tificate.  I  should  like,  however,  a  few  minutes. 


ELECTORAL   COUNT   OF    1877.  465 

Mr.  Commissioner  EDMUNDS.  What  other  objector  appears  to  cer 
tificate  No.  1? 

Mr.  Senator  KELLY.    Mr.  Jenks,  of  the  House  of  Representatives. 

The  PRESIDENT.     Who  appear  for  the  objectors  to  certificate  No.  2  ? 

Mr.  Senator  SARGENT.  Senator  Mitchell  of  Oregon,  and  Mr.  Law 
rence  of  Ohio,  of  the  House  of  Representatives. 

Mr.  Representative  JENKS.  Mr.  President  and  gentlemen,  before 
proceeding  with  the  hearing  of  the  cause,  it  may  be  necessary  to  have 
certain  testimony  obtained — the  certificate  of  appointment  and  the  com 
mission  of  J.  W.  Watts  as  postmaster  from  the  Post-Office  Department, 
and  also  the  certificate  of  appointment  and  commission  of  his  successor. 
I  applied  personally  to  that  Department  for  those  papers,  and  they 
declined  to  give  them  unless  ordered  by  the  Commission.  We  would 
ask  that  an  order  be  made  that  they  may  be  produced.  We  also  desire 
a  subpoena  for  two  witnesses,  Mr.  Watts  and  Senator  Mitchell.  Senator 
Mitchell,  however,  is  here,  and  I  suppose  will  readily  respond. 

Mr.  Commissioner  HOAR.  Mr.  Jenks,  is  it  not  possible  for  you  to 
agree  with  the  other  side  as  to  the  facts  ? 

The  PRESIDENT.  Please  wait  a  moment,  Mr.  Hoar.  Let  me  sug 
gest  that  the  application  had  better  be  made  by  counsel. 

Mr.  Representative  JENKS.  I  apprehend  that  it  is  not  important 
from  whom  the  application  comes.  Those  who  make  the  objection  have 
a  right  to  be  heard  personally.  It  is  only  to  save  time  that  we  make 
the  application  now,  so  that  the  witnesses  may  be  here  when  wanted. 

Mr.  MERRICK.    It  is  done  at  the  suggestion  of  counsel. 

The  PRESIDENT.  The  request  is  before  the  Commission.  What 
order  shall  be  taken  ? 

Mr.  Commissioner  EDMUNDS.  I  move  that  the  Commission  issue 
the  subpoena  as  requested  and  ask  for  certified  copies  of  the  papers- 
wanted,  to  be  furnished  by  the  Post-Office  Department.  Whether  the 
evidence  will  be  competent  is  another  question. 

The  PRESIDENT.  Mr.  Commissioner  Edmunds  moves  that  the 
Commission  grant  subpoenas  for  the  witnesses  named  and  also  an  order 
for  the  papers  called  for  from  the  Post-Office  Department. 

Mr.  Commissioner  EDMUNDS.     Are  the  witnesses  within  reach? 

Mr.  Senator  MITCHELL.  I  will  say  in.  reference  to  the  witnesses 
Mr.  Jenks  desires,  that  they  are  here  in  the  court-room  and  will  respond 
at  any  time  whenever  the  Commission  determines  that  it  is  proper  that 
they  should  be  called. 

The  PRESIDENT.  The  question  is  on  the  motion  of  Mr.  Commis 
sioner  Edmunds. 

The  motion  was  agreed  to. 

Mr.  Senator  KELLY.  I  should  like  a  few  minutes'  time  to  gather 
together  some  books  before  proceeding. 

The  PRESIDENT.    How  much  time  do  you  wish? 

Mr.  Senator  KELLY.  Half  an  hour,  or  any  time  that  will  suit  the 
Commission. 

Mr.  Commissioner  EDMUNDS.  Mr.  President,  'I  move  that  the 
Commission  take  a  recess  for  half  an  hour. 

The  motion  was  agreed  to;  and  (at  one  o'clock  and  forty  minutes  p. 
m.)  the  Commission  took  a  recess  for  half  an  hour. 

At  two  o'clock  and  ten  minutes  p.  m.  the  Commission  re-assembled, 
all  the  members  being  present. 

30  E  C 


466  ELECTORAL   COUNT    OF    1877. 

The  objectors  were  also  present,  and  the  following  counsel: 
Eichard  T.  Merrick,  esq.,  j 


Alexander  Porter  Morse,  esq 
Hon.  William  M.  Evarts, 


Hon.  Samuel  Shellabarger,       j 

The  PKESIDENT.  The  objectors  to  certificate  No.  1  may  proceed 
under  Kule  4,  two  hours  to  a  side. 

Mr.  Senator  MITCHELL.  I  desire  to  know  whether  the  objectors  on 
that  side  both  proceed  before  the  objectors  on  the  other  side? 

The  PEESIDENT.  They  both  speak  first.  Counsel  alternate,  but 
objectors  do  not  in  this  proceeding. 

Mr.  Senator  KELLY.  Mr.  President  and  gentlemen  of  the  Commis 
sion,  the  first  objection  to  certificate  No.  1  on  which  I  shall  dwell  is  this  : 

The  said  J.  W.  Watts,  therein  claimed  to  be  one  of  the  said  electors,  was  in  the  mouth 
of  February,  1873,  appointed  a  postmaster  at  La  Fayette,  in  the  State  of  Oregon,  and 
was  duly  commissioned  and  qualified  as  such  postmaster,  that  being  an  office  of  trust 
and  profit  under  the  laws  of  the  United  States,  and  continued  to  be  and  act  as  such. 
postmaster  from  February,  1873,  until  after  the  13th  day  of  November,  1876,  and  was 
acting  as  such  postmaster  on  the  7th  day  of  November,  1876,  when  presidential  elect 
ors  were  appointed  by  the  State  of  Oregon,  and  that  lie,  the  said  John  W.  Watts,  was 
ineligible  to  be  appointed  as  one  of  the  said  presidential  electors. 

There  will  be  no  dispute,  I  presume,  of  the  facts  averred  here.  It  is 
true  beyond  doubt  that  this  Mr.  Watts  was  a  postmaster,  and  I  do 
not  think  it  is  necessary  for  us  under  the  circumstances  to  offer  any 
proof  of  that,  because  the  view  we  take  of  it  is  that  that  matter  was 
found  by  the  returning-board,  and  the  returning-board  really  decided 
that  he  had  no  part  in  that  election.  I  think,  therefore,  it  will  be 
unnecessary  for  us  to  produce  proof  of  that  fact.  But  be  that  as  it 
may,  if  it  become  necessary  we  shall  establish  the  point. 

Now  what  is  the  result  of  these  facts  ?  I  refer  to  the  Constitution  of 
the  United  States  : 

Each  State  shall  appoint,  in  such  manner  as  the  legislature  thereof  may  direct,  a 
number  of  electors,  equal  to  the  whole  number  of  Senators  and  Representatives  to 
which,  the  State  may  be  entitled  in  the  Congress  :  but  no  Senator  or  Representative, 
or  person  holding  an  office  of  trust  or  profit  under  the  United  States,  shall  be  ap 
pointed  an  elector. 

The  question  occurs,  is  this  an  office  of  profit  or  trust?  If  so,  the 
constitutional  inhibition  is  as  clear  as  the  English  language  can  make 
it.  No  person  shall  be  appointed  an  elector  who  holds  an  office  of  trust 
or  profit.  On  the  first  point,  whether  it  is  an  office  of  trust  or  profit,  I 
will  refer  in  the  first  place  to  the  fifteenth  volume  of  California  Reports, 
-  the  case  of  Searcy  vs.  Grow,  reported  on  pages  120  and  121.  I  will  read 
only  so  far  as  may  be  necessary  and  no  further,  because  I  do  not  wish 
my  time  to  be  consumed  in  reading  unnecessary  matter: 

This  case  was  before  us  at  the  last  term,  and  was  decided  upon  a  point  not  now  pre 
sented.  The  proceeding  is  a  contest  for  the  office  of  sheriff  of  Siskiyou  County.  Grow, 
the  appellant,  was  returned  as  elected  to  the  office  at  the  September  election,  1859. 
The  ground  of  contest  is  that,  at  the  time  of  the  election,  he  was  postmaster  in  .the 
.town  of  Yreka,  and  that  the  compensation  of  the  office  exceeded  $500  per  annum.  The 
court  below  found  for  the  contestant,  and  Grow  appeals. 

I  call  attention  to  this  : 
The  court  below  found  for  the  contestant. 

That  is,  for  the  person  next  highest.    I  shall  dwell  upon  that  in  an 


ELECTORAL   COUNT   OF    1877.  467 

after  portion  of  the  argument,  to  show  that  the  person  next  highest  to 
the  ineligible  candidate  received  the  office. 

The  constitution,  in  the  twenty-first  section  of  the  fourth  article,  provides:  "No  per 
son  holding  any  lucrative  office  under  the  United  States,  or  any  other  power,  shall  be 
eligible  to  any  civil  office  of  profit  under  this  State :  Provided,  That  offices  in  the  mili 
tia  to  which  there  is  attached  no  annual  salary,  or  local  officers  and  postmasters  whose 
compensation  does  not  exceed  $500  per  annum  shall  not  be  deemed  lucrative."  The 
act  of  the  legislature  prescribing  the  mode  of  contesting  elections  and  the  grounds  of 
contest  makes  the  fact  that  the  returned  candidate  was  ineligible  at  the  time  of  the  elec 
tion  one  of  those  grounds.  Grow  was  postmaster  at  the  time  of  the  election,  but  had 
resigned  at  the  time  of  his  qualification.  It  is  in  proof,  and  so  found,  that  the  income 
of  the  office  of  postmaster  was  some  $1,400,  but  that  the  expenses  of  assistant,  rent,  &c., 
were  some  $1,000  per  annum,  so  that  the  net  sum  received  or  enjoyed  by  Grow  was  less 
than  $500. 

The  counsel  for  the  appellant  contends  that  the  true  meaning  of  the  constitution  is 
that  the  person  holding  the  Federal  office  described  in  the  twenty-first  section  is  for 
bidden  to  take  a  civil  State  office  while  so  holding  the  other;  but  that  he  is  capable 
of  receiving  votes  cast  for  him,  so  as  to  give  him  a  right  to  take  the  State  office  upon 
or  after  resigning  the  Federal  office.  But  we  think  the  plain  meaning  of  the  words 
quoted  is  the  opposite  of  this  construction.  The  language  is  not  that  the  Federal  offi 
cer  shall  hold  a  State  office  while  he  is  such  Federal  officer,  but  that  he  shall  not  while 
in  such  Federal  office  be  eligible  to  the  State  office.  We  understand  the  word  "  eligi 
ble"  to  mean  capable  of  being  chosen,  the  subject  of  selection  or  choice.  The  people 
in  this  case  were  clothed  with  this  power  of  choice ;  their  selection  of  the  candidate 
gave  him  all  the  claim  to  the  office  which  he  has  ;  his  title  to  the  office  comes  from 
their  designation  of  him  as  sheriff.  But  they  could  not  designate  or  choose  a  man  not 
eligible ;  i.  e.,  not  capable  of  being  selected.  They  might  select  any  man  they  chose, 
subject  only  to  this  exception,  that  the  man  they  selected  was  capable  of  taking  what 
they  bad 'the  power  to  give. 

We  do  not  see  how  the  fact  that  he  became  capable  of  taking  office  after  they  had 
exhausted  their  power  can  avail  the  appellant.  If  he  was  not  eligible  at  the  time  the 
votes  were  cast  for  him,  the  election  failed.  We  do  not  see  how  it  can  be  argued  that, 
by  the  act  of  the  candidate,  the  votes  which,  when  cast,  were  ineffectual,  because  not 
given  for  a  qualified  candidate,  became  effectual  to  elect  him  to  office. 

Can  it  be  contended  that,  if  Grow  had  not  been  a  citizen  of  the  county  or  of  the  State 
at  the  time  of  the  election,  or  had  been  an  alien  at  that  time,  the  bare  fact  that  he  did 
so  become  a  citizen  at  the  time  he  qualified  would  entitle  him  to  the  office  ?  Or  sup 
pose  a  man,  when  elected,  under  sentence  and  conviction  for  crime — if  such  a. case  caa 
be  supposed — would  a  pardon  before  qualification  give  him  a  right  to  hold  the  office? 

When  the  words  of  the  constitution  are  plain,  we  cannot  go  into  curious  speculation 
of  the  policy  they  were  meant  to  declare.  It  may,  however,  have  been  a  part  of  the 
policy  of  the  provision  quoted  to  prevent  the  employment  of  Federal  patronage  in  a 
State  election. 

I  refer  to  that  case  as  conclusive  if  the  law  stated  be  sound.  And  here 
I  may  just  as  well  as  at  any  other  time  call  attention  to  the  marked  dis 
tinction  that  exists  between  a  person  who  is  ineligible  or  incapable  of 
being  appointed  and  one  who  may  hold  the  office.  If  a  person  may 
hold  the  office  he  may  be  elected  while  he  is  under  disqualifications, 
and  if  he  becomes  qualified  at  the  time  of  holding,  it  is  sufficient.  For 
instance,  let  us  refer  to  the  provisions  of  the  Constitution  of  the  United 
States  as  to  the  election  of  Senators  and  Members  of  the  House  of 
Eepresentatives : 

No  person  shall  be  a  Senator  who  shall  not  have  attained  to  the  age  of  thirty  years . 

No  person  shall  be  a  Representative  who  shall  not  have  attained  a 
certain  number  of  years  and  have  certain  other  qualifications.  "No 
person  shall  be  a  Senator;"  that  is,  while  he  may  be  disqualified  before, 
yet  if  the  disqualification  is  removed  when  he  becomes  a  Senator  or 
Representative,  he  can  hold  the  office.  For  instance,  a  man  is  holding 
the  office  of  governor  this  day,  a  State  office ;  he  has  been  elected 
Senator  while  so  holding  the  office.  It  is  no  bar  to  him  taking  his  seat 
on  the  4th  of  March  next  if  on  that  day  he  does  not  hold  the  office  of 
governor.  That,  however,  is  a  very  different  case  from  this,  which 
strikes  at  the  beginning  of  the  matter ;  that  is,  where  the  prohibition  is 
to  the  election,  or,  in  this  instance,  to  the  appointment. 


468  ELECTORAL    COUNT    OF    1877. 

Now,  when  does  the  appointment  begin?  What  is  the  day  of  appoint 
ment!  It  is  contended,  or  at  least  was  by  other  gentlemen  in  Ore 
gon — it  was  contended  by  Mr.  Watts  that  he  could  hold  the  office  of 
elector  if  he  was  eligible  at  the  time  the  vote  was  cast;  that  the  appoint 
ment  was  not  complete  until  the  certificate  was  given ;  and  I  here  say, 
if  it  was  not  complete  until  the  certificate  was  given,  it  was  never  com 
pleted  at  all,  because  he  never  got  one.  But  he  contends  that  the  ap 
pointment  was  not  perfect  by  the  election  of  the  7th  of  November,  but 
was  perfected  when  the  canvass  of  votes  was  made.  That  is  a  fal 
lacious  position.  It  cannot  be  maintained,  because  the  returns  of  a 
canvass  are  merely  evidence  of  appointment;  they  are  not  the  appoint 
ment  itself.  The  Constitution  gives  the  right  to  Congress  to  appoint 
the  time  of  holding  the  election,  and  section  131  of  the  Ee vised  Statutes 
provides : 

The  electors  of  President  and  Vice-President  shall  be  appointed,  in  each  State,  on 
the  Tuesday  next  after  the  first  Monday  in  November  in  every  fourth  year  succeeding 
every  election  of  a  President  and  Vice-Presideut. 

They  must  be  appointed  on  that  day;  if  they  are  not  appointed  on 
that  day  they  are  not  appointed  at  all.  I  contend,  therefore,  that  the 
appointment  of  Mr.  Watts,  if  it  was  not  made  on  the  7th  day  of  Novem 
ber,  could  not  be  made  at  any  other  time  by  a  canvass  of  the  votes. 
The  mere  evidence  of  a  fact  is  not  the  fact  itself.  That  I  am  correct  in 
that  position  I  think  there  can  be  no  doubt.  So  it  was  held  by  the 
court  in  California. 

1  refer  now  to  the  election  in  the  State  of  Vermont.  Of  course  I  do 
not  know  all  the  facts  attending  it  except  those  which  were  current  at 
the  time  or  shortly  after  the  election ;  but  as  nearly  as  I  can  recollect 
them  they  are  these:  A  man  by  the  name  of  Sollace  was  a  postmaster 
at  the  time  of  the  election  on  the  7th  of  November;  he  resigned  a  few 
days  afterward ;  he  was  a  candidate  for  elector.  The  legislature  of 
Vermont  convened,  I  do  not  know  whether  by  proclamation,  but  I  think 
the  honorable  Senator  from  Vermont  [Mr.  Edmunds]  stated  sometime 
ago  that  it  was  by  virtue  of  some  law  in  that  State,  without  proclama 
tion  of  the  governor.  At  all  events  the  legislature  of  that  State  con 
vened.  They  took  this  matter  into  consideration ;  they  declared  virtu 
ally,  I  do  not  know  whether  by  resolution  or  otherwise,  that  Sollace  was 
not  appointed  on  that  day,  and  proceeded  by  legislative  enactment,  as 
prescribed  by  the  Constitution,  to  fill  that  vacancy  occasioned  by  a 
failure  to  elect.  It  was  under  this  section  of  the  Revised  Statutes,  I 
presume : 

SEC.  134.  Whenever  any  State  has  held  an  election  for  the  purpose  of  choosing 
electors,  and  has  failed  to  make  a  choice  on  the  day  prescribed  by  law,  the  electors 
may  be  appointed  on  a  subsequent  day,  in  such  a  manner  as  the  legislature  of  such 
1  !tate  may  direct. 

So  the  State  of  Vermont  in  its  sovereign  capacity  declared  that  a 
postmaster  was  an  officer  holding  an  office  of  trust  and  profit  under  the 
United  States,  and  that  there  was  a  failure  to  elect,  and  they  proceeded 
to  provide  for  the  case.  So  in  Rhode  Island :  Mr.  Corliss  was  a  centen 
nial  commissionerunder  the  United  States.  Uuderthe  peculiar  pro  visions 
of  many  of  the  New  England  States  the  governor  has  the  right  to  submit 
questions  of  law  to  the  courts.  The  governor  of  Rhode  Island  did  submit 
the  question  to  the  supreme  court  of  Rhode  Island.  There  was  one  dis 
senting  voice  as  to  whether  the  position  of  centennial  commissioner  was 
an  office  of  trust  or  profit.  The  majority  of  the  court  held  that  it  was, 
and  the  unanimous  voice  of  the  court  was  that,  if  it  was  an  office  of  trust 
or  profit,  the  person  holding  it  who  had  been  voted  for  was  not  elected, 


ELECTORAL   COUNT   OF   1877.  469 

and  that,  not  being  elected,  there  was  a  failure  to  elect ;  and  the  legislature 
proceeded  to  provide  for  the  case. 

There  are  two  legislatures  who  have  established  this  fact  clearly  bet- 
yond  doubt,  that  a  person  holding  an  office  of  profit  or  trust  under  the 
United  States  could  not  be  an  elector,  and  that  a  resignation  of  the 
office  after  the  election  did  not  make  him  qualified. 

In  addition  to  that,  let  me  refer  to  what  was  said  by  a  committee  ap 
pointed  by  the  Senate  and  House  of  Representatives  in  1837,  of  which 
Mr.  Grundy  was  chairman.  It  was  composed  on  the  part  of  the  Senate 
of  Felix  Gruudy,  Henry  Clay,  and  Silas  Wright,  certainly  three  persons 
who  ought  to  carry  weight.  Wherever  they  signed  their  names  to  any 
document  of  a  political  character,  it  ought  to  carry  conclusive  weight  as 
to  its  integrity  and  its  worth.  I  do  not  care  about  reading  it  all,  but  I 
will  read  a  portion  of  it.  Certain  postmasters  had  been  elected  electors 
in*  North  Carolina,  Connecticut,  and  New  Hampshire;  but  it  made  no 
difference  at  that  time  whether  their  votes  were  disallowed  or  not,  as  it 
would  not  change  the  result  of  the  election;  so  there  was  nothing  done 
in  the  matter,  but  the  committee  gave  this  opinion  in  their  report: 

The  committee  are  of  opinion  that  the  first  section  of  the  second  article  of  the  Con 
stitution,  which  declares  that  "  no  Senator  or  Representative,  or  person  holding  an 
office  of  trust  or  profit  under  the  United  States,  shall  be  appointed  an  elector,"  ought 
to  be  carried  in  its  whole  spirit  into  rigid  execution,  in  order  to  prevent  officers  of  the 
General  Government  from  bringing  their  official  power  to  influence  the  elections  of 
President  and  Vice-President  of  the  United  States.  This  provision  of  the  Constitution, 
it  is  believed,  excludes  and  disqualifies  deputy  postmasters  from  the  appointment  of 
electors;  and  the  disqualification  relates  to  the  time  of  the  appointments,  and  that  a 
resignation  of  the  office  of  deputy  postmaster  after  his  appointment  as  elector  would 
not  entitle  him  to  vote  as  elector  under  the  Constitution. 

In  the  debate  ensuing  in  the  House  of  Representatives  upon  the  report 
of  this  joint  committee,  Mr.  Francis  Thomas,  chairman  of  the  House 
committee,  said  that — 

The  committee  came  unanimously  to  the  conclusion  that  they  (the  postmasters  in 
question)  were  not  eligible  at  the  time  they  were  elected,  and  therefore  the  whole  pro 
ceeding  was  vitiated  ab  initio. 

Mr.  Representative  LAWRENCE.   Those  postmasters  voted. 

Mr.  Senator  KELLY.  I  suppose  they  did  vote,  but  I  do  not  know ; 
their  votes,  however,  made  no  difference  in  the  result.  Here  I  will 
call  attention  to  this  fact — it  is  a  little  out  of  the  way,  but  it  is  an 
answer  to  a  suggestion — I  contend  that  a  State  has  the  power  to  enforce 
the  Constitution  if  the  Federal  Government  does  not.  I  contend  that 
every  State  has  a  right  to  exclude  Federal  officers.  Here  the  mandate 
of  the  Constitution  is  clear.  If  other  States  have  permitted  it  to  be 
violated,  the  State  of  Oregon  has  not.  If  other  States  have  failed  to 
take  advantage  of  the  provision,  the  State  of  Oregon  has  decided  than 
the  Constitution  shall  be  obeyed;  and  I  contend  that  whatever  may 
have  been  done  in  1837  has  no  application  now.  The  mandate  is  clear 
that  these  persons  shall  not  be  appointed  electors,  and  each  State  has 
a  right  to  appoint  presidential  electors  in  its  own  way,  and  if  the  law  of 
the  State  excludes  these  men  from  that  office,  the  State  has  a  perfect 
right  to  exclude  them,  and  the  decision  in  this  case  has  done  it.  I  do 
not  see  how  anything  can  be  plainer  than  this,  and  as  I  have  dwelt  long 
enough  on  the  point  I  will  leave  it. 

The  next  question  presented  is,  if  Mr.  W'atts  was  not  eligible,  then 
was  Mr.  Crouin,  who  received  the  next  highest  number  of  votes,  elected  ? 
It  is  impossible  for  me  to  refer  to  all  the  decisions  in  the  brief  space  of 
one  hour ;  I  must  necessarily  be  hurried  ;  and  I  will,  therefore,  only  cite 
a  few  to  show  that  where  a  person  who  is  ineligible  has  received 


470  ELECTORAL   COUNT   OF    1877. 

the  highest  number  of  votes,  the  next  highest  takes  the  election.  It  has 
been  so  decided  in  Indiana,  in  Maryland,  and  in  Maine,  and  it  was  con 
firmed  by  legislative  enactment  in  the  latter  State,  and  I  contend  that 
in  California  this  is  the  rule.  I  shall  refer  to  decisions  in  support  of 
that  position.  On  account  of  the  rapidity  with  which  my  time  is  going, 
I  will  refer  to  the  brief  more  than  I  will  to  the  law-books.  Here  is  what 
is  said  in  Gulick  vs.  New,  14  Indiana  Eeports,  page  93 : 

The  governor  may  determine,  even  against  the  decision  of  a  board  of  canvassers, 
whether  an  applicant  is  entitled  to  receive  a  commission  or  not,  where  the  objection  to 
his  right  to  receive  it  rests  upon  the  ground  that  the  constitutional  prohibition  is  inter 
posed.  If  the  governor  should  ascertain  that  he  has  commissioned  a  person  who  is 
ineligible  to  the  office,  he  may  issue  another  commission  to  the  person  legally  entitled 
thereto.  Where  a  majority  of  the  ballots  at  an  election  were  for  a  person  not  eligible 
to  the  office  under  the  Constitution,  it  was  held  that  the  ballots  cast  for  such  ineligible 
person  were  ineffectual,  and  that  the  person  receiving  the  greatest  number  of  legal 
votes,  though  not  a  majority  of  the  ballots,  was  duly  elected  and  entitled  to  the  office. 
The  mayor  of  a  city,  under  the  general  law,  has  jurisdiction  as  a  judicial  officer 
throughout  the  county,  and  the  voters  of  the  county  are  therefore  chargeable  with 
notice  of  his  ineligibility  under  the  Constitution  to  any  office  other  than  a  judicial  one 
during  the  term  for  which  he  was  elected. 

To  the  same  effect  are  the  cases  in  41  Indiana,  572,  and  15  Indiana, 
327.  It  is  the  doctrine  in  Maine,  so  adjudged  by  the  supreme  court  upon 
a  question  submitted  by  the  legislature  to  the  court.  I  have  referred 
already  to  the  case  of  Searcy  vs.  Grow,  in  15  California.  In  that  case — 

The  ground  of  contest  is  that  at  the  time  of  the  election  he  was  postmaster  in  the 
town  of  Yreka,  and  that  the  compensation  of  the  office  exceeded  $500  per  annum.  The 
court  below  found  for  the  contestant,  and  Grow  appeals. 

Grow  was  the  postmaster.  The  office  was  adjudged  to  the  contestant 
in  that  case. 

Now,  there  are  facts  that  we  cannot  produce  here,  I  suppose,  though 
taken  before  a  committee  of  the  Seriate,  showing  that  notice  of  the  dis 
qualification  was  given  to  a  great  many  voters  in  this  case;  that  Mr. 
AVatts  had  proclaimed  at  a  meeting  in  Portland,  one  of  the  largest 
meetings  held  there,  that  he  was  postmaster;  the  fact  that  he  was  post 
master  was  declared  at  Oregon  City ;  it  was  published  in  a  newspaper 
published  in  his  own  town,  and  also  in  a  paper  published  in  Portland ; 
but  these  facts  I  cannot,  I  suppose,  bring  before  this  tribunal.  I  con 
tend,  however,  as  matter  of  law  and  upon  principle,  that  in  Oregon 
the  next  highest  person  to  an  ineligible  candidate  takes  the  place.  We 
have  in  our  constitution  this  clause: 

In  all  elections  held  by  the  people  under  this  constitution  the  person  or  persons  who 
shall  receive  the  highest  number  of  votes  shall  be  declared  duly  elected. 

There  are  certain  prohibitions  in  our  constitution,  among  others  that 
a  person  who  is  a  defaulter  shall  not  be  elected ;  a  person  who  has  sent 
a  challenge  to  fight  a  duel  shall  not  be  elected;  a  man  who  has  been 
convicted  of  an  infamous  crime  shall  not  be  elected.  Now,  can  it  be 
contended,  taking  these  clauses  together,  that  when  the  constitution 
says  the  person  who  receives  the  highest  number  of  votes  shall  be  declared 
duly  elected,  the  people  can  elect  a  person  who  has  been  convicted  of 
felony,  a  defaulter,  one  who  has  fought  a  duel  or  sent  a  challenge  ?  No, 
they  must  be  construed  together;  and  they  mean  this,  that  the  person 
who  is  qualified  to  receive  the  votes  shall  be  elected  if  he  receives-  the 
highest  number  of  votes,  and  if  the  person  having  the  most  votes  is  in 
eligible,  the  qualified  person  receiving  the  next  highest  number  shall  be 
declared  elected. 

Again,  the  Constitution  of  the  United  States  says  that  persons  shall 
be  elected  electors  on  the  day  prescribed  by  Congress;  Congress' has 
fixed  the  day;  and  the  law  of  Oregon  provides: 


ELECTORAL   COUNT    OF   1877.  471 

On.  the  Tuesday  next  after  the  first  Monday  in  November,  1864,  and  every  four 
years  thereafter  there  shall  be  elected  by  the  qualified  electors  of  this  State  as  many 
electors  of  President  and  Vice-President  as  this  State  maybe  entitled  to  elect  of  Sena 
tors  and  Representatives  in  Congress. 

There  is  a  positive  injunction  that  they  shall  be  elected  on  that  day  ; 
there  is  no  authority  to  hold  an  election  after  that  time ;  and  I  contend 
according  to  principle  that  the  first  election  should  decide  the  whole 
matter,  because  it  is  impossible  to  convene  the  electors  at  a  subsequent 
time  and  hold  a  new  election  to  supply  a  vacancy.  In  all  those  cases 
where  it  is  held  that  the  next  highest  to  the  ineligible  candidate  is  not 
elected,  it  is  because  it  may  be  referred  to  the  people  to  vote  again  upon 
the  question  ;  but  here  they  cannot  do  that.  The  power  of  the  people 
having  been  exhausted,  they  cannot  vote  a  second  time.  They  have 
not  time  to  do  it,  because  the  presidential  electors  vote  within  thirty 
days  after  the  State  election,  so  that  it  is  impossible  to  hold  a  second 
election,  and  necessarily  the  first  one  must  decide  the  matter.  The 
three  highest  eligible  candidates  must  be  chosen  then,  or  the  State  will 
have  no  representation  ;  there  will  be  a  failure  to  elect  one  person,  and 
the  State  will  lose  its  rights.  The  position  I  take  here  is  that  there  is 
a  positive  injunction  that  the  State  must  do  that.  The  law  is  manda 
tory.  It  says  the  election  must  take  place  on  that  day ;  three  electors 
must  be  chosen  on  that  day. 

A  State  cannot  elect  a  man  that  the  Constitution  says  cannot  be 
elected ;  and  therefore  if  three  must,  be  elected  on  that  day,  it  must  be 
the  three  highest  qualified  persons.  It  is  different,  I  contend,  from 
ordinary  cases  of  office  where  a  majority  not  being  had,  the  matter  is 
referred  back  to  the  people.  A  plurality  elects  in  the  State  of  Oregon. 
And  I  may  as  well  here  state  the  difference  between  the  case  of  Abbott, 
which  was  before  the  Senate  of  the  United  States  a  few  years  ago,  and 
this  case.  Mr.  Abbott  claimed  that  he  was  elected  Senator  from  North 
Carolina  because  Mr.  Vance,  his  competitor,  was  ineligible.  He  re 
ceived  but  a  few  votes.  The  Senate  rejected  him  and  for  a  very  good 
reason ;  not  because  Mr.  "Vance  was  not  ineligible,  but  because  the  law 
regulating  the  election  of  Senators  says  that  the  person  receiving  the 
highest  number  of  votes,  provided  it  shall  be  a  majority  of  all  the 
senators  and  representatives  of  the  legislature  present,  shall  be  elected, 
and  he  must  have  that  majority.  No  person  contended  that  Abbott 
had  such  a  majority.  In  this  case  it  is  not  required  that  a  man  shall 
have  a  majority,  but  a  plurality  or  the  highest  number  of  votes ;  that 
is,  as  I  contend,  the  highest  number  of  votes  if  he  be  eligible  to  be 
elected. 

The  next  point  which  I  shall  discuss  is  the  one  which  will  probably  be 
most  strenuously  contested,  and  therefore  I  shall  refer  to  it  at  greater 
length.  It  is  said  that  the  governor  had  no  right  to  decide  this  matter; 
that  it  was  a  judicial  question  and  not  a  question  for  the  executive. 
There  is  nothing  more  fallacious.  In  every  department  of  the  Govern 
ment  of  the  United  States,  as  well  as  in  the  government  of  the  States, 
every  officer,  whether  legislative,  executive,  or  judicial,  is  compelled  to 
exercise  judgment  in  certain  cases.  Take  for  instance  the  Executive  of 
the  United  States.  When  the  disposition  of  land  has  to  be  made  be 
tween  two  persons,  rival  claimants,  is  it  referred  to  the  courts  to  settle 
that  matter  ?  Not  at  all.  The  Land-Office  adjudicates  it.  They  settle 
the  case  where  two  rival  claimants,  two  settlers  holding  adversely  to 
each  other,  present  themselves  before  the  Land-Office.  The  Land  De 
partment  decides  the  case  preliminary  to  a  final  adjudication  according 
to  law  in  the  courts.  It  is  a  preliminary  decision  that  must  be  made. 


472  ELECTORAL    COUNT    OF   1877. 

So  there  must  be  a  preliminary  decision  made  in  regard  to  many  other 
matters  that  it  is  needless  for  me  to  call  to  your  attention.  So  it  is  in 
the  State  governments.  The  executive  is  called  upon  to  exercise  cer 
tain  duties  and  rights.  He  must  decide.  For  instance,  an  office-holder 
has  ceased  to  be  a  resident  of  the  State,  or  he  has  died.  The  executive 
must  take  cognizance  of  the  fact  of  the  death  of  an  incumbent  without 
having  a  court  decide  that  fact.  He  takes  cognizance  of  an  abandon 
ment  where  a  person  leaves  the  State,  and  makes  an  appointment  to  fill 
the  vacancy.  Here  let  me  refer  to  decisions  in  support  of  this  position 

which  I  take 

Mr.  Commissioner  GAEFIELD.    Are  these  cases  cited  in  your  brief  T 
Mr.  Senator  KELLY.     Yes,  sir.    I  will  only  read  the  syllabus  of  the 
case  in  1  Arkansas  Keports,  page  21 : 

The  Supreme  Court  has  the  power  to  issue  writs  of  mandamus.  The  party  apply 
ing  for  this  writ  must  show  that  he  has  a  specific  legal  right,  and  no  other  adequate 
specific  legal  remedy. 

A  collector  or  holder  of  public  moneys  who  was  in  default  for  moneys  collected  at 
the  time  of  the  adoption  of  the  Constitution,  at  the  time  of  his  election  to  another  or 
the  same  office,  and  at  the  time  of  his  application  for  his  commission,  is  not  eutitled  to 
his  commission. 

I  will  now  read  a  part  of  the  opinion  of  the  court : 

He  is,  then,  clearly  within  the  meaning  of  the  Constitution,  and  consequently  in 
eligible  to  any  office  of  profit  or  trust.  So  far  as  the  rights  and  interests  of  the  present 
applicant  are  concerned,  the  Executive  has  done  nothing  that  the  law  forbids ;  and 
whether  his  subsequent  acts  in  relation  to  the  same  matter  are  inconsistent  with  his 
constitutional  obligations  to  the  country,  or  in  violation  of  private  rights,  this  court 
will  not  take  upon  themselves  to  determine;  for  that  question  is  not  properly  before 
them.  The  Executive,  in  common  with  every  other  officer,  is  bound  by  oath  to  sup 
port  the  Constitution,  and  whenever  an  effort  is  made  to  evade  or  violate  it,  it  is  not 
only  his  privilege  but  his  duty  to  interpose  and  prevent  it. 

So  in  14  Indiana  Eeports,  Gulick  vs.  New.  This  was  a  case  of  man 
damus  to  compel  the  governor  to  issue  a  commission.  The  court  say  : 

The  governor  may  determine,  even  against  the  decision  of  a  board  of  canvassers, 
whether  an  applicant  is  entitled  to  receive  a  commission  or  not,  where  the  objection 
to  his  right  to  receive  it  rests  upon  the  ground  that  the  constitutional  prohibition  is 
interposed. 

If  the  governor  should  ascertain  that  ho  has  commissioned  a  person  who  is  ineligible 
to  the  office,  he  may  issue  another  commission  to  the  person  legally  entitled  thereto. 

So  in  39  Missouri  Eeports,  a  mandamus  was  asked  against  tbe  gov 
ernor  to  compel  him  to  give  a  certificate  to  a  person  who  was  ineligible. 
The  court  took  this  position : 

The  governor  is  bound  to  see  that  the  laws  are  faithfully  executed,  and  he  has  taken 
an  oath  to  support  the  constitution.  In  the  correct  and  legitimate  performance  of  his 
duty, he  must  inevitably  have  a  discretion  in  regard  to  granting  commissions;  for, 
should  a  person  be  elected  or  appointed  who  was  constitutionally  ineligible  to  hold  any 
office  of  profit  or  trust,  would  the  executive  be  bound  to  commission  him  when  his 
ineligibility  was  clearly  and  positively  proven  f  If  he  is  denied  the  exercise  of  any 
discretion  in  such  case,  he  is  made  the  violator  of  the  constitution,  not  its  guardian. 
Of  what  avail,  then,  is  his  oath  of  office  ?  Or,  if  he  has  positive  and  satisfactory  evi 
dence  that  no  election  has  been  held  in  a  county,  shall  he  be  required  to  violate  the 
law  and  issue  a  commission  to  a  person  not  elected  because  a  clerk  has  certified  to  the 
election?  In  granting  a  commission,  the  governor  may  go  behind  the  certificate  to 
determine  whether  an  applicant  is  entitled  to  receive  a  commission  or  not,  where  the 
objection  to  the  right  of  the  applicant  to  receive  it  rests  upon  the  ground  that  a  con 
stitutional  prohibition  is  interposed — (Gulick  vs.  New,  14  Indiana  93.)  The  issuing  of 
a  commission  is  an  act  by  the  executive  in  his  political  capacity — 

Not  his  judicial. — 

The  issuing  of  a  commission  is  an  act  by  the  executive  in  his  political  capacity,  and 
is  one  of  the  means  employed  to  enable  him  to  execute  the  laws  and  carry  on  the 
appropriate  functions  of  the  State,  and  for  the  manner  in  which  he  executes  this  duty 
he  is  in  no  wise  amenable  to  the' judiciary.  The  court  can  no  more  interfere  with 


ELECTORAL   COUNT   OF   1877.  473 

executive  discretion  than  the  legislature  or  executive  can  with  judicial  discretion.  The 
granting  of  a  commission  by  the  executive  is  not  a  mere  ministerial  duty,  but  an  offi 
cial  act  imposed  by  the  constitution,  and  ie»  an  investiture  of  authority  in  the  person 
receiving  it.  We  are  of  the  opinion,  therefore,  that  mandamus  will  not  lie  against  the 
governor  in  a  case  like  this. 

I  will  now  turn  to  1  Arkansas,  page  595  : 

In  all  of  these  cases  he  certainly  possesses  a  political  discretion,  for  the  ase  of  which  ho 
is  alone  answerable  to  his  country.  Why,  then,  is  his  discretion  taken  away  or  de 
stroyed  when  his  duty  concerns  the  issuing  of  a  commission  ?  It  certainly  is  not.  His 
duty  is  as  clearly  political  in  that  case  as  in  any  of  tho  other  enumerations,  and  if  the 
courts  have  jurisdiction  in  that  instance  to  prescribe  the  rule  of  his  conduct,  by  a 
parity  of  reasoning  they  certainly  possess  it  in  regard  to  all  the  other  cases.  This 
would  make  the  judges  the  interpreters  not  only  of  the  will  of  the  executive,  but  of  his 
conscience  and  reason;  and  his  oath  of  office,  upon  such  a  supposition,  would  then  be 
both  a  mockery  and  a  delusion. 

Again,  the  executive  is  bound  to  see  that  the  laws  are  faithfully  executed,  and  he  has 
taken  an  oath  of  office  to  support  the  constitution.  How  can  he  perform  this  duty  if 
he  has  no  discretion  left  him  in  regard  to  granting  commissions  ?  For  should  the  leg 
islature  appoint  a  person  constitutionally  ineligible  to  hold  any  office  of  profit  or  trust, 
would  the  executive  be  bound  to  commission  him?  and  that,  too,  when  his  ineligi- 
bility  was  clearly  and  positively  proven  ?  In  such  a  case,  the  exercise  of  his  discre 
tion  must  be  admitted,  or  you  make  him  not  the  guardian  but  the  violator  of  the 
constitution.  What,  then,  becomes  of  his  oath  of  office  ? 

Not  only  that,  but  the  State  of  Oregon  itself  has  decided  this  matter. 
I  will  call  the  attention  of  the  Commission  now  to  not  a  reported  case, 
but  to  a  matter  familiar  to  my  colleague  and  to  myself.  In  the  election 
of  1870  Ex-Governor  Gibbs  was  elected  district  attorney  for  the  State — 
prosecuting  attorney,  as  we  call  it  there.  After  entering  upon  the 
discharge  of  the  duties,  in  March,  1872,  he  received  from  the  President 
of  the  United  States  an  appointment  to  the  office  of  United  States  dis 
trict  attorney,  and  he  was  holding  both  offices  at  the  same  time.  The 
governor  knowing  that  fact,  knowing  too  that  the  constitution  of  the 
State  of  Oregon  prohibited  any  person  who  was  holding  an  office  under 
the  Federal  Government  to  hold  a  State  office,  this  very  Governor 
Grover  appointed  0.  B.  Bellinger  prosecuting  attorney  for  the  State. 
Ex-Governor  Gibbs  refused  to  recognize  that  appointment ;  he  claimed 
the  right  to  prosecute  the  criminals  in  the  State  courts  and  in  the 
Federal  courts.  Mr.  Bellinger  presented  his  certificate  of  appointment 
from  the  governor  to  Judge  Upton,  chief-justice  then  of  the  State,  who 
refused  to  recognize  him  because  he  said  the  governor  had  no  right  to 
ascertain  that  matter;  it  was  a  question  for  the  judiciary  to  ascertain. 
On  the  other  hand,  Mr.  Bellinger,  believing  himself  right,  brought  a 
writ  of  quo  warranto  to  ascertain  that  fact,  whether  he  was  not  entitled 
to  hold  the  office.  He  brought  it  in  the  court  where  Judge  Upton  pre 
sided,  who  was  chief -justice  of  the  State.  He  decided  adversely  to  him 
on  the  same  ground,  that  it  was  a  matter  of  judicial  inquiry  and  the 
governor  had  no  right  to  act.  An  appeal  was  taken  to  the  supreme 
court,  and  by  a  unanimous  court  it  was  decided  that  the  governor  had 
that  right.  The  case  is  not  yet  reported,  for  reasons  which  are  given 
by  the  present  chief  justice  of  Oregon  in  this  letter  to  the  governor  : 

SUPREME  COURT  EOOM, 
Salem,  Oregon,  December  20,  1876. 

SIR  :  Your  communication  of  tho  18th  instant  was  duly  received,  and,  in  reply 
thereto,  I  beg  leave  to  submit  the  following : 

The  case  of  the  State  of  Oregon  ex  rel.  C.  B.  Bellinger,  appellant,  vs.  A.  C.  Gibbs, 
respondent,  was  heard  and  determined  at  the  January  term,  1873,  of  the  supreme 
court.  The  action  was  instituted  in  the  circuit  court  of  the  State  of  Oregon  for  the 
county  of  Multnomah,  and  was  determined  at  the  March  term,  1872,  of  said  court. 
The  complaint  alleged  in  effect  that  the  respondent  had  been  elected  to  the  office 
of  prosecuting  attorney  in  the  fourth  judicial  district  in  Jane,  1870,  for  the  term  of 
two  years;  that  he  entered  upon,  held,  and  exercised  the  office;  that  thereafter,  and 


474  ELECTORAL    COUNT    OP    1877. 

while  so  holding,  he  was  appointed  to  the  office  of  United  States  district  attorney  for 
the  district  of  Oregon,  and  that  he  qualified  and  entered  upon  said  office  on  March  2, 
1872.  Allegations  showing  that  both  offices  were  lucrative  were  duly  made,  and  it 
was  further  alleged  that  on  March  6,  1872,  the  governor  of  Oregon  duly  appointed  the 
relator  to  the  office  of  prosecuting  attorney  for  the  said  fourth  judicial  district,  and 
that  said  relator  duly  qualified  on  March  8,  1872,  and  thereupon  made  demand  upon 
the  respondent  for  the  office,  which  demand  was  refused. 

Respondent  demurred  to  the  complaint  in  the  court  below  upon  the  ground,  among 
others,  that  the  complaint  did  not  state  facts  sufficient  to  constitute  a  cause  of  action. 

The  court  below  (Upton,  J.)  sustained  the  demurrer  and  entered  a  judgment  against 
the  relator  for  costs,  &c. 

An  appeal  was  thereupon  taken  to  the  supreme  court  at  the  term  mentioned.  Upon 
the  argument  in  the  supreme  court  the  respondent,  in  support  of  his  demurrer,  con 
tended  "  that  the  governor  could  not  determine  for  himself  that  a  vacancy  existed  in  the 
office  of  prosecuting  attorney  in  the  fourth  judicial  district  so  as  to  authorize  the  appoint 
ment  of  the  relator,  for  the  reason  that  the  determination  of  that  fact  involved  the 
exercise  of  judicial  functions  by  the  executive." 

This  was  the  principal  legal  question  in  the  case,  and  the  court  unanimously  declared 
that  the  governor  was  invested  with  authority,  in  cases  of  the  kind,  to  look  into  the 
facts  and  pass  upon  the  same  without  awaiting  the  action  of  the  courts. 

The  justices  of  the  supreme  court  were,  at  the  time,  Hon.  W.  W.  Upton,  chief-jus 
tice  :  Hon.  A.  J.  Thayer,  P.  P.  Prim,  B.  F.  Bonham,  and  L.  L.  McArthur,  associate 
justices.  As  the  case  was  from  the  fourth  district,  Upton,  chief-justice,  did  not  par 
ticipate  in  the  hearing  and  decision  in  the  supreme  coart.  The  writing  of  the  opinion 
was  assigned  to  Hon.  A.  J.  Thayer,  who  died  shortly  after  the  adjournment  of  the 
term,  leaving  the  duty  unperformed.  Ex-Chief-Justice  Bonhani  and  Justice  McArthur 
authorize  me  to  say  that  their  recollection  of  the  case  and  the  point  decided  comports 
with  my  own. 

I  have  the  honor  to  be,  your  excellency's  obedient  servant. 

P.  P.  PRIM, 
Chief-Justice  of  Oregon. 

His  Excellency  L.  F.  GROVER, 

Governor  of  Oregon. 

There  is  the  very  point  decided  that  the  governor  has  a  right  to 
inquire  into  these  facts  j  has  a  right  to  inquire  into  iueligibility  and  to 
issue  a  commission  when  there  is  any  infraction  of  the  constitution.  In 
the  very  words  of  the  constitution  of  the  State,  he  is  to  see  .that  the 
laws  are  faithfully  executed,  and  .he  is  to  take  an  oath  prescribed  there 
that  he  will  support  the  Constitution  of  the  United  States  and  of  the 
State.  Shall  it  be  held  that  the  governor  of  the  State  of  Oregon  is  all- 
powerless  when  the  Constitution  of  the  United  States  is  to  be  invaded 
and  he  is  to  certify  that  a  man  has  been  elected  who  cannot  be  elected 
without  a  violation  of  that  Constitution  ?  Is  he  to  sit  quietly  by  when 
the  fact  is  presented  to  him,  as  it  was  by  affidavits  at  the  time  of  the 
canvass  of  these  votes,  that  this  man  was  a  postmaster,  that  he  was 
holding  an  office  of  profit  and  trust  under  the  United  States!  And  I 
again  ask,  in  the  language  of  the  courts. of  Missouri  and  other  States, 
is  he,  when  he  has  sworn  to  support  the  Constitution  of  the  United 
States  and  of  the  State  of  Oregon,  to  see  both  trampled  under  foot  by 
giving  a  certificate  to  a  man  who  is  ineligible?  No,  it  is  not  so.  They 
say,  Why  not  go  to  the  courts  ?  The  executive  has  the  right,  as  I  have 
shown  you,  to  decide  questions  of  this  kind. 

It  is  impossible  for  me  to  elaborate  on  these  points  in  the  limited  time 
allowed  me  ;  but  I  call  attention  to  this  law  of  Oregon  : 

The  votes  for  electors  shall  be  given,  received,  returned,  and  canvassed  as  the  same 
are  given,  returned,  and  canvassed  for  members  of  Congress. 

Another  duty,  in  addition  to  that,  is  imposed  upon  the  secretary  of 
state : 

The  secretary  of  state  shall  prepare  two  lists  of  the  names  of  the  electors  elected, 
and  affix  the  seal  of  the  State  to  the  same.  Such  lists  shall  be  signed  by  the  governor 
and  secretary,  and  by  the  latter  delivered  to  the  college  of  electors  at  the  hour  of  their 
meeting. 

This  is  the  evidence  of  their  appointment ;  this  is  their  right  to  act, 


ELECTORAL    COUNT    OF    1877.  475 

from  what  has  appeared  from  the  reading  of  the  certificates.  There  is 
no  canvass  mentioned  ;  there  is  simply  a  list  of  the  votes  given.  I  con-- 
tend  that  the  governor  of  Oregon  and  the  secretary  of  state  are  the  per 
sons  to  canvass  these  votes.  There  is  no  evidence  that  there  was  any 
canvass  by  any  other  person.  They  must  decide  upon  that  question  ; 
it  is  for  them  and  them  only,  and  they  have  decided  and  they  have 
given  their  certificate  that  these  three  gentlemen  are  eligible,  including 
Mr.  Croniu.  It  matters  not  how  they  came  to  that  conclusion ;  the  pre 
sumption  of  law  will  always  be  that  it  was  upon  sufficient  evidence. 
They  had  evidence  of  the  ineligibility  of  one  of  the  candidates,  and  they 
decided  upon  that  point.  They  decided  that  that  was  sufficient  to 
exclude  him,  and  therefore  a  certificate  was  given  in  the  language  that 
was  read  here,  that  the  highest  eligible  candidates  were  Cartwright, 
Odell,  and  Cronin. 

Mr.  Senator  MITCHELL.    Mr.  President 

Mr.  Senator  KELLY.  I  cannot  yield  any  part  of  my  time,  it  is  so 
short. 

Mr.  Senator  MITCHELL.  I  simply  want  to  say,  if  my  colleague  will 
permit  me 

Mr.  Senator  KELLY.  You  can  answer  me  in  your  own  time.  I  say 
it  is  clear  that  these  two  officers  had  the  right  to  decide  and  did  decide 
that  matter.  They  are  the  only  medium  of  communication  between  the 
State  and  the  Federal  Government.  What  authority  had  Cartwright. 
Odell,  and  Watts  by  going  to  the  secretary  of  state  and  getting  a  list 
of  the  votes  of  the  people! — what  right  have  they  to  say  that  they  are 
electors  simply  by  getting  that  ?  Any  person  can  go  and  get  that  cer 
tificate  by  paying  the  fees.  Suppose  three  or  four  persons  who  did  not 
care  anything  about  their  obligations  as  good  citizens  of  the  United 
States  had  gone  and  got  a  certificate  of  the  same  kind,  as  they  could 
get  it  from  the  secretary  of  state  by  paying  for  it,  and  signed  the  names 
of  Watts,  Odell,  and  Cartwright,  and  given  their  votes  for  Tilden,  how 
would  you  know  the  difference  ?  You  cannot  tell  by  it ;  you  cannot  tell 
whether  their  signatures  are  genuine  or  not,  excepting  from  the  fact 
that  they  have  the  certificate  of  the  governor,  which  attests  them  and 
which  is  required  by  the  law  of  the  United  States.  I  contend  that  the 
United  States  have  the  right  to  prescribe  how  those  votes  shall  be  cer 
tified.  The  legislatures  of  the  States  have  the  right  to  regulate  the 
manner  of  election,  the  exclusive  right.  That  I  admit ;  but  when  the 
election  was  completed,  when  the  electors  were  chosen,  and  the  votes 
were  to  be  certified  from  the  State  to  the  President  of  the  Senate,  it 
must  be  done  under  United  States  laws.  They  regulate  that  in  the 
State  itself,  and  the  State  laws  of  Oregon  demand  that  this  certificate 
shall  be  signed  by  the  governor  and  attested  by  the  secretary  of  state. 

Mr.  Commissioner  THURMAN.  Mr.  Kelly,  I  should  like  to  ask  one 
question.  Does  the  law  of  Oregon  require  the  secretary  of  state  to 
give  any  decision  at  all,  or  does  it  require  the  governor  to  give  the  evi 
dence  of  the  decision  ? 

Mr.  Senator  KELLY.    1  will  read  the  law : 

The  votes  for  electors  shall  be  given,  received,  returned,  and  canvassed  as  the  same 
are  given,  returned,  and  canvassed  for  members  of  Congress. 

That  is,  so  far  as  the  mere  counting  and  tabulation  go,  it  is  given  to 
the  secretary,  the  governor  being  present.  Then  in  addition  : 

The  secretary  of  state  shall  prepare  two  lists  of  the  names  of  the  electors  elected— 
So  that  they  have  a  right  to  judge  of  the  qualifications — 
The  secretary  of  state  shall  prepare  two  lists  of  the  names  of  the  electors  elected , 


476  ELECTORAL   COUNT   OP   1877. 

and  affix  the  seal  of  the  State  to  the  same.    Snch  lists  shall  be  signed  by  the  governor 
,aud  secretary,  and  by  the  latter  delivered  to  the  college  of  electors  at  the  hour  of  their 
meeting  on  such  first  Wednesday  of  December. 

Mr.  Commissioner  THURMAN.  Now  I  want  to  ask  a  question  of 
fact ;  did  the  secretary  of  state  make  out  that  list  including  the  name 
of  Watts? 

Mr.  Senator  KELLY.  No,  sir ;  he  did  not  include  the  name  of  Watts. 
Upon  the  facts  and  upon  the  law — the  interposition  of  a  protest  by  a 
number  of  gentlemen  to  the  counting  of  the  vote  of  Watte,  an  affidavit 
being  made  that  the  identical  man  was  a  postmaster — the  governor  un 
dertook  to  decide  that  matter,  as  he  had  a  right'  to  decide  it  under  the 
decisions  I  have  cited,  and  under  the  laws  of  Oregon.  He  did  so  in 
pursuance  of  his  right  as  chief  executive  of  the  State  and  by  authority 
of  law,  and  the  secretary  of  state  attested  his  act ;  and  that  decision 
is  in  evidence  here,  and  is  the  only  evidence  of  who  had  a  right  to  cast 
the  electoral  votes,  and  that  was  given  to  Mr.  Cronin  as  well  as  the 
other  two. 

Mr.  Senator  MITCHELL.  Will  my  colleague  allow  me  to  interrupt 
him  a  moment? 

Mr.  Senator  KELLY.  I  will  not  allow  you  a  moment ;  you  have  an 
hour. 

The  PRESIDENT.    The  speaker  has  the  floor  unless  he  yields. 

Mr.  Senator  MITCHELL.  Certainly ;  I  understand  that,  Mr.  Presi 
dent. 

Mr.  Senator  KELLY.     Mr.  President 

Mr.  Commissioner  MILLER.    Perhaps  you  will  answer  me  a  question. 

Mr.  Senator  KELLY.     Certainly. 

Mr.  Commissioner  MILLER.  "The  votes  for  electors  shall  be  given, 
received,  returned,  and  canvassed  as  the  same  are  given,  returned,  and 
canvassed  for  members  of  Congress."  How  do  we  find  out  how  that  is 
done  ? 

Mr.  Commissioner  EDMUNDS.  Section  37  of  the  general  laws  seems 
to  provide  for  it. 

Mr.  Senator  MITCHELL.    Found  at  page  139  of  your  compilation. 

Mr.  Commissioner  ABBOTT.  I  wish  to  ask  a  single  question  of  fact, 
whether  the  certificate  No.  2  which  we  have,  here  is  not  in  exact  accord 
ance  with  that  provision  of  the  law  of  Oregon  which  you  have  read ;  that 
is,  that  a  certificate  should  be  given  signed  by  the  secretary  of  state  and 
the  governor  ? 

Mr.  Senator  KELLY.  It  is  in  exact  accordance  with  the  require 
ments  of  the  law  of  Oregon  and  the  law  of  the  United  States. 

Mr.  Commissioner  ABBOTT.  Have  you  any  other  board  in  Oregon 
to  certify  to  the  election  of  the  electors  but  that  board  ? 

Mr.  Senator  KELLY.     None. 

Mr.  Commissioner  ABBOTT.    That  is  what  I  wanted  to  get  at. 

Mr.  Senator  KELLY.  I  find  I  have  but  five  minutes  left,  and  I  will 
give  that  to  my  associate  objector. 

Mr.  Representative  JENKS.  Mr.  President  and  gentlemen  of  the 
Commission,  we  propose  to  plead  the  cause  of  truth  and  justice,  the 
cause  of  thirty-five  millions  out  of  forty  of  the  free  people  of  the  United 
States ;  a  cause  whose  justice  is  attested  by  a  clear  majority  of  iJ50,000 
of  the  popular  vote;  a  cause  whose  justice  is  corroborated  by  a  clear 
majority  of  25  in  the  electoral  college  of  the  United  States.  With  these 
facts  behind  us,  and  with  the  questions  of  law  and  fact  involved  in  this 
case,  we  shall  ask  at  your  hands  that  it  shall  be  decided  according  to 
them.  We  ask  nontechnical  advantage,  but  recognizing  that  the  law 


ELECTORAL    COUNT    OF    1877.  477 

of  the  land  is  truth  iu  law  as  facts  may  be  truth  in  fact,  we  ask  that  you 
shall  give  them  their  true  weight;  and  regarding  the  Constitution  of 
the  United  States  as  the  primordial  law,  the  all-controlling  fact  in  this 
case,  we  ask,  all  having  sworn  to  its  support,  that  that  support,  with 
out  abatement,  shall  be  fully  accorded  to  it. 

The  first  question,  necessarily,  is  a  question  of  evidence.  What  evi 
dence  is  there  before  this  tribunal,  or  what  evidence  can  or  will  be  re 
ceived  by  it,  are  the  first  questions;  and  in  answer  to  them,  if  we  are 
to  judge  by  the  precedents  established  by  this  tribunal  in  the  past,  we 
would  infer  that  there  is  to  be  no  evidence  except  those  papers  which 
conie,  with  the  several  returns,  from  the  President  of  the  Senate.  That 
would  narrow  the  inquiry  to  a  very  small  space,  and  that  space  first  we 
propose  to  discuss  ;  not  that  we  say  differently  from  what  we  said  be 
fore,  that  we  would  ask  you  finally  to  a  frugal  feast;  we  would  invite 
you,  as  before,  to  go  down  to  the  bottom  facts,  for  if  our  case  be  not 
founded  upon  the  merits  of  truth  and  justice  I  would  not  have  it. 

But  inquiring  in  the  light  in  which  this  tribunal  must  first  inquire, 
we  will  consider  it  on  the  narrow  ground  of  the  papers  submitted  by 
the  President  of  the  Senate.  With  reference  to  these,  the  inquiry 
would  arise,  which  of  these,  if  any,  is  legal  evidence  1  If  either  one 
be  legal  evidence  and  the  other  be  not,  if  you  are  guided  by  the  law  of 
the  land,  you  must  find  in  accordance  with  the  legal  evidence.  The 
evidence  as  offered  with  the  returns  by  the  President  of  the  Senate  is, 
first,  the  certificate  of  the  governor  of  Oregon,  in  the  following  words, 
also  attested  by  the  secretary  of  state,  under  the  great  seal  thereof : 

STATE  OF  OREGON,  EXECUTIVE  OFFICE, 

Salem,  December  6,  1876. 

I,  L.  F.  Grover,  governor  of  the  State  of  Oregon,  do  hereby  certify  that,  at  a  general 
election  held  in  said  State  on  the  7th  day  of  November,  A.  D.  1876,  William  H.  Odell 
received  15,208  votes,  John  C.  Cartwright  received  15,214  votes,  E.  A.  Cronin  received 
14,157  votes  for  electors  of  President  and  Vice-President  of  the  United  States.  Being 
the  highest  number  of  votes  cast  at  said  election  for  persons  eligible,  under  the  Con 
stitution  of  the  United  States,  to  be  appointed  electors  of  President  and  Vice-President 
of  the  United  States,  they  are  hereby  declared  duly  elected  electors  as  aforesaid  for  the 
State  of  Oregon. 

And  there  is  the  usual  clause  of  attestation,  with  the  seal  of  the  State, 
the  signature  of  the  governor,  and  the  countersigning  of  the  secretary 
of  state.  That  is  the  evidence  on  the  part  of  certificate  No.  2.  The 
evidence  on  the  part  of  certificate  No.  1  consists  of  an  affidavit  of  three 
persons  whom  we  know  not,  because  there  is  no  evidence  to  identify 
them  as  having  been  any  of  the  persons  voted  for  at  that  election, 
swearing  that  they  had  gone  to  the  governor  and  asked  for  a  certificate. 
Is  it  not  his  duty  to  judge  to  whom  he  will  deliver  certificates  *\  May 
there  not  be  two  John  Smiths  in  this  world  ?  And  what  right  have 
these  men  to  come  in  and  by  their  oath  attempt  to  supply  that  which 
is  fixed  by  statute  as  the  only  legal  evidence  of  a  given  transaction  U 

There,  then,  is  the  oath  of  three  men,  whom  you  know  not  and  who 
have  no  indentification  before  this  tribunal  of  any  character  recognized 
by  the  law,  that  they  have  gone  and  asked  for  a  certificate,  and  that 
the  governor  would  not  give  it  to  them.  That  is  the  first  paper  ;  and 
if  that  be  legal  evidence  before  this  tribunal,  what  would  not  be  ?  The 
affidavit  of  any  other  three  men  in  the  United  States  would  be  received 
with  the  same  weight  as  theirs ;  and  if  this  tribunal  acts  on  the  same 
theory  it  has  heretofore  promulgated,  that  is  a  simple  nullity. 

Then  the  next  evidence  of  authentication  which  they  attempt  to  origi 
nate  is  a  statement  of  votes  in  that  State,  with  the  certificate  of  the  secre 
tary  of  state  that  it  is  a  true  statement  of  the  votes  as  cast,  with  the 


478  ELECTORAL   COUNT   OF    1877. 

electoral  vote  of  the  persons  therein  claiming  to  be  electors  thereto 
attached. 

Now,  we  stand  on  the  legal  proposition  that  where  there  is  a  stat 
utory  mode  of  authentication,  no  other  mode  of  authentication  can  be 
received  as  legal  evidence  in  a  court  of  justice.  Then  the  inquiry  would 
be,  what  is  the  statutory  authentication  required  by  the  law  ?  In  sup 
port  of  this  proposition  we  will  give  your  honors  an  authority.  We  will 
cite  you  to  the  case  of  Bleecker  vs.  Bond,  3  Washington's  Circuit  Court 
Reports,  page  531.  There  the  offer  made  before  Judge  Washington  was : 

The  certificate  of  Joseph  Nourse,  the  Register  of  the  Treasury  Department,  under  hia 
hand,  that  certain  receipts,  of  which  copies  are  annexed,  are  on  file  in  his  office,  with 
a  certificate  of  the  Secretary  of  the  Treasury,  under  the  seal  of  the  Department,  that 
Joseph  Nouree  is  Register,  was  offered  in  evidence,  and  objected  to. 

The  court  overruled  the  evidence  upon  the  ground  that  it  is  not  sufficient  that  the 
officer  who  gives  this  certificate  has  the  custody  of  the  papers,  unless  it  also  appeared 
that  he  is  authorized  by  law  to  certify  such  papers,  which  this  officer  is  not.  A  sworn 
copy  ought  to  have  been  produced. 

Then  as  a  sequitur  from  that  we  would  cite  your  honors  to  the  case  of 
Pendleton  vs.  The  United  States,  2  Broekenboroiigh's  Eeports,  page  75, 
in  which  the  principle  announced  is  that  "the  certificate  must  be  in  the 
form  prescribed  by  law." 

Then  if  the  officer  has  not  power  to  certify,  or  if  the  certificate  be  not 
in  the  form  prescribed  by  law,  it  is  not  evidence  before  any  tribunal. 
Now  is  there  a  form  prescribed  by  law  that  this  certificate  shall  have; 
and,  if  there  is,  will  you,  in  the  face  of  clearly-established  law,  rule  that 
this  is  any  evidence,  for  any  purpose  whatever,  as  against  a  certificate 
that  fully,  in  all  particulars,  conforms  to  the  law  of  the  land  ?  What  is 
the  law  of  the  land  in  reference  to  that?  First,  with  reference  to  the  law 
of  Oregon,  what  does  it  require  ?  It  says : 

The  secretary  of  state  shall  prepare  two  lists  of  the  names  of  the  electors  elected , 
and  affix  the  seal  of  the  State  to  the  same.  Such  lists  shall  be  signed  by  the  governor 
and  secretary,  and  by  the  latter  delivered  to  the  college  of  electors  at  the  hour  of  their 
meeting  on  such  first  Wednesday  of  December. 

Then,  by  the  law  of  Oregon,  it  is  necessary  that  the  certificate  shall 
have,  first,  the  attestation  of  the  secretary  of  state ;  second,  it  shall  have 
the  signature  of  the  governor.  Our  certificate  has  this  ;  the  other  has 
not.  If  the  law  of  Oregon,  then,  is  to  be  your  rule  as  to  evidence,  no 
other  can  be  received  in  the  face  of  that  statute.  But  is  there  any  other 
law  beside  that  of  Oregon  that  can  be  used  as  a  guide  in  this  tribunal  f 
We  will  give  you  the  law  of  the  United  States,  in  which  it  is  provided 
that — 

It  shall  be  the  duty  of  the  executive  of  each  State  to  cause  three  lists  of  the  names 
of  the  electors  of  such  State  to  be  made  and  certified,  and  to  be  delivered  to  the 
electors  on  or  before  the  day  on  which  they  are  required  by  the  preceding  section  to 
meet. — Section  130,  Revised  /Statutes  United  States. 

Here,  then,  is  the  statute  of  Oregon  and  here  is  the  statute  of  the 
United  States,  each  of  which  prescribes  the  mode  of  testifying  to  a 
given  fact.  There  is  a  conformity  to  that,  in  all  particulars,  in  the  one, 
and  there  is  not  even  the  semblance  of  a  conlbrrnance  in  the  other ; 
and  which  shall  be  received  ? 

We  say,  then,  that  this  evidence,  in  the  absence  of  fraud,  inten 
tional  fraud,  should  be  received  and  held  conclusive.  If  the  allegation 
were,  and  it  were  proven,  that  the  governor  fraudulently  refused  to  do 
a  duty,  it  would  be  your  duty,  I  should  say,  to  inquire  concerning  that, 
and  never  give  vitality  to  infamy  ;  but,  in  the  absence  of  the  allegation 
of  fraud,  the  certificate  of  the  governor  and  the  secretary  of  state  must 


ELECTORAL   COUNT   OF   1877.  479 

be  taken  as  complete  and  conclusive  evidence  of  the  fact  therein  con 
tained;  and  that  fact  is  that  this  man  -Cronm,  with  two  others,  was 
elected. 

Then  as  to  the  question  of  evidence  :  one  side  offers  you  the  evidence 
required  by  law ;  the  other  gives  you  no  evidence  authorized  by  law. 
This  certificate  and  its  delivery  by  the  governor  and  the  secretary  of 
state  are  not  altogether  purposeless  either.  The  object  of  that  and  the 
requirement  of  the  statute  of  the  United  States,  which  says  that  it  shall 
accompany  their  votes,  is  to  identify  the  persons  who  do  the  voting 
with  the  persons  who  were  voted  for.  If  a  man  came  without  a  certifi 
cate,  how  do  you  know,  in  a  large  State  like  New  York,  that  there  might 
not  be  a  dozen  men  of  identically  the  same  name  as  his  who  recorded 
the  vote  ?  Hence,  the  statute  of  the  United  States  has  wisely  said,  in 
order  that  we  may  judge  as  to  whether  the  person  who  has  cast  the 
vote  is  the  identical  person  voted  for  and  com  missioned,  that  the 
presence  of  the  certificate  is  required  with  the  vote,  and  it  must  attend 
it.  So  this  is  not  to  be  neglected  either. 

But  the  question  of  evidence  being  the  narrow  plank  of  this  platform, 
let  us  go  beyond  it.  The  next  question  is,  what  would  be  the  effect  of 
that  evidence  even  in  the  case  of  error  or  mistake  ?  If  that  error  were 
willful  and  fraudulent,  we  assert  now,  as  we  have  ever  asserted,  that 
fraud  vitiates  all  things  into  which  it  enters  as  a  constituent  element ; 
but  if  it  were  merely  a  mistake  or  error  in  the  integrity  of  the  person 
whose  duty  it  was  to  give  it,  it  must  be  received  as  a  verity  ;  and  to 
sustain  this  we  first  assert  the  proposition  that  granting  the  commission 
is  a  political  act,  and  as  such  cannot,  except  for  willful  fraud,  be  in 
quired  into  by  any  other  tribunal  than  that  whose  duty  it  is  to  exercise 
the  political  function.  In  support  of  that  we  would  call  your  honors' 
attention  to  Gulick  vs.  New,  14  Indiana  Keports,  page  96  : 

As  to  the  second  branch  of  the  objection.  It  is  made  the  duty  of  the  governor  to 
issue  commissions  in  certain  cases  and  to  certain  officers.  The  sheriff  is  one  of  the 
officers  that  thus  receives  a  commission  upon  his  election  ;  and  we  have  no  doubt 
that  if  the  governor  should  ascertain  that  he  had,  through  mistake  or  otherwise,  im 
properly  issued  a  commission  to  one  person  to  fill  that  office,  when  in  truth  it  ought 
to  have  been  issued  to  another,  he  may  correct  the,  error  by  issuing  one  to  the  per 
son  legally  entitled  thereto. 

Again,  I  cite  High  on  Extraordinary  Legal  Remedies,  page  98, 
speaking  of  political  duties  : 

The  doctrine  as  thus  stated  has  been  most  frequently  applied  in  cases  where  it  has 
been  sought  by  mandamus  to  compel  the  governor  of  a  State  to  issue  commissions  to 
persons  claiming  to  be  rightfully  elected  to  public  offices.  And  the  courts  have  held 
the  duty  of  issuing  such  commissions  to  be  of  a  political  nature,  requiring  the  exercise 
of  the  political  powers  of  the  governor,  and  none  the  less  an  executive  act  because  it 
is  positively  required  of  the  governor  by  law.  The  mere  fact  that  no  discretion  is  left 
with  the  executive  as  to  the  manner  of  its  performance,  does  not  render  it  a  ministerial 
duty  in  the  sense  that  mandamus  will  lie  to  compel  its  performance,  and  whatever 
constitutional  powers  are  conferred  upon  the  executive  are  regarded  as  political 
powers,  and  all  duties  enjoined  upon  him  as  political  duties. 

Then  if  the  governor  issues  this,  even  to  the  wrong  person,  it  is  a 
political  duty  imposed  upon  him  by  the  law  of  the  land  and  by  the 
constitution  of  the  State,  and  when  he  is  acting  under  the  obligation 
of  his  oath  to  support  the  Constitution  of  the  United  States  his  act,  if 
exercised  bonafide,  cannot  be  inquired  into  elsewhere,  and  in  the  absence 
of  the  allegation  of  fraud  that  certificate,  no  matter  how  groundless  it 
might  be,  is  entirely  conclusive  on  this  tribunal  and  every  other. 

But  the  evidence  is  attested,  as  1  might  have  stated  before,  by  the 
very  canvassing-board  itself.  The  secretary  of  state  and 'the  governor, 
the  canvassing-board,  declare  that  as  the  result  of  the  election  j  and 


480  ELECTORAL   COUNT   OF   1877. 

the  governor  in  pursuance  thereof  having  exercised  a  political  function, 
you  have  no  legal  right  to  go  .back  of  that  in  the  absence  of  the  allega 
tion  of  fraud  and  inquire  into  its  issues. 

But  having  considered  it  in  the  light  of  an  evidential  question,  we 
do  not  propose  to  limit  ourselves  to  that  narrow  sphere,  for  a  President 
of  the  United  States  ought  not  to  be  elected  upon  a  mere  technicality. 
The  ruler  of  a  great  people  needs  some  title  broader  than  a  hair-split 
ting  distinction  on  which  to  rest  his  title,  and  we  ask  to  go  to  the 
merits  and  the  truth  of  the  case.  Assuming  now  for  the  sake  of  the 
argument  that  Mr.  Watts  received  a  greater  number  of  votes  than  Mr. 
Cronin,  and  that  he  was  a  postmaster  of  the  United  States  at  the  time 
those  votes  were  cast,  was  he  elected  ?  We  propose  to  demonstrate 
that  he  was  not  elected,  even  if  he  received  a  majority  of  the  votes  cast; 
and  in  support  of  that,  of  course,  the  fundamental  proposition  would  be 
the  Constitution  of  the  United  States,  and  I  will  refer  to  it  in  order  to 
call  your  honors'  attention  to  a  distinction  which  exists  between  cases 
which  must  be  distinguished  or  cause  utter  confusion  in  the  law  as 
administered  and  announced  in  the  different  States.  On  this  subject 
the  Constitution  of  the  United  States  says  : 

No  *  *  person  holding  an  office  of  trust  or  profit  under  the  United  States  shall 
"be  appointed  an  elector. 

It  does  not  say  no  per  son  holding  an  offi.ce  of  trust  or  profit  shall  hold 
the  privilege  of  an  elector ;  nor  does  it  say  he  shall  not  be  an  elector ; 
but  it  says  he  shall  not  be  "  appointed  an  elector."  The  time  of  ap 
pointment  is  the  all-important  time  with  reference  to  this.  The  very 
object  in  putting  this  provision  in  the  Constitution  doubtless  was  that 
the  Federal  Government  should  never  exercise  its  influence  in  the  elec 
tion  of  electors  to  perpetuate  itself  in  power.  The  influence  in  the 
election  was  what  was  wished  to  be  excluded ;  and  hence  the  appoint 
ment  was  the  vital  moment  intended  to  be  taken  into  consideration. 
You  will  notice  the  language  is,  that  they  shall  not  be  "  appointed."  It 
is  not  that  they  shall  not  hold,  or,  that  they  shall  not  exercise  the  func 
tions  ;  or,  that  they  shall  be  incompatible,  as  many  of  the  statutes  of 
the  States  are ;  but,  he  shall  not  be  appointed  at  all. 

While  noticing  that  distinction,  allow  me  to  call  the  attention  of  the 
Commission  to  what  will  explain  consistently  all  the  decisions  through 
out  the  United  States.  We  find  in  one  of  the  Pennsylvania  reports  an 
opinion  delivered  by  his  honor  Mr.  Justice  Strong,  in  Commonwealth 
vs.  Cluly,  56  Pennsylvania  State  Keports,  in  which  the  expression  is 
made  that  he  knows  no  judicial  authority  to  support  the  proposition 
that  a  man  who  does  not  receive  a  majority  of  votes  can  be  elected,  and 
he  cites  congressional  authority  against  it,  ruling  on  what  has  been 
done  in  Congress  and  in  the  Senate  of  the  United  States  in  reference  to 
determining  the  law  as  to  contested  appointments.  In  reference  to  Rep 
resentatives  of  the  United  States,  the  language  is : 

No  person  shall  be  a  Representative  who  shall  not  have  attained  to  the  age  of 
twenty-five  years  and  been  seven  years"a  citizen  of  the  United  States. 

It  does  not  say  no  person  shall  be  elected  to  Congress  or  nobody  shall 
be  appointed  a  Congressman,  but  it  says  he  shall  not  be  a  Congressman. 
The  same  language  holds  with  reference  to  the  Senate : 

No  person  shall  be  a  Senator  who  shall  not  have  attained  to  the  age  of  thirty  years. 

Showing  that  the  time  of  holding  is  what  is  referred  to  in  these  seve 
ral  sections.  This  is  also  corroborated  by  the  next  clause : 

No  person  shall  be  a  Representative  who  shall  not  have  attained  to  the  age  of 
twenty-five  years  and  been  seven  years  a  citizen  of  the  United  States,  and  who  shall 
not,  when  elected,  bo  an  inhabitant  of  that  State  in  which  he  shall  be  chosen. 


ELECTORAL    COUNT    OF    Ib77..  481 

There  are  three  qualifications:  he  shall  not  be  a  Representative  un 
less  he  is  twenty-five  years  of  age;  he  shall  not  be  a  Representative  unless 
he  shall  have  been  seven  years  a  citizen  of  the  United  States,  and  then 
there  is  another  qualification  of  a  different  class,  the  distinction  being 
made  in  the  same  section,  u  and  who  shall  not,  when  elected" — going 
back  from  the  time  of  holding  to  another  period — u  be  an  inhabitant  of 
that  State  in  which  he  shall  be  chosen."  He  must  at  the  time  of  the 
election  be  an  inhabitant  of  the  State  in  which  he  is  chosen  ;  but  at  the 
time  of  being  a  Representative  he  must  be  seven  years  a  citizen  of  the 
United  States  and  he  must  be  twenty-five  years  of  age.  The  same  dis 
tinction  is  made  between  the  time  of  election  and  the  time  of  holding 
with  reference  to  Senators,  because — 

And  who  shall  not,  when  elected,  be  an  inhabitant  of  that  State  for  which  he  shall 
be  chosen. 

Making  the  very  distinction  that  is  necessary  to  render  consistent 
with  each  other  all  the  well-considered  authorities  on  this  subject. 
The  time  of  the  appointment  is  what  is  here  spoken  of  by  the  Consti 
tution  of  the  United  States  as  to  electors.  When  it  says  no  person  of 
this  class  shall  be  appointed  an  elector,  it  is  an  utter  denial  of  power  in 
the  voter  to  vote  for  him.  The  citizen  is  just  as  much  bound  by  the 
Constitution  as  is  the  officer.  He  has  taken  the  oath  either  directly 
himself  or  inherited  it,  and  when  he  swears  "I  will  not  appoint  one  who 
is  holding  an  office  of  trust  or  profit  under  the  United  States,"  and  he 
violates  that  oath,  are  you  entitled  to  give  validity  to  that  violation,  or 
are  you  to  consider  it  as  a  nullity  *  It  is  to  be  treated  as  though  it 
was  not  done. 

It  is  true  that,  on  the  theory  announced  by  learned  counsel  (Mr. 
Evarts)  in  a  former  case,  that  may  be  gotten  over.  It  is  not  utterly 
conclusive,  provided  you  resort  to  the  grounds  taken  by  the  learned 
counsel  in  a  former  case,  who  said  this: 

They  are  elected;  they  are  acting  ;  they  are  certifying;  for  there  is  nothing  in  that 
idea  of  the  subject  at  all  that  a  man  made  ineligible  cannot  be  elected.  You  might 
as  well  say  that  the  forbidden  fruit  could  not  be  eaten  because  it  was  forbidden. 

That  is  true;  you  can  violate  and  defy  law.  The  forbidden  fruit 
eould  be  eaten  notwithstanding  it  was  forbidden,  but  it  could  be  eaten 
in  defiance  of  the  laws  of  God,  and  that  defiance  brought  upon  the 
world  "  death  and  all  our  woe." 

And  will  you  adopt  the  same  theory  that  a  man  can  do  that  which 
is  forbidden  and  sustain  argument  upon  it ;  that  when  it  is  forbidden 
he  may  do  it  and  you  will  approve  arid  give  validity  and  vitality  to 
that  act  ?  Can  you,  on  the  line  announced  by  the  learned  counsel  in 
one  of  the  former  cases,  say  that  when  a  man  swears  he  will  not  do  a 
thing  he  may  do  it;  when  he  swears  that  he  will  not  do  it  he  can  do 
it  ?  It  can  be  done  only  on  the  principle  that  the  Constitution  has 
become  obsolete  literature,  merely  for  the  study  of  the  antiquary. 

So  we  say  there  can  be  no  power  to  appoint  an  ineligible  person.  But 
it  is  not  mere  reasoning  on  which  this  rests.  We  will  furnish  authority 
to  corroborate  it.  The  first  case  that  we  call  your  attention  to  is  the 
case  of  Gulick  vs.  New,  (14  Indiana  Reports,  page  93,)  in  which  the  fol 
lowing  language  occurs : 

True,  by  the  constitution  and  laws  of  this  State  the  voice  of  a  majority  controls 
our  elections,  but  that  voice  must  be  constitutionally  and  legally  expressed.  Even 
a  majority  should  not  nullify  a  provision  of  the  constitution  or  be  permitted  at  will 
to  disregard  the  law.  In  this  is  the  strength  and  beauty  of  our  institutions.  *  *  * 
Suppose  that  eight  years  ago,  at  the  first  election  under  our  new  constitution,  when 
nearly  all  the  offices  in  the  State  were  to  be  filled,  a  majority  of  the  voters  in  the 
State,  and  in  the  several  districts  and'  counties,  had  voted  for  persons  wholly  ineli- 
31  E  C 


482  ELECTORAL    COUNT    OF    1877. 

gible  to  fill  the  several  offices,  would  those  offices  have  thereby  remained  vacant  ? 
Could  that  majority,  by  pursuing  that  course,  have  continued  the  anarchy  that  might 
have  resulted  from  such  action  ?  Or,  rather,  is  it  not  the  true  theory  that  those  who 
act  in  accordance  with  the  constitution  and  the  law  should  control'even  a  majority 
who  may  fail  so  to  act  ? 

We  also  find  that  principle  corroborated  in  41  Indiana  Reports,  577, 
Price  vs.  Baker,  in  which  the  following  language  is  held : 

It  is  a  principle  of  law,  well  settled  in  this  State,  that  where  a  majority  of  the 
ballots  at  an  election  are  given  to  a  candidate  who  is  not  eligible  to  the  office,  the 
ballots  so  cast  are  not  to  be  counted  for  any  purpose.  They  cannot  be  counted  to 
elect  the  ineligible  candidate  or  to  defeat  the  election  of  an  opposing  candidate,  by 
showing  that  he  did  not  receive  a  majority  of  the  votes  cast  at  such  election.  They 
are  regarded  as  illegal,  and  as  having  no  effect  upon  the  election  for  any  purpose.  As 
a  consequence,  it  follows  that  the  candidate  who  is  eligible,  having  the  highest  num 
ber  of  legal  votes,  though  that  number  may  be  less  than  the  number  of  votes  cast  for 
the  ineligible  candidate,  and  less  than  a  majority  of  all  the  votes  east  at  such  election, 
is  entitled  to  the  office. 

So  that  the  legal  votes  are  to  control  those  that  are  illegal. 

Mr.  Commissioner  EDMUNDS.  Does  that  case  put  the  question  inde 
pendently  of  the  knowledge  of  the  voter  I 

Mr.  Representative  JENKS.  It  puts  it  independently  of  the  knowl 
edge  of  the  voter.  We  shall  consider  that  further  on. 

Mr.  Commissioner  EDMUNDS.  I  simply  wish  to  know  how  the  court 
held. 

Mr.  Senator  MITCHELL.  The  court  there  held  that  there  was  con 
structive  knowledge. 

Mr.  Representative  JENKS.  I  have  read  what  the  court  said.  The 
next  case  we  cite  is  on  the  same  subject,  the  case  of  Hutchenson  vs. 
Tilden  and  Boardley,  4  Harris  and  McHenry,  page  280,  in  which  the 
following  occurs ;  this  is  a  Maryland  case  : 

All  votes  given  for  a  candidate  not  having  such  qualification  are  to  be  thrown  away 
and  rejected  as  having  no  force  or  operation  in  law. 

The  same  as  if  not  cast  at  all.  We  may  also  say  that  Chief- Justice 
Thompson,  in  the  case  of  Commonwealth  vs.  duly,  asserts  the  same 
principle  in  Pennsylvania,  the  court  resting  its  decision  upon  the  de 
cisions  of  the  Houses  of  Congress.  I  will  read  from  Jthat  case  in  56 
Pennsylvania  State  Reports,  page  273.  The  decision  of  the  court  was 
that  an  illegal  person  voted  for  was  not  elected  and  his  competitor  was 
not.  That  was  the  conclusion  of  the  court;  but  that  was  founded  on 
the  false  hypothesis  that  the  decisions  of  legislative  assemblies  settled 
the  question  by  acting  on  the  language  of  the  Constitution,  which  spoke 
of  a  person  not  being  a  Senator  or  a  Congressman,  under  which  those 
who  were  disqualified  at  the  time  of  the  election,  but  became  qualified 
before  the  time  of  their  admission,  were  admitted. 

Mr.  Commissioner  STRONG.     I  do  not  so  recollect  the  case. 

Mr.  Representative  JENKS.  I  will  read  to  your  honor,  and  then 
perhaps  it  will  call  back  your  honor's  recollection. 

Mr.  Commissioner  STRONG.  My  recollection  is  that  the  political 
cases  were  referred  to  as  a  mere  illustration,  not  as  the  basis  of  the 
decision. 

Mr.  Representative  JENKS.  Your  honor  there  said  that  here  there 
were  no  judicial  cases  on  record. 

Mr.  Commissioner  STRONG.    In  this  country. 

Mr.  Representative  JENKS.    After  announcing  that  the  person  who 
received  the  minority  vote  is  not  elected,  the  court,  through  his  honor  ' 
Judge  Strong,  say  in  that  case  : 

We  are  not  informed  that  there  has  been  any  decision  strictly  judicial  upon  the 
subject;  but  in  our  legislative  bodies  the  question  has  been  determined. 


ELECTORAL    COUNT    OF    1877.  483 

We  think  we  have  shown  the  true  difference  between  those  two.  In 
the  present  case  it  would  be  baseless  founded  on  that  kind  of  decision. 
Then  his  honor  goes  further,  and  says  : 

Besides,  a  man  who  votes  for  a  person  with  knowledge  that  the  person  is  incompe 
tent  to  hold  the  office,  and  that  his  vote  cannot  therefore  be  effective,  that  it  will  be 
thrown  away,  may  very  properly  be  considered  as  intending  to  vote  a  blank  or  throw 
away  his  vote. 

But  the  present  relator  — 

Applying  it  to  the  facts  of  the  case  — 

But  the  present  relator  suggests  no  such  case.  He  does  not  even  aver  that,  if  the  votes 
given  for  duly  were  thrown  out,  he  received  a  majority,  though  doubtless  such  was 
the  truth.  He  has,  therefore,  exhibited  no  such  interest  as  entitles  him  to  be  heard. 


I  refer  to  7  Maine  Reports,  pages  497  and  501,  which  to  me  seems 
to  be  very  pertinent  in  this  case.  That  arose  under  the  authority  of 
the  governor  and  council  to  submit  certain  propositions  to  the  supreme 
court  for  their  opinion.  This  is  the  question  asked  by  the  governor  and 
council  : 

Can  ballots  having  the  names  of  persons  on  them  who  do  not  possess  the  constitu 
tional  qualifications  of  a  representative  be  counted  as  votes  under  the  fifth  section  of 
fourth  article,  part  first,  of  the  constitution  of  Maine,  so  as  to  prevent  a  majority  of  the 
votes  given  for  eligible  persons  constituting  a  choice  ? 

That  is  a  question  covering  this  whole  case.    The  answer  is: 

To  the  fourth  question  proposed,  without  a  particular  statement  of  reasons,  we  merely 
answer  in  the  negative 

This  occurred  in  1831.  In  1833  an  act  was  passed  in  Maine  conform 
ing  to  the  theory  or  doctrine  laid  down  by  these  judges  in  this  opinion  ; 
so  that  it  has  been  authoritatively  announced  in  many  States.  The 
English  cases  assume  this  doctrine,  that  if  the  person  who  votes  knows 
that  the  person  for  whom  he  votes  is  disqualified,  in  that  event  his  vote 
is  thrown  away.  If  that  were  the  doctrine  in  this  country,  where  the 
people  are  principals  and  the  officers  their  agents,  still  the  case  would 
be  covered  by  the  fact.  Suppose  we  now  assume  that  the  English 
doctrine  is  the  true  doctrine,  that  the  voter  must  know  that  a  disquali 
fied  person  is  disqualified.  What  is  the  theory  of  our  Government  ? 
The  people  are  the  principals  ;  the  officers  are  their  agents.  The  prin 
cipal  knows  who  his  agents  are.  Hence  when  he  votes  for  a  public  officer 
he  votes  knowing  that  he  is  voting  for  his  own  agent.  He  cannot  have 
an  agent,  is  not  to  be  presumed  to  have  any  agent,  that  he  does  not  know 
of.  The  theory  would  not  hold  good  in  the  Britisk  government,  where 
the  source  of  power  is  the  Grown  and  the  people  are  not  constructively 
notified  of  who  the  agent  is;  but  here  when  we  appoint  an  agent  ou  - 
selves,  either  directly  or  indirectly,  can  any  man  say  in  law  "  I  did  not 
know  who  he  was  'P  So,  in  consequence  of  the  construction  of  our 
Government,  in  opposition  to  that  of  the  British  government,  construct 
ive  notice  exists  to  every  individual  of  every  officer  in  the  United 
States,  and  the  doctrine  of  constructive  notice,  that  the  principal  knows 
who  his  agents  are,  would  bring  this  within  the  doctrine  of  the  judicial 
decisions  that  no  one  disputes,  either  English  or  American,  that  where 
the  provision  is  that  a  man  shall  not  be  voted  for,  a  vote  for  him,  so  far 
as  the  power  of  being  elected  is  concerned,  does  not  have  that  power. 
So  Watts  was  not  elected,  even  if  he  received  a  majority  of  the  votes. 

Mr.  Commissioner  THURMAN.  Your  proposition  is  that  where  the 
man  cannot  be  voted  for,  then  knowledge  on  the  part  of  the  voter  is  of 
no  consequence. 

Mr.  Representative  JENKS.    It  is  of  no  consequence  at  all.     The 


484  ELECTORAL    COUNT    OF    1877. 

English  authorities  do  not  pretend  to  allege  that  it  was  necessary  that 
the  voter  should  know  that  he  was  voting  for  a  disqualified  candidate. 
The  only  question  was  whether  the  result  was  to  elect  the  next  highest 
where  this  knowledge  did  not  exist.  In  any  event  the  man  was  not  elected 
who  received  the  highest  number  of  votes,  but  the  question  was  whether 
the  other  was  elected ;  but  I  say  under  the  theory  of  our  Government 
that  the  people  are  the  principals  and  the  officers  are  the  agents,  there 
is  notice  per  se  to  every  principal  of  every  agent  he  has  got,  construct 
ively,  and  we  know  who  our  agents  are. 

We  first  will  assume,  then,  that  Watts  was  not  elected.  If  he  was 
not  elected,  the  next  question  would  be,  was  Cronin  elected  f  We  have 
already  cited  authorities  on  that  point  sufficient  to  call  your  attention 
to  the  principle,  and  as  time  is  short  I  will  pass  to  the  next  point.  The 
question  whether  Cronin  was  elected  or  not  will  be  elaborated  by  coun 
sel. 

Then  the  next  question  that  would  arise  would  be,  if  Watts  was  not 
elected  and  Cronin  was  not  elected,  what  would  be  the  effect  ?  Would 
there  be  a  vacancy  ?  We  assume  there  would  not  be  a  vacancy.  If 
Watts  was  not  elected,  and  if  Cronin  was  not  elected  by  the  smaller 
number  of  votes,  then  there  was  no  vacancy. 

Before  entering  upon  the  discussion  of  this  on  principle  and  authority, 
it  may  be  well  to  respond  to  the  argument  made  by  the  very  learned 
counsel  on  the  part  of  the  opposite  party  in  a  former  case,  that  there 
must  be  a  vacancy  where  there  is  not  an  incumbent.  The  proposition 
was  stated  something  like  this :  If  there  is  not  some  person  in  possession, 
there  must  be  no  person  in  possession;  and  if  there  is  no  person  in 
possession,  there  must  be  a  vacancy.  That  was  about  the  form  of  the 
syllogism.  Let  us  inquire  concerning  that.  We  start  with  the  propo 
sition,  which  seemed  to  be  conceded  by  the  same  learned  counsel  the 
other  day,  that  the  electors  for  President  of  the  United  States  are  quali 
fied  persons,  not  officers,  but  citizens  of  a  given  qualification,  voters  for 
President  of  the  United  States,  not  having  a  public  employment  or 
private  employment,  (whatever  is  the  definition  of  office,)  but  the  privi 
lege  of  performing  a  given  act.  Now,  if  a  man  does  not  exercise  a  privi 
lege,  does  it  necessarily  become  vacant  at  all  ?  Take  the  common  case 
of  the  elective  franchise.  Suppose  there  be  a  township  with  a  hundred 
voters,  and  one  of  them — a  privileged  voter — does  not  attend  the  election. 
Does  that  make  a  vacancy,  or  does  it  not  ?  Is  there  a  vacancy  in  that 
election?  Where  there  is  a  privilege  that  a  man  may  use  or  may  not, 
and  he  does  not  exercise  it,  that  failure  does  not  constitute  any  vacancy 
whatsoever.  A  neighbor  may  grant  me  the  privilege  of  walking  in  his 
garden.  I  may  exercise  that  privilege  or  I  may  not,  depending  upon 
iny  own  volition;  but  whether  I  do  or  do  not,  there  is  no  vacancy  either 
in  tke  privilege  or  the  right  to  it.  It  does  not  exist  at  all  except  at 
the  option  of  the  person  to  whom  that  privilege  belongs.  Hence  it  is 
not  a  sequitur  at  all  that,  if  a  man  having  a  privilege  does  not  exercise 
it,  there  is  necessarily  a  vacancy  in  anything. 

Then  starting  with  that  proposition,  is  there  a  vacancy  ?  On  this- 
subject  I  call  your  honors7  attention,  first,  to  a  very  recent  ease  decided 
during  this  pBesidential  election,  that  of  George  H.  Corliss,  of  Rhode 
Island,  which  I  find  in  the  American  Law  Register  of  January,  1877, 
on  page  19.  The  inquiry  was  made  by  the  governor  of  Rhode  Island, 
as  in  the  case  in  Maine,  of  the  supreme  court  of  the  State.  The  second 
proposition  is : 

We  think  a  centennial  commissioner,  who  was  a  candidate  for  the  office  of  elector 
and  received  a  plurality  of  the  votes,  does  not  by  declining  the  office  create  such  a  va 
cancy  as  is  provided  for  iu.  general  statutes. 


ELECTORAL    COUNT    OF    1377.  485 

And  now  conies  the  quotation  from  the  statute : 

If  any  electors,  chosen  as  aforesaid,  shall,  after  their  said  election,  decline  the  said 
office,  or  be  prevented  by  any  cause  from  serving  therein,  the  other  electors,  when  met 
in  Bristol,  in  pursuance  of  this  chapter,  shall  fill  such  vacancies,  and  shall  file  a  certi 
ficate  in  the  secretary's  office  of  the  person  or  persons  by  them  appointed. 

When  they  decline  the  office  or  are  "prevented  by  any  cause,"  full  and 
comprehensive  words,  so  that  if  there  be  a  vacancy  it  can  be  filled. 
Then  the  court  proceed  : 

Before  any  person  can  decline  under  this  section  he  must  first  be  elected,  and  no  per 
son  can  be  elected  who  is  ineligible,  or,  in  other  words,  incapable  of  being  elected. 
•'•  Resignation,"  said  Lord  Cockbu.ru,  C.  J.,  in  The  Queen  vs.  Blizzard,  Law  Report  2  Q. 
B.,  55,  "implies  that  the  person  resigning  has  been  elected  unto  the  office  he  resigns. 
A  man  cannot  resign  that  which  he  is  not  entitled  to  and  which  he  has  no  right  to  oc 
cupy." 

Hence  there  is  no  vacancy  where  there  is  nothing  to  resign.  It  is  a 
privilege  in  the  first  instance  ;  and  this  man's  declining  would  not  au 
thorize  the  filling  of  the  place  as  a  vacancy.  I  call  your  attention  to 
another  case  in  order  to  show  more  especially  the  comprehensireness  of 
the  language  of  the  statute  under  which  they  acted :  that  is  the  Lan- 
man  case  in  Connecticut,  which  is  found  in  Clarke  &  Hall's  Contested 
Elections,  page  872.  Laninan  had  been  a  Senator  up  to  the  3d  of  March, 
1825.  There  was  no  meeting  of  the  legislature,  of  Connecticut  between 
the  3d  of  March,  1825,  and  the  fall  of  the  year.  There  was  an  interim 
there  when  the  State  had  no  Senator.  A  meeting  of  the  Senate  was 
called.  The  governor  appointed  Lanrnan  to  fill  the  vacancy  from  the 
time  of  his  last  incumbency  up  to  the  meeting  of  the  next  legislature, 
and  for  warrant  therefor  this  was  the  statute  of  Connecticut : 

Whenever  any  vacancy  shall  happen  in  the  representation  of  this  State  in  the  Sen 
ate  of  the  United  States,  by  the  expiration  of  the  term  of  service  of  a  Senator,  or  by 
resignation  or  otherwise,  the  general  assembly,  if  then  in  session,  shall,  by  a  concur 
rent  vote  of  the  senate  and  house  of  representatives,  proceed  to  fill  said  vacancy  by  a 
new  election  ;  and  in  case  such  vacancy  shall  happen  in  the  recess  of  the  general  as 
sembly,  the  governor  shall  appoint  some  person  to  fill  the  same  until  the  next  meeting 
of  the  general  assembly. 

The  appointing  power  of  the  governor  was  co-extensive  as  to  vacan 
cies  with  that  of  the  legislature,  and  the  language  in  reference  to  the 
legislature  was  that  u  if  the  term  of  service  of  the  Senator  expired,  or 
by  resignation  or  otherwise,"  a  vacancy  happened.  The  decision  then 
was  that  there  was  no  vacancy  as  prescribed  by  that  statute.  There 
must  be  an  incumbent,  in  other  words,  to  constitute  a  vacancy ;  there 
must  be  some  person  in  the  enjoyment  to  constitute  such  a  vacancy  as 
came  within  the  terms  of  the  broadest  statute. 

I  cite  next  the  case  of  Broom  vs.  Hanley,  9  Pennsylvania  State  Re 
ports,  page  513,  which  decided  substantially — 

That  even  death,  after  a  lawful  election  and  before  qualification,  does  not  create  an 
incumbent  of  the  office  ;  nor  does  it  create  a  vacancy  which  can  be  filled  by  appoint 
ment,  where  the  law  authorizes  vacancies  to  be  so  filled. 

In  corroboration  of  that  we  also  cite  the  cases  of  People  vs.  Tilton, 
37  Cal.,  614;  People  m  Parker,  37  Cal.,  639;  Stratton  vs.  Oulton,  28 
Cal.,  51 ;  People  vs.  Stratton,  28  Cal.,  382  ;  Battle  vs.  Mclver,  68  N.  C. 
K.,  469 ;  Dodd  ex  parte.  6  English,  (Ark.)  152 :  State  vs.  Jenkins,  43 
Mo.,  261. 

Then  let  us  look  to  the  statutes  of  Oregon  to  see  if  there  be  no  pro 
vision  to  fill  any  given  vacancy,  even  if  there  were  a  vacancy  to  be 
filled,  which  we  deny,  because  an  incumbent  signifies  one  in  possession 
of  an  office ;  and  where  there  has  been  no  incumbent  it  has  been  de 
cided  all  the  time  that  there  is  no  vacancy,  and  if  there  is  no  vacancy 


486  ELECTORAL    COUNT    OF    1877. 

there  can  be  nothing  to  fill.  But  the  statutes  of  Oregon  have  denned 
what  shall  constitute  a  vacancy,  and  confined  it  to  an  office  5  and  this, 
as  conceded  by  the  learned  counsel,  is  not  an  office.  That  definition  is 
as  follows : 

SEC.  48.  Every  office  shall  become  vacant  on  the  occurring  of  either  of  the  following 
events  before  the  expiration  of  the  term  of  such  office : 

1.  The  death  of  the  incumbent ; 

There  must  be  an  incumbent ;  that  is,  one  in  possession. 

2.  His  resignation ; 

That  is,  the  resignation  of  an  incumbent. 

3.  His  removal ; 

The  removal  of  an  incumbent. 

4.  His   ceasing  to  be  an  inhabitant  of  the  district,  county,  towu,  or  village  ; 

"His"  referring  to  the  incumbent's  ceasing,  &c. 

5.  His  conviction  of  an  infamous  crime  ; 

The  incumbent's  conviction  of  an  infamous  crime. 

6.  His  refusal  or  neglect  to  take  his  oath  of  office  ; 

The  incumbent's  refusal. 

7.  The  decision  of   a  competent  tribunal,  declaring  void  his  election  or  appoint 
ment. 

The  only  instance  in  which  a  vacancy  can  occur  under  that  statute  is 
when  the  decision  of  a  competent  tribunal  declares  his  election  or  ap 
pointment  void ;  and  that  was  not  done  in  this  case. 

Mr.  Commissioner  EDMUNDS.  How  would  that  apply  to  this  action 
of  the  governor  in  declaring  the  election  void  ? 

Mr.  Eepresentative  JENKS.  The  act  of  the  governor  was  an  act  in 
pursuance  of  a  duty  conferred  by  the  Constitution  upon  that  governor, 
on  which  he  was  to  exercise  that  discretion  with  which  God  and  nature 
had  endowed  him ;  and  if  honestly  exercised,  that  was  conclusive,  be 
cause  it  was  a  political  duty.  He  having  sworn  that  he  would  not  com 
mission  one  who  was  disqualified,  he  could  not  commission  one  who  was 
disqualified,  and  he  had  a  right  to  decide  the  question  as  to  whether 
there  was  an  election  or  not. 

Mr.  Commissioner  EDMUNDS.  If  I  understand  you,  then,  had  this 
been  an  ordinary  State  office,  with  a  term  for  a  year,  for  instance,  and 
the  governor  had  done  exactly  the  same  thing,  it  would  not  have  been 
competent  for  the  courts  to  have  reversed  the  judgment  and  to  have 
decided  the  other  way  ? 

Mr.  Eepresentative  JENKS.  In  conformity  to  the  law  of  the  land  it 
would.  Without  that  conformity,  by  express  statutory  authority,  it 
would  not,  because  the  governor  is  limited  by  the  same  law  as  the  others 
are  in  the  exercise  of  their  duties.  But  if,  in  the  first  instance,  we  are  to 
be  controlled  by  an  express  statutory  provision,  this  action  of  his  would 
be  conclusive;  and  there  is  no  statutory  provision  of  that  kind,  as  I  un 
derstand. 

Mr.  Commissioner  MOETON.  I  should  like  to  ask  the  gentleman  a 
question.  I  ask  whether,  in  his  opinion,  it  is  competent  for  a  State,  by 
tbe  State  constitution,  in  any  way  to  regulate  the  appointment  of  elect 
ors. 

Mr.  Eepreseutative  JENKS.  The  Constitution  of  the  United  States 
confers  that  power,  in  some  instances,  upon  the  legislature  of  the  State. 

Mr.  Commissioner  MOETON.    You  spoke  about  the  governor  being 


ELECTORAL    COUNT    OP    1877.  487 

empowered  by  the  Constitution  to  do  thus  and  so.  My  inquiry  is 
whether  it  is  competent  for  a  State,  by  its  constitution,  to  regulate  in 
any  way  the  appointment  of  electors. 

Mr.  ^Representative  LAWKENCE.  By  the  constitution  as  distin 
guished  from  the  legislature"? 

Mr.  Kepresentative  JENKS.  By  the  Constitution  of  the  United 
States,  which  becomes  a  part  of  and  incorporates  itself  into  that  of 
every  State,  the  two  constituting  one,  he  is  authorized  to  so  do.  The 
constitution  of  each  State  and  the  United  States  Constitution  are 
equally  binding  upon  legislature  and  governor.  At  least  this  position 
stands  always  the  same,  that  the  governor's  functions  in  commissioning 
are  political,  and  as  such,  when  not  in  contravention  of  well-ascer 
tained  law,  they  are  conclusive.  If  it  be  a  discretion  which  must  be 
exercised  politically,  that  discretion,  unless  done  mala  fide,  is  conclusive. 

Then  the  propositions  we  have  attempted  to  establish  are  these: 

First.  That  with  reference  to  evidence,  the  only  evidence  before  you 
which  conforms  to  the  law  of  the  land  is  the  evidence  as  required  by 
the  law  of  Oregon  and  the  law  of  the  United  States,  being  that  which 
is  certified  to  by  the  governor  of  the  State  of  Oregon. 

Second.  That  the  act  of  that  governor,  if  discharged  in  good  faith,  is 
conclusive  upon  this  tribunal  in  this  inquiry. 

Third.  That  Watts  could  not  be  elected  even  if  he  had  a  majority  of 
the  votes. 

Fourth.  That  if  Cronin  was  the  next  highest,  and  those  votes  were 
cast  for  one  who  could  not  be  appointed,  the  next  highest,  Cronin,  was 
elected. 

Fifth.  That  even  if  Croniu  was  not  elected  there  was  no  vacancy,  and 
being  no  vacancy,  there  could  be  no  filling  by  any  college  whatever. 

Then,  as  a  consequence,  how  does  the  case  stand?  Cronin  came  up 
and  voted  ;  two  others  came  and  voted.  You  do  not  know  whether 
they  are  the  persons  voted  for  or  not,  because  they  do  not  come  identi 
fied  as  the  law  says  they  shall  come.  But,  assuming  that  they  were  the 
same  persons  who  were  voted  for,  and  are  properly  identified,  each  of 
these  voters  being  one,  that  which  is  evidenced  according  to  the  law  of 
the  land,  would  have  to  be  counted  as  the  true  vote.  Cronin's  vote 
must  be  counted  as  cast,  the  other  two  as  they  are  cast.  This  would  be 
the  conclusion  I  would  come  to  from  these  several  propositions.  We 
believe  this  to  be  a  correct  exposition  of  the  law  and  the  truth  of  the 
case,  because  the  constitutional  language  of  this  qualification  is  not  one 
that  is  to  be  forgotten  or  repudiated.  It  is,  perhaps,  too  common  now 
to  regard  the  provisions  of  the  Constitution  as  directory,  to  be  obeyed 
or  disobeyed  at  the  option  of  the  person  who  may  have  the  administer 
ing  thereof,  but  the  constitutional  truth  remains  that  an  office-holder 
should  not  be  appointed  an  elector.  We  ask  you  to  give  to  this  truth 
its  proper  weight  in  this  decision,  and  giving  it  its  proper  weight,  the 
result  would  be,  as  we  maintain,  as  stated  before. 

This  tribunal  is  such  a  one  as  the  world  has  never  known  before. 
Questions  of  this  kind  have  heretofore  been  decided  on  the  field  of 
battle,  decided  amid  smoking  hamlets,  decided  amid  the  clash  of  arms. 
Successions  have  not  heretofore  been  settled  peaceably.  Standing, 
then,  as  the  last  arbiter  instead  of  the  last  resort  to  arms,  I  would  ask 
that  you  do  your  duty  impartially  and  in  full  view  of  the  whole  facts 
and  truth  of  the  case. 

Then  further,  as  this  is  such  a  tribunal  as  was  never  constituted  before, 
and  the  first  of  the  kind  known  on  earth,  it  can  either  give  character  or 
discredit  to  its  kind.  If  this  tribunal  forgets  its  high  obligations  and 


488  ELECTORAL    COUNT    OF    i^7. 

guides  itself  by  aught  else  than  simple  truth  and  simple  justice,  it  will 
again  throw  back  mankind  to  the  place  from  which  they  started,  leav 
ing  the  question  of  succession  to  be  decided  by  the  wager  of  battle,  as 
lawsuits  often  were  in  barbarous  ages.  We  ask  you  not  to  turn  back 
this  hand  on  the  dial  of  time.  Let  it  go  on.  Let  peace  be  the  rule,  and 
not  war.  It  is  true  many  would  have  preferred  war.  The  corrupt,  the 
deformed,  would  have  preferred  war,  just  as  when  the  mighty  deep  is 
disturbed  from  its  slimy  abysses  the  crude  monsters  come  to  the  surface 
and  there  disport  themselves;  so  in  the  ruin  of  a  country,  so  in  the  tur 
moils  of  internecine  war,  these  crude  monsters  now  in  the  abyss  might 
rise  to  the  surface  and  once  again  disport  themselves.  From  this 
deliver  us.  Give  to  mankind  confidence  in  their  fellow-men  that  they 
can  be  trusted  to  decide  impartially  according  to  the  truth  and  verity  of 
the  case. 

We  leave  this  in  your  hands,  asking  that  you  give  it  a  candid  consid 
eration,  deciding  upon  principles  of  right  and  truth,  bearing  in  mind 
that  in  the  case  of  Florida  a  certain  list  came  from  the  secretary  of  state, 
a  compilation  of  votes  canvassed  by  a  returning-board  came  from  the 
State,  and  this  was  overruled  by  the  governor's  certificate;  that  in 
Louisiana  evidence  was  offered  you  to  show  what  was  the  true  state  of 
the  votes,  and  that  was  declined.  Now  we  ask  that  in  this  case  the 
principles  of  law  and  the  principles  of  truth  be  recognized  and  the  vote 
be  cast  as  in  truth  and  justice  it  should. 

The  PKESIDENT.  We  will  now  hear  the  objectors  on  the  other 
side. 

Mr.  Senator  MITCHELL.  Mr.  President  and  gentlemen  of  the  Com 
mission,  I  desire  that  the  words  I  shall  employ  in  this  important  cause 
shall  be  measured,  and  the  principles  I  announce  and  upon  which  I 
claim  your  decision  shall  be  well  considered.  The  limited  time  pre 
scribed  by  the  rules  of  your  honorable  body  for  the  presentation  of 
cases  upon  the  part  of  objectors  admonishes  me  that  I  must  advance 
directly  and  without  prefatory  remark  to  a  discussion  of  the  issues 
involved.  So  momentous  are  these  in  the  effect  of  their  decision,  though 
not  in  point  of  solution,  that  to  their  final  determination  by  this  high 
tribunal  the  whole  people  of  this  nation,  and  may  I  not  say  of  all  Chris 
tendom,  are  with  bated  breath  looking  forward  with  ever-increasing 
and  intense  anxiety.  The  hopes,  the  fears,  the  aspirations  of  two  great 
political  parties,  each  struggling  for  the  control  of  the  administration 
of  a  great  government,  have,  on  the  faith  of  the  right,  the  justice,  and 
the  law  upon  which  each  bases  its  claim  to  the  votes  of  certain  disputed 
States,  by  common  consent,  by  solemn  legislative  enactment,  in  which 
leading  members  of  both  political  parties  have  voluntarily  and  earnestly 
joined,  been  submitted  to  the  arbitrament  of  this  dignified  and  honor 
able  Commission. 

The  Constitution  of  the  United  States  declares  that — 

The  President  of  the  Senate  shall,  in  the  presence  of  the  Senate  and  House  of  Rep 
resentatives,  open  all  the  certificates,  and  the  votes  shall  then  be  counted. 

The  law  of  your  creation  provides  in  substance  and  effect  that  if 
more  than  one  return,  or  paper  purporting  to  be  a  return,  from  a  State 
shall  have  been  received  by  the  President  of  the  Senate,  purporting  to 
he  the  certificate  of  electoral  votes  given  for  President  and  Vice- Presi 
dent  in  any  State,  all  such  returns,  after  having  been  opened  by  the 
President  of  the  Senate  in  the  presence  of  the  two  Houses  and  read  by 
the  tellers,  shall  thereupon  be  submitted  to  the  judgment  and  decision 


ELECTORAL    COUNT    OF    1677.  489 

of  your  honorable  Commission  as  to  which  is  the  true  and  lawful  elect 
oral  vote  of  such  State. 

The  State  of  Oregon  sends  two  returns;  hence  your  jurisdiction 
under  the  Constitution  and  the  law  to  determine  which  of  these  is  the 
true  one  and  which  the  false,  which  comes  from  the  electoral  college  of 
that  State,  which  of  the  six  persons  claiming  to  have  been  appointed 
electors  by  that  State  in  the  manner  directed  by  the  legislature  thereof, 
if  any,  were  so  appointed,  and  which  votes  cast  for  President  and  Vice- 
president  by  the  six  persons  claiming  to  have  been  appointed  electors 
should  of  right  be  counted.  A  perfect  understanding  of  the  facts  pre 
sented  by  the  two  returns  is  important.  From  these,  taken  together,  it 
appears  that,  at  the  recent  election  in  Oregon,  the  three  republican  can- 
jjffaates,  W.  H.  Odell,  John  C.  Cartwright,  and  John  W.  Watts,  received 
respectively  15,206,  15,214,  and  15,206  votes.  The  three  democratic 
candidates,  E.  A.  Croriin,  Henry  Klippel,  and  W.  B.  Laswell,  received 
respectively  14,157,  14,136,  and  14,149  votes.  That  John  W.  Watts,  who 
received  the  lowest  republican  vote,  had  a  majority  of  1.049  votes  over 
E.  A.  Crouin,  who  received  the  highest  democratic  vote.  That  on  the 
4th  clay  of  December,  1876,  that  being  the  day  on  which  it  was  his  duty 
under  the  law  to  canvass  the  votes  and  determine  w^ho  had  received  the 
highest  number,  the  secretary  of  state  did,  in  the  presence  of  the  gov 
ernor,  canvass  the  votes,  and  did  officially  declare  that  Odell,  Cart- 
wright,  and  Watts  had  received  the  highest  number  of  votes.  That  the 
governor,  notwithstanding  this  official  declaration  of  the  secretary  of 
state,  issued  his  certificate  not  to  Odell,  Cartwright,  and  Watts,  but  to 
Odell,  Cartwright,  and  Cronin.  That  these  three  persons,  so  certified 
by  the  governor,  did  not,  in  the  organization  and  proceedings  of  the 
electoral  college,  act  together;  but  that  Odell,  Cartwright,  and  Watts, 
the  persons  whom  the  State  had  appointed  at  the  election,  acted 
together,  organized  as  an  electoral  college,  and  cast  three  votes  for 
Rutherford  JB.  Hayes,  of  Ohio,  for  President,  and  three  votes  for  Will 
iam  A.  Wheeler,  of  New  York,  for  Yice-Presideut.  That  Cronin,  act 
ing  alone,  organized  or  attempted  to  organize  a  college  of  his  own ; 
declared  or  attempted  to  declare  two  vacancies;  and  appointed  or 
attempted  to  appoint,  to  fill  such  alleged  vacancies,  J.  N.  T.  Miller  and 
John  Parker,  neither  of  whom  had  received  any  votes  from  the  people. 
That  these  three  persons,  so  claiming  to  be  an  electoral  college,  cast  2 
votes  for  Hayes  and  Wheeler  and  1  vote  for  Tilden  and  Hendricks. 
That  the  return  of  Cronin,  Miller,  and  Parker  contains  the  certificate  of 
the  governor  to  Cronin,  Odell,  and  Cartwright.  That  the  return  of 
Odell,  Cartwright,  and  Watts  has  no  certificate  of  the  governor  attached, 
but  has  the  certificate  of  the  secretary  of  state  under  the  great  seal 
thereof,  showing  that  these  three  persons  constituting  this  college 
received  the  highest  number  of  votes  at  the  election,  and  that  this  was 
so  officially  declared  by  the  sole  cauvassing-officer,  the  secretary  of 
state,  at  the  time  and  place  and  in  the  manner  designated  by  law.  . 

It  is  claimed,  and  the  papers  show,  that  Watts,  at  the  time  of  the 
election,  was  a  postmaster,  and  therefore  ineligible,  as  it  is  claimed,  to 
be  appointed  an  elector.  The  evidence  establishes  the  facts  in  reference 
to  this  postmastership  to  be  these :  Watts,  at  the  time  of  the  election, 
was  a  deputy  postmaster  at  the  town  of  La  Fayette,  Yam  Hill  County. 
His  compensation  was  about  $268  per  annum.  The  whole  number  of 
votes  in  the  county  of  Yarn  Hill  was  1,484.  Of  these,  810  were  cast  for 
the  republican  candidates  for  electors,  and  674  for  the  democratic  can 
didates.  There  were  at  the  time  of  the  election  eleven  other  post-offices 


490  ELECTORAL    COUNT    OP    1877. 

in  that  county.    The  total  vote  of  La  Fayette  precinct,  in  which  Watts 
was  postmaster,  was : 

For  Hayes  electors 106 

ForTilden  electors 83 

Total  votes Ig9 

This  precinct  includes  considerable  scope  of  territory  outside  of  the 
town  of  La  Fayette,  and  which  is  nearer  to  other  post-offices,  and 
not  more  than  one  hundred  voters  of  both  political  parties  receive  or 
transmit  their  mail  through  the  La  Fayette  post-office.  It  is  further 
shown  that  the  fact  that  Watts  was  postmaster  was  not  generally  or 
publicly  known  throughout  the  State  or  in  any  part  of  the  State  prior 
to  the  election,  except  in  his  own  immediate  town  ;  that  neither  the 
democratic  nor  republican  leaders,  nor  the  masses  of  the  voters  of  either 
political  party  in  the  State,  nor  any  considerable  portion  of  them,  knew 
that  he  was  postmaster  until  several  days  after  the  election ;  nor  was 
the  fact  that  he  was  postmaster  or  the  question  of  his  ineligibility  pub 
licly  discussed  during  the  campaign. 

It  is  insisted  that  these  facts  made  Watts  ineligible  to  appointment 
as  an  elector;  that  the  governor  of  the  State  for  this  reason  had  the 
jurisdiction,  and  rightfully  exercised  it,  to  refuse  to  issue  his  certificate 
to  Watts  and  to  issue  it  to  Cronin,  the  candidate  having  the  next  high 
est  vote. 

Had  Governor  Grover  the  right  to  refuse  Watts  a  certificate,  and,  if 
so,  had  he  any  jurisdiction  to  issue  it  to  Crouin,  and  what  effect  is  to  be 
accorded  such  certificate  ? 

I  contend  with  perfect  confidence  in  the  integrity  of  our  position  that 
the  governor  of  Oregon  had  no  jurisdiction  whatWer  to  entertain  or 
adjudicate  upon  the  question  of  the  alleged  ineligibility  of  Watts,  and 
that  all  his  proceedings  in  that  regard  were  ultra  vires,  void  ab  initio, 
affecting  no  interest,  attaching  to  no  subject-matter,  and  binding  no 
one.  If  Governor  Grover  possessed  any  such  power  he  must  derive 
it  from  one  of  four  sources  :  the  Constitution  of  the  United  States,  the 
laws  of  Congress,  the  constitution  of  Oregon,  or  the  statutes  of  that 
State.  So  far  as  the  Constitution  of  the  United  States  is  concerned,  it 
confers  no  power  whatever  on  the  governor  of  a  State  to  pass  upon  the 
eligibility  of  any  person  elected  to  office  under  either  national  or  State 
authority.  It  prescribes  qualifications  for  office  and  imposes  disqualifi 
cations.  It  nowhere  vests  the  appointment  to  any  office,  Federal  or 
State,  in  the  executive  of  a  State,  save  in  the  case  of  a  vacancy  in  the 
office  of  Senator  of  the  United  States  when  the  legislature  is  not  in  ses 
sion.  It  nowhere,  directly  or  by  implication,  constitutes  him  a  tribunal 
to  act  as  the  conservator  of  the  constitution  in  the  matter  of  the  eligi 
bility  of  persons  elected  or  appointed  to  office.  Were  the  appointment 
of  electors  vested  by  the  Constitution  in  the  executive  of  a  State  in 
stead  of  in  the  State  itself,  then  there  might  attach  to  him  by  reason 
able,  if  not  necessary,  implication  the  power  to  pass  upon  the  constitu 
tional  qualifications  of  any  person  by  him  appointed.  Or  had  the  legis 
lature  of  the  State,  under  the  clause  of  the  Constitution  authorizing  the 
State  to  appoint  electors  in  such  manner  as  the  legislature  thereof  may 
direct,  provided  by  statute  that  such  electors  should  be  appointed  not 
by  the  people  but  by  the  governor,  then  it  might  with  some  propriety 
and  claim  of  support  in  law  be  held  that  he  could  pass  upon  the  question 
of  the  constitutional  qualifications  of  those  appointed.  The  Constitution 
of  the  United  States  in  one  clause  says  : 

No  Senator  or  Representative  or  person  holding  an  office  of  trust  or  profit  nnder  the 
United  States  shall  be  appointed  an  elector. 


ELECTORAL    COUNT    OF    1877.  491 

And  in  another  clause  that — 

No  person  shall  be  a  Representative  who  shall  not  have  attained  to  the  age  of  twenty- 
five  years  and  been  seven  years  a  citizen  of  the  United  States,  and  who  shall  not,  when 
elected,  be  an  inhabitant  of  the  State  in  which  he  shall  be  chosen. 

And  in  still  another  that — 

No  person  holding  any  office  under  the  United  States  shall  be  a  member  of  either 
House  during  his  continuance  in  office. 

Here,  then,  are  several  constitutional  disqualifications  in  reference  to 
members  of  Congress  and  presidential  electors.  If  it  is  the  duty  of  the 
governor  to  pass  upon  the  question  of  ineligibility  of  an  elector  be 
fore  issuing  his  certificate,  then  it  is  also  his  duty  to  pass  upon  the 
question  of  the  ineligibility  of  a  member  of  Congress  before  granting 
his  certificate,  as  his  duty  in  reference  to  each  is  under  the  law  pre 
cisely  the  same,  namely,  that  he  shall  issue  his  certificate  to  the  person 
having  the  highest  number  of  votes ;  and  if  he  can  pass  upon  the  ques 
tion  of  fact  as  to  whether  the  person  receiving  the  highest  number  of 
votes  for  elector  was  at  the  time  of  the  election  a  postmaster,  and  also 
upon  the  question  of  law  as  to  whether  such  fact  when  found  disquali 
fies  him  from  being  appointed  as  an  elector,  and  in  such  event  to  with 
hold  from  him  his  certificates,  then  he  also  has  the  power  to  adjudicate 
upon  the  question  in  the  case  of  a  person  elected  to  Congress  as  to 
whether  he  is  twenty-five  years  of  age,  has  been  seven  years  a  citizen 
of  the  United  States,  and  an  inhabitant  of  the  State  at  the  time  of  his 
election ;  and  also  upon  the  further  question  as  to  whether  any  person 
elected  to  the  lower  House  of  Congress  is  holding  any  office  under  the 
United  States.  The  extent  to  which  the  position  would  lead  shows  the 
absurdity  of  the  position  assumed.  It  will  not  do  for  my  friend,  Mr. 
Jenks,  to  say  that  this  disability  in  the  case  of  a  member  of  Congress 
applies  only  to  his  acting  as  a  member  of  Congress,  and  not  to  his  ap 
pointment  j  for,  as  I  maintain,  he  claims  his  right  to  his  seat  in  Con 
gress  prima  facie,  by  virtue  of  the  commission  issued  by  the  governor. 

Again,  if  the  governor  has  the  power  to  adjudicate  upon  the  question 
and  refuse  a  certificate  upon  a  conceded  state  of  facts  as  to  ineligibility, 
then  he  also  has  the  right  to  determine  the  question  of  both  fact  and 
law  in  a  case  wherein  both  are  contested ;  and  this  too  without  the 
power  to  issue  process  for,  or  to  compel  the  attendance  of  a  solitary  wit 
ness,  and  barren  of  all  right  or  authority  to  administer  an  oath  to  any 
that  might  voluntarily  attend. 

In  a  case,  therefore,  wherein  the  facts  and  the  law  were  controverted — 
for  instance,  as  to  whether  or  not  a  person  appointed  an  elector  held  a 
particular  Federal  office,  and,  if  so,  whether  such  office  was  one  of  trust 
or  profit  within  the  meaning  of  the  Constitution  of  the  United  States — 
a  trial  before  the  executive  would  be  little  else  than  a  farce.  That  the 
framers  of  the  Constitution,  either  national  or  State,  or  Congress,  or  the 
legislatures  of  States,  ever  contemplated  lodging  such  a  power  in  the 
hands  of  the  governor  of  a  State  is  conclusively  negatived  by  the  re 
sults  that  would  flow  from  its  assumption  and  exercise. 

Mr.  Commissioner  HOAR.  I  should  like  to  ask  you,  for  my  own 
understanding  of  your  position,  who  you  understand  has  this  right  to 
adjudicate  under  the  laws  of  Oregon. 

Mr.  Senator  MITCHELL.  I  understand  that  it  is  the  duty  of  the 
secretary  of  state,  and  him  alone,  under  the  laws  of  Oregon,  to  declare 
who  is  elected  ;  in  other  words,  to  declare  who  has  received  the  highest 
number  of  votes;  and  when  that  declaration  is  made,  then  the  electors 
are  appointed  by  the  State  in  the  manner  directed  by  the  legislature 


492  ELECTORAL    COUXT    OF    IbTT. 

thereof,  and  that  beyond  that  this  tribunal  cannot  go.  I  shall,  as  I 
proceed,  state  ruv  views  as  to  the  tribunal  that  may  adjudicate  upon 
the  question  of  alleged  meligibiiity,  and  the  time  when  this  may  prop 
erly  be  done. 

But  it  is  said  the  clause  in  article  6  of  the  Constitution  of  the  United 
States  declares  that — 

All  executive  and  judicial  officers,  both  of  the  United  States  and  of  the  several 
States,  shall  be  bound  by  oath  to  support  this  Constitution. 

And,  furthermore,  that  the  constitution  of  the  State  of  Oregon  re 
quires  the  governor  to  take  an  oath  to  support  the  Constitution  of  the 
United  States,  and,  inasmuch  as  the  Constitution  of  the  United  States 
provides  that  no  person  holding  an  office  of  trust  or  profit  under  the 
United  States  shall  be  appointed  an  elector,  therefore  the  governor,  in 
order  to  conform  to  the  letter  and  spirit  of  his  oath  of  office,  must,  be 
fore  issuing  a  certificate  to  any  person  appointed  an  elector,  determine 
the  question  as  to  his  constitutional  eligibility,  and,  if  in  his  judgment 
such  person  is  laboring  under  such  constitutional  disability,  then  to  not 
only  refuse  to  issue  to  him  his  certificate  but  to  issue  it  to  somebody  else. 
In  other  words,  that  by  virtue  of  these  provisions  the  governor  becomes 
the  conservator  of  the  constitution  and  to  the  extent  that  authorizes 
him  to  determine  grave  questions  of  law  and  fact,  whether  controverted 
or  conceded,  relating  to  the  eligibility  of  persons  elected  to  office ;  ques 
tions,  too,  that  in  many  instances  not  only  touch  the  question  of  eligi 
bility  to  office  but  affect  the  person  concerned  criminally,  and  in  refer 
ence  to  which  such  person  has  under  the  Constitution  of  the  United 
States  the  right  of  trial  by  jury;  because  it  must  be  borne  in  mind  that 
several  causes  of  meligibiiity  to  office  uiider  the  constitution  of  Oregon — 
and  I  contend  the  duties  of  the  governor  are  the  same  in  either  case — 
are  by  the  laws  of  Oregon  declared  to  be  felonies.  No  such  claim  can 
be  successfully  maintained  for  a  moment.  It  is  untenable,  illogical,  and 
baseless  as  the  fabric  of  a  dream.  It  is  unsupported  in  law  and  unaided 
by  any  rule  of  ethics. 

The  Constitution  of  the  United  States  says  : 

No  *  *  person  holding  an  office  of  trust  or  profit  under  the  United  States  shall 
be  appointed  an  elector. 

Does  the  governor  appoint  electors  ?  By  no  manner  of  means.  It  is 
the  State  that  appoints  electors,  in  such  manner  as  its  legislature  has 
directed.  It  has  directed  thafc  the  manner  in  which  they  shall  be  ap 
pointed  is  by  a  plurality  of  the  votes  of  the  people ;  and,  furthermore, 
that  the  person  receiving  the  highest  number  of  votes  shall,  in  the  lan 
guage  of  the  statute,  be  deemed  elected.  The  governor  has  nothing 
whatever  to  do  with  the  appointment  of  electors,  nor  yet  with  the  ques 
tion  of  determining  who  have  been  appointed.  The  appointment  is  by 
the  people — the  legal  voters.  The  question  as  to  whom  they  have  ap 
pointed  is,  under  the  law,  to  be  determined  by  the  secretary  of  state, 
and  in  that  determination  but  one  ingredient  can  enter,  and  that  is,  icho 
had  the  highest  number  of  votes ?  and,  after  this  has  all  been  done,  after 
the  people  have  appointed  and  the  secretary  of  state  has  determined 
and  officially  declared  whom  they  have  appointed,  then,  and  not  till 
then,  has  the  governor  anything  to  do  in  connection  with  it.  Until  all 
this  has  taken  place,  he  has  no  jurisdiction  whatever  to  do  any  act  or 
thing,  ministerially  or  otherwise,  save  and  except  to  be  present  when 
the  secretary  of  state  canvasses  the  votes.  And  even  after  all  this  has 
been  done,  his  only  authority  in  connection  with  the  whole  matter  is,  it' 
be  follow  the  State  statute,  to  sign  the  certificates  made  out  by  the 


ELECTORAL    COUNT    OP    1877.  493 

secretary  of  state  to  the  persons  having  the  highest  number  of  votes, 
or,  if  the  act  of  Congress,  to  cause  three  lists  of  the  names  of  the  elect 
ors  to  be  made  and  certified  and  to  be  delivered  to  the  electors  on  or 
before  the  day  of  meeting.  £To  act  of  his  can  undo  what  has  necessa 
rily  been  done  by  the  State  and  passed  into  history  before  his  right  to 
act  at  all  could,  under  the  Constitution  or  the  laws,  possibly  attach , 
namely,  the  appointment  of  electors  and  the  determination  by  the  sec 
retary  of  state  as  to  the  persons  appointed.  Can  it  be  said  therefore 
that  the  oath  of  the  governor  to  support  the  Constitution  of  the  United 
States  would  call  upon  him,  either  in  law  or  morals,  much  less  empower 
him,  to  undo  not  only  the  appointment  made  by  the  people,  but  also  the 
official  determination  of  the  secretary  of  state  as  to  the  persons  ap 
pointed,  and  usurp  the  functions  of  State,  people,  and  secretary  of  state, 
and  make  an  appointment  himself,  and  that  too  of  a  person  rejected  by 
the  people"?  The  absurdity  of  any  such  claim  is  the  conclusive  answer 
to  the  proposition. 

So  far  then  as  the  Constitution  of  the  United  States  is  concerned,  the 
governor  of  the  State  has  no  connection  whatever  with  electors  or  the 
electoral  college. 

Let  us  examine,  then,  as  to  his  power  and  duties  under  the  act  of 
Congress  under  which  he  claims  to  have  acted  in  issuing  his  certificate  5. 
and  in  this  connection  I  desire  to  speak  also  as  to  the  effect  of  a  certifi 
cate  issued  by  the  executive  of  a  State  in  pursuance  of  the  act  of  Con 
gress  of  1792.  The  third  section  of  the  act  of  Congress  of  1792,  section 
136  of  the  Eevised  Statutes,  provides  that — 

It  shall  be  the  duty  of  the  executive  of  each  State  to  cause  three  lists  of  the  names 
of  the  electors  of  such  State  to  be  made  and  certified  and  to  be  delivered  to  the 
electors  on  or  before  the  day  on  which  they  are  required  by  the  preceding  section  to 
meet. 

By  the  preceding  section,  135,  of  the  Revised  Statutes,  the  electors  are 
to  meet  on  the  first  Wednesday  in  December  in  the  year  in  which  they 
are  appointed. 

By  this  act  the  executive  authority  is  required  to  make  and  certify 
three  lists  of  the  names  of  the  persons  who  have  been  appointed  electors, 
which  are  to  be  delivered  to  the  electors  on  or  before  the  first  Wednes 
day  in  December.  These  lists  certified  by  the  executive  authority  are 
simply  evidence  to  the  persons  that  they  have  been  appointed  electors. 
The  governor's  certificate  is  no  part  of  the  appointment  of  an  elector. 
The  appointment  is  to  be  made  by  the  State,  and  can  only  be  made  in 
such  manner  as  the  legislature  has  directed.  The  manner  in  which  the 
several  legislatures  have  declared  these  appointments  shall  be  made  is 
through  an  election  by  the  qualified  voters  of  the  States ;  and  the  gov 
ernor's  certificate  is  intended  only  to  furnish  evidence  of  the  result  of 
the  election.  The  statute  in  regard  to  the  governor  is  merely  directory, 
and  is  no  part  of  the  appointment  of  an  elector,  which  is  left  exclusively 
by  the  Constitution  to  the  several  States.  Should  the  governor  of  a 
State  choose  for  any  reason  to  withhold  his  certificate,  he  could  not 
thereby  defeat  the  appointment  of  electors  by  the  State,  nor  could  he 
do  so  by  giving  a  false  certificate  of  the  appointment  of  persons  as 
electors  who  were  not  appointed;  nor  by  giving  a  true  certificate  to 
persons  who  were  not  electors  and  withholding  the  same  from  the  per 
sons  entitled.  In  any  of  these  cases  the  title  of  the  electors  appointed 
by  the  State  in  the  manner  directed  by  the  legislature  thereof  would 
not  be  affected ;  but  such  electors,  or  those  claiming  rights  under  and  by 
virtue  of  their  action,  would  have  a  right  to  resort  to  the  next  "best  evidence 
of  their  appointment,  which  would  in  the  case  of  Oregon  be  a  certificate 


494  ELECTORAL    COUNT    OP    1577. 

of  the  secretary  of  state,  (the  secretary  of  state  being  the  canvassing- 
board,)1  under  the  seal  of  the  State,  showing  the  result  of  the  election 
and  who  had  been  appointed  electors  and  declared  such  by  the  canvass- 
ing-officer.  The  part  to  be  performed  by  the  governor  is  merely  min 
isterial,  and  constitutes  simply  a  form  of  evidence  as  to  who  have  been 
appointed  electors.  Such  certificate  cannot  confer  title,  neither  can  it 
take  away  title.  It  is  no  part  of  or  ingredient  in  title ;  it  is  merely  a 
prescribed  form  of  evidence  of  title,  but  not  by  any  means  a  conclusive 
one.  It  cannot  be  converted  into  an  instrument  of  fraud,  or  made  the 
means  of  defeating  the  vote  of  the  State,  or  falsely  giving  the  election 
of  President  or  Vice-President  to  persons  who  were  not  appointed  by  the 
State. 

If  the  governor's  certificate  be  any  part  of  the  manner  of  appoint 
ment,  then  the  form  and  character  of  the  certificate  are  solely  a  matter 
within  the  power  of  the  State  legislature,  and  in  such  event  sections 
136  and  138  of  the  Revised  Statutes  of  the  United  States  are  uncon 
stitutional  and  void,  for  it  must  be  conceded  that  the  Constitution  of 
the  United  States  grants  to  the  States  the  exclusive  power  of  appoint 
ing  electors  in  such  manner  as  the  legislatures  may  direct.  No  power 
on  earth  can  prescribe  the  manner  of  appointment  except  the  legisla 
ture  of  the  State.  If,  therefore,  the  certificate  of  the  governor  is  a 
part,  one  ingredient  in  the  manner  of  appointment,  then  Congress,  in 
attempting  to  prescribe  the  form  and  character  of  the  certificate,  has 
transcended  its  constitutional  limit  by  undertaking  to  regulate  the  man 
ner  of  appointment,  thus  encroaching  upon  a  jurisdiction  which  under 
the  Constitution  belongs  exclusively  to  the  legislatures  of  the  States. 
But  the  certificate  of  the  governor,  as  prescribed  by  Congress,  is  no  part 
of  the  manner  of  appointment.  Congress  has  not  in  prescribing  the 
character  of  the  governor's  certificate  undertaken  to  interfere  with  the 
manner  of  appointment,  but  simply  to  prescribe  a  convenient  form  of 
evidence  of  the  appointment.  Any  certificate  that  Congress  has  pro 
vided  for  or  could  prescribe  could  rightfully  confer  no  power  upon  the 
governor  to  do  anything  except  certify  the  ultimate  result  of  the  vote 
as  declared  by  the  canvassing-officers  of  the  State.  He  must  take 
what  the  State  has  done  in  the  manner  prescribed  by  its  legislature. 
He  cannot  in  the  slightest  degree  interfere  with  or  change  the  appoint 
ment  made  by  the  State. 

In  Oregon  there  was  no  law  authorizing  the  governor  to  certify  a 
minority  candidate  elected.  The  legislature  of  Oregon  might  have 
provided  that  the  electors  should  be  appointed  by  the  governor,  the 
supreme  court,  or  the  secretary  of  state,  but  it  did  not ;  it  did  direct 
that  the  people,  the  qualified  electors,  shall  by  a  plurality  of  votes  to 
be  cast  in  the  different  precincts  choose  electors,  but  the  result  of  this 
vote  cannot  be  ascertained  unless  the  manner  prescribes  more.  The 
manner  of  appointment  necessarily  includes,  not  merely  the  way  in 
which  the  votes  shall  be  cast,  but  also  a  means  of  determining  what 
votes  were  cast,  and  the  result  of  such  vote;  hence  the  legislature  of 
the  State  has  provided,  as  a  part  of  the  means  necessary  to  an  appoint 
ment,  the  mode  of  determining  and  declaring  -the  result  of  the  vote. 
This  in  Oregon  prescribes  returns  from  precincts  to  county  boards,  from 
county  boards  to  the  secretary  of  state,  whose  final  duty  it  is  to  can 
vass  the  votes  and  ascertain  who  has  the  greatest  number  of  votes. 
This  is  the  last  act  in  the  process  of  the  appointment  of  a  presidential 
elector  by  the  State,  the  closing  scene  in  the  manner  of  appointment. 
This  done  and  officially  declared,  and  the  electors  are  anointed.  What 
follows  is  no  part  of  the  appointment,  but  simply  matter  of  evidence  of 


ELECTORAL    COUNT    OF    Ib77.  495 

the  fact.    All  that  precedes  enters  into  and  constitutes  a  part  of  the 
manner  of  appointment 

Governor  Grover  in  the  matter  of  issuing  his  certificates,  he  tells  us, 
ignored  the  State  statute  and  followed  that  of  Congress.  If  Congress  had 
the  power  to  prescribe  the  form  of  a  certificate,  and  I  believe  it  had,  then 
such  certificate  is  no  part  of  the  manner  of  appointment,  and  in  issuing 
it  the  governor  could  not  change  the  appointment  as  made  by  the  State 
and  officially  determined  by  the  secretary  of  state  as  the  final  and  con 
clusive  act  in  the  process  of  appointment.  Behind  this  ultimate  deter 
mination  of  the  canvassing-board,  neither  the  governor  of  the  State  nor 
the  tribunal  whose  final  duty  it  is  to  count  the  votes  for  President  and 
Vice-President,  whether  it  be  the  President  of  the  Senate,  the  two 
Houses  of  Congress,  or  the  electoral  tribunal,  can  rightfully  go.  The 
determination  of  the  eanvassing-board  is  final  and  conclusive  on  all 
departments  and  on  all  persons,  concluding  voter  and  candidate,  State 
mid  nation.  Not  so,  however,  with  the  certificate  of  the  governor,  which, 
whether  issued  under  the  State  statutes  or  the  Revised  Statutes  of  the 
United  States,  is  in  no  respect  a  part  of  the  manner  of  appointment,  but 
simply  a  species  of  evidence  of  such  appointment,  which,  if  false  or 
fraudulent  or  issued  through  mistake,  is  not  conclusive  upon  the  tribunal 
whose  duty  it  is  to  count  the  votes  of  the  electors  appointed,  and  which 
cannot  count  the  votes  of  persons  whom  the  State  never  appointed  but 
who  through  mistake,  fraud,  or  corruption  may  have  succeeded  in  ob 
taining  a  certificate  from  the  governor.  The  electoral  tribunal  can 
question  this  or  any  other  proceeding  down  to  the  boundary-line  where 
they  touch  the  manner  of  appointment;  there  the  jurisdiction  ends — the 
decision  of  the  State  through  its  canvassing  officer  being  final  and 
conclusive. 

Mr.  Commissioner  GARFIELLX    Allow  me  to  ask  whether  the  lan 
guage  of  the  thirty-seventh  section  of  the  law  of  Oregon,  that  requires 
the  governor  to  issue  a  proclamation  declaring  the  election  of  the  offi 
cers,  applies  to  the  election  of  electors  ? 
Mr.  Senator  MITCHELL.    It  does  not. 

Mr.  Commissioner  GAEFIELD.  And  whether  as  a  matter  of  fact 
the  governor  does  issue  a  proclamation  of  election  to  the  electors  ? 

Mr.  Senator  MITCHELL.  He  does  not.  I  do  not  understand  that 
the  language  applies.  My  own  opinion  is  that  it  does  not  apply. 

Mr.  Commissioner  GARFIELD.  Does  he  issue  a  proclamation  to 
that  effect? 

Mr.  Senator  MITCHELL.  Not  as  a  matter  of  fact.  It  does  not  ap 
ply  at  all,  I  claim. 

Mr.  Commissioner  ABBOTT.  Is  there  any  other  law  on  this  subject 
of  canvassing  the  votes  except  the  thirty-seventh  section  ? 

Mr.  Senator  MITCHELL.  That  is  all ;  and  that  prescribes  that  it 
shall  be  done  in  the  manner  prescribed  in  reference  to  members  of 
Congress  and  set  out  in  the  foregoing  section. 

Mr.  Commissioner  ABBOTT.  I  see  there  is  no  provision  that  the 
secretary  shall  certify  who  has  been  elected,  but  simply  that  he  shall 
canvass  the  votes  and  the  governor  give  the  certificate. 

Mr.  Senator  MITCHELL.  It  prescribes  that  the  secretary  of  state 
shall  canvass  the  votes  and  declare  who  has  received  the  highest  num 
ber  of  votes,  and  that  he  shall  prepare  lists  to  that  effect,  that  he  shall 
sign  his  name  to  those  lists,  and  that  it  shall  be  the  duty  of  the  gover 
nor  to  certify  to  those  lists. 

Mr.  Commissioner  ABBOTT.  I  do  not  see  here — will  you  please  point 
it  out  to  me — where  the  secretary  of  state  is  to  ascertain  that  ? 


496  ELECTORAL    COUNT    OP    1877. 

The  PRESIDENT.     The  floor  is  yours,  Mr.  Mitchell. 

Mr.  Senator  MITCHELL.  I  have  no  objection  to  yielding,  but  I  do 
not  desire  that  it  shall  be  taken  out  of  my  time. 

The  PKESIDENT.  The  Commissioners  would  object  if  I  did  not 
take  it  out  of  your  time.  I  have  therefore  admonished  you  that  you 
have  the  floor. 

Mr.  Senator  MITCHELL.  I  have  no  objection  to  yielding  except  that 
it  shall  not  be  taken  out  of  my  time. 

I  pass  now  to  consider  the  question  as  to  the  power  and  duty  of  the 
governor  in  this  regard  under  the  constitution  of  the  State  of  Oregon. 

Should  it  be  held  that  the  determination  by  the  governor  of  a  State 
of  a  question  as  to  the  ineligibility  of  an  elector  is  the  exercise  of  judi 
cial  power,  then  clearly  neither  the  constitution  of  the  State  nor  the 
statutes  confer  such  power.  If,  upon  the  contrary,  it  is  the  exercise  of 
administrative  or  political  power,  then  it  can  only  be  exercised  in  pur 
suance  of  some  warrant  contained  in  the  statutes'of  the  State.  With 
out  stopping  to  inquire  what  it  is,  I  will  proceed  to  show  that  there  is 
no  authority  for  the  one  or  the  other  either  in  the  constitution  or  the 
statutes. 

The  jurisdiction  of  the  different  departments  is  clearly  defined  in  the 
constitution  of  the  State  of  Oregon,  and  under  the  distribution  of  powers 
therein  contained  the  governor  can  exercise  no  judicial  functions  what 
ever,  while  all  the  judicial  power  is  expressly  conferred  upon  other 
departments  and  officers.  Article  3  of  the  constitution  of  the  State 
provides  as  follows,  under  the  head  of  — 

DISTRIBUTION   OF  POWERS. 

SECTION  1.  The  powers  of  the  government  shall  be  divided  into  three  separate  de 
partments,  the  legislative,  the  executive,  (including  the  administrative,)  and  the  ju 
dicial  ;  and  no  person  charged  with  official  duties  under  one  of  these  departments 
shall  exercise  any  of  the  functions  of  another,  except  as  in  this  constitution  expressly 
provided.  « 

Section  1  of  article  7  reads  as  follows  : 

The  judicial  power  of  the  State  shall  be  vested  in  a  supreme  court,  circuit  courts, 
and  county  courts,  which  shall  be  courts  of  record  having  general  jurisdiction,  to  be 
defined,  limited,  and  regulated  by  law  in  accordance  with  this  constitution.  Justices 
of  the  peace  may  also  be  invested  with  limited  judicial  powers,  and  municipal  courts 
may  be  created  to  administer  the  regulations  of  incorporated  towns  and  cities  : 

While  section  9  of  article  7  is,  in  these  words  : 

All  judicial  power,  authority,  and  jurisdiction  not  vested  by  this  constitution  or  !>y 
laws  consistent  therewith  exclusively  in  some  other  courts  ;  and  they  shall  have  appel 
late  jurisdiction  and  supervisory  control  over  the  county  courts,  and  all  other  inferior 
courts,  officers,  and  tribunals. 

From  these  several  provisions  it  is  clear  that  the  governor  of  Oregon 
cannot  rightfully  exercise  any  judicial  power;  that  any  attempt  to  do 
so  is  an  usurpation  of  power,  and  his  action  would  be  not  merely  voidable, 
but  absolutely  void  for  want  of  jurisdiction.  And  these  several  pro 
visions  of  the  constitution  are  in  full  consonance  with  the  well-recognized 
division  of  the  powers  of  a  free  republican  government,  as  stated  by 
elementary  writers.* 

Story  on  the  Constitution,  page  530,  in  speaking  on  the  subject, 


In  the  establishment  of  a  free  government,  the  division  of  the  three  great  powers 
of  government,  the  executive,  the  legislative,  and  the  j-udicial,  among  different  func 
tionaries,  has  been  a  favorite  policy  with  patriots  and  statesmen. 

It  has  by  many  been  deemed  a  maxim  of  vital  importance  that  these  powers  should 
forever  be  kept  separate  and  distinct.  And,  accordingly,  we  find  it  laid  down  with 


ELECTORAL    COUNT    OF    1877.  497 

emphatic  care  in  the  bill  of  rights  of  several  of  the  State  constitutions.  In  the  con 
stitution  of  Massachusetts,  for  example,  it  is  declared  that  "  in  the  government  of  this 
Commonwealth,  the  legislative  department  shall  never  exercise  the  executive  and  ju 
dicial  powers,  or  either  of  them;  the  executive  shall  never  exercise  the  legislative  or 
judicial  powers,  or  either  of  them  ;  the  judicial  shall  never  exercise  the  legislative  and 
executive  powers,  or  either  of  them, ;  to  the  end  it  may  be  a  government  of  laws  and 
not  of  men." 

Again,  a  writer  in  the  Federalist,  in  adverting  to  the  great  danger  of 
an  accumulation  of  legislative,  executive,  and  judicial  powers  in  the 
same  hands,  and  of  the  importance  of  keeping  them  separate,  says : 

The  accumulation  of  all  powers,  legislative,  executive,  and  judicial,  in  the  same 
hands,  whether  of  one,  a  few,  or  many,  and  whether  hereditary,  self-appointed,  or 
elective,  may  be  justly  pronounced  the  very  definition  of  tyranny. 

We  inquire  further,  moreover,  as  to  the  startling  magnitude  of  the 
power  claimed  by  Governor  Grover  in  assuming  to  pass  upon  and  de 
termine  the  question  as  to  the  ineligibility  of  persons  elected  to  office 
under  the  constitution  and  laws  of  Oregon,  whether  it  be  called  judicial, 
administrative,  or  political.  As  has  been  said,  if  he  has  the  power  in 
one  case  of  alleged  disability  he  has  it  in  all  cases,  and  it  is  his  duty  to 
exercise  it  in  all  cases  coming  before  him.  The  statute  of  Oregon  pro 
vides  that — 

The  votes  for  the  electors  shall  be  given,  received,  returned,  and  canvassed  as  the 
same  are  given,  returned,  and  canvassed  for  members  of  Congress. 

On  a  reference  to  how  votes  for  members  of  Congress  are  given,  re 
ceived,  returned,  and  canvassed,  we  find  that  the  votes  for  secretary  of 
state,  State  treasurer,  State  printer,  justices  of  the  supreme  court,  and 
district  attorneys  are  given,  received,  returned,  and  canvassed  in  pre 
cisely  the  same  manner.  In  any  and  all  these  cases  the  certificate  of 
the  governor  is  to  be  given  to  the  person  receiving  the  highest  number 
of  votes.  This  being  so,  we  turn  again  to  the  constitution  of  the  State 
of  Oregon  for  the  purpose  of  inquiring  as  to  the  constitutional  causes 
of  meligibility  of  persons  to  be  elected  to  any  of  these  offices  under 
such  constitution,  and  to  the  character  of  the  inquiry  the  governor 
would  necessarily  be  compelled  to  make  in  case  of  a  contest  in  deter 
mining  these  several  questions  of  ineligibility;  all  of  which  will  show 
conclusively  that  to  act  on  any  such  assumption  is  the  exercise  of  judi 
cial  power  of  the  very  gravest  character.  For  instance,  section  7  of 
article  2  of  the  constitution  of  the  State  of  Oregon,  under  the  head  of 
"  suffrage  and  elections,"  reads  as  follows : 

Every  person  shall  be  disqualified  from  holding  office  during  the  term  for  which 
he  may  have  been  elected,  who  shall  have  given  or  offered  a  bribe,  threat,  or  reward, 
to  procure  his  election. 

Here,  then,  is  a  constitutional  disqualification.  Under  the  position 
assumed  by  Governor  Grover,  if  it  is  suggested  to  him  by  some  exparte 
affidavit  or  otherwise  that  a  person  who  has  received  the  highest  num 
ber  of  votes  for  State  treasurer,  secretary  of  state,  State  printer,  or  any 
of  the  officers  named  had  given  or  offered  a  bribe,  threat,  or  reward  to 
procure  his  election,  and  the  person  accused  denies  it,  he  must  enter 
upon  an  investigation  of  the  charge,  which  under  the  statutes  of  the 
State  is  a  criminal  one,  and,  because  he  has  taken  an  oath  to  support 
the  Constitution  of  the  State  and  of  the  United  States,  he  must  de 
termine  this  question  as  to  the  eligibility  of  the  person  elected.  And  so 
in  reference  to  section  9  of  article  2,  which  provides  that — 

Every  person  who  shall  give  or  accept  a  challenge  to  fight  a  duel,  or  shall  know 
ingly  carry  to  another  such  challenge,  or  who  shall  agree  to  go  out  of  the  State  to 
fight  a  duel,  shall  be  ineligible  to  any  office  of  trust  or  profit, 
32  E  C 


498  ELECTORAL   COUNT   OF    1677. 

Section  10  of  the  same  article  reads  as  follows  : 

No  person  holding  a  lucrative  office  or  appointment  under  the  United  States  or 
under  this  State  shall  be  eligible  to  a  seat  in  the  legislative  assembly  ;  nor  shall  any 
person  hold  more  than  one  lucrative  office  at  the  same  time,  except  as  in  this  constitu 
tion  expressly  permitted :  Provided,  That  offices  in  the  militia,  to  which  there  is 
attached  no  annual  salary,  and  the  office  of  the  postmaster,  -where  the  compensation 
does  not  exceed  $100  per  annum,  shall  not  be  deemed  lucrative. 

And  section  11  reads  as  follows : 

No  person  who  may  hereafter  be  a  collector  or  holder  of  public  money  shall  bo 
eligible  to  any  office  of  trust  or  profit  until  he  shall  have  accounted  for  and  paid  over, 
according  to  Iaw7  all  sums  for  which  he  may  be  liable. 

Passing  then  from  a  consideration  of  the  powers  of  the  executive  of 
Oregon  as  prescribed  by  the  provisions  of  the  constitution  of  the  State, 
we  next  inquire  what  are  his  powers  and  duties  as  prescribed  in  the 
statutes  of  the  State  in  so  far  as  they  relate  to  the  electoral  college. 
And  here  we  find  that  in  all  legislation  on  the  subject  the  limitations 
in  the  constitution  on  executive  power  have  been  carefully  borne  in 
mind  and  jealously  guarded  by  the  law-rnakiug  power  of  the  State,  the 
duties  prescribed  for  and  imposed  upon  the  governor  being  of  a  purely 
ministerial  character.  Before  proceeding,  however,  to  introduce  the 
statutes  of  the  State,  it  may  be  well  to  attract  attention  to  section  16 
of  article  2  of  the  constitution  of  the  State,  for  the  purpose  of  showing 
that  in  all  elections  by  the  people,  which  of  course  includes  the  election 
of  presidential  electors,  the  person  or  persons  receiving  the  highest 
number  of  votes  shall  be  declared  duly  elected.  The  section  reads  as 
follows : 

In  all  elections  held  by  the  people  under  this  constitution  the  person  or  persons 
who  shall  receive  the  highest  number  of  votes  shall  be  declared  duly  elected. — Section 
16,  article  2  of  State  constitution. 

Here  is  a  constitutional  mandamus  to  the  secretary  of  state  directing 
him  to  declare  the  person  who  has  received  the  highest  number  of  votes 
duly  elected ;  and  neither  the  secretary  of  state  as  the  canvassing- 
officer,  nor  the  governor  as  the  ministerial  officer,  whose  sole  duty  it  is 
to  place  his  signature  to  the  lists  made  by  the  secretary  of  state,  and 
which  the  secretary  alone  has  the  power  to  make,  has  any  power  what 
ever  to  adjudicate  the  question  as  to  whether  such  person  so  receiving 
the  highest  number  of  votes  was  ineligible  or  for  any  other  cause  not 
duly  elected.  That  belongs  to  another  department  and  another  tribu 
nal. 

I  now  pass  to  a  consideration  of  the  powers  and  duties  of  the  gov 
ernor  under  the  statutes  of  Oregon. 

Section  10  of  the  election  laws  of  Oregon  provides  that — 

The  county  clerk,  immediately  after  making  the  abstracts  of  the  votes  given  in  his 
county,  shall  make  a  copy  of  each  of  said  abstracts  and  transmit  it  by  mail  to  the 
secretary  of  state  at  the  seat  of  government,  and  it  shall  the  duty  of  the  secretary  of 
state,  in  the  presence  of  the  governor,  to  proceed  within  thirty  days  after  the  election, 
and  sooner  if  the  returns  be  all  received,  to  canvass  the  votes  given  for  secretary  and 
treasurer  of  state,  State  printer,  justices  of  the  supreme  court,  member  of  Congress, 
and  district  attorneys ;  and  the  governor  shall  grant  a  certificate  of  election  to  the 
person  having  the  highest  number  of  votes,  and  shall  also  issue  a  proclamation  declar 
ing  the  election  of  each  person.  In  case  there  shall  be  no  choice,  by  reason  of  any  two 
or  more  persons  having  an  equal  and  the  highest  number  of  votes  for  either  of  such 
offices,  the  governor  shall  by  proclamation  order  a  new  election  to  fill  said  offices. 

It  will  be  observed  that  the  secretary  of  state  is  made  the  canvass 
ing  or  returning  officer  of  the  State  to  count  the  votes  and  determine 
who  have  been  elected  to  the  offices  named  therein,  which  is  to  be  done 
in  the  presence  of  the  governor.  The  governor  takes  no  part  in  the 
canvass  or  determination  of  the  result,  but  is  simply  required  to  be 


ELECTORAL   COUNT   OP   1877.  499 

present  as  a  witness,  and  then  ho  is  required  to  grant  a  certificate  of 
election  to  the  person  having  the  highest  number  of  votes,  and  is  thus 
precluded  by  express  provision  from  passing  upon  questions  as  to  the 
eligibility  of  candidates,  his  duty  being  peremptorily  prescribed  by  the 
statute  to  grant  a  certificate  to  the  person  having  the  highest  number 
of  votes. 

Section  3  of  the  act  providing  for  the  election  of  presidential  electors 
provides  that — 

The  votes  for  the  electors  shall  be  given,  received,  returned,  and  canvassed  as  the 
same  are  given,  returned,  and  canvassed  .for  members  of  Congress.  The  secretary  of 
state  shall  prepare  two  lists  of  the  names  of  the  electors  elected,  and  affix  the  seal  of 
the  State  to  the  same.  Such  lists  shall  be  signed  by  the  governor  and  secretary,  and 
by  the  latter  delivered  to  the  college  of  electors  at  the  hour  of  their  meeting  on  such 
first  Wednesday  of  December. 

By  the  section  of  the  statute  first  quoted,  it  is  made  the  absolute  duty 
of  the  governor  to  give  a  certificate  of  election  to  the  candidate  for  Con 
gress  having  the  highest  number  of  votes $  and  the  section  relating  to 
presidential  electors  provides  that  the  votes  for  electors  shall  be  given, 
received,  returned,  and  canvassed  as  the  same  are  for  members  of 
Congress,  Thus  it  is  made  the  absolute  duty  of  the  governor  to  give  a 
certificate  to  the  candidate  for  elector  having  the  highest  number  of 
votes.  The  statute  leaves  him  no  discretion  whatever.  The  secretary 
of  state  is,  as  in  the  other  case,  made  the  returning-officer,  and  he  is  to 
prepare  the  lists  of  the  names  of  the  electors  elected,  and  affix  the  seal 
of  tbe  State  to  the  same. 

The  secretary  of  state,  as  in  the  case  of  members  of  Congress,  is  to 
certify  the  u  names  of  the  electors  elected,  and  affix  the  seal  of  the  State 
to  the  same."  The  lists  thus  prepared  by  the  secretary  of  state  the 
governor  is  required  to  sign,  and  by  the  secretary  of  state  they  are  to 
be  "  delivered  to  the  college  of  electors  at  the  hour  of  their  meeting  on 
such  first  Wednesday  of  December. "  It  is  made  the  peremptory  duty 
of  the  governor  to  sign  the  lists  as  prepared  by  the  secretary  of  state. 
The  secretary  of  state  is  positively  required  by  law  to  give  the  certificate 
to  the  person  having  the  highest  number  of  votes.  For  the  governor  to 
assume  to  exercise  the  judicial  or  discretionary  power  in  regard  to  the  eli 
gibility  of  candidates  for  Congress,  supreme  judge,  treasurer  of  the  State, 
secretary  of  state,  State  printer,  prosecuting  attorneys,  or  electors,  would 
be  to  act  in  the  face  of  a  direct  provision  of  the  statute  of  the  State. 
With  the  effect  of  the  certificate  the  governor  has  nothing  to  do.  His 
duties  are  purely  ministerial,  and  are  prescribed  in  plain,  direct  terms 
by  the  statute,  and  about  them  there  can  be  no  possible  room  for  con 
troversy. 

Governor  Grover  assumes  that  there  is  a  conflict  between  the  act  of 
Congress  of  1792  and  the  statute  of  Oregon,  and  bases  his  justification 
for  a  violation  of  the  statute  of  Oregon  upou  his  duty  to  execute  the  act 
of  Congress.  There  is  no  possible  conflict  between  the  act  of  Congress 
and  the  statute  of  Oregon,  except  in  the  one  immaterial  particular, 
namely,  that  the  act  of  Congress  requires  three  lists  of  the  names  of 
electors  to  be  made  out,  while  the  statute  of  Oregon  prescribes  only  two. 
The  third  section  of  the  act  of  Congress  touching  this  question  reads 
thus : 

That  the  executive  authority  of  each  State  shall  cause  three  lists  of  the  names  of  the 
electors  of  such  State  to  be  made  and  certified,  to  be  delivered  to  the  electors  on  or 
before  the  said  first  Wednesday  in  December,  and  the  said  electors  shall  annex  one  of 
the  said  lists  to  each  of  the  lists  of  their  votes. 

The  governor  is  required  to  make  three  lists  or  certificates  of  the  elect- 


500  ELECTORAL    COUNT   OF    1877. 

ors  of  the  State.  How  is  lie  to  know  that  they  are  electors'?  By  an 
inquiry  inaugurated  on  his  own  account  upon  an  issue  raised  by  ex 
parte  petitions  or  affidavits  coining  from  unofficial  sources  or  irrespon 
sible  parties  ?  Certainly  not.  But  simply  because  they  have  been 
certified  to  him  as  having  been  appointed  electors  in  the  mode  prescribed 
by  the  legislature  of  the  State,  the  legislature  being  expressly  author 
ized  by  the  Constitution  of  the  United  States  to  prescribe  the  mode  of  j 
appointment.  Whoever,  then,  are  officially  declared  or  certified  to 
have  received  the  highest  number  of  votes  in  the  mode  prescribed  by 
the  legislature  are  the  persons  to  whom  the  act  of  Congress  requires  he 
shall  give  the  lists  or  certificates.  With  the  appointment  of  these  elect 
ors  he  has  nothing  to  do  and  can  have  nothing  to  do,  for  that  by  the 
Constitution  is  expressly  left  to  the  State,  to  be  done  in  the  manner 
prescribed  by  its  legislature,  and  when  their  appointment  has  been 
declared  by  the  officer  or  officers  of  the  State  appointed  by  the  laws  of 
the  State  for  that  purpose,  which  under  the  laws  of  Oregon  is  the  secre 
tary  of  state,  and  him  alone,  they  are  the  electors  to  whom  the  act  of 
Congress  requires  that  he  shall  give  the  certificates.  The  assumption 
upon  his  part  of  the  right  to  decide  that  the  persons  who  have  been 
appointed  electors  in  the  method  prescribed  by  the  legislature  are  ineli 
gible  is  wholly  without  warrant  in  law.  The  act  of  Congress  simply 
provided  a  form  of  evidence  as  to  who  had  been  appointed  electors  by 
the  State,  and  the  executive  authority  of  the  State  is  introduced  simply 
for  the  purpose  of  making  the  certificates  or  lists.  The  statute  of  the 
State  requires  the  secretary  of  state  to  canvass  and  return  the  votes  for 
electors  as  it  is  done  for  members  of  Congress  ;  and  as  he  is  required  in 
the  case  of  members  of  Congress  to  certify  to  the  candidate  having  the 
highest  number  of  votes,  so  he  is  required  in  the  case  of  electors  to  cer 
tify  to  the  candidate  having  the  highest  number  of  votes  j  and  as  the 
governor  is  required  in  the  case  of  a  candidate  for  Congress  to  give  a 
certificate  to  the  person  having  the  highest  niMnber  of  votes,  so  he  is 
required  in  the  case  of  an  elector  to  give  a  certificate  to  the  person 
having  the  highest  number  of  votes;  and  he  has  just  as  much  right,  and 
no  more,  no  less,  to  pass  upon  the  eligibility  or  qualifications  of  a  can 
didate  for  Congress  as  he  has  upon  those  of  a  candidate  for  elector.  And 
to  illustrate  the  absurdity  of  the  position  assumed  by  the  governor,  he, 
in  his  evidence  before  the  committee,  said  that  he  considered  it  his  duty 
to  pass  upon  the  qualifications  of  a  candidate  for  Congress  in  giving  his 
certificate,  and  that  he  would  refuse  a  certificate  to  a  candidate  whom 
he  believed  to  be  ineligible.  The  idea  that  the  governor  of  a  State  may 
refuse  to  grant  a  certificate  of  election  to  a  candidate  for  Congress  who 
has  received  the  highest  number  of  votes  because  in  his  opinion  the 
candidate  is  ineligible  under  the  Constitution  or  law,  and  that  he  may 
exercise  a  like  judicial  power  in  regard  to  candidates  for  electors,  seems 
to  be  supremely  ridiculous,  entirely  destitute  of  support  in  law,  and  at 
irreconcilable  variance  with  reason  and  common  sense. 

Mr.  Commissioner  FRELINGHU  YSEK    May  I  ask  one  question  ? 

Mr.  Senator  MITCHELL.     Certainly. 

Mr.  Commissioner  FRELLNGHUYSEK  Does  this  act,  which  pro 
vides  for  canvassing  the  votes  for  electors,  provide  for  any  declaration 
or  proclamation  being  made  by  the  governor? 

Mr.  Senator  MITCHELL.  It  does  not.  It  simply  provides  that  tLe 
secretary  of  state  shall  canvass  the  votes  and  issue  the  certificate  to  the 
person  having  the  highest  number  of  votes,  and  the  law  makes  it  the 
imperative  duty  of  the  executive  of  the  State  to  sign  that  list.  No 
power  whatever  is  given  him,  ministerially,  politically,  judicially,  or  any 


ELECTORAL   COUNT   OF    1877.  501 

other  wise,  to  pass  on  the  question  whether  the  person  receiving  the 
highest  number  of  votes  was  eligible  or  ineligible. 

I  now  pass  to  a  consideration  of  the  question,  could  Cronin,  being 
a  minority  candidate,  be  elected  I 

Admitting,  for  the  sake  of  the  argument,  that  the  governor  of  Oregon 
had  jurisdiction  to  pass  upon  the  question  of  the  iueligibility  of  Watts — 
an  assumption  I  have  tried  to  show  is  wholly  destitute  of  support  in 
law — the  next  inquiry  is  as  to  whether  it  was  his  right,  under  the  law, 
to  issue  the  certificate  of  election  to  a  minority  candidate,  or,  in  other 
words,  whether  a  minority  candidate  was  elected  if  the  majority  can 
didate  were  ineligible  to  receive  the  office. 

It  may  be  stated,  without  fear  of  successful  contradiction,  that  no 
decision  can  be  found  in  the  English  or  American  reports  which  would 
give  the  election  to  a  minority  candidate  under  the  circumstances  of  this 
case.  It  has  been  held  in  England  that  the  minority  candidate  is  elected 
where  the  electors  have  personal  and  direct  knowledge  of  the  ineligi 
bility  of  the  majority  candidate.  It  is  believed  that  no  case  can  be 
found  in  England  where  it  was  held  that  constructive  knowledge  of  the 
ineligibility  of  the  majority  candidate  would  be  sufficient  to  give  the  elec 
tion  to  the  minority  candidate.  All  the  cases  in  which  the  minority 
candidates  have  been  held  to  be  elected  were  where  there  were  very 
small  constituencies,  generally  corporations,  and  where  the  knowledge 
of  the  ineligibility  was  brought  home  to  every  voter.  More  than  that, 
it  is  the  well-settled  law  in  England  that  the  voter  is  not  in  such  a  case 
presumed  or  required  to  know  the  law,  and  that  it  is  riot  to  be  presumed 
that  he  knows  either  what  the  law  is  creating  the  ineligibility,  or  even 
if  he  knows  the  law  that  he  knows  the  effect  of  it  to  be  such  as  to  make 
the  candidate  ineligible.  It  must,  therefore,  not  only  be  shown  that  he 
knows  the  disqualifying  provision  of  the  law  or  the  decision  of  the 
courts  which,  in  fact,  made  the  candidate  ineligible,  but  that  he  also 
knew  the  legal  effect  of  the  law  or  of  the  decision,  and  that  it  had  the 
effect  to  disqualify  the  candidate  from  being  elected  to  the  office. 

The  doctrine  of  the  law  in  England  on  this  subject  cannot  be  better, 
more  ably,  or  clearly  stated  than  by  quoting  from  the  able  speech  made 
by  Senator  Thurman,  of  Ohio,  in  the  United  States  Senate  in  the  Forty- 
first  Congress,  in  the  contested  case  of  Abbott  vs.  Vance.  The  Senator 
in  that  case  used  the  following  language  : 

Again,  in  the  English  cases  the  intention  of  the  voter  to  throw  away  his  vote  might 
well  enough  be  imputed  to  him,  because,  as  I  said,  it  belonged  to  him  ;  and  if  he  know 
ingly  and  willfully  voted  for  a  man  whom  he  knew  would  never  be  allowed  to  hold 
the  office,  the  natural  presumption  was  that  he  intended  to  throw  away  his  vote  ;  and 
it  is  upon  this  ground,  that  he  did  willfully  throw  away  his  vote,  that  his  vote  is  re 
jected  from  the  count.  This  can  be  proved  in  a  sentence  almost.  If  the  English  voter 
voted  for  a  disqualified  man,  not  knowing  of  the  disqualification,  then  the  minority 
man  is  not  elected.  We  all  agree  to  that.  Every  case  says  that.  The  bare  fact, 
then,  of  disqualification  or  disability  on  the  part  of  the  man  receiving  a  majority  does 
not  elect  the  minority  man.  It  is  necessary  not  only  that  the  majority  man  shall  be 
disqualified,  but  that  the  voters  shall  have  had  clear,  positive,  certain  knowledge  of 
this  disqualification,  and  yet  contumaciously,  willfnil}7,  and  knowingly  cast  their  votes 
for  him  ;  and  when  that  is  the  case  they  may  well  enough  be  presumed  to  have  intended 
the  natural  result  of  their  act,  intended  to  throw  awav  their  votes. 

*  *  *  W~\  -    •*  *  * 

I  proceed  to  show  further  differences  between  the  English  cases  and  the  case  before 
us.  In  the  English  cases  the  voter  knew,  to  a  moral  certainty,  that  the  person  for 
whom  he  voted  would  never  be  permitted  to  hold  the  office.  There  was  nothing  in 
the  British  constitution,  nothing  in  auy  act  of  Parliament,  nothing  in  any  judicial  or 
parliamentary  decision  that  held  out  the  least  idea  or  hope  that  the  disqualification  of 
the  person  voted  for  would  be  removed,  and  he  permitted  to  take  and  hold  the  office. 
******* 

Again,  in  England  numerous  decisions  had  settled  the  law.    The  Senator  from  Wis- 


502  ELECTORAL   COUNT   OF   1877. 

consin  said  it  had  been  settled  for  three  hundred  years.  I  do  not  care  about  going  into 
the  chronology  to  know  whether  that  statement  was  perfectly  exact  or  not ;  but  it  was 
well  settled  in  England  that  in  the  elections  of  the  kind  that  have  been  referred  to,  if 
the  voter  knowingly  cast  his  vote  for  a  disqualified  man  that  vote  would  be  rejected. 
Every  voter,  therefore,  casting  his  vote  for  a  disqualified  man,  knowing  him  to  be  so, 
knew  that  the  minority  man  would  be  seated,  and  therefore  he  might  be  held  to  have 
assented  to  the  seating  of  that  minority  man.  But  no  such  thing  was  known  to  the 
general  assembly  of  North  Carolina.  They  had  no  right  to  think  any  such  thing ;  for 
from  the  very  foundation  of  this  Government  down  to  this  day,  at  least  from  1798  down  to 
this  day,  there  is  an  unbroken  chain  of  cases  in  both  Houses  of  Congress  against  the  idea  of 
seating  a  minority  man,  while  there  is  not  one  single  instance  from  the  foundation  of  the 
Government  to  this  day  in  which  a  minority  man  has  been  seated  in  cither  branch  of  Congress 
on  the  ground  that  the  man  who  received  a  majority  of  the  votes  ivas  a  disqualified  person. 

Again,  further  on  in  the  same  speech,  the  distinguished  Senator  said : 

Again,  here  is  another  thing  that  the  legislature  of  North  Carolina  had  a  right  to 
know,  and  that  distinguishes  this  case  from  the  English  cases,  and  that  is,  that  the 
weight  of  judicial  decision  in  the  United  States  is  decidedly  against  the  claim  of  a  minority  man 
to  an  election.  That  is  an  element  wholly  wanting  in  the  English  cases.  In  England 
the  entire  current  of  decisions  was  that  the  minority  man  could  have  the  seat.  In 
America  the  decided  iveight  of  judicial,  in  fact  every  case  but  one  decided  by  a  supreme  court, 
is  against  the  pretensions  of  the  minority  candidate;  and  that  the  legislature  of  North 
Carolina  had  a  right  to  look  at  and  to  build  their  expectations  upon  when  they  voted 
for  Mr.  Vance. 

Here,  then,  are  no  less  than  six  or  seven  important,  nay  almost  every  one  of  them  con 
clusive,  elements  in  this  case,  not  one  of  which  was  in  the  English  cases ;  and  yet  ifc  is 
contended  that  the  Senate  of  the  United  States  is  to  disregard  the  first  principles  of  repub 
lican  government  and  seat  a  man  who  did  not  receive  one-third  of  the  votes  of  the  legislature 
upon  the  doctrine  of  the  English  cases,  when  those  cases  and  the  case  before  us  stand  on  wholly 
different  foundations. 

The  Senator  in  the  above  quotation  stated  the  case  broadly  and 
strongly  as  to  the  rule  in  England.  He  did  not,  however,  mention  one 
ingredient  of  importance  in  the  rule  as  laid  down  by  the  decisions  in  the 
English  courts  and  in  Parliament,  namely,  that  this  knowledge  upon  the 
part  of  a  voter  referred  to  by  him  must  apply  as  well  to  the  disqualify 
ing  law  as  to  the  disqualifying  fact.  And  tinder  the  English  law  a 
knowledge  of  the  disqualifying  fact  alone  was  not  sufficient  to  elect  a 
minority  candidate,  but  he  must  have  actual  knowledge  of  the  disquali 
fication  in  law  arising  from  the  existence  of  such  fact.  In  other  words, 
the  doctrine  that  all  men  are  presumed  to  know  the  law  does  not  apply  in 
.this  class  of  cases ;  while,  as  a  general  rule,  ignorance  of  the  law  excuses 
no  one,  in  this  case  it  does.  He  must  have  actual  knowledge  both  of 
the  existence  of  the  disqualifying  fact  and  the  disqualifying  law. 

In  the  case  of  The  Queen  vs.  The  Mayor,  Aldermen,  and  Burgesses 
of  Tewksbury,  reported  in  English  Law  Keports  in  1808,  the  court  held 
"that  the  mere  knowledge  on  the  part  of  the  electors  who  voted  for  B.  that 
lie  was  mayor  and  returning -officer  did  not  amount  to  knowledge  that  he  was 
disqualified  in  a  point  of  laiv  as  a  candidate  ;  and  therefore  their  votes  were 
not  throivn  away  so  as  to  make  the  election  fall  on  the  fifth  candidate." 

The  reason  of  the  rule  as  held  formerly  in  England  is  given  in  a  few 
words  in  Southwark  on  Elections,  page  259,  as  follows : 

That  it  is  willful  obstinacy  and  misconduct  in  a  voter  to  give  his  >vote  for  a  person  laboring 
under  a  known  incompetencij . 

Clarke  on  Election  Committees,  page  156,  in  referring  to  the  English 
rule,  says: 

Whenever  a  candidate  is  disqualified  from  sitting  in  Parliament,  and  notice  thereof  is 
publicly  given  to  the  electors,  all  votes  given  to  such  disqualified  candidate  will  be  consid 
ered  as  thrown  away. 

In  King  vs.  Hawkins,  10  East,  210,  Lord  Ellenborough  said  the  elec 
tion  of  a  person  ineligible  was  void  when  the  votes  were  cast  after  notice 
of  ineligibility. 


ELECTORAL    COUNT    OF    1877.  503 

Hey  wood  on  County  Elections  says,  page  535 : 

If  before  the  election  comes  on  or  a  majority  has  polled,  sufficient  notice  has  beenpub- 
licly  given  of  his  disability,  the  unsuccessful  candidate  next  to  him  on  the  poll  must  ul 
timately  be  the  sitting  member. 

Male  on  Elections,  page  336,  states  the  English  rule  thus : 

If  an  election  is  made  of  a  person  or  persons  ineligible,  such  election  is  void  where 
that  ineligibility  is  clear  and  pointed  out  to  the  electors  at  the  poll. 

The  English  rule,  as  above  stated,  is  the  one  laid  down  in  the  cele 
brated  case  of  Wilkes  vs.  Luttrell.  It  is  believed,  however,  that  during 
late  years  the  rule  in  England,  as  above  stated,  has  undergone  a  change 
in  the  direction  of  the  American  doctrine.  In  a  recent  case  decided  in 
England,  The  Queen  vs.  Mayor,  3  Law  Reports,  Queen's  Bench,  629,  the 
rule  as  to  knowledge  of  the  disqualifying  law  being  necessary  in  En 
gland,  was  stated  strongly,  as  follows :  After  holding  that  though  the 
elector  had  actual  notice  of  the  fact  which  had  been  adjudged  by  the 
courts  to  disqualify,  yet  knowledge  or  notice  in  the  elector  of  the  adju 
dication  could  not  be  presumed,  it  further  said : 

It  is  not  enough  to  show  that  the  voter  knew  the  fact  only;  but  it  is  necessary  to 
show  sufficient  to  raise  a  reasonable  inference  that  he  knew  that  the  fact  amounted  to 
a  disqualification. 

In  the  United  States  the  general  current  of  authorities  sustains  the 
doctrine  that  the  ineligibility  of  the  majority  candidate  does  not  elect 
the  minority  candidate,  and  this  without  reference  to  the  question  as  to 
whether  voters  knew  of  the  ineligibility  of  the  candidate  for  whom  they 
voted,  and  herein  is  the  distinction  between  the  English  and  American 
authorities.  In  England  actual  knowledge  of  the  existence  of  a  fact  and 
actual  knowledge  of  the  disqualifying  consequence  following  from  the 
existence  of  such  fact,  it  has  been  held  in  certain  cases,  elect  the  minor 
ity  candidate.  In  America  the  doctrine  is  that  the  minority  candidate 
is  not  elected  under  any  state  of  circumstances. 

This  doctrine  has  been  fully  declared  by  the  Senate  of  the  United 
States  in  several  adjudications  and  by  the  House  of  Representatives,  as 
well  as  by  the  decision  of  the  supreme  courts  of  many  of  the  States. 
The  only  case  that  has  been  produced  which  would  give  even  a  shadow 
of  excuse  or  pretense  for  the  claim  of  Oronin,  the  minority  candidate  in. 
Oregon,  to  have  been  elected,  is  the  case  of  Guliek  vs.  New,  14  Indiana 
Reports.  That  case  has  been  expressly  referred  to  and  overruled  in  ar 
gument  in  the  Senate  and  House  of  Representatives,  as  well  as  by  the 
decisions  of  the  courts  of  some  of  the  States.  By  the  law  of  Indiana  the 
mayor  of  the  city  of  Indianapolis  had  judicial  power  in  certain  classes  of 
criminal  cases  co-extensive  with  the  county  in  which  the  city  is  situated, 
and  by  the  constitution  of  the  State  he  was  not  eligible  to  be  elected  to 
any  other  office  during  the  period  for  which  he  was  elected  mayor.  Be 
fore  the  expiration  of  this  period,  Gulick,  the  mayor,  was  elected  sheriff 
of  the  county  of  Marion,  and  the  question  arose  as  to  his  eligibility. 
The  supreme  court  of  Indiana  held  that  the  voters  in  the  county,  inas 
much  as  the  criminal  jurisdiction  of  the  mayor  extended  all  over  the 
county,  must  take  constructive  notice  of  his  ineligibility. 

The  decision  was  unsupported  by  any  authority  whatever,  and  apply 
ing  it  in  this  case  in  its  full  length  and  breadth  it  would  furnish  no  ex 
cuse  for  the  action  of  Governor  Grover. 

Dr.  Watts,  the  candidate  for  elector  on  the  republican  ticket,  was 
postmaster  at  a  little  town,  La  Fayette,  in  Yam  Hill  County.  There 
were  eleven  other  post-offices  in  the  county  and  one  within  two  miles 
of  La  Fayette,  and  the  testimony  shows  that  the  whole  number  of  voters 
receiving  their  mail-matter  at  La  Fayette  did  not  exceed  one  hundred, 


504  ELECTORAL   COUNT   OF   1877. 

while  the  entire  majority  of  Dr.  Watts  in  the  State  was  1,049.  If  it 
should  be  held  that  the  voters  within  the  mail-delivery  of  Dr.  Watts 
must  not  only  have  taken  notice  of  the  fact  that  he  was  postmaster,  but 
also  of  his  consequent  ineligibility  under  the  Constitution,  and  the  votes 
of  such  persons  should  be  deducted  from  his  majority,  it  would  still  leave 
him  over  nine  hundred  majority  among  the  voters  who  could  not  be  pre 
sumed  to  have  even  constructive  knowledge  of  his  character  as  a  post 
master  and  of  his  consequent  ineligibility. 

In  America  the  settled  doctrine  of  the  law  as  established  not  only  by 
the  judicial  tribunals  but  by  both  Houses  of  Congress  is  that  voting  for 
an  ineligible  candidate,  even  with  full  knowledge  of  the  disqualifying 
fact  and  its  legal  consequences,  does  not  elect  the  minority  candidate 
where  either  a  majority  or  plurality  of  votes  is  required  to  elect. 

In  McCrary's  American  Law  of  Elections,  page  167,  the  following  is 
stated  on  this  subject : 

"We  come  now  to  a  question  which  has  been  much  discussed  and  upon  which  the 
authorities  are  somewhat  conflicting;  it  is  this:  Suppose  the  candidate  who  has 
received  the  highest  number  of  votes  for  an  office  is  ineligible,  and  that  his  ineligibil- 
ity  was  known  to  those  who  voted  for  him  before  they  cast  their  votes,  are  the  votes 
thus  cast  for  him  to  be  thrown  out  of  the  count  and  treated  as  never  cast,  and  should 
the  minority  candidate,  if  eligible,  be  declared  elected  in  such  a  case  ?  No  doubt  the 
English  rule  is  that  where  the  majority  candidate  is  ineligible,  and  sufficient  notice  of 
his  ineligibility  has  been  given,  the  person  receiving  the  next  highest  number  of  votes 
being  eligible  must  be  declared  elected.  Great  stress  is  laid  upon  the  fact  of  notice 
having  been  given,  and  the  reason  of  the  English  rule  is  said  to  be  "  that  it  is  willful 
obstinacy  and  misconduct  in  a  voter  to  give  his  vote  for  a  person  laboring  under  a 
known  incompetency."  (Southwark  on  Elections,  page  259.)  An  examination  of  tho 
English  cases  will  show  that  in  some  of  them  the  election  was  declared  void  and  sent 
tack  to  the  people  on  the  ground  that  there  was  not  sufficient  notice  of  the  incapacity 
of  the  successful  candidate ;  while  in  others  the  minority  candidate  was  declared 
elected  on  the  ground  that  due  notice  of  the  ineligibility  of  the  person  receiving  the 
majority  was  given.  The  following  are  some  of  the  principal  English  authorities  upon 
the  subject:  Rex  vs.  Monday,  Cowp.,  537  ;  Rex  vs.  Coe,  Hey  wood,  361 ;  Rex  vs.  Bissell, 
ilnd.,  360;  Rex  vs.  Parry,  14  East.,  549 ;  Regina  vs.  Cookes,  28  Eng.  L.  and  Eq.,  304,  Q. 
B.,  406  ;  Heywood  on  County  Elections,  535  ;  Male  on  Elections,  536 ;  King  vs.  Hawkins, 
10  East.,  210;  Claridge  vs.  Evelyn,  5  B.  and  A.  8;  Clarke  on  Election  Committees,  page 
156 ;  Southwark  on  Elections,  page  259. 

Mr.  McCrary  then  cites  numerous  authorities  in  support  of  the  posi- 
.tion  assumed  by  him  to  be  the  rule  in  this  country,  in  the  following 
language : 

Thus,  in  Commonwealth  vs.  Cluly,  56  Pa.  St.,  270,  the  supreme  court  of  Pennsylvania 
held  that  where  in  an  election  for  sheriff  a  majority  of  the  votes  are  cast  for  a  disqual 
ified  person,  the  next  in  vote  is  not  to  be  returned  as  elected  ;  and  the  supreme  court 
of  California,  in  Saunders  vs.  Haynes,  13  CaL,  145,  holds  the  same  doctrine,  and  enforces 
it  by  cogent  reasoning.  And  in  Wisconsin  we  have  the  same  ruling  in  State  vs.  Giles, 
I  Chand.,  112.  and  in  State  vs.  Smith,  14  Wis.,  497,  and  see  opinion  of  judges,  38  Maine, 
597  ;  State  vs'.  Boal,  46  Mo.,  528 ;  Gushing  Election  Cos.,  496,  576,  and  see  State  vs.  An 
derson,  1  Cox,  N.  J.,  318 ;  People  vs.  Clute,  50  N.  Y.  But  in  Indiana  the  doctrine  of  the 
English  authorities  has  been  followed.  (Gulick  vs.  New,  14  Ind.,  93.) 

And  then  in  section  234  the  whole  matter  is  summed  up  by  Mr. 
McCrary  as  follows : 

Thrs  it  will  be  seen  that  the  weight  of  authority  in  this  country  is  decidedly  against 
the  adoption  here  of  the  English  doctrine.  And  we  think  that  sound  policy,  as  well 
as  reason  and  authority,  forbids  the  adoption  of  that  doctrine  in  this  country.  It  is  a 
fundamental  idea  with  us  that  the  majority  shall  rule,  and  that  a  majority  or  at  least 
a  plurality  shall  be  required  to  elect  a  person  to  office  by  popular  vote.  An  election 
with  us  is  the  deliberate  choice  of  a  majority  or  plurality  of  the  electors.  Any  doc 
trine  which  opens  the  way  for  the  minority  rule,  in  any  case,  is  anti-republican  and 
an ti- American.  The  English  rule,  if  adhered  to,  would  in  many  cases  result  in  com 
pelling  very  large  majorities  to  submit  to  very  small  minorities,  as  an  ineligible  person 
may  receive,  and  in  many  cases  has  received,  a  great  majority  of  the  votes. 

In  the  case  of  the  Commonwealth  vs.  Cluly,  56  Pennsylvania  State 


ELECTORAL   COUNT    OF    1877.  505 

Eeports,  which  was  a  case  wherein  at  an  election  for  sheriff  in  a  certain 
county  of  Pennsylvania  a  person  receiving  the  majority  of  votes  was 
ineligible  under  the  constitution  of  that  State,  Justice  Strong,  now  of 
the  Supreme  Court  of  the  United  States  and  present  member  of  this 
Commission,  then  on  the  supreme  bench  of  Pennsylvania,  in  delivering 
the  opinion  of  the  court,  said : 

Now,  on  this  showing,  what  interest  Las  the  relator  in  the  question  he  attempts  to 
raise  ?  What  more  than  any  inhabitant  of  Allegheny  County,  or  of  the  Common 
wealth  ?  He  was  a  rival  candidate  at  the  election  for  the  office,  but  he  was  defeated, 
with  a  majority  against  him  of  sis  thousand  nine  hundred  and  ninety.  Doubtless,  if 
his  successful  rival  is  incapable  of  holding  the  office  on  account  of  the  constitutional 
provisions  "  that  no  person  shall  be  twice  chosen  or  appointed  sheriff  in  any  term  of 
six  years,"  or  for  any  other  reason,  and  that  incapacity  entitles  him,  the  relator,  to  the 
office,  he  has  an  interest.  He  certainly  can  have  none  if  a  judgment  of  ouster  against 
Cluly  would  not  give  the  sheriffalty  to  him.  But  surely  it  cannot  be  maintained  that 
in  any  possible  contingency  the  office  can  be  given  to  him.  The  votes  cast  at  an  elec 
tion  for  a  person  who  is  disqualified  from  holding  an  office  are  not  nullities.  They  can 
not  be  rejected  by  the  inspectors,  or  thrown  out  of  the  count  by  the  return-judges. 
The  disqualified  person  is  a  person  still,  and  every  vote  thrown  for  him  is  formal. 
Even  in  England  it  has  been  held  that  votes  for  a  disqualified  person  are  not  lost  or 
thrown  away  so  as  to  justify  the  presiding  officers  in  returning  as  elected  another  can 
didate  having  a  less  number  of  votes,  and  if  they  do  so  a  quo-warranto  information  will 
be  granted  against  the  person  so  declared  to  be  elected,  on  his  accepting  the  office. 
(See  Cole  on  Quo  Warranto  Informations,  141,  142 ;  Regina  vs.  Hiorns,  7  Ad.  &  E.,960  ; 
3  Nev.  &  Perry,  184  ;  Rex  vs.  Bridge,  I  M.  &  S.,  76.) 

Under  institutions  such  as  ours  are  there  is  even  greater  reason  for  holding  that  a 
minority  candidate  is  not  entitled  to  the  office  if  he  who  received  the  largest  number 
of  votes  is  disqualified.  We  are  not  informed  that  there  has  been  any  decision  strictly. 


Gallatin,  elected  a  Senator  from  this  State,  was  declared  by  the  Senate  of  the  United 
States  disqualified  because  he  had  not  been  a  citizen  of  the  United  States  nine  years, 
and  his  election  was  declared  void  for  that  reason,  but  the  seat  was  not  given  to  his 
competitor.  Nobody  supposed  the  minority  candidate  was  elected.  There  have  been 
several  other  cases  of  contested  elections  in  which  the  successful  candidates  were 
decided  to  have  been  disqualified,  and  denied  their  offices. 

John  Bailey's  case  is  one  of  them.  He  was  elected  to  Congress  from  Massachusetts 
and  refused  his  seat  in  18iM.  But  neither  in  his  case,  nor  in  any  other  with  which  we 
are  acquainted,  were  the  votes  given  to  the  successful  candidate  treated  as  nullities, 
so  as  to  entitle  one  who  had  received  a  less  number  of  votes  to  the  office.  There  is  a 
class  of  cases  in  England  apparently,  but  not  really,  asserting  otherwise.  The  earliest 
of  them  are  referred  to  by  Mr.  Butler  in  his  argument  in  Rex  vs.  Monday,  Cowper,  530. 
They  were  followed  by  Rex  vs.  Hawkins,  10  East.,  211,  and  Rex  vs.  Parry,  14  Id.,  549. 
In  these  cases  it  is  said  that  if  sufficient  notice  is  given  of  a  candidate's  disqualification, 
and  notice  that  votes  given  for  him  will  be  thrown  away,  votes  subsequently  cast  for 
him  are  lost,  and  another  candidate  may  be  returned  as  elected  if  he  has  a  majority  of 
good  votes  after  those  so  lost  are  deducted.  There  is  more  reason  for  this  in  England, 
where  the  vote  is  viva  voce  and  the  elective  franchise  belongs  to  but  few,  than  here, 
where  the  vote  is  by  ballot  and  the  franchise  well  nigh  universal.  In  those  cases  the 
notice  was  brought  home  to  almost  every  voter,  and  the  number  of  electors  were  never 
greater  than  three  hundred,  and  generally  not  more  than  two  dozen.  Besides,  a  man 
who  votes  for  a  person  with  knowledge  that  the  person  is  incompetent  to  hold  the 
office,  and  that  his  vote  cannot  therefore  be  effective,  that  it  will  bo  thrown  away, 
may  very  properly  be  considered  as  intending  to  vote  a  blank,  or  throw  away  his  vote. 

In  the  supreme  court  of  the  State  of  California,  in  the  case  of  Saun- 
ders  vs.  Haynes,  13  California  Eeports,  Justice  Baldwin,  in  announcing 
the  opinion  of  the  court,  said : 

It  will  be  observed  that  the  point  of  this  defense  is,  that  the  votes  cast  for  treasurer, 
supposing  he  received  the  highest  number,  were  nullities,  because  of  his  assumed 
ineligibility.  But  we  do  not  so  consider.  Although  some  old  cases  may  be  found 
affirming  this  doctrine,  we  think  that  the  better  opinion  at  this  day  is  that  it  is  not 
correct. 

The  celebrated  controversy  in  the  British  Parliament  between  Wilkes  and  Luttrell 
has  given  rise  to  much  discussion,  and  the  opinions  of  jurists  and  statesmen  have  been 


506  ELECTORAL   COUNT   OF   1877. 

somewhat  divided.  But  the  prevailing  opinion,  English  and  American,  of  modern 
times,  seems  to  be  against  the  precedent  established  in  that  case.  In  the  case  of  Whit 
man  and  Maloney,  (10  Cal.,)  Mr.  Justice  FIELD  clearly  intimates  his  opinion  in  favor 
of  the  principle  that  the  votes  given  for  an  ineligible  candidate  are  not  to  be  counted 
for  the  next  highest  candidate  on  the  poll.  In  the  State  of  Wisconsin  vs.  Giles,  (1 
Chandler,  page  117,)  the  same  doctrine  is  held,  and  it  is  enforced  by  the  judges  of  the 
supreme  court  of  Maine  in  their  opinion,  to  be  found  in  38  Maine  Reports,  page  597. 

Our  legislative  precedents  seem  to  be  the  same  way.  Upon  principle  we  think  the 
law  should  so  be  ruled.  An  election  is  the  deliberate  choice  of  a  majority  or  plurality 
of  the  electoral  body.  This  is  evidenced  by  the  votes  of  the  electors.  But  if  a  majority 
of  those  voting,  by  mistake  of  law  or  fact,  happen  to  cast  their  votes  upon  an  ineligible 
candidate,  it  by  no  means  follows  that  the  next  to  him  on  the  poll  should  receive  the 
office.  If  this  be  so,  a  candidate  might  be  elected  who  received  only  a  small  portion  of 
the  votes,  and  who  never  could  have  been  elected  at  all  but  for  this  mistake.  The 
votes  are  not  less  legal  votes  because  given  to  a  person  they  cannot  be  counted  for; 
and  the  person  who  is  the  next  to  him  on  the  list  of  candidates  does  not  receive  a 
plurality  of  votes  because  his  competitor  was  ineligible.  The  votes  cast  for  the  latter, 
it  is  true,  cannot  be  counted  for  him  ;  but  that  is  no  reason  why  they  should,  in  effect, 
be  counted  for  the  former,  who  possibly  could  never  have  received  them.  It  is  fairer, 
more  just,  and  more  consistent  with  the  theory  of  our  institutions  to  hold  the  votes  so 
cast  as  merely  ineffectual  for  the  purpose  of  an  election,  than  to  give  them  the  effect  of 
disappointing  the  popular  will  and  electing  to  office  a  man  ivhose  pretensions  the  people  had 
designed  to  reject. 

The  supreme  court  of  California,  with  a  democratic  chief-justice,  (Mr. 
Wallace,)  no  longer  ago  than  the  13th  of  last  November,  in  the  case  of 
Crawford  vs.  Dunbar,  held  to  the  same  doctrine.  The  chief-justice,  in 
announcing  the  opinion  of  the  court,  refers  with  unqualified  approval  to 
the  doctrine  laid  down  in  13  California,  that  the  ineligibility  of  the  per 
son  receiving  the  highest  number  of  votes  cannot  operate  to  elect  the 
minority  candidate.  The  facts  and  conclusions  of  law  in  this  recent 
case,  as  found  and  enunciated  by  the  supreme  court  of  California  in 
their  opinion,  are  as  follows  : 

1.  The  office  of  inspector  of  customs  at  Stockton,  in  the  San  Francisco  collection  dis 
trict,  to  which  there  is  annexed  a  salary  of  $1,000  per  annum,  is  a  lucrative  office  within 
the  meaning  of  section  21,  article  4  of  the  constitution  of  the  State,  and  if  the  defend 
ant,  Dunbar,  held  that  office  in  September,  1875,  then  he  was  ineligible  to  the  office  of 
school  superintendent  in  the  county  of  San  Joaquiu,  which  is  a  "civil  office  of  profit 
under  the  State,"  the  salary  thereof  being  §1,500  per  annum. 

2.  It  is  settled  here  that  a  mere  de  facto  incumbency  of  the  inspectorship  of  customs 
would  not  render  Dunbar  ineligible  to  the  office  of  school  superintendent  under  the  dis 
qualifying  clause  of  the  constitution  referred  to.     He  must  have  been  inspector  dejure 
in  order  to  work  that  result.     (People  ex  rel.  Attorney-General  vs.  Turner,  20  Cal.,  142.) 

3.  The  case  made  upon  the  part  of  the  contestant  established  that  Dunbar,  on  the 
first  Wednesday  of  September,  1875,  was  dejure  as  well  as  de  facto  inspector  of  customs 
at  Stockton.     It  appeared  from  the  evidence  adduced  by  the  contestants  that  upon  the 
nomination  of  the  collector  of  customs,  and  with  the  approval  of  the  secretary  of  the 
treasury,  Dunbar  had  been  appointed  such  inspector  of  customs,  and  had  taken  the 
oaths,  two  in  number,  prescribed  by  law,  and  had  entered  upon  the  discharge  of  his 
official  duties,  pursuant  to  his  appointment.     His  appointment  and  the  taking  by  him 
of  the  prescribed  oaths  of  office,  the  last  of  them  on  the  6th  day  of  April,  1875,  was 
established  by  the  records  thereof  in  due  form,  which,  or  copies  of  which,  duly  certified, 
were  produced  from  their  proper  custodian,  and  it  was  proven  and  found  by  the  court 
below  to  be  the  fact,  that,  pursuant  to  his  appointment,  Dunbar,  thereafter  and  on  or 
about  the  10th  day  of  April,  1875,  took  possession  of  all  the  public -property  belonging 
to  the  office  of  inspector  of  customs  of  Stockton,  theretofore  under  the  control  of  his 
predecessor,  and  then  and  there  entered  upon  the  discharge  of  the  duties  pertaining  to 
said  office,  and  that  he  had  not  resigned  nor  been  removed  therefrom. 

4.  It  further  appears  by  the  findings  that  at  the  regular  election  in  question,  the 
respondent,  Dunbar,  received  1,702  votes,  the  contestant,  Crawford,  (the  next  highest 
vote,)  1,182  votes,  and  Jenny  Phelps  830  votes. 

Upon  these  facts  the  contestant  claims  that  he  is  entitled  to  the  office,  and  should 
have  judgment  here  to  that  effect.  This  claim  is  in  argument  put  upon  the  ground 
that  Dunbar,  being  ineligible,  the  votes  cast  for  him,  though  amounting  in  number 
to  a  plurality,  were  mere  nullities,  and  that  the  respondent  received  a  majority  of  the 
votes  over  Jenny  Phelps,  the  only  other  eligible  candidate  for  the  office.  But  this 
p  osition  cannot  be  maintained.  Thia  was  directly  rulod  here,  and  adhered  to  upon  a 


ELECTORAL    COUNT    OF    1877.  507 

petition  for  a  rehearing,  in  Saunders  vs.  Haynes,  (13  California  Reports,  145.)    In  that 
case  the  court  said  — 

And  then  they  go  on  and  quote  the  portion  which  has  been  read  from 
their  opinion,  and  conclude  by  saying: 

It  results  from  this  view  that  the  judgment  of  the  court  bolow  must  be  reversed,  and 
the  cause  remanded  with  directions  to  render  judgment  vacating  the  office. 

In  the  case  of  The  People  ex  rel.  Furman  ct  al.  vs.  Clute,  50  New  York 
Reports,  the  authorities,  English  and  American,  are  reviewed,  and  the 
doctrine  clearly  and  forcibly  stated  in  the  following  extract  from  the 
opinion  : 

In  the  multitude  of  cases  in  which  the  question  has  arisen,  we  think  that  up  to  this 
point  there  is  no  essential  difference  of  result.  All  agree  that  there  must  be  prior  no 
tice  to  or  knowledge  in  the  elector  of  fact  and  law,  to  make  his  vote  so  ineffectual  as 
that  it  is  thrown  away.  But  some  say  that  if  there  be  a  public  law  declaratory  that 
the  existence  of  a  certain  fact  creates  ineligibility  in  the  candidate,  the  elector  having 
notice  of  the  fact  is  conclusively  presumed  in  law  to  have  knowledge  of  the  legal  rule 
.  and  to  be  deemed  to  have  voted"  in  persistent  disregard  of  it.  Others  deny  that  the 
maxim  "Inorantia  juris  excusat  neminem  "  (even  with  the  clause  of  it,  "  quod  quisque 
scire  tenetur,"  not  often  quoted,  and  of  which  we  are  reminded  by  the  very  thorough 
brief  of  the  learned  counsel  for  the  relator)  can  bo  carried  to  that  length,  and  insist 
that  there  does  not  apply  to  this  question  the  rule  that  all  citizens  must  be  held  to 
know  the  general  laws  of  the  land  and  the  special  law  affecting  their  own  locality. 

That  maxim,  in  its  proper  application,  goes  to  the  length  of  denying  to  the  offender 
against  the  criminal  law  a  justification  in  his  ignorance  thereof;  or  to  one  liable  for  a 
breaoh  of  contract  or  for  civil  tort,  the  excuse  that  he  did  not  know  of  the  rule  which 
fixes  his  liability.  It  finds  its  proper  application  when  it  says  to  the  elector,  who, 
ignorant  of  the  law  which  disqualifies,  has  voted  for  a  candidate  ineligible,  "  Your 
ignorance  will  not  excuse  you  and  save  your  vote  ;  the  law  must  stand  and  your  vote 
in  conflict  with  it  must  be  lost  to  you."  But  it  does  not  have  a  proper  application 
when  it  is  carried  further,  and  charges  upon  the  elector  such  a  presumption  of  knowl 
edge  of  fact  and  of  law  as  finds  him  full  of  the  intent  to  vote  in  the  face  of  knowledge, 
and  to  so  persist  in  casting  his  vote  for  one  for  whom  ho  knows  that  it  cannot  bo 
counted,  as  to  manifest  a  purpose  to  waste  it.  The  maxim  itself  concedes  that  there 
may  be  a  lack  of  actual  knowledge  of  the  law.  For  it  is  ignorance  of  it  which  shall 
not  excuse.  Then  the  knowledge  of  the  law  to  which  each  one  is  held  is  a  theoretical 
knowledge;  and  the  doctrine  urged  upon  us  would  carry  a  theoretical  knowledge  of 
the  statute  further  than  goes  the  statute  iself.  The  statute  but  makes  ineffectual  to 
elect  the  votes  given  for  one  disqualified.  The  doctrine  would  make  knowledge  not 
actual,  of  that  statute  thus  limited,  waste  the  votes  of  the  majority  and  bring  about 
the  choice  to  office  by  the  votes  of  a  minority.  We  are  not  cited  to,  nor  do  we  find, 
any  decision  to  that  extent  of  any  court  in  this  State.  The  industrious  research  of 
thri  learned  counsel  for  the  relator  has  found  some  from  courts  in  sister  States.  Gulick 
rs.  New  (14  Indiana,  97)  is  to  that  effect.  Carson  vs.  McPhotridge  (15  id.,  331)  follows 
the  last-cited  case.  Hatcheson  vs.  Tilden  (4  Har.  and  McII.,  270)  was  a  case  at  nisi 
l>rius,  and  is  to  that  effect.  With  respect  for  these  authorities,  we  are  obliged  to  say 
that  they  are  not  sustained  by  reasoning  which  draws  with  it  our  judgment.  Com 
monwealth  vs.  Read  (2  Ashmead,  261)  is  also  cited.  But  that  was  a  case  of  a  board 
of  twenty  assembling  in  a  room  to  elect  a  county  treasurer.  On  motion  being  made 
to  elect  viva  voce,  a  protest  was  made  that  the  law  under  which  they  were  acting  pre 
scribed  a  vote  by  ballot.  Thus,  actual  notice  of  law  and  fact  was  brought  directly 
to  each  elector  before  voting.  Nineteen  persisted  in  voting  viva  voce.  These  were  held 
to  be  wasted  votes.  One  voted  by  ballot  ;  and  his  vote  was  held  to  prevail,  and  the 
person  he  voted  for  to  be  elected.  Commonwealth  vs.  duly  (56  Pennsylvania  State 
Reports,  270)  is  also  cited.  But  the  language  of  the  court  there  is:  "  The  votes  cast 
at  an  election  for  a  person  who  is  disqualified  from  holding  an  office  are  not  nullities. 
They  cannot  be  rejected  by  the  inspectors  or  thrown  out  of  the  count  by  the  return 
judges.  The  disqualified  person  is  a  person  still,  and  every  vote  thrown  for  him  is 
formal."  And  that  was  the  case  of  one  who  was  ineligible  by  reason  of  having  held  the 
office  of  sheriff  of  a  county,  and  became  a  candidate  in  the  same  county  for  the  same 
office  before  the  lapse  of  time  prescribed  by  the  constitution  ;  a  case  in  its  facts  quite 
like  this  in  hand. 

The  relator  also  cites  many  instances  of  the  action  of  legislative  bodies  and  their 
committees.  As  to  these,  a  respectable  authority  on  these  questions  has  remarked 
"  that  they^  cannot  be  said  to  afford  any  precise  or  useful  principle,"  (1  Peckwell,  500  ;) 


_____  ...  ________  0  ___________  ,  „.       ,  ________  „  _____  „  ________  that 

they  are  not  so  conclusive  and  satisfactory  as  judicial  determinations,  as  it  is  difficult 


508  ELECTORAL   COUNT    OP    1877. 

to  arrive  at  the  exact  principle  upon  which  the  votes  of  so  many  as  constitute  a  legis 
lative  body  are  put.  Besides  that,  they  are  not  uniform,  but  quite  diverse  in  their 
results,  as  appears  from  the  citations  of  the  counsel  of  the  relator,  and  the  instances 
noted  in  56  Pennsylvania  State  Reports,  (supra.) 

We  have  consulted  many  of  the  authorities  cited  to  us  from  the  English  books,  and 
in  them  it  will  be  found,  we  think,  that  where  it  was  held  that  votes  for  an  ineligible 
person  would  be  treated  as  thrown  away,  it  was  not  extended  beyond  cases  in  which 
there  was  actual  notice  of  fact  and  of  law  to  the  voters  before  their  votes  were  cast. 

And  there  are  American  authorities  which  hold  that  if  a  majority  of  those  voting, 
by  mistake  of  law  or  fact,  happen  to  cast  their  votes  upon  an  ineligible  candidate,  it 
by  no  means  follows  that  the  next  to  him  in  poll  shall  receive  the  office.  (Saunders 
vs.  Haynes,  13  California,  145  ;  State  vs.  Giles,  1  Chandler,  [Wisconsin,]  112;  State  vs. 
Smith,  14  Wisconsin,  497.)  And  in  Dillon  on  Municipal  Corporations  (page  176  section 
135,)  it  is  stated  that  unless  the  votes  for  an  ineligible  person  are  expressly  declared  to 
be  void,  the  effect  of  such  person  receiving  a  majority  of  the  votes  cast  is,  according 
to  the  weight  of  American  authority  and  the  reason  of  the  matter,  (in  view  of  our 
mode  of  election,  without  previous  binding  nominations,  by  secret  ballot,  leaving  each 
elector  to  vote  for  whomsoever  he  pleases,)  that  a  new  election  must  be  had,  and  not 
to  give  the  office  to  the  qualified  person  having  the  next  highest  number  of  votes. 
And  this  view  is  sustained  by  a  preponderance  of  the  authorities  cited  by  the  author 
in  the  foot-note,  some  of  which  are  cited  above. 

We  think  that  the  rule  is  this:  The  existence  of  the  fact  which  disqualifies  and  of 
the  law  which  makes  that  fact  operate  to  disqualify  must  be  brought  home  so  closely 
and  so  clearly  to  the  knowledge  or  notice  of  the  elector  as  that  to  give  his  vote  there 
with  indicates  an  intent  to  waste  it. 

The  following  letter,  read  during  the  debate  in  the  Senate  over  the 
Oregon  electoral  controversy,  will  indicate  the  opinion  of  the  Hon.  Jere 
miah  S.  Black,  late  Attorney- General  under  President  Buchanan,  and 
present  counsel  of  the  democracy  of  the  nation  upon  this  question.  It 
reads  as  follows : 

HOLLIDAYSBURGH,  PENNSYLVANIA,  December  9, 1876. 

DEAR  SIR:  At  the  October  election  of  1846,  Ephraiin  Galbreath  was  the  whig  can 
didate  for  the  office  of  recorder  of  Blair  County,  and  died  on  the  morning  of  the 
election  before  the  opening  of  the  polls.  It  was  found  by  the  return  judges  that  a 
majority  of  the  votes  for  recorder  were  cast  for  Galbreath,  and  at  the  October  term  of 
the  court  of  common  pleas,  held  by  Hon.  Jeremiah  S.  Black,  then  president  judge,  the 
democratic  candidate,  Samuel  Smith,  appeared  and  asked  to  be  qualified  as  recorder, 
on  the  ground  that  the  votes  cast  for  Galbreath,  having  been  given  for  a  dead  man, 
should  be  disregarded,  and  the  votes  given  for  the  claimant  only  should  be  counted. 

Judge  Black  referred  to  the  case  of  Mr.  Wilkes,  in  the  British  Parliament,  and  de 
nounced  the  seating  of  Luttrell  as  a  high-handed  outrage.  He  followed  the  line  of 
argument  of  those  who  opposed  the  seating  of  Luttrell  and  declared  emphatically 
that  two  things  were  settled  by  the  election  in  question  :  first,  that  the  people  did  want 
Galbreath;  secondly,  that  they  did  not  want  Smith. 

The  result  was  that  the  democratic  governor,  Shunk,  I  think,  filled  the  vacancy  by 
the  appointment  of  John  M.  Gibbony. 
Truly  yours, 

SAM'L  S.  BLAIR. 

Hon.  SIMON  CAMERON. 

But  the  rule  upon  this  subject  established  by  the  judicial  tribunals  of 
this  country  has  also  received  the  sanction  of  the  National  House  of 
Representatives,  and  of  the  Senate  of  the  United  States  as  well.  In 
the  case  of  Samuel  E.  Smith  vs.  John  Young  Brown,  contestant  for  a 
seat  in  the  House  of  Representatives  in  1868,  from  the  second  district  of 
Kentucky,  the  doctrine  that  the  minority  candidate  is  elected  when  the 
person  receiving  the  majority  of  the  votes  was  disqualified  was  repu 
diated.  In  that  case  Brown  received  8,922  votes  ;  Smith,  2,816.  Brown 
was  ineligible,  and  Smith  claimed  that  he  for  that  reason,  although 
receiving  a  minority  of  the  votes,  was  elected.  In  the  able  report  made 
in  that  case  by  Mr.  Dawes  of  the  Election  Committee,  after  referring  to 
the  English  doctrine,  as  above  stated,  the  following  language  occurs,  2 
Bartlett's  Digest  of  Election  Cases,  pages  402  and  403 : 

But  the  committee  do  not  find  any  such  law  regulating  elections  in  this  country  in 
either  branch  of  Congress,  or  in  any  State  legislature,  as  far  as  they  have  been  able 


ELECTORAL   COUNT   OF   1877?  509 

to  examine.  Their  attention  has  been  called  to  no  case,  and  it  was  not  claimed  before 
the  committee  that,  as  yet,  this  rule  by  which  one  receiving  only  a  minority  of  the 
votes  actually  cast  had  been  adjudged  elected,  had  ever  been  applied  in  this  country. 

On  the  other  hand,  there  have  been  many  cases  of  alleged  ineligibility  in  both 
branches  of  Congress  since  the  formation  of  the  Government,  in  some  of  which  seats 
have  been  declared  vacant  on  that  ground,  and  in  which,  had  there  existed  in  this  coun 
try  any  such  rule,  it  certainly  would  have  been  resorted  to.  The  very  first  contested 
election,  at  the  first  session  of  the  First  Congress,  in  1789,  Ramsey  vs.  Smith,  (1  Con 
tested  Elections,  23,)  was  based  on  alleged  ineligibility.  The  case  was  very  ably  and 
elaborately  debated  by  Mr.  Madison  and  others,  and  neither  Ramsey  nor  any  one  in  his 
behalf  claimed  for  a  moment  that  the  ineligibility  of  Smith,  who  had  received  a  major 
ity  of  the  votes,  elected  Ramsey,  the  minority  candidate. 

In  1793,  Albert  Gallatin  was  elected  a  Senator  from  Pennsylvania  before  he  had  been 
nine  years  a  citizen  of  the  United  States.  After  a  very  lengthy  discussion,  (1  Con 
tested  Elections,  851,)  his  seat  was  declared  vacant.  In  1807,  (1  Contested  Elections, 
224,)  sundry  electors  of  Maryland  memorialized  Congress  to  declare  vacant  the  seat  of 
Philip  Barton  Key,  one  of  the  Representatives  from  that  State,  because  of  alleged  in 
eligibility  arising  from  non-residence.  Much  time  of  the  House  was  occupied  in  decid 
ing  the  case,  but  no  one  appeared  or  found  an  advocate  as  a  minority  candidate.  In 
1824,  on  a  like  memorial,  the  seat  of  John  Bailey,  of  Massachusetts,  was  for  a  like  iu- 
eligibility  declared  vacant  and  a  new  election  ordered,  without  a  claim  on  the  part  of 
or  in  behalf  of  a  minority  candidate.  In  1849,  the  seat  of  James  Shields,  a  Senator 
from  Illinois,  was  declared  vacant  because  of  inoligibility,  and  the  right  of  a  minority 
candidate  was  not  even  raised  ;  and  Mr.  Brown  himself  was  elected  to  the  Thirty-sixth 
Congress  before  he  had  reached  the  age  of  twenty-five  years,  and  therefore  when  he 
was  ineligible  and  could  not  take  the  oath  of  office.  At  the  opening  of  that  Congress 
there  was  a  protracted  struggle  for  power,  and  the  organization  of  the  House  was  not 
effected  for  several  months,  after  failing  for  lack  of  a  siugle  vote.  There  was  a  very 
strong  temptation  in  every  quarter  to  secure  every  possible  vote ;  yet  not  only  did  no 
one  appear  to  claim,  or  was  the  claim  made,  in  behalf  of  any  one  as  a  minority  candi 
date,  that  votes  cast  for  Mr.  Brown  were  to  be  thrown  away  and  himself  seated  in  his 
place ;  but  at  the  second  session  Mr.  Brown,  having  become  of  age,  took  his  seat  un 
challenged,  by  force  of  the  very  votes  cast  for  him  when  he  was,  in  fact,  ineligible. 
In  very  many  other  cases  iueligibility  has  been  discussed  and  passed  upon  without 
ever  mooting  the  question  now  under  consideration. 

If  any  such  rule  as  is  now  claimed,  by  which  a  candidate  with  a  minority  of  the 
votes  is  put  in  a  seat  vacated  for  ineligibility,  had  ever  obtained  foothold  in  this  coun 
try,  this  uniform  current  of  decisions  could  not  have  run  undisturbed  through  all  Con 
gresses  from  1789  till  the  present  time. 

******* 

The  committee  are  of  opinion  that  a  recurrence  to  the  origin  and  history  of  this  rule 
in  the  British  Parliament  will  show  the  impossibility  of  its  application  to  a  case  in  the 
American  House  of  Representatives.  Parliament  has  no  limitation  of  written  consti 
tution  upon  its  powers.  Sir  Edward  Coke  says  that  "  its  power  and  jurisdiction  are 
so  transcendent  and  absolute  that  it  cannot  be  confined,  either  for  causes  or  persons, 
within  any  bounds." 

Blackstone  says  "it  hath  sovereign  and  uncontrollable  authority  in  making,  con 
forming,  enlarging,  restraining,  abrogating,  repealing,  reviewing,  and  expounding  of 
laws  concerning  matters  of  all  possible  denominations,  ecclesiastical  or  temporal,  civil, 
military,  maritime,  or  criminal — this  being  the  place  where  that  absolute  despotic 
power  which  must  in  all  governments  reside  somewhere  is  intrusted  by  the  constitu 
tion  of  these  kingdoms." 

And  either  house  of  Parliament  may,  upon  proof  of  any  crime,  adjudge  any  member 
disabled  and  incapable  to  sit  as  a  member. — 1  Black.  Com.,  page  163. 

With  this  power,  called  by  some  omnipotent,  Parliament  grants  and  takes  away  the 
right  to  vote  at  its  pleasure,  erects  and  destroys  constituencies  when  and  where  it 
pleases. 

If  there  has  been  bribery  at  an  election,  it  sometimes  fines  and  sometimes  disfran 
chises  a  whole  constituency. 

Indeed,  it  is  not  the  theory  of  the  British  government  that  power  originates  with  the 
people.  In  theory  the  right  of  the  monarch  is  a  divine  right,  and  he  has  graciously 
conceded  from  time  to  time  to  the  people  whatever  share  in  the  government  they  possess. 

It  matters  not  to  the  theory  that  the  people,  in  point  of  fact,  wrenched  all  this 
power  out  of  the  hands  of  the  monarch;  the  conclusion  is  very  easy,  that  what  has 
been  conceded  to  the  people  can,  at  pleasure,  be  modified,  limited,  or  even  taken  away. 

Parliament  has,  therefore,  exercised  its  omnipotence  with  an  exceedingly  lavish  hand 
in  the  matter  of  elections  to  its  own  body,  declaring  by  statute,  George  II,  chapter  24, 
that  "  the  right  of  voting  for  the  future  shall  be  allowed  according  to  the  last  determi 
nation  of  the  House  of  Commons  concerning  it,"  and,  34  George  III,  chapter  83,  "  that 
all  decisions  of  committees  of  the  House  of  Commons  with  respect  to  the  right  of  elec- 


510  ELECTORAL   COUNT   OF   1877. 

tion,  or  of  choosing  or  appointing  the  returning-officer,  shall  be  final  and  conclusive 
upon  the  subject  forever."  Thus  they  have  made  the  rule  here  contended  for  a  statute 
of  the  realm. 

There  certainly  can  be  no  need  of  argument  to  show  that  such  law  can  find  no  place 
in  our  system. 

In  concluding  this  report,  which  received  the  sanction  of  the  House 
of  Representatives  by  a  very  large  majority,  Mr.  Dawes  employed  the 
following  language : 

The  committee  are  therefore  of  opinion  that  the  case  does  not  come  within  the  law 
of  the  British  Parliament,  for  want  of  a  sufficient  notice  to  the  electors  at  the  polls  of 
an  ineligibility  known  and  fixed  bylaw;  that  the  law  of  the  British  Parliament  in 
this  particular  has  never  been  adopted  in  this  countryyand  is  wholly  inapplicable  to 
the  system  of  government  under  which  we  live. 

The  will  of  the  majority,  expressed  in  conformity  with  established  law,  is  the  very 
basis  on  which  rest  the  foundations  of  our  institutions,  and  any  attempt  to  substitute 
therefor  the  will  of  a  minority  is  an  attack  upon  the  fundamental  principles  of  the 
government,  and  if  successful  will  prove  their  overthrow. 

In  the  case  of  Abbott  vs.  Vance,  of  North  Carolina,  for  a  seat  in  the 
Senate  of  the  United  States,  the  question  was  elaborately  and  ably  dis 
cussed,  as  has  been  already  shown,  and  the  decision  of  the  Senate  was 
against  the  doctrine  that  the  minority  candidate  is  elected  where  the 
person  receiving  a  majority  of  the  votes  is  ineligible,  and  in  the  report 
of  the  committee  in  that  case,  which  received  the  able  advocacy  of 
Senator  Thurrnan  and  others,  and  which  »vas  adopted  by  the  Senate,  it 
was  distinctly  stated  that  the  fact  that  the  voters  have  notice- of  the 
iueligibility  of  the  candidate  at  the  time  they  cast  their  votes  for  him 
makes  no  difference. 

The  concurrent  authority,  therefore,  of  the  judicial  and  legislative  tri 
bunals  of  this  country  is  in  direct  contravention  of  the  position  assumed 
by  Governor  Grover  in  holding  that  Oronin,  the  minority  candidate,  was 
elected  and  in  issuing  him  a  certificate,  and  riot  only  so,  but  even  were 
the  rule  as  formerly  held  in  England  as  above  stated  to  obtain,  as  it 
does  not,  it  would  not  furnish  the  executive  authority  the  slightest  vin 
dication  for  his  action  in  this  regard  under  the  clearly  established  cir 
cumstances  of  this  case. 

I  now  pass  to  the  question  as  to  whether  a  person  who  is  ineligible 
under  the  Constitution  to  be  appointed  an  elector,  and  who  is  a  candi 
date  before  the  people,  receives  a  majority  of  all  the  votes  cast,  and  is 
so  officially  declared  by  the  proper  canvassing  officer,  and  who  takes 
his  seat  in  the  college  of  electors,  participates  in  its  proceedings  and 
casts  his  vote  for  President  and  Vice-President,  the  question  of  his  inel 
igibility  not  having  prior  to  that  time  been  passed  upon  by  any  compe 
tent  tribunal,  is  a  mere  usurper  or  an  officer  de  facto  acting  under  color 
of  title.  If  the  former,  it  must  be  conceded  that  all  his  acts  are  abso 
lutely  void.  If  the  latter,  as  I  insist  he  clearly  is,  then  his  acts  are  not 
void ;  and  while  his  right  to  act  might  have  been  questioned  in  a  com 
petent  tribunal  prior  to  the  meeting  of  the  college  of  electors,  it  cannot 
now  be  questioned  by  any  power  on  earth. 

It  is  true  the  Constitution  of  the  United  States  declares  that  no  per 
son  holding  an  office  of  trust  or  profit  under  the  United  States  shall 
be  appointed  an  elector;  but  suppose  the  people  of  a  State,  in  ignor 
ance  of  both  the  disqualifying  fact  and  the  consequences  attaching  to 
it,  by  their  unanimous  votes  or  by  a  plurality,  as  they  may  in  Oregon, 
appoint  such  a  person  as  an  elector,  and  his  right  to  be  appointed  is 
never  questioned  or  adjudicated  upon  by  any  tribunal  having  author 
ity,  and  he  takes  his  seat  in  the  electoral  college  unchallenged  and  par 
ticipates  in  its  proceedings  and  casts  the  vote  of  his  people  and  party 


ELECTORAL   COUNT    OF    1877.  511 

for  President  and  Vice-President,  the  record  of  the  fact  is  made  up  and 
transmitted  to  the  President  of  the  Senate,  and  the  college  of  electors, 
having  lived  its  time,  its  existence  expiring  by  limitation  of  law,  dis 
solves  and  is  an  electoral  college  no  more  forever,  nor  are  its  individual 
members  any  longer  presidential  electors,  they  being  functus  officio.  Can 
it  be  said  in  such  a  case  that  the  vote  given  by  such  ineligible  person 
is  void  as  to  third  persons  and  the  public;  that  the  people,  upon  the 
one  hand,  who  have  acted  in  perfect  good  faith  and  in  entire  ignorance 
of  the  ineligibility  of  the  elector,  are  to  be  deprived  of  their  voice  in  the 
selection  of  a  President  and  Vice-President,  and  the  candidates  for  Pres 
ident  and  Vice-President,  on  the  other  hand,  for  whom  such  vote  was 
cast,  to  be  deprived  of  the  benefit  of  it  ? 

It  would  seem  that  such  a  doctrine  would  be  at  variance  with  the 
well-settled  principles  of  law  applicable  to  the  acts  of  de  facto  officers 
acting  under  color  of  title  in  their  relation  to  and  effect  upon  third  per 
sons  and  the  public.  McCrary,  in  his  American  Law  of  Elections,  in 
speaking  of  the  acts  of  officers  de  facto  acting  under  color  of  title,  after 
referring  to  several  authorities,  in  section  77  of  that  work  uses  the  fol 
lowing  language : 

But  in  the  case  of  Barnes  vs.  Adams,  which  arose  in  the  Forty-first  Congress,  (2 
Bartlett,  760,)  the  question  was  reviewed  at  length,  and  most  of  the  cases  arising  both 
in  Congress  and  the  courts  were  cited  and  examined,  and  the  conclusion  was  reached 
both  by  the  committee  arid  by  the  House  that  in  order  to  give  validity  to  the  official 
acts  of  an  officer  of  an  election,  so  far  as  they  affect  third  parties  and  the  public,  and 
in  the  absence  of  fraud,  it  is  only  necessary  that  such  officer  shall  have  color  of  author 
ity.  It  is  sufficient  if  he  be  an  officer  de  facto,  and  not  a  mere  usurper. 

The  report  in  this  case,  after  quoting  from  numerous  decisions,  both  in  the  House 
and  in  the  courts  of  this  country,  continues  as  follows. 

Here  Mr.  McCrary  quotes  from  the  report  of  the  committee  of  the 
House  of  Representatives  in  the  case  of  Barnes  vs.  Adams,  which  quota 
tion  is  as  follows: 

The  question,  therefore,  regarded  in  the  light  of  precedent  or  authority  alone,  would 
stand  about  as  follows : 

The  judicial  decisions  are  all  to  the  effect  that  the  acts  of  officers  de  facto  so  far  as 
they  affect  third  parties  or  the  public,  in  the  absence  of  fraud,  are  as  valid  as  those  of 
an  officer  dejure. 

The  decisions  of  this  House  are  to  some  extent  conflicting ;  the  point  has  seldom 
been  presented  upon  its  own  merits,  separated  from  questions  of  fraud ;  arid  in  the 
few  cases  where  this  seems  to  have  been  the  case  the  rulings  are  not  harmonious. 

In  one  of  the  most  recent  and  important  cases,  (Blair  vs.  Barrett,)  in  which  there  was 
an  exceedingly  able  report,  the  doctrine  of  the  courts  as  above  stated  is  recognized  and 
indorsed. 

The  question  is  therefore  a  settled  question  in  the  courts  of  the  country,  and  is,  so 
far  as  this  House  is  concerned,  to  say  the  least,  an  open  one. 

Your  committee  feel  constrained  to  adhere  to  the  law  as  it  exists,  and  is  administered 
in  all  the  courts  of  the  country,  not  only  because  of  the  very  great  authority  by  which 
it  is  supported,  but  for  the  further  reason,  as  stated  in  the  outset,  that  we  believe  the 
rule  to  be  most  wise  and  salutary.  The  officers  of  election  are  chosen  of  necessity  from 
among  all  classes  of  the  people  ;  they  are  numbered  in  every  State  by  thousands ;  they 
are  often  men  unaccustomed  to  the  formalities  of  legal  proceedings.  Omissions  and 
mistakes  in  the  discharge  of  their  ministerial  duties  are  almost  inevitable.  If  this 
House  shall  establish  the  doctrine  that  an  election  is  void  because  an  officer  thereof  is 
not  in  all  respects  duly  qualified  or  because  the  same  is  not  conducted  strictly  accord 
ing  to  law,  notwithstanding  it  may  have  been  a  fair  and  free  election,  the  result  will 
bo  very  many  contests,  and,  what  is  worse,  injustice  will  be  done  in  many  cases.  It 
will  enable  those  who  are  so  disposed  to  seize  upon  mere  technicality,  in  order  to  de 
feat  the  will  of  the  majority. 

Mr.  McCrary  concludes  his  reference  to  this  case  by  saying  : 

The  report  of  the  committee  in  this  case  was  adopted  by  the  House  neni.  con.,  after  a 
full  discussion,  (Congressional  Globe,  July,  1870,  pages  5179  to  5193,)  and  the  doctrine 
there  asserted  may  now  be  regarded  as  the  settled  law  of  the  House. 

Again,  in  section  79  of  the  same  work,  American  Law  of  Elections, 


512  ELECTORAL   COUNT   OF    1877. 

the  following  statement  of  the  rule  as  established  by  the  judicial  courts 
is  made : 

In  the  courts  of  the  country  the  ruling  has  been  uniform,  and  the  validity  of  the  acts 
of  officers  of  election  who  are  such  de  facto  only,  so  far  as  they  affect  third  persons  and 
the  public,  is  nowhere  questioned.  The  doctrine  that  whole  communities  of  electors 
may  be  disfranchised  for  the  time  being  and  a  minority  candidate  forced  into  an  office 
because  one  or  more  of  the  judges  of  election  have  not  been  duly  sworn,  or  were  not 
duly  chosen,  or  do  not  possess  all  the  qualifications  requisite  for  the  office,  finds  no  sup 
port  in  the  decisions  of  our  judicial  tribunals. 

In  the  case  of  The  People  vs.  Cook,  4  Selden  New  York  .Reports,  the 
court  says : 

The  neglect  of  the  officers  of  the  election  to  take  any  oath  would  not  have  vitiated 
the  election.  It  might  have  subjected  those  officers  to  an  indictment  if  the  neglect 
was  willful.  The  acts  of  public  officers  being  in  by  color  of  an  election  or  appointment 
are  valid,  so  far  as  the  public  is  concerned. 

Again  : 

An  officer  de  facto  is  one  who  comes  into  office  by  color  of  a  legal  appointment  or 
election.  His  acts  in  that  capacity  are  as  valid,  so  far  as  the  public  is  concerned,  as  the 
acts  of  an  officer  dejure.  His  acts  in  that  capacity  cannot  be  inquired  into  collaterally. 

In  the  case  of  Baird  vs.  Bank  of  Washington,  in  the  supreme  court  of 
Pennsylvania,  11  S.  &  K.,  414,  the  court  said  : 

The  principle  of  colorable  election  holds  not  only  in  regard  to  the  right  of  electing, 
but  of  being  elected.  A  person  indisputably  ineligible  may  be  an  officer  de  facto  by  color 
of  election. 

This  case,  it  will  be  observed,  is  directly  in  point  upon  the  proposition 
that  a  person  "indisputably  ineligible'7  may  become  an  officer  de  facto 
by  color  of  election,  and,  such  being  the  case,  it  follows,  under  the  rule 
as  it  exists  in  this  country,  as  before  stated,  that  his  acts  as  such  offi 
cer  de  facto  are  valid  as  to  third  persons  and  the  public.  Again,  in  the 
case  of  Pritchell  et  al.  vs.  The  People,  in  the  supreme  court  of  the  State 
of  Illinois,  1  Gilmer's  Reports,  529,  the  same  doctrine  was  held.  The 
court,  in  their  opinion  in  that  case,  use  the  following  language : 

It  is  a  general  principle  of  the  law  that  ministerial  acts  of  an  officer  de  facto  are  valid 
and  effectual  when  they  concern  the  public  and  the  rights  of  third  persons,  although 
it  may  appear  that  he  has  no  legal  or  constitutional  right  to  the  office.  The  interests  of 
the  community  imperatively  require  the  adoption  of  such  a  rule. 

The  same  court,  in  the  case  of  The  People  vs.  Aminons,  5  Gilmer,  107, 
enunciated  the  same  doctrine  and  used  this  language: 

The  proof  offered  would  have  shown  that  he  was  an  officer  de  facto,  and  as  such  his 
acts  were  as  binding  and  valid  when  the  interests  of  third  persons  or  the  public  were 
concerned,  as  if  he  had  been  an  officer  dejure. 

The  supreme  court  of  the  State  of  Missouri,  in  the  case  of  Saint  Louis 
County  vs.  Sparks,  10  Missouri,  121,  say : 

When  the  appointing  power  has  made  an  appointment,  and  a  person  is  appointed  who 
has  not  the  qualifications  required  by  law,  the  appointment  is  not  therefore  void.  The  person 
appointed  is  de  facto  an  officer ;  his  acts  in  the  discharge  of  his  duties  are  valid  and 
binding.  *  *  *  A  statute  prescribing  qualifications  to  an  office  is  merely  directory, 
and,  although  an  appointee  does  not  possess  the  requisite  qualifications  his  appointment  is  not 
therefore  void,  unless  it  is  so  expressly  enacted. 

The  supreme  court  of  the  State  of  New  York,  in  the  case  of  The  People 
vs.  Cook,  14  Barbour,  259,  in  discussing  this  question,  says  that  the 
principle  is  so  well  established  as  to  have  become  elementary,  and  uses 
the  following  language: 

The  rule  is  well  settled  by  long  series  of  adjudications,  both  in  England  and  this 
country,  that  acts  done  by  those  who  are  officers  de  facto  are  good  and  valid  as  regards 
the  public  and  third  persons  who  have  an  interest  iu  their  acts,  and  the  rule  has  been 
applied  to  acts  judicial  as  well  as  to  those  ministerial  in  their  character.  This  doctrine 
has  been  held  and  applied  to  almost  every  conceivable  case.  It  cannot  be  profitable 
to  enter  into  any  extended  discussion  of  the  cases.  The  principle  has  become  element 
ary,  and  the  cases  are  almost  endless  in  which  the  rule  has  been  applied. 


ELECTORAL   COUNT    OF    1877.  513 

In  the  case  of  McGregor  vs.  Balch,  14  Vermont,  428,  it  was  held 
that,  although  a  person  cannot  legally  hold  the  office  of  justice  of  the  peace 
at  all  while  holding  the  office  of  assistant  postmaster  under  the  United 
States,  yet  having  entered  the  former  office  under  the  forms  of  law  he  was 
a  justice  of  the  peace  de  facto,  and  his  acts  as  such  were  valid  as  to 
third  persons  and  the  public. 

These  cases  go  to  the  extent,  therefore,  of  holding  that  if  a  person 
who  is  ineligible  to  be  elected  or  appointed  to  office  is  voted  for  by  the 
people,  and  receives  the  requisite  number  of  votes  to  elect  or  appoint 
in  case  he  had  been  eligible,  and  enters  upon  the  duties  of  the  office,  he 
is  not  a  mere  usurper  but  an  officer  de  facto  acting  under  color  of  title, 
and  that  his  acts  as  such  officer,  in  the  absence  of  fraud,  are  binding 
upon  third  persons  and  the  public.  In  all  these  cases  and  in  others  that 
might  be  cited,  distinction  is  clearly  drawn  between  the  case  of  a  person 
who  is  a  mere  usurper,  and  whose  acts  are  absolutely  void,  and  that  of 
u  person  who,  although  ineligible  or  disqualified,  acts  under  color  of 
right,  and  is  therefore  an  officer  de  facto,  whose  acts  are  not  void,  but 
binding  upon  third  persons  and  the  public. 

But  it  is  said  that  the  clause  in  the  Constitution  of  the  United  States, 
conferring  upon  the  States  the  power  to  appoint  electors,  not  only  im 
poses  a  personal  disqualification  on  a  certain  class  of  persons,  rendering 
them  'ineligible  to  be  appointed  electors,  but  limits  and  circumscribes 
the  power  of  the  States  in  the  matter  of  appointment  as  to  such  persons 
by  the  very  terms  of  the  grant,  and  that  therefore,  if  the  State  appoint 
a  person  falling  within  this  class,  in  reference  to  which  it  is  claimed  no 
grant  of  power  is  given  to  the  State  to  appoint,  such  appointment  is 
void  and  the  person  so  appointed  would  not  be  an  officer  either  de  jure 
or  de  facto,  but  a  mere  usurper.  But  the  answer  to  this  is  twofold.  In 
the  first  place,  even  admitting  that  the  true  construction  of  the  consti 
tutional  provisions  is  that  the  grant  is  circumscribed  and  confers  no 
power  on  the  State  to  appoint  except  from  a  certain  class  of  persons, 
or  rather  that  no  power  is  conferred  upon  the  State  to  appoint  from  a 
certain  class,  is  there  any  greater  or  weightier  reason  for  holding  that 
a  person  actually  appointed  by  a  State  from  among  the  prohibited  class, 
and  who4,  clothed  with  all  the  insignia  of  office,  entered  upon  and  dis 
charged  the  duties  of  the  same,  should  not  be  considered  an  officer  de 
facto  acting  under  color  of  title,  than  a  person  who  might  be  appointed, 
but  who  was  laboring  under  a  constitutional  disability  preventing  him 
from  exercising  the  duties  of  an  office  ?  It  seems  to  me  not.  In  either 
event,  the  person  is  constitutionally  prohibited  from  holding  the  office. 
In  either  event,  he  comes  into  possession  of  it  under  color  of  legal  au 
thority,  surrounded  by  all  the  insignia  attaching  to  office. 

But  again,  suppose  there  is  a  grant  of  power  to  the  State  to  appoint 
electors,  but  that  this  grant  is  limited  as  to  persons,  excepting  from 
its  scope  a  certain  class  of  persons — Federal  office-holders  for  instance ; 
who  must  determine  this  question  of  fact  in  the  first  instance  as  to 
whether  a  person  about  to  be  appointed  comes  within  the  prohibited 
class  ?  Clearly  the  State.  It  has  jurisdiction  to  appoint,  and  juris 
diction  necessary  to  pass  upon  and  determine  the  question  in  the 
first  instance  as  to  whether  a  person  is  or  is  not  within  the  class  to 
which  the  power  of  the  State  attaches ;  and  having  jurisdiction  to  pass 
upon  this  question,  a  mistake  in  the  matter  by  appointing  a  person 
really  within  the  prohibited  class,  would  not  be  a  void  act  upon  the 
part  of  the  State,  but  simply  voidable  by  the  decision  of  a  competent 
tribunal  made  at  any  time  before  the  act,  which  the  elector  was  ap 
pointed  to  perform,  was  accomplished 5  and  if  no  such  decision  is  made, 
33  E  c 


514  ELECTORAL   COUNT    OF    1877. 

his  act  is  the  act  of  an  officer  de  facto  and  cannot  afterward  be  ques 
tioned. 

In  such  a  case  rights  have  vested,  by  virtue  of  the  act  of  a  person, 
acting  in  the  capacity  of  an  elector  under  an  appointment  from  the  only 
power  authorized  to  appoint  electors,  and  such  a  person  is  no  usurper; 
his  acts  are  not  void. 

But  another,  and  it  seems  a  conclusive  answer,  is  that  this  provis 
ion  of  the  Constitution  is  not  self-executing,  that  it  requires  legislation 
to  enforce  it,  and  no  such  legislation  has  ever  been  enacted. 

In  the  present  case,  therefore,  conceding  for  the  argument  that  Watts 
was  ineligible  at  the  time  of  election,  that  he  was  not  within  the  class 
from  which  the  State  was  authorized  to  appoint,  and  admitting  that  the 
fact  of  his  ineligibility  was  not  questioned  or  adjudicated  upon  by  any 
competent  tribunal,  (and  I  will  speak  of  that  hereafter,)  having,  as  is 
conceded,  received  1,049  more  votes  than  his  competitor,  and  having 
acted  as  an  elector  in  the  electoral  college  and  voted  for  President  and 
Vice-President,  such  vote  cannot  now  be  questioned  either  by  the  judi 
cial  courts,  by  Congress,  by  the  electoral  tribunal,  or  any  other  power 
on  earth,  so  as  to  invalidate  the  vote  thus  cast  by  him  as  an  elector  for 
President  and  Yice-President. 

The  legislature  of  Oregon  in  its  legislation  upon  the  subject  of  vacan 
cies  in  office  treats  the  election  or  appointment  of  an  ineligible  j3erson 
to  office  in  that  State  as  merely  voidable  and  not  void,  and  provides 
that  a  vacancy  shall  occur  in  the  office  to  which  he  was  elected  upon 
the  decision  of  a  competent  tribunal  declaring  void  such  election  or 
appointment. 

Section  45  of  the  election  laws  of  Oregon,  relating  to  vacancies  in 
office,  reads  as  follows  : 

Every  office  shall  become  vacant  on  the  happening  of  either  of  the  following  events 
before  the  expiration  of  the  terui  of  such  office  : 

1.  The  death  of  the  incumbent. 

2.  His  resignation. 

3.  His  removal. 

4.  His  ceasing  to  be  an  inhabitant  of  the  district,  county,  town,  or  village  for  which 
he  shall  have  been  elected  or  appointed,  or  within  which  the  duties  of  his  office  are 
required  to  be  discharged. 

5.  His  conviction  of  an  infamous  crime,  or  of  any  offense  involving  a  violation  of  his 
oath. 

6.  His  refusal  or  neglect  to  take  his  oath  of  office  or  to  give  or  renew  his  official 
bond,  or  to  deposit  such  oath  or  bond  within  the  time  prescribed  by  law. 

7.  The  decision  of  a  competent  tribunal  declaring  void  his  election  or  appointment. 

From  the  provisions  contained  in  this  last  subdivision  of  the  section 
relating  to  vacancies,  it  would  seem  conclusive  that  the  legislature  con 
templated  that  an  office  might  be  filled  by  a  person  whose  election  or 
appointment  was  really  void  by  reason  of  ineligibility  or  any  other  cause, 
until  the  decision  of  a  competent  tribunal  was  had  declaring  such  election 
or  appointment  void.  The  legislature  does  not  state  what  the  competent 
tribunal  is.  Unquestionably,  however,  under  the  constitution  of  the 
State  of  Oregon  the  only  competent  tribunal  would  be  a  judicial  tri 
bunal. 

I  come  now  to  the  question  as  to  the  powers  and  duties  of  the  electors 
present,  under  the  statutes  of  Oregon,  to  supply  by  appointment  any 
deficiency  in  the  number  of  electors  that  may  exist  on  the  day  fixed  for 
the  meeting  of  the  college. 

And  first,  admitting  Watts  to  have  been  ineligible  to  be  appointed  an 
elector,  and  that  the  election  is  the  appointment  within  the  meaning  of 
that  term  as  employed  in  the  Constitution,  did  his  resignation  as  such 
elector,  tendered  by  him  to  the  electors  present  on  the  day  of  the  meet- 


ELECTOEAL   COUNT    OF    1877.  515 

ing  of  the  electoral  college,  create  such  a  vacancy  as  could,  uudei  the 
statutes  of  Oregon,  be  filled  by  the  electors  present  f    I  submit  with  all 
confidence  that  it  did  create  such  vacancy,  and  that  the  same  was  law 
fully  filled  by  the  electors  present  in  the  election  of  Watts. 
The  statute  of  Oregon,  section  2  of  the  act  of  1864,  is  as  follows : 

The  electors  of  President  and  Vice-President  shall  convene  at  the  seat  of  government 
on  the  first  Wednesday  of  December  next  after  their  election,  at  the  hour  of  twelve  of 
the  clock  at  noon  of  that  day  ;  and  if  there  shall  be  any  vacancy  in  the  office  of  an  elector 
occasioned  ~by  death,  refusal  to  act,  neglect  to  attend,  or  othenrise,  the  electors  present  shall 
immediately  proceed  to  fill  by  viva  voce  and  plurality  of  votes  such  vacancy  in  the  elect 
oral  college ;  and  when  all  the  electors  shall  appear  or  the  vacancies,  if  any,  shall 
have  been  filled  as  above  provided,  such  electors  shall  perform  the  duties  required  of 
them  by  the  Constitution  and  laws  of  the  United  States. 

In  title  7,  section  45,  general  laws  of  Oregon,  page  709,  it  is  provided 
that— 

Every  office  shall  become  vacant  on  the  happening  of  either  of  the  following  events 
before  the  expiration  of  the  term  of  such  office  : 

1.  The  death  of  the  incumbent. 

2.  His  resignation. 

3.  His  removal. 

4.  His  ceasing  to  be  an  inhabitant  of  the  district,  county,  town,  or  village  for  which 
he  shall  have  been  elected  or  appointed,  or  within  which  the  duties  of  his  office  are  re 
quired  to  be  discharged. 

5.  His  conviction  of  an  infamous  crime  or  of  any  offense  involving  a  violation  of  his 
oath. 

6.  His  refusal  or  neglect  to  take  his  oath  of  office  or  to  give  or  renew  his  official 
bond,  or  to  deposit  such  oath  or  bond  within  the  time  prescribed  by  law. 

7.  The  decision  of  a  competent  tribunal  declaring  void  his  election  or  appointment. 

It  is  contended  in  justification  of  the  action  of  Governor  Grover  that 
under  the  circumstances  of  this  case  there  was  no  vacancy  in  the  office 
of  elector  that  could  be  filled  by  the  electors  present  under  the  pro 
visions  of  the  statute  quoted;  in  other  words,  that  Watts  being,  as 
claimed,  ineligible  to  be  appointed,  and  the  election  being  the  appoint 
ment,  there  was  in  this  case  no  election ;  and  there  being  a  failure  to 
elect  there  was  no  vacancy  created  within  the  legal  definition  of  that 
term  as  employed  in  the  statute.  Doubtless,  the  very  strongest  possi 
ble  presentation  of  argument  in  favor  of  such  a  position  is  made  by 
Governor  Grover  himself,  in  a  printed  pamphlet  entitled  u  Executive 
decision  by  the  Governor  of  Oregon  in  the  matter  of  eligibility  of  electors 
of  President  and  Yice-President  of  the  United  States  for  1876;  printed 
at  Salem,  Oregon:  Mart.  V.  Brown,  State  printer,  1876."  If  the  position 
assumed  by  Governor  Grover  cannot  be  maintained  by  the  arguments 
presented  in  this  "  executive  decision,"  it  is  fair  to  presume  that  it  can 
not  be  maintained  at  all. 

What,  then,  is  the  result  in  the  way  of  argument  upon  the  part  of  the 
governor  in  defense  of  the  position  assumed  by  him  I  It  is  this  and 
this  only :  There  can  be  no  vacancy  in  the  office  of  presidential  elector 
in  Oregon,  "occasioned  by  death,  refusal  to  act,  neglect  to  attend,  or 
otherwise,"  unless  there  has  been  an  incumbent;  and,  as  Watts  never 
was,  as  argued,  an  incumbent,  therefore  no  vacancy  can  be  created  in  the 
office  either  by  his  death,  refusal  to  acr,  neglect  to  attend,  or  otherwise. 
I  quote  the  argument  in  the  governor's  own  words,  copied  from  the 
executive  decision  referred  to : 

Watts  being  ineligible  to  be  elected,  is  there  a  vacancy  in  the  electoral  college  to  be 
filled  by  the  other  electors?  What  constitutes  a  vacancy  in  office  in  this  State? 

lu  title  6,  section  48,  General  Laws  of  Oregon,  page  576,  of  vacancies,  we  have  the 
following  provisions : 

"  SEC.  48.  Every  office  shall  become  vacant  on  the  occurring  of  either  of  the  following 
events  before  the  expiration  of  the  term  of  such  office : 


516  ELECTORAL   COUNT    OF    1877. 

"  1.  The  death  of  the  incumbent  ; 

"  2.  His  (the  incumbent's)  resignation ; 

"3.  His  (the  incumbent's)  removal; 

"  4.  His  (the  incumbent's)  ceasing  to  be  an  inhabitant  of  the  district,  county,  town,  or 
village  for  which  he  shall  have  been  elected  or  appointed,  or  within  which  the  duties 
of  his  office  are  required  to  be  discharged ; 

"  5.  His  (the  incumbent's)  conviction  of  an  infamous  crime  or  of  any  offense  involving 
a  violation  of  his  oath  ; 

"  6.  His  (the  incumbent's)  refusal  or  neglect  to  take  his  oath  of  office  or  give  or  renew 
his  official  bond,  or  to  deposit  such  oath  or  bond  within  the  time  prescribed  by  law  ; 

"  7.  The  decision  of  a  competent  tribunal  declaring  void  his  (the  incumbent's)  election 
or  appointment." 

The  word  "incumbent's"  placed  in  parentheses  in  this  quotation  from  the  code  of 
Oregon  is  placed  there  by  me  to  indicate  clearly  tho  construction  which  is  given  the 
law. 

There  can  be  no  vacancy  in  office  in  this  State  unless  there  has  been  an  incumbent 
and  that  incumbent  has  gone  out  of  office. 

An  "  incumbent,"  says  Webster,  is  a  person  who  is  in  the  present  possession  of  a  bene 
fice  or  any  office. 

Bouvier  says  :  "  It  signifies  one  who  is  in  possession  of  an  office ;"  and  Sawyer,  C.  J., 
in  the  case  of  The  People  vs.  Tilfon,  37  Cal.,  617,  defines  a  vacancy  as  follows  :  "A  va 
cancy,  in  the  statutory  sense,  is  when  the  party  enters  upon  the  duties  of  the  office  and 
afterward  dies,  resigns,  or  in  any  manner  ceases  to  be  an  incumbent  of  the  office  before 
the  expiration  of  the  term." 

In  Comm.  vs.  Harley,  9  Penn.,  513,  it  is  decided  that  even  death,  after  a  lawful  elec 
tion  and  before  qualification,  does  not  create  an  incumbent  of  the  office,  nor  does  it 
create  a  vacancy  which  can  be  filled  by  appointment  where  the  law  authorizes  vacan 
cies  to  be  so  filled.  In  this  case  Watts  was  never  an  incumbent  of  the  office  of  elector. 
His  approach  to  it  was  absolutely  barred  by  the  Constitution.  *  *  On  the  sub 
ject  of  filling  vacancies  in  the  college  of  electors  in  this  State  the  statute  (Code,  page 
598,  section  59)  provides  that — 

"  If  there  should  be  a  vacancy  in  the  office  of  elector  occasioned  by  death,  refusal  to 
act,  neglect  to  attend,  or  otherwise,  the  electors  present  shall  immediately  proceed  to* 
fill,  by  viva  I'oee  and  plurality  of  votes,  such  vacancy  in  the  electoral  college." 

As  far  as  Watts  is  concerned,  there  has  been  no  "  death,"  no  "  refusal  to  act,"  no 
"neglect  to  attend,"  and  there  has  been  no  vacancy  " otherwise," for  the  vital  reason 
that  he  has  never  been  an  incumbent  of  office.  It  is,  then,  clear  that  there  has  oc 
curred  no  vacancy  that  can  be  filled  by  the  other  electors  under  the  authority  of  the 
statutes  of  Oregon. 

It  will  be  observed  that  it  is  contended  by  Governor  Grover  that  no 
person  is  an  incumbent  of  an  office  until  he  is  not  only  elected  to  such 
office,  even  where  there  is  no  question  as  to  his  eligibility,  but  has  also 
qualified  and  taken  possession  of  the  same,  until  he  has  entered  upon  the 
duties  of  his  office.  In  other  words,  even  admitting  him  to  have  been 
eligible  to  be  appointed  an  elector  and  to  have  been  duly  elected,  still, 
unless  he  had  first  actually  taken  possession  of  the  office,  in  the  language 
of  one  of  the  opinions  quoted  "  entered  upon  the  duties  of  the  same?  no 
vacancy  could  have  been  created  by  his  "  death,  refusal  to  act,  neglect 
to  attend,  or  otherwise." 

That  the  authorities  quoted  by  the  governor  have  no  sort  of  reference 
to  a  case  like  the  one  before  us,  and  can  possibly  have  no  bearing  what 
ever  upon  the  construction  of  the  Oregon  statute,  is  so  transparent  as 
to  meet  with  the  instantaneous  comprehension  of  the  most  casual  ob 
server,  either  lawyer  or  layman,  and  to  scarcely  need  more  than  a  pass 
ing  notice.  The  argument  of  the  governor  proves  too  much,  and  its 
application  ingulfs  him  in  inextricable  confusion.  His  argument  would 
prevent  a  vacancy,  such  as  could  be  filled  by  the  electors  present,  in  a 
case  where  a  person  who  was  clearly  eligible  and  who  had  been  legally 
elected  should,  before  the  meeting  of  the  electoral  college  and  before  he 
had  entered  upon  the  duties  of  his  office,  either  have  died,  or  for  any 
cause  refused  to  act,  resigned,  or  neglected  to  attend.  Xot  having  been 
an  incumbent^  says  the  governor,  which  as  construed  by  him  and  his 
authorities — and  I  do  not  question  the  construction,  but  simply  its  ap 
plication  to  the  case — means  a  person  in  possession  of  an  office,  one  who 


ELECTORAL   COUNT    OF    1877.  517 

has  entered  upon  the  duties  of  an  office,  no  vacancy  therefore,  it  is 
claimed,  within  the  meaning  of  the  Oregon  statute,  could  be  created 
that  could  be  filled  by  the  electors  present. 

The  clause  in  the  Oregon  statute  as  to  vacancies  in  the  office  of  elector 
and  the  manner  in  which  they  shall  be  filled,  is  evidently  different  from 
most  of  the  clauses  in  constitutions,  Federal  and  State,  and  in  statutes 
generally.  It  is  broad  and  comprehensive,  including  every  possible  va 
cancy  that  may  occur,  and  not  merely  those  that  happen  when  an  in 
cumbent  in  possession  of  the  office  and  exercising  its  duties,  for  any 
reason  refuses  to  act  or  is  disabled  from  acting  further,  but  those  occa 
sioned  by  the  *'  death,  resignation,  and  refusal  to  act,  or  otherwise," 
which  includes' the  case  of  a  failure  to  appoint.  Hence  the  technical, 
legal  construction  as  given  by  courts  to  the  term  "  vacancy,"  where 
standing  alone  in  constitutions  and  statutes  without  words  of  definition 
or  construction  as  to  what  it  means  and  is  intended  to  include,  could 
have  no  kind  of  application  to  the  case  under  consideration. 

It  has  been  said  that  the  words  "  occasioned  by  death,  refusal  to  act, 
neglect  to  attend,  or  otherwise "  in  the  Oregon  statute  are  words  of 
limitation,  contracting  rather  than  enlarging  the  definition  of  the  term 
"  vacancy.'-  This  is  not  so.  They  are  words  of  definition  and  not  of  lim 
itation*  The  terms  "vacancy"  and  "all  vacancies,'7  as  used  in  constitu 
tions  and  statutes,  had  by  some  judicial  tribunals  (although  such  does  not 
appear  to  be  the  weight  of  authority)  been  construed  to  mean  only  such 
as  were  created  in  a  case  where  an  incumbent  in  the  actual  possession  of  an 
office,  exercising  its  duties,  had  either  died,  resigned,  or  become  legally  dis 
abled.  And  it  was  to  obviate  the  application  of  any  such  construction  of 
the  terms  u  vacancy"  and  "  all  vacancies"  that  the  legislature  of  the  State 
of  Oregon  gave  definition  to  the  word  "vacancy"  in  the  electoral  statute, 
and  to  the  end  that  it  might  not  be  limited  merely  to  cases  where  there 
had  been  an  incumbent,  an  elector  actually  in  possession  of  the  office, 
exercising  its  duties  as  such  incumbent,  who  had  either  died,  resigned, 
or  become  legally  disabled. 

The  reason  why  a  different  rule  should  have  been  established  in 
reference  to  filling  vacancies  in  the  office  of  presidential  elector  from 
that  relating  to  many  if  not  all  other  offices,  is  apparent.  While  the 
office  of  presidential  elector  is  one  of  the  most  important  created  by 
the  Constitution  of  our  country,  it  is  the  shortest  lived.  The  term  of 
office  is  confined  to  less  than  a  single  day.  He  enters  upon  its  duties, 
takes  possession  of  it,  becomes  an  incumbent  in,  it  at  twelve  o'clock 
meridian  on  a  certain  day,  and  with  the  performance  of  his  duty 
(which  usually  does  not  require  more  than  an  hour)  his  term  by  oper 
ation  of  law  ceases ;  his  official  robes  drop.  He  is  functus  officio  and  a 
private  citizen.  To  hold,  therefore,  that,  under  the  Oregon  statute, 
the  electors  present  could  only  fill  such  vacancies  as  might  by  "  death, 
resignation,  refusal  to  act,  neglect  to  attend,  or  otherwise,"  occur  after 
twelve,  meridian,  on  the  day  of  meeting,  after  they  had  entered  upon 
their  duties  and  become  incumbents,  would  be  to  insist  upon  an  absurdity 
so  glaring  on  the  very  face  of  the  proposition  as  to  put  to  shame  and 
confusion  the  lawyer  that  would  seriously  insist  upon  it.  If  there  can,  as 
contended  by  Governor  Grover,  be  no  vacancy  such  as  the  electors  present 
could  fill  unless  there  had  first  been  an  attendance  of  the  elector  who 
had  entered  upon  the  duties  of  his  office  and  become  an  incumbent  ot 
the  office,  then  why,  I  would  inquire,  did  the  legislature  of  Oregon  pro 
vide  that  the  "  electors  present  should  immediately  proceed  to  fill  by 
viva  wee  and  plurality  of  votes  any  vacancy  caused,"  among  other  things, 
by  neglect  to  attend  or  otherwise?  Are  these  words  meaningless!  Are 


518  ELECTORAL    COUNT    OF    1877. 

they  to  be  eliminated  from  the  statute,  and  their  force  obscured  and 
buried  under  a  legal  interpretation  of  the  term  "vacancy,"  when 
standing  alone  I 

But  again,  the  governor  in  his  decision  assumes  that  no  person  but 
one  who  is  eligible  to  be  appointed  can  become  an  incumbent.  And 
yet  the  very  statute  he  quotes,  subdivision  seven  relating  to  vacancies, 
contemplates  that  a  person  whose  election  is  void  may  become  an  incum 
bent  and  exercise  the  duties  of  an  office.  And  although  his  election  is 
void,  no  vacancy  occurs  until  by  the  decision  of  a  competent  tribunal 
such  election  is  declared  to  l)e  void.  But  not  only  so,  says  Governor 
Grover  in  his  "executive  decision,"  but  "no  vacancy  could  be  created 
in  the  office  of  presidential  elector  which  the  electors  present  could  fill, 
•unless  there  had  been  an  incumbent."  If  this  is  true,  then,  although 
Watts  had  been  clearly  eligible,  there  had  been  no  question  about  the 
legality  of  his  election,  yet,  if  before  he  had  entered  upon  the  duties 
of  his  office  as  elector  and  become  an  incumbent,  which  he  could  not 
do  before  the  6th  day  of  December,  he  had  died,  resigned,  neglected  to 
attend,  or  refused  to  act,  no  vacancy,  according  to  the  law  and  logic  of 
the  governor,  would  have  been  created  which  the  electors  present  could 
fill. 

Should  it  be  held,  therefore,  that  the  appointment  of  Watts  was  not 
merely  voidable  but  absolutely  void — and  I  insist  in  any  possible  view 
of  the  case  it  was  but  voidable — and  that  there  was,  as  to  him,  a  failure 
to  elect,  still  under  the  statute  of  Oregon,  broad  and  comprehensive  as  it 
is,  the  electors  present  had  the  right,  and  it  was  their  duty,  to  fill  the  va 
cancy  occasioned  by  such  failure  to  elect.  If  his  appointment  was  merely 
voidable  and  might  have  been  declared  void  under  the  statute  by  a  com 
petent  tribunal,  but  was  not  so  declared,  then  he  could  rightfully  act 
in  the  college  of  electors  either  under  his  original  appointment  by  the 
people  as  an  elector  or  by  virtue  of  his  appointment  by  the  electors 
present  when  they  accepted  his  resignation. 

Or,  again,  should  it,  for  the  sake  of  argument,  be  conceded  that  Watts 
was  not  appointed  and  that  Cronin  was— and  it  is  also  conceded,  as  it 
must  be  as  a  matter  of  fact,  that  Odell,  Cartwright,  and  Cronin  did  not 
act  together  as  an  electoral  college,  but  that  Odell  and  Cartwright,  a 
majority  of  the  college,  acted  together  with  Watts,  whom  they  elected 
to  fill  the  vacancy  ;  and  Cronin,  a  minority  of  one,  acting  by  himself, 
and  declaring  or  attempting  to  declare,  and  filling  or  attempting  to  fill 
two  vacancies — which,  in  such  case,  is  the  legally  constituted  college  ? 
There  can  be  but  one  college  of  electors  in  a  State,  and  under  these  circum 
stances  the  former  must  be  held  to  be  that  one.  The  only  record  the  law 
contemplates  as  to  vacancies  in  the  electoral  college  is  the  record  made  by 
theelectors  themselves:  thecertificate  of  the  organized  tribunal, the  elect 
oral  college.  This  is  not  merely  the  only  record,  but  it  is,  as  I  confidently 
insist,  conclusive  upon  that  subject;  and  Odell  and  Cartwright  being  a  ma 
jority  of  the  electors  constituting  the  electoral  college  in  Oregon,  whose 
title  is  indisputable,  questioned  by  no  one,  not  even  by  the  governor  in  his 
certificate,  but  by  it  approved,  their  certificate  as  to  the  fact  that  there 
was  a  vacancy,  and  that  such  vacancy  was  filled  by  them,  is  conclusive, 
not  only  against  Cronin,  but  all  other  persons,  the  State,  the  General 
Government,  Congress,  and  the  electoral  tribunal  as  well. 

This  appointment  to  fill  a  vacancy  is  an  appointment  by  the  State,  in 
the  manner  directed  by  the  legislature,  and  in  pursuance  also  of  the 
Constitution  of  the  United  States  and  the  act  of  Congress;  and  as  the 
canvass  of  the  secretary  of  state  is  conclusive ''as  to  those  appointed  by 
the  people,  so  the  certificate  of  the  electoral  college  is  conclusive  as  to 


ELECTORAL    COUNT    OF    1877.  519 

the  fact  of  vacancy  as  well  as  to  the  person  appointed  to  fill  it.    And 
it  is  immaterial  to  inquire  or  know  whether  such  vacancy  was  occasioned 
because  Oronin  did  not  act  with  the  majority  or  because  Watts  resigned. 
And  the  fact  that  Cronin  set  up  or  attempted  to  organize  a  college  of 
his  own,  filled  or  attempted  to  fill  two  vacancies,  and  voted  for  President 
and  Vice-President  in  connection  with  the  persons  brought  to  his  assist 
ance,  must  be  held  to  be  conclusive  agianst  Cronin  that  he  did  not  act 
or  attempt  to  act  with  Odell  and  Cartwright;  and  in  that  event,  con 
ceding  that  Cronin  was  elected,  there  was  a  vacancy  which  was  legally 
filled  by  Odell  and  Cartwright,  and  the  record  made  by  them  is  the 
record  of  the  real  electoral  college.    If  Cronin  was  appointed  an  elector, 
then  it  was  his  duty  to  act  with  the  majority,  and  that  he  did  not  act  is 
conclusively,  shown  in  the  fact  that  he  organized  a  college  of  his  own. 
It  will  not  .do  for  Cronin  to  say  that  Odell  and  Cartwright  refused  to  act 
with  him  or  to  permit  him  to  act  with  them.    He  is  in  no  position  to 
make  any  such  claim,  nor  is  his  party.    If  such  had  been  the  fact — and  it 
clearly  was  not — Cronin  instead  of  attempting  to  set  up  a  college  of  his  own 
should  have  contented  himself  with  insisting  upon  his  right  to  act  with 
Odell  and  Cartwright ;  and,  had  they  refused  to"  act  with  him,  then 
presented  and  filed  his  protest  and  cast  his  vote  for  President  and  Vice- 
president,  and  stood  upon  his  rights  as  a  member  of  that,  the  only 
electoral  college  in  the  State.    It  is  clear,  however,  as  before  stated, 
that  all  the  acts  of  Cronin  at  the  meeting  of  the  electoral  college  were 
inconsistent  with  any  claim  that  may  be  made  that  Odell  and  Cart 
wright  refused  to  recognize  him  or  to  act  with  him.    They  demanded 
an  exhibition  of  his  credentials  to  act  as  an  elector,  that  they  might  de 
termine  as  to  their  validity  and  as  to  his  right  to  act  as  an  elector.    This 
he  peremptorily  refused  to  do ;  and  it  is  no  excuse  to  say  that  the  reason 
he  refused  to  produce  or  exhibit  his  credentials  was  from  a  fear,  imagin 
ary  or  otherwise,  that  he  would  not' be  treated  fairly  by  the  majority  of 
the  electors.    He  had  no  right  in  law  or,  so  far  as  the  testimony  shows, 
in  fact,  to  act  upon  any  such  presumption,  although  he  held  in  his  hands 
three  certificates  from  the  governor,  each  one  containing  the  three 
names  of  Odell,  Cartwright,  and  Cronin.  yet,  against  the  repeated  re 
quests  of  Cartwright  and  Odell  to  produce  them  or  exhibit  them  for  the 
guidance  of  the  college,  and  that  they  might  determine  as  to  his  right 
to  a  seat  in  the  college,  he  kept  them  in  his  pocket,  only  reading  one  of 
them  in  part,  as  testified  to  by  the  republican  electors,  and  in  full  as 
testified  to  by  democrats  present  who  were  not  electors,  and  who  had 
no  right  to  be  present,  and  peremptorily  refused  to  deliver  any  of  them 
to  either  Cartwright  or  Odell.    He  might  have  delivered  one  to  each, 
and  had  they  then  refused  to  act  with  him  or  treat  him  fairly,  he  would 
have  had  in  his  possession  the  third  certificate  from  the  governor  show 
ing  the  fact  that  he  had  been  certified  to  as  one  of  the  electors  for  what 
ever  it  might  have  been  worth.    Such  a  course,  however,  upon  his  part 
would  have  been  inconsistent  with  the  harmony  of  the  conspiracy 
planned  in  New  York  and  executed  in  Oregon,  conceived  in  corruption 
and  brought  forth  in  shameless,  unblushing  fraud,  with  a  view  of  rob 
bing  the  majority  of  the  people  of  the  State  of  their  choice,  as  expressed 
at  the  ballot-box,  for  President  and  Vice-President  of  these  United 
States. 

Upon  this  point,  that  Cronin's  own  version  may  be  seen,  I  quote  from 
his  testimony.  After  describing  the  situation  of  the  parties  in  the 
room  of  the  electoral  college,  those  present,  &c.,  Mr.  Cronin  said : 

After  -vre  had  taken  seats  as  I  have  described,  Mr.  Cartwright  demanded  those  certifi 
cates  of  me.  I  told  him  he  should  not  have  them.  He  remarked,  "  We  have  as  much 


520  ELECTORAL   COUNT   OF    1877. 

right  to  those  as  you  have,  and  there  are  two  of  us,  and  we  have  a  right  to  those  certifi 
cates,  and  we  want  them."  I  repeated  again  that  he  should  not  have  them  ;  that  the 
certificates  were  of  no  use  any  way  except  to  attach  to  our  return.  He  replied  to  that, 
as  near  as  I  can  recollect,  "We  want  those  certificates,  and  why  don't  you  give  them  to 
us  ?"  I  replied  by  saying,  "  I  don't  think  you  intend  to  treat  me  fairly.  In  the  first 
place  here  is  a  United  States  marshal  who  takes  possession  of  the  college ;  then  Mr. 
Odell  takes  the  key ;  and  you  might  as  well  understand  first  as  last  that  you  shall  not 
have  those  certificates."  About  that  time,  I  think,  Dr.  Watts  got  up  and  read  his 
resignation,  and  his  resignation  was  accepted,  and  he  was  elected  to  fill  that  vacancy, 
as  they  called  it.  I  then  remarked,  u  Gentlemen,  you  refuse  to  act  with  me  ?"  I  am 
quite  positive  that  Mr.  Odell  said, "  You  give  us  those  certificates ;  we  have  got 
nothing  to  act  on  ;  we  want  those  certificates,"  or  words  to  that  effect.  I  suppose  I 
might  as  well  say  here  that  I  did  not  hear  Mr.  Cartwright  or  Mr.  Odell  in  terms  refuse 
to  act  with  me. 

******* 

Q.  Why  did  you  not  produce  the  certificates  and  put  them  on  the  table  ? 

A.  Because  I  did  not  propose  that  Mr.  Cartwright,  Mr.  Odell,  or  Mr.  Watts  should  get 
those  certificates. 

Q.  Did  you  not  consider  that  Mr.  Cartwright  and  Mr.  Odell  had  as  much  right  to 
them  as  you  had  ? 

A.  Certainly. 

Q.  Why  did  you  not  put  them  on  the  table  before  them  ? 

A.  Because  if  I  had  put  those  certificates  on  the  table  or  had  given  those  certificates 
either  to  Mr.  Odell  or  Mr.  Cartwright  or  Dr.  Watts,  I  suspected  they  would  do  just 
what  they  did  do,  and  I  should  be  left  without  a  certificate.  The  certificates  made  out 
in  proper  order  would  have  been  returned  to  President  Ferry  with  their  proceedings, 
and  that  would  have  been  recognized  in  preference  to  any  other. 

Q.  Still  I  ask  you  if  you  did  not  feel  bound  to  obey  the  majority  of  the  electors  known 
to  be  elected,  when  they  asked  you  to  put  the  certificates  on  the  table  ? 

A.  No,  sir. 

Q.  Did  you  think  you  had  a  right  to  take  them  away  from  the  majority? 

A.  The  question  of  right  did  not  enter  into  that  as  much  as  the  question  of  expediency. 

From  this  it  would  seem  that  Mr.  Cronin  was  not  acting  from  a  sense 
of  right  or  duty,  but  solely  from  considerations  of  expediencii. 

By  the  statutes  of  all  the  States  the  electors  are  authorized  to  fill 
vacancies  in  the  college.  The  certificate  that  goes  to  the  President  of 
the  Senate  is  from  the  electors  themselves,  and  not  from  the  governors  of 
the  States.  The  only  way  the  President  of  the  Senate  has  knowledge 
of  the  certificate  of  the  governor  is  through  the  certificate  of  the  college 
of  electors.  To  that  body,  the  college  of  electors,  is  referred  the  deter 
mination  of  all  questions  of  vacancy.  If  its  journal  recites  that  there  was 
a  vacancy  which  had  been  filled  by  the  body,  it  is  not  competent  to  go  be 
hind  that  certificate  and  inquire  whether  there  was  such  a  vacancy.  If 
there  are  two  or  more  certificates  from  the  same  State,  the  first  duty  of 
the  counting  officer  or  tribunal  is  to  find  out  which  came  from  the  elect 
oral  college,  and  when  that  certificate  which  contains  the  names  and 
the  action  of  a  majority  of  the  electors,  conceded  by  all  to  be  such,  is 
found,  we  may  be  sure  we  have  the  record  of  the  electoral  college ;  and 
when  the  true  college  is  found,  the  counting  officer  or  tribunal  may  look 
to  its  action  with  entire  certainty  as  that  by  which  the  count  must  be 
governed.  For  example,  if  a  certificate  made  by  two  of  the  known  and 
conceded  electors  in  Oregon  is  found,  the  counting  officer  or  tribunal  may 
know  that  those  two  constitute  the  electoral  college  of  that  State,  and 
their  decision  must  govern  in  determining  the  question  whether  there 
was  a  vacancy,  and  how  it  was  filled,  and  by  whom. 

In  the  case  under  consideration  two  certificates  have  been  opened, 
one  made  by  two  of  the  known  and  recognized  electors  about  whose 
election  there  is  no  dispute ;  hence  this  tribunal  is  bound  to  receive  that 
as  the  certificate  of  the  college  of  electors  and  to  be  governed  by  its 
determination  in  regard  to  any  question  of  vacancy,  although  the  other 


ELECTORAL   COUNT   OF    1877.  521 

certificate  contains  the  name  of  one  man  who  was  certified  by  the  gov 
ernor  as  having  been  appointed,  and  who  has  assumed  to  act  as  the  col 
lege  of  electors,  and  who  had  attempted  to  appoint  two  substitutes  in 
the  place  of  the  other  electors  who  are  known  to  have  been  appointed 
and  who  executed  the  former  certificate.  The  latter  certificate  amounts 
to  nothing,  and  should  be  utterly  disregarded,  except  in  so  far  as  it  con 
tains  the  certificate  of  the  governor  of  the  appointment  of  the  two  elect 
ors  who  executed  the  former  certificate.  To  that  extent  and  that  only 
can  the  certificate  of  the  governor  be  accorded  recognition,  for  the  rea 
son  that  only  to  that  extent  is  it  true  to  the  purpose  of  its  creation, 
which  is  to  chronicle  a  pre-existing  fact ;  only  so  far  is  it  a  faithful  rec 
ord  of  the  fact  of  appointment  by  the  State;  and  being  no  part  of  the 
manner  of  appointment  but  merely  a  form  of  evidence,  but  not  a  con- 
elusive  one,  of  the  fact  of  appointment,  it  should  only  be  received  in  so 
far  as  it  is  a  true  and  faithful  chronicler  of  the  facts  as  to  the  persons 
appointed  by  the  State  :  and  in  so  far  as  it  falsifies  the  fact  it  should  be 
repudiated  and  disregarded.  In  so  far,  then,  as  the  governor's  certifi 
cate  bears  evidence  that  Odell  and  Cartwright  were  appointed  by  the 
State  it  is  a  faithful  and  true  certificate  of  the  fact,  and  should  be  ac 
corded  full  faith  and  credit  by  the  counting  tribunal ;  but  in  so  far  as 
it  certifies  Cronin  to  have  been  appointed  it  is  a  falsifier  of  history,  a 
misrepresenter  of  a  great  fact,  a  contradiction  of  the  record  made  by 
the  canvassing  officers,  the  product  of  usurpation,  fraud,  or  mistake,  and 
entitled  to  no  recognition  or  credence  upon  the  part  of  either  this  high 
tribunal  or  any  other  officer  or  department  of  government. 

It  has  been  said  that  the  supreme  court  of  the  State  of  Rhode  Island 
has  recently  decided  that  the  resignation  of  a  person  who  was  ineligible 
to  be  appointed  an  elector,  and  who  had  received  a  majority  of  the  votes, 
did  not,  under  the  statutes  of  that  State,  create  such  a  vacancy  as  the 
other  electors  could  fill.  This  may  all  be  true,  and  still  it  does  not  affect 
the  Oregon  ease.  The  State,  having  the  sole  power  to  appoint,  may  pre 
scribe  for  filling  vacancies  in  the  electoral  college,  whether  arising  from 
death,  resignation,  neglect  to  attend,  refusal  to  act,  or  any  other  cause, 
including  that  of  a  failure  to  elect.  The  legislature  may  direct  that  a 
vacancy  occurring  from  a  failure  of  the  elector  to  attend,  or  from  a  fail 
ure  of  the  people  to  elect,  shall  be  filled  by  a  new  election  by  the  people, 
or  it  may  direct  that  the  other  electors,  or  the  electors  present,  shall 
appoint  persons  to  supply  such  vacancies,  and  upon  this  point  the  stat 
utes  of  the  several  States  are  different,  and  the  statute  of  the  State  of 
Ehode  Island  is,  in  this  respect,  widely  different  from  that  of  Oregon. 
The  Oregon  statute,  as  we  have  seen,  provides  that  "  If  there  shall  be 
any  vacancy  in  the  office  of  elector  occasioned  by  death,  refusal  to  act, 
neglect  to  attend,  or  otherwise,  the  electors  present  shall  immediately 
proceed  to  fill  by  viva  voce  and  plurality  of  votes  such  vacancy  in  the 
electoral  college" — evidently  intended  to  cover  all  cases  where  the  requi 
site  number  of  electors  was  not  present,  whether  such  number  was 
diminished  by  death,  refusal  to  act,  neglect  to  attend,  or  failure  to  elect, 
whereas  the  statute  of  Khode  Island  provided  as  follows  : 

If  any  electors  chosen  as  aforesaid  shall  after  their  said  election  decline  the  said  office, 
or  be  prevented  by  any  cause  from  serving  therein,  the  other  electors  *  *  *  shal 
fill  such  vacancies. 

It  may  well  be  said  that  under  the  Khode  Island  statute  the  elect 
ors  present,  or,  as  the  statute  has  it,  the  "  other  electors,"  have  no  right 
to  fill  a  vacancy  occasioned  by  a  failure  to  elect ;  but  such  cannot  be 
claimed  under  the  statute  of  Oregon,  as  there  the  statute  clearly  author 
izes  the  electors  present  to  fill  any  vacancy,  whether  occasioned  by  death 


522  ELECTORAL    COUNT    OF    1877. 

resignation,  refusal  to  act,  neglect  to  attend,  or,  under  the  " othe-ncise" 
clause,  failure  to  elect. 

The  statutes  of  the  several  States  upon  this  subject  are  very  dissimi 
lar,  and  the  power  of  the  electors  present  in  each  State  to  fill  vacancies 
must  be  determined  in  each  State  by  reference  to  and  construction  of  the 
statute  of  such  State. 

The  statutes  of  California,  for  instance,  provide  that — 

In  case  of  the  death  or  absence  of  any  elector  so  chosen,  or  in  case,  the  number- of 
electors  shall,  from  any  cause,  ~be  deficient,  the  electors  then  present  shall  forthwith  elect 
from  the  citizens  of  the  State  so  many  persons  as  shall  supply  the  deficiency. 

Under  this  statute,  therefore,  the  electors  present  clearly  have  the 
right  to  fill  any  vacancy,  whether  occasioned  by  death,  resignation,  re 
fusal  to  act,  neglect  to  attend,  or  failure  to  elect. 

Mr.  President  and  gentlemen  of  the  Commission:  I  submit  this  case 
upon  the  papers  before  you.  Were  I  authorized  to  invoke  your  judgment 
upon  facts  aliunde  the  record,  then  would  I  feel  justified  in  directing 
your  attention  to  a<?ts  of  intrigue,  corruption,  and  fraud  in  connection 
with  the  Oregon  electoral  vote  that  will  stand  forever  in  history  as  the 
crowning  infamy  of  an  unrestrained  and  insane  personal  and  political 
ambition.  While  the  charge  of  perjury  and  fraud  against  the  returning- 
boards  of  Louisiana  and  Florida  is  by  disappointed  and  maddened  parti 
sans  echoed  throughout  the  land,  I  might,  were  it  proper,  point  you  to 
a  conspiracy  that  had  its  origin  at  Ko.  15  Gramercy  Park,  New  York 
City,  at  the  home  and  by  the  fireside  of  Samuel  J.  Tilden,  the  democratic 
candidate  for  President,  that  had  for  its  purpose  the  purchase  of  an  elect 
oral  vote,  upon  the  faith  of  which  his  title  to  the  Chief  Magistracy  of 
the  nation  might  be  established. 

Mr.  Commisioner  STEONG.  I  would  rather  not  hear  anything  on 
that  subject.  There  is  no  such  evidence  before  us. 

Mr.  Senator  MITCHELL.  I  submit  to  the  intimation,  and  though 
the  law  of  your  creation  may  not  authorize  you  to  look  into  or  consider 
this  record  of  intrigue,  corruption,  and  fraud,  it  will  stand  nevertheless 
as  a  part  of  the  history  of  the  times,  a  changeless,  palsied  plague-spot 
upon  the  record  of  the  democratic  party,  that  time  cannot  obscure  or 
repentance  obliterate. 

Mr.  President,  I  have  faith  in  this  Commission  and  in  the  justice  of 
its  final  judgment.  I  feel  that  when  the  arduous  and  responsible  labors 
of  you  and  your  honorable  associates  have  ended,  forty-five  millions  of 
people  can  raise  their  eyes  to  heaven  and  exclaim  in  the  language  of  the 
gifted  bard — 

Great  God  !  we  thank  thee  for  this  home, 
This  bounteous  birth-land  of  the  free, 
Where  wanderers  from  afar  may  come 
And  breathe  the  air  of  liberty. 
Still  may  her  flowers  untrampled  spring, 
Her  harvests  wave,  her  cities  rise, 
And  yet,  till  Time  shall  fold  his  wing, 
Remain  earth's  loveliest  paradise. 

Mr.  Eepresentative  LAWEENCE.  Mr.  President  and  gentlemen  of 
the  Commission,  so  much  time  has  already  been  consumed  continuously 
in  this  debate  that  I  know  very  well  that  any  words  I  may  utter  must 
fall  upon  weary  ears.  In  a  matter  of  so  much  consequence  as  this,  I 
can  only  invoke  the  indulgence  and  patient  attention  of  the  Commis 
sion.  , 

Mr.  Commissioner  THUEMAN.  Allow  me  to  interrupt  you,  Mr. 
Lawrence.  I  beg  leave  to  make  a  suggestion.  There  are  five  hours 
more  of  argument,  one  by  Mr.  Lawrence  and  four  by  counsel.  I  do  not 


ELECTORAL    COUNT    OF   1877.  523 

think  it  is  possible  for  us  to  sit  here  for  those  five  hours  to-night,  and  I 
suggest  that  it  would  be  more  convenient  to  proceed  to-morrow,  and 
unless  Judge  Lawrence  prefers  to  proceed  to-day  I  move  that  we  ad 
journ  until  ten  o'clock  to-morrow.  If  he  wishes  to  proceed  now,  I  have 
not  a  word  to  say. 

Mr.  Representative  LAWEENCE.  It  will  suit  my  convenience  in 
any  way  that  meets  the  approbation  of  the  Commission. 

Mr.  Commissioner  THUEMAN.  If  we  could  get  through  to-day  I 
should  prefer  to  do  so. 

Mr.  Commissioner  GAEFIELD.  It  seems  to  me  it  will  be  convenient 
to  the  Commission  if  we  can  at  least  have  the  authorities  that  have 
been  cited  and  are  to  be  cited  by  the  objectors.  If  we  can  have  to 
morrow  morning  in  print  before  us  the  argument  of  the  objectors,  I 
think  it  would  make  a  complete  exhibit  of  the  objectors'  case  on  both 
sides,  and  I  would  prefer  that  the  objectors  should  finish  to-night. 

Mr.  Eepresentative  LAWEENCE.  I  have  authorities  which  I  think 
may  be  of  some  value  and  weight  in  the  way  of  aiding  the  Commission. 

Mr.  Commissioner  EDMUNDS.  Had  we  not  better  take  a  recess  and 
get  on  with  part  of  the  argument  to-night  ? 

Mr.  HOADLY.  I  desire  to  make  a  suggestion  to  the  Commission. 
On  our  side  we  shall  desire  an  extension  of  time.  We  do  not  think 
that  we  can  present  the  very  great  number  of  questions  of  law  and  au 
thorities  within  the  time  allowed  by  the  Commission.  We  are  willing 
to  sacrifice  our  own  convenience  in  order  to  arrive  at  a  speedy  result. 
I  am  authorized  by  my  associates  to  say  that  we  would  prefer  very 
much,  in  order  that  the  decision  of  the  Commission  may  be  hastened, 
to  sit  this  evening  to  any  hour  rather  than  not  to  have  our  request  for 
additional  time  granted. 

Mr.  Commissioner  HOAE.  Will  Judge  Hoadly  be  kind  enough  to 
state,  if  he  has  considered,  what  additional  time  he  proposes  to  ask  for  ? 

Mr.  HOADLY.  We  desire  that  our  time  be  extended  to  double  the 
amount  which  the  Commission  allows  by  its  rules ;  and  as  I  said,  we 
are  willing  to  take  it  out  of  the  hours  of  the  night  rather  than  not  have 
the  extension. 

!Mr.  Commissioner  EDMUNDS.  I  venture  to  submit  this  motion  for 
the  decision  of  the  Commission,  that  we  now  take  a  recess  until  half 
past  six  o'clock,  to  meet  in  the  Senate  Chamber,  which  is  at  our  dis 
posal. 

Mr.  Commissioner  HUNTON.    I  should  rather  hear  the  objectors. 

Mr.  Commissioner  PAYNE.  I  think  we  had  better  hear  the  object 
ors. 

Mr.  Commissioner  EDMUNDS.    Very  well,  I  withdraw  the  motion. 

The  PEESIDENT.     The  motion  is  withdrawn. 

Mr.  Eepresentative  LAWEENCE.  Mr.  President  and  gentlemen, 
the  Commission  before  which  I  have  the  honor  now  to  appear  is  charged 
with  the  momentous  and  solemn  duty  of  considering  "  the  certificates 
and  papers  purporting  to  be  certificates  of  the  electoral  votes  "  of  the 
State  of  Oregon,  with  the  "  objections  n  thereto,  and  with  the  further 
duty  to  "  decide  whether  any,  and  what,  votes  from"  that  "  State  are 
the  votes  provided  for  by  the  Constitution  of  the  United  States,  and 
how  many,  and  what,  persons  were  duly  appointed  electors  in  "  the 
State. 

There  are  before  the  Commission  duplicate  papers  purporting  to  be 
certificates  of  the  electoral  votes  cast  by  two  different  sets  of  persons 
each  claiming  to  be  the  electoral  college.  It  is  my  purpose  to  main 
tain  that  W.  H.  Odell,  J.  C.  Cartwright,  and  J.  W.  Watts,  whom  I 


524  ELECTORAL   COUNT    OF    1877. 

will  for  brevity  designate  "  the  Hayes  electors,"  were  duly  appointed  ; 
that  they  present  the  proper  evidence  of  this  fact,  and  that  the  votes 
by  them  given  for  Eutherford  B.  Hayes  for  President  and  for  William 
A.  Wheeler  for  Yice-President  are  the  votes  provided  for  by  the  Con 
stitution  $  and  that  E.  A.  Cronin,  J.  N.  T.  Miller,  and  John  Parker, 
the  so-called  "Tilden  electors,"  were  not  duly  appointed;  that  they 
are  without  sufficient  evidence  of  title  to  office,  and  that  the  votes  they 
gave  for  Samuel  J.  Tilden  for  President  and  for  Thomas  A.  Hendricks 
for  Yice-President  are  not  the  votes  provided  for  by  the  Constitution. 

In  conducting  the  inquiries  which  are  to  be  answered  by  this  Com 
mission  I  will  first  ask  attention  to  the  constitutional  and  statutory 
provisions  which  create  the  office  of  elector,  provide  for  filling  it,  and 
prescribe  the  appropriate  evidence  of  title  to  it. 

The  Constitution  of  the  United  States  provides  that — 

The  executive  power  shall  be  vested  in  a  President  of  the  United  States  of  America. 
He  shall  hold  his  office  during  the  term  of  four  years,  and  together  with  the  Vice-Pres 
ident,  chosen  for  the  same  term,  be  elected  as  follows : 

Each  State  shall  appoint,  in  such  manner  as  the  legislature  thereof  may  direct,  a 
number  of  electors,  equal  to  the  whole  number  of  Senators  and  Representatives  to 
which  the  State  may  be  entitled  in  the  Congress  ;  but  no  Senator  or  Representative, 
or  person  holding  an  office  of  trust  or  profit  under  the  United  States,  shall  be  appointed 
an  elector. — Article  2,  section  1. 

The  electors  shall  meet  in  their  respective  St  ates,  and  vote  by  ballot  for  President 
and  Vice-President,  one  of  whom,  at  least,  shall  not  be  an  inhabitant  of  the  same 
State  with  themselves;  they  shall  name  in  their  ballots  the  person  voted  for  as 
President,  and  in  distinct  ballots  the  person  voted  for  as  Vice-President,  and  they 
shall  make  distinct  lists  of  all  persons  voted  for  as  President,  and  of  all  persons  voted  • 
for  as  Vice-President,  and  of  the  number  of  votes  for  each ;  which  lists  they  shall  sign 
and  certify,  and  transmit  sealed  to  the  seat  of  government  of  the  United  States, 
directed  to  the  President  of  the  Senate.  The  President  of  the  Senate  shall,  in  the 
presence  of  the  Senate  and  House  of  Representatives,  open  all  the  certificates,  and  the 
votes  shall  then  be  counted ;  the  person  having  the  greatest  number  of  votes  for  Pres 
ident  shall  be  the  President,  if  such  number  be  a  majority  of  the  whole  number  of 
electors  appointed;  and  if  no  person  have  such  majority,  then  from  the  persons  having 
the  highest  numbers  not  exceeding  three  on  the  list  of  those  voted  for  as  President, 
the  House  of  Representatives  shall  choose  immediately,  by  ballot,  the  President. 
But  in  choosing  the  President,  the  vote  shall  be  taken  by  States,  the  representation 
from  each  State  having  one  vote ;  a  quorum  for  this  purpose  shall  consist  of  a  member 
or  members  from  two-thirds  of  the  States,  and  a  majority  of  all  the  States  shall  be 
necessary  to  a  choice.  And  if  the  House  of  Representatives  shall  not  choose  a  Presi 
dent  whenever  the  right  of  choice  shall  devolve  upon  them,  before  the  fourth  day  of 
March  next  following,  then  the  Vice-President  shall  act  as  President,  as  in  the  case 
of  the  death  or  other  constitutional  disability  of  the  President. 

The  person  having  the  greatest  number  of  votes  as  Vice-President  shall  be  the  Vice- 
President,  if  such  number  be  a  majority  of  the  whole  number  of  electors  appointed  ; 
and  if  no  person  have  a  majority,  then  from  the  two  highest  numbers  on  the  list  the 
Senate  shall  choose  the  Vice-President. — Article  12,  Amendments. 

No  person  except  a  natural-born  citizen,  or  a  citizen  of  the  United  States  at  the 
time  of  the  adoption  of  this  Constitution,  shall  be  eligible  to  the  office  of  President  ; 
neither  shall  any  person  be  eligible  to  that  office  who  shall  not  have  attained  to  the 
age  of  thirty-five  years,  and  been  fourteen  years  a  resident  within  the  United  States.— 
Article  2,  section  1. 

The  Congress  may  determine  the  time  of  choosing  the  electors  and  the  day  on  which 
they  shall  give  their  votes;  which  day  shall  be  the  same  throughout  the  United 
States. — Article  2,  section  1. 

The  Congress  shall  have  power  *  *  *  to  make  all  laws  which  shall  be  necessary 
and  proper  for  carrying  into  execution  the  foregoing  powers  and  all  other  powers 
vested  by  this  Constitution  in  the  Government  of  the  United  States,  or  in  any  depart 
ment  or  officer  thereof.— Article  1,  section  8. 

Congress  has  legislated  upon  the  subject  of  electoral  votes  by  repeated 
laws,  and  among  other  provisions  has  enacted  that — 

The  electors  of  President  and  Vice-President  shall  be  appointed,  in  each  State,  on 
the  Tuesday  next  after  the  first  Monday  in  November,  in  every  fourth  year  succeeding 
every  election  of  a  President  and  Vice-President. — March  I,  1792,  ch.  8,  sec.  I,  vol.  1,  p> 
239 ;  January  23,  1845,  ch.  I,  vol.  5,  p.  721,  Revised  Statutes,  section  131. 


ELECTORAL    COUNT   OF    1877.  525 

It  shall  be  the  duty  of  the  executive  of  each  State  to  cause  three  lists  of  the  names 
of  the  electors  of  such  State  to  be  made  and  certified,  and  to  be  delivered  to  the  elect 
ors  on  or  before  the  day  on  which  they  are  required  to  meet. — Act  March  1,  1792,  ch.  8, 
sec.  3,  vol.  1,  p.  240,  Revised  Statutes,  section  136. 

Each  State  may,  by  law,  provide  for  the  filling  of  any  vacancies  which  may  occur 
in  its  college  of  electors  when  such  college  meets  to  give  its  electoral  vote. — Act  Jan 
uary  23,  1845,  Revised  Statutes,  section  133. 

Whenever  any  State  has  held  an  election  for  the  purpose  of  choosing  electors  and 
has  failed  to  make  a  choice  on  the  day  prescribed  by  law,  the  electors  may  be  ap 
pointed  on  a  subsequent  day  in  such  a  manner  as  the  legislature  of  such  State  may 
direct. — Revised  Statutes,  section  134. 

The  electors  for  each  State  shall  meet  and  give  their  votes  upon  the  first  Wednes 
day  in  December  in  the  year  in  which  they  are  appointed,  at  such  place,  in  each  State, 
as  the  legislature  of  such  State  shall  direct. — Act  March  1,  1792,  Revised  Statutes,  section 
135. 

Congress  shall  be  in  session  on  the  second  Wednesday  in  February  succeeding  every 
meeting  of  the  electors,  and  the  certificates,  or  so  many  of  them  as  have  been  received, 
shall  then  be  opened,  the  votes  counted,  and  the  persons  to  fill  the  offices  of  President 
and  Vice-President  ascertained  and  declared,  agreeably  to  the  Constitution. — Act 
March  1,  1792,  Revised  Statutes,  section  142. 

The  electors  shall  vote  for  President  and  Vice-President,  respectively,  in  the  man 
ner  directed  by  the  Constitution. — Revised  Statutes,  section  137. 

The  electors  shall  make  and  sign  three  certificates  of  all  the  votes  given  by  them, 
each  of  which  certificates  shall  contain  two  distinct  lists,  one  of  the  votes  for  Pres 
ident  and  the  other  of  the  votes  for  Vice-President,  and  shall  annex  to  each  of  the  cer 
tificates  one  of  the  lists  of  the  electors  which  shall  have  been  furnished  to  them  by 
direction  of  the  executive  of  the  State. — Revised  Statutes,  section  138. 

The  electors  shall  seal  up  the  certificates  so  made  by  them,  and  certify  upon  each 
that  the  lists  of  all  the  votes  of  such  State  given  for  President,  and  of  all  the  votes 
given  for  Vice-President,  are  contained  therein. — Revised  Statutes,  section  139. 

The  electors  shall  dispose  of  the  certificates  thus  made  by  them  in  the  following 
manner : 

One.  They  shall,  by  writing  under  their  hands,  or  under  the  hands  of  a  majority  of 
them,  appoint  a  person  to  take  charge  of  and  deliver  to  the  President  of  the  Senate,  at 
the  seat  of  government,  before  the  first  Wednesday  in  January  then  next  ensuing,  one 
of  the  certificates. 

Two.  They  shall  forthwith  forward  by  the  post-office  to  the  President  of  the  Senate, 
at  the  seat  of  government,  one  other  of  the  certificates. 

Three.  They  shall  forthwith  cause  the  other  of  the  certificates  to  be  delivered  to  the 
judge  of  that  district  in  which  the  electors  shall  assemble. — Revised  Statutes,  section  140. 

The  constitution  of  Oregon  provides : 

In  all  elections  held  by  the  people  under  this  constitution,  the  person  or  persons  who 
shall  receive  the  highest  number  of  votes  shall  be  declared  duly  elected. — Article  2, 
section  16. 

And  again : 

The  powers  of  the  government  shall  be  divided  into  three  separate  departments  :  the 
legislative,  the  executive,  (including  the  administrative,)  and  the  judicial ;  and  no  per 
son  charged  with  official  duties  under  one  of  these  departments  shall  exercise  any  of 
the  functions  of  another,  except  as  in  this  constitution  expressly  provided. 

The  legislature  of  Oregon  has  also  provided  by  statute  that — 

In  all  elections  in  this  State  the  person  having  the  highest  number  of  votes  for  any 
office  shall  be  deemed  elected. — General  Laws,  section  40,  page  574. 

On  the  Tuesday  next  after  the  first  Monday  in  November,  1864,  and  every  four  years 
thereafter,  there  shall  be  elected  by  the  qualified  electors  of  this  State  as  many  electors 
of  President  and  Vice-President  as  this  State  may  be  entitled  to  elect  of  Senators  ami 
Representatives  in  Congress.— General  Laws,  section  58,  page  578.  . 

The  statute  provides  that  abstracts  of  votes  shall  be  sent  to  the  sec 
retary  of  state.  And  then  the  mode  of  canvassing  the  votes  and  certi 
fying  the  appointment  of  electors  is  provided  for  as  follows  : 

The  votes  for  the  electors  shall  be  given,  received,  returned,  and  canvassed . 
as  the  same  are  given,  returned,  and  canvassed  for  members  of  Congress.  The  secre 
tary  of  state  shall  prepare  two  lists  of  the  electors  elected  and  affix  the  seal  ot  the 
State  to  the  same.  Such  lists  shall  be  signed  by  the  governor  and  secretary,  and  by 
the  latter  delivered  to  the  college  of  electors  at  the  hour  of  their  meeting  on  such  first 
Wednesday  of  December. — General.  Statutes,  section  60,  page  578. 


526  ELECTORAL    COUNT    OF    1877. 

The  canvass  of  votes  for  members  of  Congress  is  provided  for  as  fol 
lows: 

And  it  shall  be  the  duty  of  the  secretary  of  state,  in  the  presence  of  the  governor, 
to  proceed  within  thirty  days  after  the  election,  and  sooner  if  the  returns  be  all  re 
ceived,  to  canvass  the  votes  for  *  *  *  member  of  Congress ;  *  *  * 
and  the  governor  shall  grant  a  certificate  to  the  person  having  the  highest  number  of 
votes  ;  and  shall  also  issue  a  proclamation  declaring  the  election  of  such  persons. — Gen 
eral  Statutes,  section  37,  page  574. 

This  proclamation  is  not  required  as  to  electors. 
In  another  portion  of  the  general  statutes  relating  to  the  governor  it 
is  provided  that — 

He  [the  governor]  shall  grant  certificates  to  members  duly  elected  to  the  Senate  of 
the  United  States,  and  also  to  members  of  Congress,  which  shall  be  signed  by  him  and 
countersigned  by  the  secretary  of  state  under  the  seal  of  the  State. — General  Laws, 
section  3,  page  489. 

But  this  does  not  apply  to  electors. 

The  statute  of  Oregon,  in  a  title  relating  only  to  State  officers,  shows 
what  shall  be  deemed  a  vacancy  in  a  State  office.  It  provides  : 

Any  person  who  shall  receive  a  certificate  of  his  election  as  a  member  of  the  legisla 
tive  assembly,  coroner,  or  commissioner  of  the  county  court,  shall  be  at  liberty  to  re 
sign  such  office,  though  he  may  not  have  entered  upon  the  execution  of  its  duties  or 
taken  the  requisite  oath  of  office. — General  Statutes,  section  46,  page  575. 

Every  office  shall  become  vacant  on  the  occurrence  of  either  of  the  following  events 
before  the  expiration  of  the  term  of  such  office  : 

1.  The  death  of  the  incumbent. 

2.  His  resignation. 

3.  His  removal. 

4.  His  ceasing  to  be  an  inhabitant  of  the  district,  county,  town,  or  village  for  which 
he  shall  have  been  elected  or  appointed  or  within  which  the  duties  of  his  office  are  re 
quired  to  be  discharged. 

5.  His  conviction  of  an  infamous  crime  or  of  any  offense  involving  a  violation  of  his 
oath. 

6.  His  refusal  or  neglect  to  take  his  oath  of  office,  or  to  give  or  renew  his  official  bond, 
or  to  deposit  such  oath  or  bond  within  the  time  prescribed  by  law. 

7.  The  decision  of  a  competent  tribunal  declaring  void  his  election  or  appointment. — 
General  Statutes,  section  48,  page  576. 

But  the  Oregon  statute,  when  providing  for  vacancies  in  the  electoral 
college,  does  not  limit  vacancies  to  those  arising  from  specific  causes, 
but  declares  that — 

The  electors  of  President  and  Vice-President  shall  convene  at  the  seat  of  government 
on  the  first  Wednesday  of  December  next  after  their  election,  at  the  hour  of  twelve  of  the 
clock  at  noon  of  that  day,  and  if  there  shall  be  any  vacancy  in  the  office  of  an  elector,  oc 
casioned  by  death,  refusal  to  act,  neglect  to  attend,  or  otherwise,  the  electors  present 
shall  immediately  proceed  to  rill  by  viva  voce  and  plurality  of  votes  such  vacancy  in  the 
electoral  college,  and  when  all  the  electors  shall  appear,  or  the  vacancies,  if  any,  shall 
have  been  filled  as  above  provided,  such  electors  shall  proceed  to  perform  the  duties 
required  of  them  by  the  Constitution  and  laws  of  the  United  States. — General  Laws, 
section  59,  page  578. 

Here,  then,  are  all  the  constitutional  and  statutory  provisions  creating 
the  office  of  elector,  the  material  provisions  for  filling  it  and  for  furnish 
ing  evidence  of  title  to  the  office. 

That  the  office  is  created  by  the  Constitution  of  the  United  States,  ad 
mits  of  no  doubt,  and  is  not  disputed. 

That  the  electors  are  to  be  appointed  in  each  State  "  in  such  manner 
as  the  legislature  thereof  may  direct,''  is  equally  certain  and  undisputed. 

That  the  legislature  of  Oregon  has  provided  for  the  original  appoint 
ment  of  electors  by  popular  vote  is  conceded  on  all  hands. 

That  it  has  provided  for  filling  vacancies  u  occasioned  by  death,  refusal 
to  act,  neglect  to  attend,  or  otherwise,"  is  declared  by  the  statute,  and 
is  not  disputed. 


ELECTORAL    COUNT    OF    1877.  527 

The  Hayes  electors  present  as  evidence  of  title  to  the  electoral  office 
the  following : 

1.  A  "  list  of  the  electors  elected "  for  Oregon,  duly  certified  and 
signed  by  the  secretary  of  state,  with  the  seal  of  the  State  by  him 
affixed  thereto.    This  has  every  formality  required  by  law  except  only 
that  the  governor  has  failed  to  comply  with  a  directory  and  immaterial 
provision  of  the  statute  requiring  that  it  "  shall  be  signed  by  the  gov 
ernor." 

Mr.  Commissioner  EDMUNDS.     What  is  the  date  of  that ? 
Mr.  Representative  LAWRENCE.    It  is  without  date.    Next : 

2.  A  certified  abstract  of  the  popular  vote  for  electors  as  canvassed 
according  to  law  by  the  secretary  of  state,  dated  December  6,  1876, 
showing  that  the  Hayes  electors  are  u  the  persons  having  the  highest 
number  of  votes,"  on  which  fact  the  statute  says  "  they  shall  be  deemed 
elected." 

Mr.  Commissioner  EDMUNDS.  Is  that  the  certificate  of  the  secre 
tary  of  state  as  to  the  number  of  votes  for  electors? 

Mr.  Representative  LAWRENCE.  That  is  the  abstract  of  votes— a 
different  paper.  The  paper  I  first  referred  to  is  the  certificate  of  the 
secretary  of  state. 

Mr.  HOADLY.    There  is  no  such  certificate. 

Mr.  Representative  LAWRENCE.  There  is  such  a  paper,  unless  I 
am  greatly  mistaken. 

Mr.  HOADLY.  I  heard  the  papers  read,  and  there  is  no  such 
paper. 

Mr.  Representative  LAWRENCE.  I  have  copies  of  what  purport  to 
be  the  papers.  It  is  a  full  list  of  electors,  showing  the  number  of  votes 
given  for  each. 

Mr.  Commissioner  ABBOTT.  Is  it  anything  more  than  this :  a  cer 
tificate  of  the  names  of  the  persons  voted  for,  showing  the  votes  given 
to  each  ? 

Mr.  Representative  LAWRENCE.  Yes  ;  but  it  is  different  from  the 
tabulated  result. 

Mr.  Commissioner  ABBOTT.     But  no  certificate. 

Mr.  Representative  LAWRENCE.  That  is  a  certificate.  I  shall 
claim  to  this  honorable  Commission  that  that  is  a  certificate  within  the 
meaning  of  the  statute  of  Oregon.  That  is  what  I  call  a  certificate  in 
complete  compliance  with  the  statute  of  Oregon,  lacking  only  the  un 
important  signature  of  the  governor,  the  lack  of  which  cannot  invalidate 
a  paper  made  in  pursuance  of  law. 

Mr.  Commissioner  THURMAN.  Judge  Lawrence,  may  I  ask  you  if 
you  have  examined  the  statute  of  Oregon  to  see  whether  any  one  has 
a  right  to  demand  an  exemplification  of  auv  paper  on  the  files  of  that 
office? 

Mr.  Representative  LAWRENCE.  I  have  not,  nor  do  I  deem  it 
material.  The  question  is  not,  as  I  respectfully  submit,  whether  any 
one  has  a  right  to  demand  it,  but  does  any  one  come  with  that  as  evi 
dence  of  title?  We  have  it;  it  is  made^in  pursuance  of  law;  it  is 
made  in  pursuance  of  the  statute  of  Oregon,  which  authorizes  and  re 
quires  the  secretary  of  state  to  make  these  lists  of  electors.  Then  we 
have — 

3.  The  certificate  under  the  seal  of  the  State,  signed  by  the  governor 
and  secretary  of  state,  dated  December  6,  1876,  by  which  the  governor 
of  Oregon  certifies  that  W.  H.  Odell,  J.  C.  Cartwright,  and  E.  A.  Croniii 
received  each  a  given  number  of  votes  at  the  election,  November  7, 


528  ELECTOEAL    COUNT    OF    1877. 

which  "  being  the  highest  number  of  votes  cast  for  persons  eligible," 
they  "  are  hereby  declared  duly  elected  electors." 

4.  The  record  of  the  proceedings  of  Odell,  Cartwright,  and  Watts, 
as  electors,  dated  December  6,  shows  that  Odell  and  Cartwright  met, 
accepted  the  resignation  of  Watts,  and  they  two  only  being  present, 
they  re-appointed  Watts,  who  accepted,  and  all  three  voted  for  Hayes 
and  Wheeler  for  President  and  Yice-President  and  made  the  proper 
return. 

This,  as  the  Constitution  requires,  is  certified  by  the  electors — made 
absolutely  certain — beyond  contradiction  by  any  other  evidence. 

For  the  so-called  "  Tildeu  electors  "  the  entire  record  shows  as  their 
evidence  of  title  to  office — 

1.  The  certificate  of  the  governor,  attested  by  the  secretary  of  state, 
for  Odell,  Cartwright,  and  Cronin,  already  referred  to,  showing  not  that 
Cronin,  as  the  law  requires,  "received  the  highest  number  of  votes," 
but  only  that  "  Cronin  received  14,157  votes,  being  the  highest  number 
of  votes  cast  at  said  election  (November  7)  for  persons  eligible,"  and 
he,  with  Odell  and  Cartwright,  is  "  declared  duly  elected." 

2.  The  record  of  proceedings  of  the  so-called  Tilden  electors  shows 
that  Cronin  assembled  on  the  6th  of  December,  "  solitary  and  alone  in 
his  glory"  or  shame,  declared  that  Odell  and  Cartwright  "refused  to 
act,"  whereupon  Cronin  appointed  Miller  an  elector,  and  these  two  then 
appointed  Parker,  when  all  voted,  one  vote  for  Tilden  for  President 
and  Hendricks  for  Yice-President,  and  two  for  Hayes  and  Wheeler  for 
the  same  offices. 

Here,  then,  are  the  two  sets  of  electors;  here  the  whole  evidence  of 
title  to  office  ;  here  the  votes  cast  by  each  for  President  and  Vice-Presi 
dent. 

From  this  it  will  be  seen  the  Hayes  electors  all  claim  title  to  office  by 
original  appointment  or  election  by  the  people  of  Oregon,  and  as  to  one 
of  them  a  title  after  a  resignation  by  appointment  of  the  remaining 
electors. 

One  of  the  Tilden  electors,  Cronin,  claims  title  by  original  appoint 
ment  or  election  by  the  people  and  the  remaining  two  by  appointment 
to  fill  vacancies. 

The  one  important  and  indisputable  fact  to  be  noticed  so  far  in  these 
proceedings  is  that  the  title  of  Odell  and  Cartwright,  two  of  the  Hayes 
electors,  is  clear  beyond  question  and  is  not  disputed.  As  to  these, 
elected  by  the  people,  there  are  just  five  provisions  of  law  relating  to 
the  evidence  of  title.  They  are  these : 

1.  The  act  of  Congress  declares  that — 

It  shall  be  the  duty  of  the  executive  of  each  State  to  cause  three  lists  of  the  names 
of  the  electors  of  such  State  to  be  made  and  certified  and  to  be  delivered  to  the  elect 
ors. 

It  does  not  say  in  terms  that  the  governor  shall  certify  or  sign  the 
lists.  When  it  says  the  governor  shall  "cause"  the  lists  to  be  made, 
this  means  that  he,  as  the  officer  charged  with  the  duty  of  executing 
the  State  laws,  shall  cause  the  proper  State  officer  to  make  the  lists, 
whether  he  be  the  officer  designated  by  the  State  law  or  some  other;  or 
if  no  State  law  direct  the  mode,  then  the  governor  shall  certify. 

2.  The  constitution  of  Oregon  provides  that— 

In  all  elections  *  *  *  the  person  or  persons  who  shall  receive  the  highest  num 
ber  of  votes  shall  be  declared  elected. 

3.  The  statute  of  Oregon  provides  that— 
In  all  elections    *     *     *    the  person  having  the  highest  number  of  votes    ' 

shall  be  deemed  elected. 


ELECTORAL    COUNT    OF    1877.  529 

4.  The  statute  again  provides  that  a  return  of  votes  shall  be  sent  from 
the  several  counties  to  the  secretary  of  state,  and  then — 

It  shall  be  the  duty  of  the  secretary  of  state,  in  the  presence  of  the  governor,— 

But  the  governor  is  a  mere  witness  with  no  power — 

*     *     *     to  canvass  the  votes. 

5.  And  again  the  statute  says : 

The  secretary  of  state  shall  prepare  two  lists  of  the  electors  elected,  and  affix  the 
seal  of  the  State  to  the  same.  Such  lists  shall  be  signed  by  the  governor  and  secretary, 
and  by  the  latter  delivered  to  the  college  of  electors. 

This  is  the  mode  in  which  Oregon  executes  the  act  of  Congress.  The 
governor  has  no  power  over  the  canvass  or  the  result,  except  to  attest 
what  the  secretary  of  state  certifies  as  mere  matter  of  authentication. 

Now,  Odell  and  Cartwright  come  with  the  evidence  of  title  which  sat 
isfies  all  these  provisions.  The  secretary  of  state  canvassed  the  votes 
of  the  people,  as  shown  by  his  certified  abstract.  Odell  and  Cartwright 
had  the  highest  number  of  votes,  and  must,  as  the  constitution  and  stat 
ute  say,  u  be  declared  and  deemed  elected,"  and  they  have  the  properly 
certified  lists  of  election  "  signed  by  the  governor  and  secretary"  under 
the  seal  of  State. 

I  say  they  have  these  lists  of  electors  because  they  are  here,  and  it 
matters  not  how  they  came.  No  law  requires  that  all  the  evidence  of 
title  shall  be  transmitted  in  one  envelope,  nor  that  it  shall  come  with 
the  votes  for  President,  nor  even  that  it  shall  be  transmitted  by  the 
electors.  The  mode  of  transmitting  at  most  could  be  only  directory,  and 
the  manner  is  not  material. 

All  the  records,  so  far  as  they  contain  lawful  evidence,  may  be  con 
sidered.  (Switzler  vs.  Anderson,  2  Bartlett,  374;  McCrary,  section  104.) 

Mr.  Commissioner  HOAR.     I  am  sorry  to  interrupt  you 

Mr.  Representative  LAWRENCE.    Nothing  interrupts  me. 

Mr.  Commissioner  HOAR.  I  want  to  ask  you  whether  that  paper 
which  you  said  was  without  date,  appears  to  have  been  sealed  up  with 
the  other  papers  which  were  sealed  on  the  6th  of  December. 

Mr.  Representative  LAWRENCE.  Undoubtedly.  It  comes  with  the 
papers.  But  even  that  would  not  be  material.  The  provision  which 
requires  papers  to  be  transmitted  by  the  electors  is  directory,  and  no 
matter  how  they  come  they  are  evidence. 

Mr.  Commissioner  HOAR.  The  point  of  my  inquiry  was  that  at  least 
it  must  have  been  made  as  early  as  the  6th  of  December. 

Mr.  Representative  LAWRENCE.  O,  yes;  it  must  have  been  made 
as  early  as  the  6th  of  December ;  but  its  date  cannot  be  material.  I  re 
peat  that  the  one  important  fact  to  which  I  desire  first  to  call  attention 
is  that  the  title  of  two  of  the  Hayes  electors  is  undisputed. 

Mr.  Commissioner  ABBOTT.  Permit  me  to  ask  whether  the  certifi 
cate  you  refer  to  states  that  the  secretary  of  state  had  ever  canvassed 
any  votes  and  determined  who  had  been  elected. 

Mr.  Representative  LAWRENCE.    It  is  not  necessary  that  he  should. 

Mr.  Commissioner  ABBOTT.     I  only  ask  whether  the  fact  is  so. 

Mr.  Representative  LAWRENCE.  The  certified  abstract  of  votes,  by 
inference,  if  not  directly,  shows  that  he  did  canvass  the  votes,  and  there 
is  that  certificate  which  satisfied  the  statute,  the  list  of  electors  made  by 
the  secretary  of  state,  the  only  officer  who  has  power  to  make  any  pa 
per.  The  governor  has  a  duty,  but  not  a  power,  to  witness  a  paper,  al 
though  made  by  another  officer. 

Upon  these  facts,  and  upon  the  law,  this  whole  controversy  may  be 
3iE  c 


530  ELECTORAL    COUNT    OF    1877. 

disposed  of  in  favor  of  the  Hayes  electors  by  a  single  proposition, 
which  is: 

That,  if  the  monstrous  position  could  be  maintained  that  Crouin  was 
legally  appointed,  yet  he  "refused  to  act,"  "  neglected  to  attend"  with 
Odell  and  Cartwright,  his  place  became  vacant,  and  Watts  was  duly  ap 
pointed  to  fill  it. 

This  leaves  no  question  of  eligibility  to  be  considered,  and  no  contro 
versy  over  any  question  of  vacancy  by  non-election.  If  this  position  is 
supported  by  law,  it  is  conclusive,  and  it  is  unnecessary  to  go  beyond  it 
to  show,  as  the  fact  is,  that  Cronin  was  not  elected,  and  on  the  whole 
record  is  without  evidence  of  title. 

The  electoral  college  is  charged  with  three  duties :  (1)  to  fill  all  vacan 
cies,  (2}  to  vote  for  President  and  Vice-President,  and  (3)  to  make  and 
transmit  to  the  President  of  the  Senate  "  distinct  lists  of  all  persons 
voted  for  as  President  and  Vice-President,  which  lists  they  shall  sign 
and  certify."  Here  are  duties  to  do  certain  acts  and  to  furnish  evidence 
of  them. 

The  statute  of  Oregon  provides  that — 

If  there  be  any  vacancy  in  the  office  of  an  elector  occasioned  by  death,  refusal  to 
act,  neglect  to  attend,  or  otherwise,  the  electors  present  shall  till  such  vacancy. 

The  electoral  college  is  a  deliberative  body,  as  much  so  as  Congress ; 
the  single  individual  members,  acting  separately  and  apart  from  all  oth 
ers,  can  do  no  official  act,  no  more  so  than  individual  members  of  Con 
gress,  or  of  a  court,  or  of  this  Commission ;  and  the  record  of  what  the 
college  or  a  majority  of  its  members  does  is  conclusive  evidence,  and  can 
no  more  be  impeached  aliunde  than  the  record  of  Congress,  or  of  a  court, 
or  of  this  Commission. 

The  major  part  of  the  electors  present  is  a  quorum  j  the  acts  of  a  quo 
rum  are  valid  to  decide  when  a  vacancy  has  arisen,  and  to  fill  it. 

All  this  I  propose  to  show  from  the  Constitution  and  laws,  from  their 
manifest  purpose,  from  the  authority  of  the  courts,  and  from  the  neces 
sities  of  the  case. 

1.  The  electoral  college  is  a  deliberative  body.    The  Constitution  says  : 

The  electors  shall  meet  and  vote  by  ballot  for  President. 
They  shall  make  distinct  lists  of  all  persons  voted  for  as  President. 
They  shall  sign  and  certify  and  transmit,  sealed,  to  the  President  of  the  Senate  [these 
lists.] 

The  statute  of  Oregon  says : 

The  electors  shall  convene  at  the  seat  of  government.  *  *  *  If  there  be  any  va 
cancy  the  electors  present  shall  immediately  proceed  to  fill  by  viva  voce  and  plurality  of 
votes  such  vacancy.  *  *  *  Such  electors  shall  proceed  to  perform  the  duties  required 
of  them. 

The  electors  when  convened  are  declared  to  be  the  "electoral  col 
lege."  t 

All  these  acts  require  deliberation,  united  action,  collective  wisdom. 

The  original  purpose  of  the  Constitution  was  that  the  electors  should 
themselves  deliberate  on  and  select  the  candidates  for  President  of  their 
own  judgment,  without  party  nominations  or  previous  pledges. 

From  all  this  it  is  certain  that  the  electors  must  act  as  a  deliberative 
body,  not  as  members  acting  separately  and  apart. 

2.  The  major  part  of  the  electors  who  convene  are  a  quorum  to  fill 
vacancies  and  vote.    As  against  them  the  minority  can  do  nothing. 

The  act  of  Congress  expressly  so  provides : 
If  there  be  a  vacancy  the  electors  present  shall  fill  it.  • 

They  are  made  the  sole  judges  to  decide  when  an  elector  has  "  refused 


ELECTORAL   COUNT   OF    1877.  531 

to  act,"  "  neglected  to  attend,"  or  when  a  vacancy  has  arisen  "other 
wise." 

This  is  so  on  authority.  By  general  parliamentary  law,  in  all  delibera 
tive  bodies  of  a  fixed  number,  unless  otherwise  expressly  provided,  a 
majority  is  a  quorum,  and  a  majority  of  the  quorum  decides  all  ques 
tions.  This  has  been  the  settled  doctrine  of  the  courts  from  our  earliest 
history.  The  supreme  court  of  South  Carolina  as  early  as  1821,  in  an 
elaborate  opinion  on  this  subject,  so  determined.  The  court,  after  re 
viewing  authorities,  said : 

The  conclusion  then  follows  that  a  majority  must  constitute  a  quorum ;  *  * 
for,  according  to  the  principle  of  all  the  cases  referred  to,  a  quorum  possesses  all 
the  powers  of  the  whole  body,  a  majority  of  which  quorum  must,  of  course,  govern. 
*  *  *  Thus,  Grotius  says,  "  Though  there  were  no  contracts  or  laws  that  regulate 
the  manner  of  determining  affairs,  the  majority  would  naturally  have  the  right  and 
authority  of  the  whole."  (Sec.  2,  Rutherford,  b.  2,  c.  195;  State  vs.  Deliesselme,  Mc- 
Cord's  South  Carolina  sep.,  62.) 

Dillon,  in  his  work  on  Municipal  Corporations,  in  discussing  the  con 
stitution  and  powers  of  select  governing  bodies  of  a  fixed  number,  says : 

In  the  absence  of  special  provision,  the  major  part  of  those  present  at  a  meeting  of  a 
select  body  must  concur  in  order  to  do  any  valid  act.  *  *  * 

And  as  a  general  rule  it  may  be  stated  that  *  *  *  where  the  corporate  power 
resides  in  a  select  body,  in  the  absence  of  special  provision  otherwise,  a  minority  of 
the  select  body  are  powerless  to  bind  the  majority  or  do  any  valid  act.  (Vol.  1,  pp. 
333-4,  sec.  220, 221.) 

And  again : 

If  the  major  part  withdraw  so  as  to  leave  no  quorum,  the  power  of  the  minority  to 
act  is  in  general  considered  to  cease.  (Idem,  p.  334,  sec.  221.) 

This  sufficiently  appears  in  Downing  vs.  Euger,  21  Wendell,  181,  where 
it  is  said ; 

The  rule  seems  to  be  well  established  that  in  the  exercise  of  a  public  as  well  as  pri 
vate  authority,  whether  it  be  ministerial  or  judicial,  all  the  persons  to  whom  ifc  is  com 
mitted  must  confer  and  act  together,  unless  there  be  a  provision — 

As  there  is  in  case  of  electors — 

that  a  less  number  may  proceed — 
As  Odell  and  Cartwright  did. 

Where  the  authority  is  public,  and  the  number  is  such  as  to  admit  ot  a  majority — 
And  Odell  and  Cartwright  were  a  majority — 

that  will  bind  the  minority. 

And  Cronin  was  a  minority,  and  so  is  concluded  by  the  act  of  the 
majority. 

This  must  be  so  On  reason  and  public  policy.  Oregon  is  entitled  to 
three  electors  only.  If  a  controversy  exists  as  to  who  assembled  at  the 
proper  time  and  place,  as  to  who  acted  or  refused  to  act,  it  is  much  more 
reasonable  to  take  the  official  certificate  of  two  than  of  one.  If  a  State 
has  twenty  electors,  it  is  more  reasonable  that  eighteen  should  certify 
two  as  absent  than  that  two  should  certify  eighteen  absent. 

3.  The  electors  present  are  authorized  to  furnish  evidence  conclusive  of  a 
vacancy  and  of  their  anointment  to  Jill  it. 

(a)  This  is  made  so  by  the  Constitution.    It  declares  that  the  electors — 

^  Shall  sign,  and  certify,  and  transmit  sealed    *     *     *    to  the  President  of  the  Senate 
distinct  lists  of  all  persons  voted  for  as  President. 

To  certify  is  to  make  certain.  When  the  electors  certify  their  list  of 
votes,  it  is  certain  that  they  are  the  votes,  and  it  must  be  equally  certain 
that  they  have  properly  filled  vacancies. 


532  ELECTORAL    COUNT    OF    1877. 

If  this  can  be  contradicted  by  some  one  elector  or  other  evidence,  then 
it  is  not  certain,  it  is  not  certified  ;  the  electors  cannot  snj,faciemus  cer- 
tum — we  certify. 

This  rests  upon  the  broad  principle  so  well  understood,  that  it  must 
be  presumed  that  officers  will  do  and  have  done  their  duty. 

Mr.  Commissioner  THUEMAN.  May  I  interrupt  you,  without  dis 
turbing  your  argument?  Do  I  understand  your  argument  to  go  to  this 
point:  that  a  majority  of  the  electoral  college  may  try  the  title  of  a 
member  to  a  seat  in  that  college  ? 

Mr.  Representative  LAWRENCE.  No,  not  by  any  manner  of  means ; 
but  when  the  majority  say  that  electors  are  absent,  are  not  present,  fail 
to  attend,  the  decision  of  the  majority  on  that  question  is  conclusive  and 
cannot  be  inquired  into.  Like  any  other  election  return,  it  is  absolutely 
conclusive. 

Mr.  Commissioner  THURMAN.  Why,  then,  might  they  not  say  that 
a  man  claimiag  to  sit  there  had  no  title? 

Mr.  Eepresentative  LAWRENCE.  In  this  case  no  such  question 
arises,  because  they  have  not  said  so.  They  have  only  said  there  were 
but  two  electors  present ;  the  other,  Cronin,  failed  to  attend ;  he  was  not 
there ;  he  did  not  go  at  the  right  time  of  day ;  he  was  not  in  the  right 
building  5  he  made  a  mistake  and  got  into  the  wrong  box.  That  is 
what  they  say,  and  what  they  say  is  evidence,  and  it  is  conclusive  evi 
dence. 

Mr.  MEEEICK.     O,  they  do  not  say  that. 

Mr.  Eepresentative  LAWRENCE.  They  say  that  in  effect ;  they  say 
they  were  the  only  ones  present,  and  Croiim  himself  says  he  was  not 
present  with  them. 

(&)  This  must  be  so  on  principle  and  authority. 

It  is  an  incident  of  the  authority  to  appoint.  (Broom,  Legal  Max.,  465 ; 
Martin  vs.  Mott,  12  Wheat,  19;  Allen  vs.  Blunt,  3  Story  0.  0.,  742 ;  Gould 
vs.  Hammond,  1  McAll.,  235  5  Noble  vs.  U.  8.,  Dev.,  84.)  The  electors  are 
clothed  with  the  power  to  fill  vacancies.  It  is  within  the  scope  and 
purpose  of  their  powers  to  make  evidence  of  the  appointment. 

It  is  said  in  a  work  of  high  authority : 

No  particular  form  of  credentials  is  required.  It  is  sufficient  if  the  claimant  to  an 
office  presents  a  certificate  signed  by  the  officer  or  officers  authorized  by  law  to  issue 
credentials.  *  *  *  If  several  officers  or  persons  are  by  law  required  to  join  in  such 
certificate,  it  is  generally  sufficient  if  a  majority  have  signed  it. — McCrary,  chap.  4,  p. 
149. 

Where  a  duty  is  imposed  by  law  upon  officers  there  is  given  them  as 
an  incident  of  their  duty  the  power  to  do  all  things  necessary  to  make 
it  effectual,  including  the  authority  to  furnish  evidence  of  their  acts,  and 
especially  when,  as  in  this  case,  no  other  evidence  is  provided  for. 

Broom  says: 

When  the  Crown  creates  a  corporation  it  grants  to  it  by  implication  all  powers  that 
are  necessary  for  carrying  into  effect  the  objects  for  which  it  is  created.— Legal  Maxims, 
435. 

Abbott,  in  his  Digest,  collectsj.authorities  on  the  subject,  and  says : 

Whenever  a  statute  gives  a  discretionary  power  to  any  person  to  be  exercised  by  him 
upon  his  own  opinion  of  certain  facts,  it  is  a  sound  rule  of  construction  that  the  statute 
constitutes  him  the  sole  and  exclusive  judge  of  the  existence  of  those  facts.  (Martin 
vs.  Mott,  12  Wheat.,  19 ;  Allen  vs.  Blunt,  3  Story  C.  C.,  742 ;  Gould  vs.  Hammond,  1  McAll  , 
235]  Noble  vs.  United  States,  Dev.764.) 

But  if  the  evidence  furnished  by  the  electors  is  not  conclusive,  then 
they  are  not,  as  the  law  says,  "  the  "sole  and  exclusive  judges." 

(c)   Usage  lias  made  this  the  law. 

The  practice  of  nearly  a  century  has  so  determined.  In  no  instance 
has  the  evidence  been  contradicted. 


ELECTORAL   COUNT   OF   1877.  533 

(d)  It  is  conclusive  because  it  is  part  of  the  election-return. 

This  Commission  and  the  Houses  of  Congress  are  merely  canvassing- 
officers ;  their  sole  power  is  to  "  count "  the  votes. 

Canvassing-officers  cannot  controvert  returns  which  come  with  all  the 
formalities  of  law.  This  is  settled  by  authority,  settled  by  this  tribunal. 

All  this  must  be  so  on  grounds  of  public  policy. 

Then  upon  the  law,  upon  the  evidence,  it  is  shown  that  Odell  and 
Cartwright  met  at  the  proper  time  and  place;  that  Cronin  " neglected 
to  attend,  refused  to  act"  with  them ;  that  they  filled  the  vacancy  thereby 
created  by  appointing  Watts ;  that  Odell,  Cartwright,  and  Watts  voted 
for  Hayes  and  Wheeler,  and  these  votes  must  be  counted. 

Here  I  might  rest  this  controversy. 

But  the  contest  before  this  Commission  is  of  too  much  importance  to 
leave  unconsidered  any  question  that  may  possibly  arise,  and  for  that 
reason  alone  I  proceed  to  show,  as  a  second  proposition,  that  Cronin  was 
not  elected,  and  on  the  ivhole  record  presents  no  sufficient  evidence  of  title  to 
the  electoral  office. 

1.  His  ambiguous  evidence  of  title  is  disproved  by  evidence  of  equal  dig 
nity,  free  from  ambiguity. 

If  it  should  be  conceded  that  the  "  governor's  certificate  of  election  " 
unexplained  could  give  a  prima  facie  title  to  office,  yet  it  is  not  con 
clusive. 

It  does  not  certify  that  Cronin,  as  the  law  requires,  received  "  the 
highest  number  of  votes,"  or  that  he  is  duly  appointed,  but  only  that  he 
"  received  14,157  votes,  •*  *  *  being  the  highest  number  for  per 
sons  eligible." 

The  averment  as  to  ineligibility  is  a  stamp  of  suspicion,  an  admission 
of  doubt ;  it  opens  the  door  for  inquiry.  The  certificate  is  not,  and  does 
not  profess  to  be,  conclusive  of  the  essential  fact ;  it  equivocates  in  a 
manner  equivalent  to  "a  negative  pregnant;"  it  is  pregnant  with  fraud. 

The  eifect  of  a  certificate  of  election  is  well  understood. 

When  it  is  necessary,  as  in  this  case,  to  the  canvass  of  votes  for  Pres 
ident,  the  canvassing-board  must  decide  if  it  is  a  certificate. — McCrary's 
Laic  of  Elections ,  section  82. 

In  a  note  to  page  319  of  Brightly's  Leading  Cases  on  Elections  't  is 
said  of  a  certificate  of  election : 

If,  however,  the  certificate  upon  its  face  recite  facts  upon  which  the  canvassers  rely 
as  their  justification  and  authority  for  giving  it,  and  these  facts  show  that  the  holder 
was  not  duly  elected,  it  may  be  disregarded.  (Hartt  vs.  Harvey,  32  Barb.,  61.) 

To  this  I  think  I  may  safely  add  that  if  there  be  two  certificates  of 
election,  as  in  this  case,  to  two  different  persons  for  the  one  same  office, 
and  one  is  sufficient  in  form  and  free  from  suspicion,  it  must  take  effect 
as  against  one  which  on  its  face  carries  doubt  as  to  the  fact  it  certifies. 
And  that  is  precisely  the  case  before  us.  Watts  has  a  certificate  of 
election  sufficient  in  form,  the  list  of  electors  certified  to  be  elected  by 
the  secretary  of  state,  under  the  seal  of  the  State,  irregular  in  a  single 
particular — the  attestation  of  the  governor  is  wanting.  The  statute 
makes  the  secretary  of  state  the  sole  canvassing  officer  to  ascertain  what 
person  has  the  "  highest  number  of  votes."  And  then  it  provides  that — 

The  secretary  of  state  shall  prepare  two  lists  of  the  electors  elected,  and  affix  the 
seal  of  the  State  to  the  same.  Such  lists  shall  be  signed  by  the  governor  and  secre 
tary,  and  by  the  latter  delivered  to  the  college  of  electors. 

The  governor  is  intrusted  with  no  power.  He  has  a  duty,  and  the 
whole  of  this  is  contained  in  eight  words: 

Such  lists  shall  be  signed  by  the  governor. 


534  ELECTORAL    COUNT    OF    1877. 

The  governor  has  not  signed  the  lists.  But  what  matter  is  that  ?  The 
provision  requiring  him  to  do  so  is  directory.  It  is  not  of  the  essence  of 
the  lists  or  the  election  they  evidence.  There  is  a  substantial  compli 
ance  with  the  law  without  his  signature,  and  all  the  authorities  say  this 
is  sufficient.  The  want  of  his  name  is  a  mere  irregularity.  It  is  not 
the  evidence,  but  a  mere  attestation  of  the  real  evidence  of  election  made 
and  furnished  by  the  secretary  of  state.  This  irregularity  cannot  affect 
the  evidence  or  defeat  the  will  of  the  people.  McCrary  says : 

The  principle  is  that  irregularities  which  do  not  tend  to  affect  results  are  not  to  de 
feat  the  will  of  the  majority;  the  will  of  the  majority  is  to  be  respected  even  when 
irregularly  expressed. — Law  of  Elections,  sections  127,  128. 

He  cites  Juker  vs.  Comrn.,  20  Pa.  State,  493 ;  Carpenter's  Case,  2 
Pars.,  540;  Pratt  vs.  People,  29  111.,  72;  Briglitly's  Election  Cases,  448- 
450;  Keller  vs.  Chapman,  34  Gal.,  635;  Sprague  vs.  Norway,  31  Cal., 
173  ;  Gorham  vs.  Campbell,  2  Cal.,  135 ;  Hardeuburgh  vs.  Farmers7  Bank, 

2  Green.,  (ST.  J.,)  68;  Day  vs.  Kent,  1  Oregon,  123;  Taylor  vs.  Taylor, 
20  Minn. ,107;  People  vs! Bates,  11  Mich.,  363;  McKiuney  vs.  O'Connor, 
26  Texas,  5;  Jones  vs.  State,  1  Kansas,  270;  Arnold  vs.  Lea,  Clarke  & 
Hall,  601. 

The  whole  is  summed  up  in  a  few  words  by  Brightly,  who  says: 

That  a  mere  irregularity  on  the  part  of  the  election  officers  or  their  omission  to  ob 
serve  some  merely  directory  provision  of  the  law  will  not' vitiate  the  poll,  is  a  point 
sustained  by  the  whole  current  of  authorities.  *  *  *  The  conduct  of  the  election 
officers  in  the  performance  of  the  duties  enjoined  by  law,  and  their  observance  of  the 
provisions  of  the  statutes  in  regard  to  the  recording  and  return  of  the  legal  votes 
received  by  them,  would  seem  to  fall  within  the  description  of  directory  provisions, 
and  any  departure  on  their  part  from  a  strict  observance  of  such  portions  of  the  elec 
tion  law  to  be  regarded  as  irregularities  which  do  not  vitiate.  (People  vs.  Schernier- 
horn,  19  Barb.,  540;  Cornm.  rs.  Meeser,  44  Pa.  St.,  343  ;  Lancaster  election,  4  Votes  of 
Assembly,  127 ;  Thompson  vs.  Ewing,  1  Brewst.,  107:  Mann  vs.  Cassidy,  1  Brewst.,  60; 
Weaver  vs.  Given,  idem.,  157 ;  Gibbous  vs.  Shepherd,  2  Brewst.,  74 ;  Doughty  vs.  Hope, 

3  DenJo,  249;  Elmendorf  vs.  Mayor,  25  Wend.,  696  ;  Ex  parte  Heath,  3  Hill,  43;  Jack 
son  vs.  Young,  5  Cow.,  269  ;  Stryker  vs.  Kelly,  7  Hill,  9  ;  People  rs.  Peck,  11  Wend.,  604 ; 
19  Wend.,  143;  Smith  on  Statutes,  782,  789!) 

These  provisions  of  law  make  the  lists  of  electors  certified  by  the  sec 
retary  of  state  evidence — sufficient  evidence.  We  are  not  seeking  to  use 
evidence  unauthorized  by  law  to  defeat  that  which  is.  but  we  are  asking 
to  defeat  that  which  is  in  violation  of  law  by  that  which  is  in  pursuance 
of  laic.  Watts  then  comes  with  sufficient  evidence  of  title. 

In  examining  the  evidence  of  title  to  office,  the  question/is  not  so 
much  what  a  certificate  may  in  mere  words  say,  but  what  is  the  legal 
effect  of  the  facts  lawfully  shown  by  it. 

Let  me  illustrate:  Suppose  a  certificate  of  election  shows  the  vote 
given  for  two  eligible  candidates  to  be  10,000  for  one  and  20,000  for 
another,  and  then  declares  the  minority  candidate  elected,  when  the 
statute  provides  that  the  candidate  having  the  highest  number  of  votes 
shall  be  deemed  elected ;  can  it  be  doubted  that  such  certificate  would 
give  a  title  to  the  majority  candidate  ? 

It  says  in  mere  words  the  minority  candidate  is  elected,  but  in  legal 
effect  it  says  the  majority  candidate  is  elected.  To  hold  the  minority 
candidate  as  having  the  title  to  the  office,  would  be  to  stick  in  the  bark : 
Qui  hceret  in  liter  a,  hceret  in  cortice. 

Here,  then,  without  going  back  to  the  abstract  of  votes,  the  Cronin 
certificate  of  election  is  shown  by  sufficient  evidence  to  be  untrue,  and 
so  must  be  rejected. 

2.  Cronies  certificate  is  contradicted  by  the  certified  abstract  of  votes,  and 
is  therefore  invalid  as  to  him. 


ELECTORAL    COUNT    OF    1877.  535 

It  is  well  settled  that  it  is  the  election  which  gives  the  right  to  an 
office,  and  not  the  commission  or  certificate  of  election. 
In  People  vs.  Pease,  27  New  York,  55,  it  was  said  : 

It  is  not  the  canvass  or  estimate  or  certificate  which  determines  the  right.  These 
are  only  evidences  of  the  right. 

In  Mansfield  vs.  Moor,  53  Illinois,  428,  it  was  said  : 

The  commission  was  evidence  of  the  title,  but  not  the  title.  The  title  was  conferred 
by  the  people,  and  the  evidence  of  the  right  by  the  law. 

Whatever  may  be  the  rule  in  other  States,  the  constitution  and  stat 
ute  of  Oregon  have  limited  the  power  of  the  secretary  of  state  in  de 
claring  the  result  of  a  canvass  and  the  governor  in  attesting  it,  so  that 
they  cannot,  for  any  cause,  certify  the  election  of  a  minority  candidate. 
They  give  an  effect  to  the  result  of  the  canvass  which  is  prescribed  by 
law,  and  this  cannot  be  defeated  by  a  certificate  in  violation  of  law. 
The  final  canvass  is  the  substance,  the  certificate  based  on  it  is  the 
shadow — the  mere  legal  result.  The  fountain  can  rise  no  higher  than 
its  source ;  the  structure  can  only  stand  on  its  foundation.  The  ab 
stract  of  votes  is  higher  in  authority  and  greater  in  effect  than  any  cer 
tificate  founded  on  it.  If  the  secretary  of  state  should,  by  his  certifi 
cate,  give  it  a  construction  contrary  to  law,  his  error  may  be  corrected 
by  the  law. 

This  is  the  result  which  on  the  facts  arises  from  the  constitution  and 
statute  of  Oregon. 

The  Oregon  statute  requires  the  votes  in  each  county  for  electors  to 
be  returned  duly  certified  to  the  secretary  of  state.  It  then  provides 
that— 

It  shall  be  the  duty  of  the  secretary  of  state,  in  the  presence  of  the  governor,  to 
canvass  the  votes. 

Then  the  constitution  says  : 

That  person  or  persons  who  shall  receive  the  highest  number  of  votes  shall  be 
declared  duly  elected. 

And  the  statute  provides  that — 

The  person  having  the  highest  number  of  votes  shall  be  deemed  elected. 

The  constitution  says  the  plurality  candidate  shall  be  declared  duly 
elected.  This  is  a  direction  to  the  secretary  of  state  in  his  canvass. 
But  it  was  foreseen  that  his  certificate  might  not  conform  to  the  actual 
result  of  the  canvass,  and  the  statute  goes  further  and  says  u  the  per 
son  having  the  highest  number  of  votes  shall  Adeemed  elected."  Where 
so  deemed  ?  Everywhere.  By  whom  ?  Not  merely  by  the  canvasser, 
but  by  the  entire  public.  This  authorizes  the  officer  to  assert  his  title 
on  the  highest  and  best  evidence  which  shows  who  is  "  the  person 
having  the  highest  number  of  votes."  This  provision  is  a  remedy  for 
such  stupendous  frauds  as  that  attempted  by  the  governor  of  Oregon. 
The  same  question  had  been  made  in  the  legislature  of  Ohio  in  Decem 
ber,  1848,  and  the  statute  of  Oregon  intended  to  avoid  it.  The  certifi 
cate  of  Cronin,  then,  is  unauthorized,  because  disproved  by  the  certified 
abstract  of  votes. 

The  result  arises  on  the  record.  A  conclusion  declared  by  law  on 
facts  certified  according  to  law  cannot  be  annulled  by  a  certificate  in 
conflict  with  law,  made  by  an  officer  whose  duty  it  is  to  act  in  obedience 
to  law.  If  the  canvass  of  votes  and  lists  of  electors,  certified  by  the 
secretary  of  state,  should  show  that  there  were  three  sets  of  candi 
dates,  and  should  certify  the  vote  or  show  which  candidates  "  received 


536  ELECTORAL   COUNT   OF   1877. 

the  highest  number  of  votes,"  and  these  officers  should  certify  in  the 
same  paper  that  those  receiving  the  lowest  number  of  votes  were  elected, 
could  this  be  claimed  as  evidence  of  title  to  office  in  the  candidates 
having  the  lowest  number  of  votes  ?  Such  certificate  would  be  valid 
as  to  the  authorized  facts  it  recites;  it  would  be  void  in  stating  a  con 
clusion  which  the  law  does  not  permit  to  be  drawn.  The  statute  is 
mandatory  as  to  the  person  elected.  It  is  a  universal  rule  of  law  that 
any  act  done  in  violation  of  a  mandatory  law  is  void. 

Mr.  Commissioner  THURMAN.  Do  I  understand  you  to  say  that  the 
certificate  of  the  governor  must  show  the  number  of  votes  given  to  the 
electors  ? 

Mr.  Representative  LAWRENCE.  I  say  that  a  certificate  which  has 
within  it  an  allegation  which  is  equivalent  in  effect  to  a  negative  preg 
nant  is  equivocal,  doubtful  on  its  face,  and,  when  contradicted  by  evi 
dence  of  equal  dignity,  it  falls.  Besides  that,  I  say  that  Cronin  does 
not  come  with  the  certificate  required  by  law,  with  separate  lists  pre 
pared  and  certified  by  the  secretary  of  the  State,  and  that  the  govern 
or's  paper  is  not  a  certificate  of  the  secretary  at  all.  "  I,  Grover,  the 
governor,  do  certify  ;w  not  "  J,  the  secretary  of  state."  The  governor 
should  have  attested  the  lists  which  were  given  to  the  Hayes  electors. 
Instead  of  that,  he  has  undertaken  to  certify,  when  the  law  does  not 
authorize  him  to  certify  anything.  He  is  merely  to  attest  the  lists  of 
electors,  and  Cronin  is  absolutely  without  title. 

The  certificates  then  show  the  election  of  Watts.  The  utmost  that 
could  be  claimed  for  all  the  certificates  taken  together  is  that  they  show 
the  election  of  Odell,  Cartwright,  and  Watts  by  a  majority  of  the  pop 
ular  vote,  but  that  the  governor  decided  Watts  ineligible,  and  so  declared 
Cronin,  an  opposing  minority  candidate,  elected.  It  amounts  to  no  more 
than  the  expression  of  a  legal  opinion  by  the  governor  that  on  the  facts 
Cronin  is  elected.  But  if  his  legal  opinion  is  wrong,  if  it  assigns  to  the 
facts  an  effect  they  cannpt  in  law 'have,  then  the  certificates  show  Watts 
elected  or,  at  least,  Cronin  not  elected.  The  legal  O2)inion  that  he  was 
is  disproved  by  other  facts  stated,  and  effect  must  be  given  according 
to  the  real  law,  not  the  governor's  erroneous  opinion  of  the  law.  His 
legal  opinion  may  be  rejected  as  surplusage  ;  the  law  rejects  it  on  the 
facts. 

The  certificates  all  taken  together  show  that  Watts  was  duly  elected. 
To  illustrate  this,  let  me  suppose  that  a  certificate  had  been  made  in 
the  form  following : 

"The  undersigned,  secretary  of  state  and  governor  of  Oregon,  certify 
as  follows : 

"  The  said  secretary  certifies  that  at  the  election  of  November  7,  for 
presidential  electors — 

"  W.  H.  Odell  received  15,206  votes. 

"  J.  W.  Watts  received  15,206  votes. 

"  J.  C.  Cartwright  received  15,214  votes. 

"  Henry  Klippel  received  14,136  votes. 

"  E.  A.  Crouin  received  14,157  votes. 

"  W.  B.  Laswell  received  14,149  votes. 

"That  the  foregoing  votes  were,  December  4,  1876,  opened  and  can 
vassed  by  the  secretary,  in  the  presence  of  the  governor,  according  to 
law,  and  that  the  foregoing  is  the  result  of  the  votes  cast. 

"  The  said  governor  also  certifies  that  of  said  persons  voted  for,  J.  W. 
Watts  was  ineligible  :  and  the  said  governor  therefore  hereby  declares — 

"William  H.  Odell, 

"  John  C.  Cartwright,  and 


ELECTORAL    COUNT    OF    1877.  537 

"  E.  A.  Cronin  to  be  duly  elected  electors  of  said  State. 
Dated  December  C,  187G. 

"LA  FAYETTE  GBOVEK, 
[L.  s.l  "  Governor. 

"  S.  F.  OHADWIOK, 

"  Secretary  of  State." 

Can  it  be  doubted  that  the  legal  effect  of  such  a  certificate  would  be 
to  vest  in  Watts  the  title  to  the  electoral  office  !  Clearly  this  must  be 
so.  JSow  all  the  certificates  before  the  Commission  show  no  more  than 
this,  and  therefore  they  show  Watts  tobe  legally  elected,  without  going 
back  of  the  returns  into  evidence  aliunde. 

To  summarize  this  :  the  objections  to  the  votes  given  by  the  "  Tilden 
electors,"  all  resting  on  Cronin's  assumed  evidence  of  title  to  the  elect 
oral  office,  are  these : 

1.  Croniii  "  refused  to  act'7  with  the  other  electors  duly  appointed,  or 
"  neglected  to  attend,"  and  if  he  was  an  elector  his  office  l3ecame  vacant. 

2.  The  governor's  certificate  of  appointment  is,  as  to  Cronin,  shown 
to  be  unauthorized  and  untrue,  by  evidence  of  equal  dignity  and  legal 
value  :  first,  the  list  of  electors  certified  by  the  secretary  of  state;  and, 
second,  the  abstract  of  the  popular  vote. 

3.  W^hile  the  governor's  certificate  shows  two  of  the  Hayes  electors, 
Odell  and  Cartwright,  duly  appointed,  and  the  certified  abstract  of  votes 
proves  the  certificate  as  to  them  to  be  legal  and  authorized,  it  is  shown 
from  the  same  evidence  that  as  to  Cronin  the  governor's  certificate  on 
its  face  gives  no  title  to  office,  because  it  does  not  certify,  as  the  law 
requires,  tbat  he  "  received  the  highest  number  of  votes,"  but  only  that 
he  received  the  highest  number  "for  persons  eligible."    As  to  Cronin, 
it  is  no  better  than  if  it  should  certify  that  he  received  the  "  highest 
number  of  votes  given  for  persons  of  color,"  or  the  "  highest  number 
for  persons  of  Chinese  origin,"  or  "  the  highest  number  for  native-born 
citizens  of  Oregon." 

4.  Cronin  fails  to  produce  any  certificate  from  the  secretary  of  state 
showing  a  list  of  the  electors  duly  elected.    In  the  governor's  certificate 
the  secretary  of  state  certifies  nothing.     He  merely,  as  a  subscribing 
witness,  attests  the  act  of  the  governor.     There  is  no  escape  from  this 
conclusion  unless  two  principles  be  resolved  in  the  affirmative : 

First,  That  the  governor  had  power  to  ascertain  and  declare  the 
alleged  ineligibility ;  and, 

Second,  That  this  would  render  the  election  of  Watts  void,  and  elect 
Croniu,  a  minority  candidate. 

Neither  one  of  these  positions  can  be  maintained.  This  I  proceed  to 
show. 

1.  Neither  the  governor,  nor  secretary  of  state,  nor  both  combined  have  any 
power  to  inquire  or  decide  whether  Watts  held  an  office  which  rendered  him 
ineligible  as  an  elector. 

(a)  The  governor  is  not  a  canvassing-officer,  and  hei^ce  has  no  poiver  to 
make  any  inquiry. 

It  is  by  law  made  the  duty  of  the  secretary  of  state  to  canvass  the 
votes  and  make  two  lists  of  the  electors  having  u  the  highest  number 
of  votes."  The  governor  canvasses  nothing;  he  makes  no  certificate. 
His  whole  power  as  to  the  election  and  the  lists  made  by  the  secretary 
of  state  is  given  in  eight  words: 

Such  lists  shall  be  signed  by  the  governor. 

It  is  not  a  power  at  all,  it  is  a  naked  duty,  to  sign  his  name. 

(b)  The  secretary  of  state  as  a  canvassing -officer  has  no  such  power.    The 


538  ELECTORAL    COUNT    OF    1877. 

secretary  of  state  is  the  canvassing-officer.    His  whole  power  is  given 
in  these  words : 

It  shall  be  the  duty  of  the  secretary  of  state      *      *       *      to  canvass  the  votes, 
prepare  two  lists  of  the  electors  elected,     *     *      :     affix  the  seal  of  the  State, 

*  *     *     arid  sign  and  deliver  them  to  the  electors. 

The  power  to  canvass  is  merely  a  power  to  count.  It  was  said  in 
Morgan  vs.  Quackeubush,  22  Barb.,  77,  that  canvassing-offieers  "  are 
not  at  liberty  to  receive  evidence  of  anything  outside  of  the  returns 
themselves." 

The  whole  law  is  clearly  sta'ed  by  McCrary,  who  says  of  canvassing- 
offieers  : 

The  true  rule  is  this.  They  must  receive  and  count  the  votes  as  shown  by  the  re 
turns,  and  they  cannot  go  behind  the  returns  for  any  purpose;  and  this  necessarily  implies 
that  if  a  paper  is  presented  as  a  return,  and  there  is  a  question  as  to  whether  it  is  a 
return  or  not,  they  must  decide  that  question  from  what  appears  upon  the  face  of  the 
paper  itself. — Law  of  Election,  sec.  82. 

He  has  collected  the  numerous  authorities  upon  the  subject,  and, 
among  them  all,  there  is  not  one  to  controvert  this  rule,  except  only  the 
one  case  in  Indiana,  of  Gulick  vs.  New.  The  cases  in  England  and  New 
York  concede  no  such  power  to  any  canvassing  or  executive  officer. 

The  direct  question  now  before  the  Commission  has  been  decided. 
In  State  vs.  Vail,  53  Missouri,  97,  the  facts  were  these:  Dining  received 
a  majority  of  the  votes  for  judge,  as  shown  by  the  election  returns,  over 
Vail.  The  secretary  of  state  certified  the  vote  as  given  to  the  governor. 
He  undertook  to  inquire  as  to  the  eligibility  of  Dining,  and  decided  that 
he  was  ineligible  as  under  age  and  otherwise,  and  issued  a  commission 
to  Yail.  The  court  on  quo  ivarranto  decided  that — 

In  opening  and  casting  up  the  votes  at  an  election  *  *  *  the  secretary  of  state 
[as  a  canvassing-officer]  has  no  discretion  and  cannot  determine  upon  the  legality  of 
the  votes,  and  it  is  the  duty  of  the  governor  to  issue  the  commission  in  accordance 
with  the  result  so  ascertained.  All  of  these  officers  act  ministerially  and  not  judi 
cially. 

The  court  say : 

To  allow  a  ministerial  officer  arbitrarily  to  reject  returns  *  *  *  is  to  infringe 
or  destroy  the  rights  of  parties  without  notice  or  opportunity  to  be  heard  ;  a  thing 
which  the  law  abhors  and  prohibts.  *  *  The  law  has  provided  [judicial]  tri 
bunals  with  ample  power  to  hear  and  determine  all  questions,  *  *  *  where  the 
parties  can  have  a  fair  trial. 

The  governor,  *  *  where  he  issues  a  commission,  *  *  *  is  simply  per 

forming  a  ministerial  duty,  in  which  he  must  necessarily  be  governed  by  the  returns. 

*  *      *     He  has  no  means  of  ascertaining     *      *      *      whether  opposing  candidates 
are  disqualified.     These  matters     *      *     *     may  be  inquired  into  elsewhere,  [in  the 
courts.] 

This  doctrine  was  affirmed  in  State  vs.  Townsley,  50  Missouri,  107 ; 
where  it  was  held  that — 

In  counting  the  votes  for  a  circuit  judge,  neither  the  governor  nor  secretary  of  state 
has  any  authority  to  go  behind  the  returns. 

In  Commonwealth  vs.  Cluly,  5G  Pa.  State,  270,  it  is  said  by  his  honor 
Judge  Strong  that  votes  given  for  an  ineligible  candidate  "cannot  be 
rejected  by  the  inspectors  nor  thrown  out  of  the  count  by  the  return 
judges." 

The  reason  is,  the  want  of  poicer  to  judge  of  ineligibility.  Wher,e  votes 
are  so  thrown  out,  where  an  act  is  done  beyond  lawful  power,  it  is  ultra 
vires  and  void.  Bouvier  defines  ultra  vires,  as  applied  to  corporations, 
"acts  beyond  the  scope  of  their  powers,"  and  says,  "Such  acts  are 
void." 

(c)  It  is  not  pretended  that  any  power  is  given  in  express  terms  to  the 


ELECTORAL    COUNT    OF    1877.  539 

governor  or  secretary  of  state  to  pass  upon  the  question  of  eligibility. 
But  the  governor  of  Oregon,  in  defending  his  exercise  of  power,  claims 
that  it  exists  as  incidental  to  his  office,  and  he  quotes  from  Judge  Cooley, 
in  his  work  on  Constitutional  Limitations,  pages  39,  41,  as  follows : 

Whenever  any  one  is  called  upon  to  perform  any  constitutional  duty,  or  to  do  any 
act  in  respect  to  which  it  can  be  supposed  that  the  Constitution  has  spoken,  it  is 
obvious  that  a  question  of  construction  may  at  once  arise,  upon  which  some  one  must 
decide  before  the  duty  is  performed  or  the  act  done.  From  ,the  very  nature  of  the  case 
this  decision  must  commonly  be  made  by  the  person,  body,  or  department  upon  whom 
the  duty  is  devolved,  or  from  whom  the  act  is  required.  *  *  *  It  follows,  therefore, 
that  every  department  of  the  Government,  and  every  official  of  every  department,  may 
at  any  time  when  a  duty  ifl  to  be  performed  be  required  to  pass  upon  a  question  of 
constitutional  construction. 

He  then  assumes  that- the  statute  says  he  "shall  grant  certificates  to 
the  members  duly  elected,"  and  that  hence  he  must  judge  who  is  elected. 
But  there  is  no  such  statute  as  to  electors.  There  is  as  to  Senators  and 
Representatives  in  Congress.  But  even  as  to  these  he  has  no  power  to 
judge  of  ineligibility.  If  he  had,  it  would  not  enlarge  his  power  as  to 
electors,  but  rather  would  show  that  as  to  them  it  did  not  exist. 

The  incidental  power  which  Cooley  asserts  to  exist  as  applied  to  gov 
ernor  must  be  limited  to  executive  power,  and  cannot  be  enlarged  by  con 
struction  to  include  judicial  power. 

In  Commonwealth  vs.  Jones,  10  Bash.  Kentucky  Reports,  726,  it  is 
sufficiently  shown  that  the  governor,  as  a  canvassing-officer,  cannot  pass 
upon  any  question  of  ineligibility.  The  court  held  that — 

Where  the  inquiry  to  be  made  involves  questions  of  law  as  well  as  fact,  where  it 
affects  a  legal  right,  and  the  decision  may  result  in  terminating  or  destroying  that 
right,  the  power  to  be  exercised  and  the  duties  to  be  discharged  are  essentially  ju 
dicial,  and  such  as  cannot  be  constitutionally  delegated  to  or  imposed  upon  execu 
tive  officers. 

That  was  in  a  case,  too,  where  the  canvassing-officers  had  authority  to 
try  contested  questions. 

The  same  question  in  effect  was  decided  in  Csesar  Griffin's  case,  re 
ported  in  Chief  Justice  Chase's  Decisions,  by  Johnson. 

(d.)  The  power  to  judge  of  ineligibility  is  judicial  power  and  therefore 
cannot  be  exercised  by  the  governor  or  secretary  of  state,  for  they  have 
no  judicial  authority. 

This  results  from  the  inherent  character  of  the  office  of  governor  and 
secretary  of  state.  The  constitution  of  Oregon  creates  three  separate, 
distinct,  co-ordinate  branches  of  government,  legislative,  executive,  and 
judicial.  It  does  more;  it  expressly  prohibits  the  executive  officers  from 
assuming  to  decide  a  question  of  eligibility  by  declaring  that — 

No  person  charged  with  official  duties  under  one  of  these  departments  shall  exercise 
any  of  the  functions  of  another. 

The  construction  which  would  give  to  the  governor  as  incidental  to 
his  office  authority  to  judge  of  the  eligibility  of  candidates  would  enable 
him  to  swallow  up  the  duties  of  all  other  departments.  It  is  made  the 
duty  of  the  governor  to  execute  the  laws.  The  laws  require  the  punish 
ment  of  those  who  are  guilty  of  crime.  But  the  governor  cannot  in 
quire  as  to  the  guilt  of  the  smallest  offender,  though  the  law  would  not 
otherwise  be  executed  as  to  him,  because  the  inquiry  is  judicial. 

1.  The  governor  had  no  power  to  appoint  an  elector.  This  is  not  pre 
tended.  As  he  was  utterly  destitute  of  power,  Cronin  cannot  claim 
any  right  as  an  officer  de  facto  by  virtue  of  any  unsupported  act  of  the 
governor. 

An  attempted  appointment  would  be  ultra  vires  and  void.     It  would 


540  ELECTORAL    COUNT    OF    1877. 

confer  DO  color  of  right.  If  Cronin  claimed  under  such  appointment 
he  would  be  a  mere  usurper,  and  his  acts  would  be  void. 

"A  mere  usurper  in  office,"  says  McOrary,  "  can  have  no  authority 
and  can  perform  no  valid  official  act.7'  (Daily  vs.  Estabrook,  1  Purtlett, 
sections  80,  299.) 

And  now,  to  recapitulate  on  this  point,  the  governor  and  secretary 
of  state  cannot  judge  of  ineligibility  : 

1.  Because  the  power  to  canvass  votes,  as  determined  by  every  re 
spectable  authority,  does  not  reach  back  of  the  returns. 

2.  The  direct  question  as  to  eligibility  has  been  decided  by  courts 
whose  reasoning  is  unanswerable. 

3.  The  power  is  judicial,  and  executive  officers  can  exercise  no  judicial 
power. 

4.  The  constitution  of  Oregon  expressly  prohibits  it  by  declaring 
that — 

The  persons  who  shall  receive  the  highest  number  of  votes  shall  be  declared  duly 
elected, 

without  regard  to  eligibility,  which,  being  a  judicial  inquiry,  is  left  to 
the  courts. 

5.  The  statute  of  Oregon  expressly  prohibits  it  by  declaring  that — 

The  person  having  the  highest  number  of  votes  for  any  office  shall  be  deemed  elected, 

no  matter  what  the  governor  may,  without  authority,  declare. 

2.  The  ineligibility  of  Watts  would  not  give  the  election  to  Cronin,  a  mi 
nority  candidate. 

The  Constitution  of  the  United  States  provides  that — 

Each  State  shall  appoint  *  *  *  electors,  *  *  *  but  no  Senator  or  Repre 
sentative,  or  person  holding  an  office  of  trust  or  profit  under  the  United  States,  shall 
be  appointed  an  elector. 

It  is  a  general  rule  that  if  an  ineligible  person  should  be  elected,  he 
can,  by  a  judicial  proceeding  by  quo  warranto,  be  ousted  from  office. 
The  fact  that  quo  warranto  will  lie,  shows  that  the  election  is  not  abso 
lutely  void.  (State  vs.  Boal,  46  Missouri,  528.) 

The  election  is  not  void,  but  at  most  only  voidable. 

The  authorities  are  so  abundant  to  prove  that  a  minority  candidate 
is  not  elected  by  the  ineligibility  of  an  opposing  candidate,  the  reason 
ing  so  logical  and  conclusive,  the  consequences  of  so  holding,  so  unjust, 
pernicious,  and  against  the  policy  of  our  republican  institutions,  that  I 
will  content  myself  with  a  reference  to  some  of  the  authorities  without 
commenting  on  the  cases  at  large.  They  hold  the  doctrine  that  the 
minority  candidate  is  not  elected.  This  has  been  decided  in  Georgia, 
Wisconsin,  Louisiana,  Pennsylvania,  Mississippi,  and  California,  and  it 
has  been  well  said  that  these  decisions  have  the  stamp  of  unqualified 
approval  from  such  distinguished  jurists  as  Cooley  and  Dillon.  Cooley, 
on  Constitutional  Limitations,  page  620,  says : 

If  the  person  receiving  the  highest  number  of  votes  was  ineligible,  the  votes  cast 
for  him  will  still  be  effectual  so  far  as  to  prevent  the  opposing  candidate  being  chosen. 

Dillon,  on  Municipal  Corporations,  volume  1,  page  258,  section  135, 
observes : 

That  when  the  statute  fails  to  declare  that  votes  cast  for  an  ineligible  person  are 
void,  (and  there  is  no  such  statute  in  Oregon,)  the  effect  of  such  person  receiving  a 
majority  of  the  votes  cast  is,  according  to  the  weight  of  American  authority  and  the 
reason  of  the  matter,  that  a  new  election  must  be  held,  and  not  to  give  the  office  to 
the  qualified  person  having  the  next  highest  number  of  votes. 

He  cites  the  following  cases:  The  State  vs.  Swearingen,  (12  Georgia, 


ELECTORAL    COUNT    OF    1877.  541 

23;)  State  vs.  Giles,  (1  Chandler,  Wisconsin,  112;)  State  vs.  Gartwell, 
(20  Louisiana,  114;)  Cooley  on  Limitations,  620  ;  McLaughlin  vs.  Sheriff 
of  Pittsburgh,  (Legal  Journal,  July,  1868  ;)  opinion  of  the  judges  of 
Maine,  appendix  to  volume  38  of  Reports ;  Saunders  vs.  Haynes,  (13 
Gal.,  145  ;)  State  vs.  Smith,  (14  Wisconsin,  497.) 

Since  Dillon  wrote,  in  the  State  of  Mississippi,  in  the  case  of  Sublett 
vs.  Bidwell,  (47  Miss.,  266,)  it  was  held : 

If  the  majority  candidate  is  disqualified  it  does  not  follow  that  he  who  has  received 
the  next  highest  vote,  and  is  qualified,  shall  take  the  office. 

In  Fish  vs.  Collins,  (21  Louisiana,  289,)  it  was  said  : 

If  a  competitor  received  a  greater  number  of  lawful  votes  than  the  claimant,  the 
latter  does  not  establish  a  right  to  the  office  by  showing  that  his  competitor  was  ineli 
gible. 

In  California,  in  1859,  when  the  justices  of  the  supreme  court  were 
Field,  ^Baldwin,  and  Terry,  in  Saunders  vs.  llaynes  (13  Cal.,  155)  the 
exact  question  was  decided.  The  court  said  : 

It  will  be  observed  that  the  point  of  this  defense  is,  that  the  votes  cast  for  Turner 
supposing  he  received  the  highest  number,  were  nullities,  because  of  his  assumed  inel- 
igibility.  But  we  do  not  so  consider,  although  some  old  cases  may  be  found  affirming 
this  doctrine.  We  think  that  the  better  opinion  at  this  day  is  that  it  is  not  correct. 

Our  legislative  precedents  seem  to  be  the  same  way.  Upon  principle,  we  think  the 
law  should  be  so  ruled.  An  election  is  the  deliberate  choice  of  a  majority  or  a  plural 
ity  of  the  electoral  body.  This  is  evidenced  by  the  votes  of  the  electors.  But  if  a 
majority  of  those  voting,  by  mistake  of  law  or  fact,  happen  to  cast  their  votes  upon 
an  ineligible  candidate,  it  by  no  means  follows  that  the  next  to  him  on  the  poll  should 
receive  the  office.  If  this  be  so,  a  candidate  might  be  elected  who  received  only  a 
small  portion  of  the  votes,  and  who  never  could  have  been  elected  at  all  but  for  this 
mistake.  *  *  *  It  is  fairer,  more  just,  and  more  consistent  with  the  theory  of  our 
institutions  to  hold  the  votes  so  cast  as  merely  ineffectual  for  the  purposes  of  an  election 
than  to  give  them  the  effect  of  disappointing  the  popular  will  and  electing  to  office  a 
man  whose  pretensions  the  people  had  designed  to  reject. 

And  from  an  eminent  lawyer  of  that  State,  Hon.  George  Cadwal- 
ader,  I  learn  that  "  after  the  lapse  of  seventeen  years  the  same  question 
again  came  up  before  the  present  supreme  bench,  and  was  decided  by 
it  in  the  same  way,  on  the  13th  clay  of  November,  1876,  in  the  case  of 
Crawford  vs.  Dunbar.  The  court,  in  its  opinion,  after  stating  that  Dun- 
bar,  receiving  the  highest  number  of  votes,  was  not  elected  because 
ineligible,  in  regard  to  the  claim  of  Crawford,  that  he  should  have  the 
office  because  he  had  received  the  next  highest  number  of  votes,  said 
emphatically:  'This  position  cannot  be  maintained;'  and  then  goes  on 
to  approve  and  adopt  the  views  expressed  in  Saunders  vs.  Haynes,  sev 
enteen  years  before." 

There  are  still  other  American  cases  against  the  doctrine  that  a 
minority  candidate  is  elected:  (Cornm.  vs.  Cluly,  56  Pa.  St.,  270;  Cor 
liss's  Case,  16  American  LawKegister,  N.  S.,  15;  Whitman  vs.  Malouy, 
10  Cal.,  47;  People  vs.  Moliter,  23  Mich.,  341;  State  vs.  Vail,  53  Mis 
souri,  97 ;  State  vs.  Gastinel,  18  La.  An.,  517;  Cochran  vs.  Jones,  14 
American  Law  Eegister,  1ST.  S.,  222 ;  McCrary,  Law  of  Elections,  chap 
ter  5,  sec.  231-235.) 

The  legislative  precedents  generally  hold  the  same  doctrine.  (Mc 
Crary,  Law  of  Elections,  sec.  232;  Smith  vs.  Brown,  2  Bartlett,  395.) 

The  English  rule,  as  stated  by  Gushing,  by  Grant,  by  Angell  and 
Ames,  and  as  shown  by  the  decided  cases,  is  that  the  ineligibiiity  of 
the  plurality  candidate  does  not  secure  the  election  of  the  minority 
candidate  unless  the  ineligibiiity  is  proved  to  be  known,  for  it  is  never 
presumed  unless  patent  and  notorious;  and  in  Queen  vs.  Mayor,  3  Law 
Reports  Q.  B.,  629,  it  was  said : 


542  ELECTORAL    COUNT    OF    1877. 

It  is  not  enough  to  show  that  the  voter  knew  the  fact  only,  but  it  is  necessary  to 
show  sufficient  to  raise  a  reasonable  inference  that  he  knew  that  the  fact  amounted  to 
a  disqualification.  (King  vs.  Monday,  Cowper,  537  ;  Rex  vs.  Hawkins,  10  East,  211 ; 
Hawkins  vs.  Rex,  2  Dow,  124;  Gosling  vs.  Veley,  7  Adol.  and  Ellis,  406;  Cleridge  vs. 
Snyder,  5  Barn,  and  Adol.,  81 ;  Douglas,  398,  n.  22 ;  Rex  vs.  Bridge,  1  Maule  and  Sel- 
wyn,  76.) 

The  Indiana  cases  follow  substantially  the  English  rule.  (Gulick  vs. 
New,  14  Ind.,  93 ;  Carson  vs.  McPhetridge,  15  Ind.,  327  ;  Price  vs.  Baker, 
41  Ind.,  572.) 

The  rule  in  New  York  is  stated  in  People  vs.  Olute,  50  New  York,  451, 
by  the  court  as  follows : 

The  existence  of  the  fact  which  disqualifies,  and  of  the  law  which  makes  that  fact 
operate  to  disqualify,  must  be  brought  home  so  closely  and  so  clearly  to  the  knowledge 
or  notice  of  the  elector  as  that  to  give  his  vote  therewith  indicates  an  intention  to 
waste  it.  The  knowledge  must  be  such,  or  the  notice  so  brought  home,  as  to  imply  a 
willfulness  in  acting  when  action  is  in  opposition  to  the  natural  impulse  to  save  the 
vote  and  make  it  effectual.  He  must  so  act  in  defiance  of  both  the  law  and  the  fact, 
and  so  in  opposition  to  his  own  better  knowledge,  that  he  has  no  right  to  complain  of 
the  loss  of  the  franchise,  the  exercise  of  which  he  has  wantonly  misapplied. 

The  alleged  ineligibility  of  Watts  was  utterly  unknown  to  the  voters 
of  Oregon.  There  is  not  one  case  in  any  court  in  any  country  which 
supports  Croilin  in  his  claim  to  office.  Solitary  and  alone  it  stands  out 
in  the  naked  deformity  of  a  huge  iniquity  which  no  mantle  of  charity 
can  cover. 

Cronin,  then,  had  no  title  to  the  office  of  elector. 

I  now  proceed  to  a  third  proposition  material  to  the  inquiry  before 
the  Commission,  which  is: 

That  upon  the  laic  and  the  evidence  Watts  was  duly  appointed  an  elector. 

His  appointment  by  Odell  and  Cartwright  is  regular  in  form.  It  is 
attacked  upon  the  ground  that  there  was  no  vacancy  to  fill ;  that  the 
ineligibility  of  Watts  rendered  his  election  void  ;  that  he  was  not  an 
incumbent  of  the  office,  and  therefore  there  was  no  vacancy,  but  only  a 
case  of  non-election,  and  that  the  statute  of  Oregon  does  not  provide 
for  filling  such  place  by  appointment. 

I  will  maintain — 

First,  that  the  Oregon  statute  does  provide  for  the  case  of  a  non- election  ; 
and, 

Second,  that  in  law  and  fact  no  such  case  has  arisen,  but  that  Watts  was 
duly  elected. 

These  positions  I  will  discuss  in  the  order  I  have  stated. 

1.  The  Oregon  statute  provides  for  filling  a  vacancy  by  non-election. 
*    The  act  of  Congress  of  January  23,  1845,  passed  before  Oregon  was  a 
State,  declares — 

First.  That  each  State  may  by  law  provide  for  the  filling  of  any  vacancies  which 
may  occur  in  its  college  of  electors  when  such  college  meets  to  give  its  electoral  vote ; 

And, 

Second.  When  any  State  has  held  an  election  *  *  *  and  failed  to  make  a  choice, 
the  electors  may  be  appointed  on  a  subsequent  day  in  such  manner  as  the  legislature 
of  such  State  may  direct. 

This  word  "  may  "  in  each  of  these  provisions  is  by  all  the  authorities 
to  be  construed  imperative — shall.  (Supervisors  vs.  United  States,  4 
Wallace,  435.) 

These  provisions  can  give  no  new  power  to  the  legislature.  The  Con 
stitution  had  already  given  the  power.  But  as  Congress  h&d  fixed  a  day 
for  the  appointment  of  electors,  "  the  Tuesday  next  after  the  first  Mon 
day  in  November,"  it  was  necessary  to  provide  for  a  vacancy  by  a  failure 
to  elect  on  that  day,  and  for  a  vacancy  occurring  thereafter. 


ELECLORAL    COUNT    OF    1877.  543 

The  legislature  of  Oregon  knew  these  contingencies,  and  with  this 
law  of  Congress  before  it  provided  for  a  popular  election  of  electors  on 
the  proper  day,  and,  to  meet  both  the  contingencies  I  have  stated,  pro 
vided  by  law  as  follows  : 

The  electors  of  President  and  Vice-President  shall  convene  at  the  seat  of  government 
on  the  first  Wednesday  of  December,  *  *  *  and  if  there  shall  be  any  vacancy  in 
the  office  of  an  elector  occasioned  by  (1)  death,  (2)  refusal  to  act,  (3)  neglect  to  attend, 
or  (4)  otherwise,  the  electors  present  shall  immediately  proceed  to  fill  *  *  *  such 
vacancy. 

This  authorizes  an  appointment  in  a  case  of  non-election  ;  there  is  in 
such  case  a  vacancy. 

I  will  present  some  of  the  reasons  why  this  must  be  so. 
(1.)  This  is  a  statute  to  be  liberally  construed. 

(a)  If  it  does  not  provide  for  a  vacancy  in  case  of  non-election,  no  pro 
vision  is  made,  and  the  legislature  of  Oregon  intended  to  disregard  a 
duty  required  by  the  Constitution  of  the  United  States ;  intended  to  de 
prive  Oregon  of  an  electoral  vote ;  intended  to  deprive  all  the  States  of 
their  claim  that  Oregon  should  act  with  her  whole  political  power. 
Sedgwick  says: 

It  is  a  safe  and  wholesome  rule  to  adopt  the  restricted  construction  when  a  more  lib 
eral  one  will  bring  us  in  conflict  with  the  fundamental  law,  the  Constitution.  (Peo 
ple  vs.  Board  of  Education,  13  Barb.,  409.) 

E  converso,  when  a  liberal  construction  will  avoid  a  conflict  with  the 
Constitution  and  execute  a  duty  required,  it  must  be  adopted. 

(b)  It  is  a  remedial  statute,  to  be  liberally  construed.    It  provides  a 
remedy  for  the  accident  of  non-election,  death,  and  all  other  cases  of 
vacancy. 

There  can  be  no  question — 
Says  Dwarris— - 

•that  the  words  of  a  remedial  statute  are  to  be  construed  largely  and  beneficially,  so 
as  to  suppress  the  mischief  and  advance  the  remedy. — Dwarris,  page  632. 

This  is  indorsed  by  Sedgwick,  page  359.  Broom  says  this  rule  is 
adopted  a  to  add  force  and  life  to  the  cure  and  remedy  according  to  the 
true  intent  of  the  makers  of  the  act  pro  bono  publico."  Here  this  rule 
is  emphatically  invoked  pro  bono  publico.  Its  words  are  fairly  capable 
of  a  construction  which  will  secure  the  public  good.  (State  vs.  Newhall, 
3  Dutcher,  197 ;  14  Opinions  Attorneys  General,  265.) 

2.  The  rule  that  statutes  in  pari  materia  are  to  be  considered  together, 
leads  to  the  same  result. 

"All  acts  -in  pari  materia,"  said  Lord  Mansfield,  "  are  to  be  taken  to 
gether."  This  rule  is  well  known  and  recognized  in  this  country. 
(Sedgwick,  217.)  It  enables  courts  to  judge  what  one  provision  of  a  law 
means,  by  reference  to  another.  The  Oregon  statute,  in  providing  for 
some  vacancies  in  local  offices  to  be  filled  by  the  governor  and  the 
courts,  limits  the  vacancies  by  enumerating  those  which  arise  from  (1) 
death,  (2)  resignation,  (3)  removal,  (4)  non-residence,  (5)  conviction  of 
crime,  (6)  refusal  to  qualify,  and  (7)  judgment  of  ouster  ;  vacancies  in 
all  other  cases  are  to  be  filled  by  popular  vote.  The  appointing  power 
is  limited,  because  in  derogation  of  popular  suffrage.  But  when  the 
legislature  provided  for  electors  these  limitations  are  dropped,  and  it  is 
declared  that  a  vacancy  shall  be  filled,  if  there  be  any,  "  occasioned  by 
death,  refusal  to  act,  neglect  to  attend,  or  otherwise." 

Here  is  the  broad,  unlimited,  comprehensive  term  "or  otherwise."  It 
cannot  be  said  that  this  is  only  a  provision  for  vacancies  arising  from 


544  ELECTORAL    COUNT    OF    1877. 

death,  refusal  to  act,  neglect  to  attend,  and  other  like  cases.  Here  is  no 
case  for  the  application  of  the  maxim  noseitur  a  sociis,  because  this 
cannot  limit  the  rules  of  construction  to  which  I  have  already  referred. 
They  apply  to  this  case,  and,  if  so,  no  other  rule  can  overrule  them.  But 
here  is  clearly  no  case  for  the  application  of  the  maxim  noseitur  a  sociis. 
The  statute  does  not  say  that  vacancies  may  be  filled  in  cases  of  "  death, 
refusal  to  act,  neglect  to  attend,  and  other  like  cases,"  but  it  says  "  or 
otherwise? 

u  Otherwise"  cannot  be  in  similar  cases,  but  in  dissimilar  cases. 
There  can  be  no  similar  cases.  There  is  nothing  like  death,  or  refusal  to 
act,  or  refusal  to  attend,  which  could  create  a  vacancy. 

The  statute  regulating  electors  is  special  and  applicable  to  that  par 
ticular  subject.  By  a  well-known  rule  of  construction  it  would  control 
any  general  statute  as  to  vacancies.  And  it  employs  words  other  and 
different  from  the  general  statute  to  give  it  a  broader,  wider,  unlimited 
scope. 

3.  The  rule  that  statutes  are  to  be  construed  according  to  the  intention  of 
the  legislature,  leads  to  the  same  results. 

It  must  be  presumed  the  legislature  intended  to  provide  for  every 
contingency.  A  want  of  skill  is  not  to  be  presumed.  To  admit  a  casus 
omissus  is  to  impute  to  the  legislature  ignorance,  or  neglect  of  duty,  or 
both.  This  cannot  be  justified.  A  casus  omissus  is  odious.  Attorney- 
General  Stanbery,  in  discussing  the  power  of  the  President  to  fill  vacan 
cies,  said  the  policy  of  the  Constitution  was  clear  that  u  there  shall  be 
no  cessation,  no  interval  of  time  when  there  may  be  an  incapacity  of 
action."  (12  Opinions,  36.)  The  same  policy  was  understood  by  the 
legislature  of  Oregon,  and  the  same  policy  requires  a  construction  now 
which  shall  not  leave  the  office  of  elector  incapable  of  action  at  the 
appointed  time. 

4.  The  language  employe:!  gives  the  most  plenary  power  to  appoint  in  case 
of  vacancy  by  non- election. 

The  power  to  appoint  is  given  "  if  there  shall  be  any  vacancy  by  death, 
refusal  to  act,  neglect  to  attend,  or  othenvise."  Worcester  defines 
"  vacancy"  for  legal  purposes  : 

The  state  of  a  post,  office,  or  employment,  when  destitute  of  and  wanting  an  incumbent; 
a  place  or  office  which  is  empty  or  not  filled. 

Johnson : 

State  of  a  post  or  employment  when  it  is  unsuppUed. 
Bouvier : 

A  place  which  is  empty. 

When  the  Constitution  creates  the  office  of  elector  and  fixes  the  num 
ber  three  for  Oregon,  and  only  two  are  elected,  and  the  law  requires 
one  more,  is  not  this  one  "  wanting  an  incumbent,"  "  empty,"  u  not 
filled  ?"  If  so,  there  is  a  vacancy,  or  these  philologists  are  mistaken. 
The  law  says : 

If  there  shall  be  a  vacancy  by  death,  refusal  to  act,  neglect  to  attend,  or  otherwise. 

Webster  defines  "  otherwise,"  "  in  a  different  manner,"  "  by  other 
causes,"  "  in  other  respects."  The  statute  may  be  read,  then,  as  if  it 
said : 

If  there  shall  be  a  vacancy  by  death,  refusal  to  act,  neglect  to  attend,  or  "  in  a  dif 
ferent  manner,"  "  by  other  causes,"  "  in  other  respects." 

This  would  cover  a  case  of  non-election. 

Philology  is  with  us,  reason  is  with  us,  justice  is  with  us,  common 
sense  is  with  us. 

5.  The  authority  of  the  courts  is  conclusive  in  favor  of  this  result. 


ELECTORAL    COUNT    OF    1677.  545 

The  case  of  The  State  vs.  Adams,  2  Stewart's  Alabama  Beports,  231, 
by  reason  of  its  ability,  research,  and  sound  law,  is  placed  by  Brightly 
in  his  Leading  Cases  on  Elections,  page  286.  A  part  of  the  syllabus  is 
this: 

A  failure  to  elect  creates  a  vacancy,  which  can  be  filled  by  executive  appointment. 

Two  candidates  for  sheriff  received  an  equal  number  of  votes,  and  the 
governor  tilled  the  vacancy.  The  authority  of  the  governor  is  found  in 
these  words  of  the  constitution  : 

Should  a  vacancy  occur  subsequent  to  an  election,  it  shall  be  filled  by  the  governor, 
as  in  other  cases. 

The  court  say : 

The  whole  object  of  the  section — 

Of  the  constitution  quoted — 

is  to  secure  the  means  by  which  offices  of  this  description  throughout  the  State  shall 

be  filled. 

**##**# 

The  convention  could  make  no  provision  by  which  the  office  would  be  at  all  times 
filled  by  the  people;  there  might  be  vacancies,  and  as  it  would  require  time  to  fill  such 
offices  by  the  people,  it  was  necessary  that  the  duties  of  the  office  should  be  discharged 
in  the  mean  time. 

The  convention  therefore  intended  to  provide  for  filling  the  office  by  an  election  in 
the  first  instance,  and  a  vacancy  by  executive  appointment  when  it  occurred.  They 
took  it  for  granted  that  elections  would  always  be  held  *  *  *  and  they  proceeded 
to  provide  a  mode  of  appointment  in  the  event  of  the  election  by  the  people  not  effect 
ing  the  object  of  providing  a  sheriff.  *  *  *  This  construction,  and  no  other,  com 
pletely  fulfills  the  intention  of  the  constitution.  Should  they  fail  to  elect  a  sheriff  by 
being  divided  as  to  their  choice,  the  general  election  terminates,  and  a  vacancy  in  the 
office  of  sheriff  takes  place. 

In  State  vs.  City  of  Newark,  3  Dutcher,  185,  it  was  held  that — 

A  law  which  confers  power  to  supply  by  appointment  a  place  vacated  by  death  or 
disability,  authorizes  an  appointment  to  be  made  where  the  vacancy  is  occasioned  by 
resignation. 

The  Attorney-General  has  decided  that — 

In  the  event  of  the  disability  or  death  of  a  surveyor,  where  there  is  a  power  to  fill  a 
vacancy,  a  resignation  creates  a  vacancy. — 14  Opinions,  264. 

The  same  doctrine  was  held  in  State  ex  rel.  Attorney-General  vs. 
Irwin,  5  Nevada,  111.  The  constitution  of  Nevada  provides  that — 

When  any  office  shall,  from  any  cause,  become  vacant,  and  no  mode  is  provided  by 
the  constitution  and  laws  for  filling  such  vacancy,  the  governor  shall  have  power  to 
fill  such  vacancy. 

The  legislature  by  act  of  February  23,  1869,  which  took  effect  April 
1,  1869,  created  a  new  county,  requiring  county  officers.  The  governor 
appointed  a  sheriff  for  the  county,  and  his  right  to  the  office  was  in 
quired  of  by  quo  warranto,  upon  the  ground  that  there  was  no  vacancy 
which  the  governor  could  till.  The  supreme  court  held  there  was  a 
vacancy,  which  was  properly  filled,  and  quoted  with  approval  the  lan 
guage  of  the  supreme  court  of  Indiana  in  Stocking  vs.  State,  7  Indiana, 
329: 

There  is  no  technical  nor  peculiar  meaning  to  the  word  "vacant"  as  used  in  the  con 
stitution.  It  means  empty,  unoccupied.  As  applied  to  an  office  without  an  incumbent, 
there  is  no  basis  for  the  distinction  urged,  that  it  applies  only  to  offices  vacant  by 
death,  resignation,  or  otherwise.  An  existing  office  without  an  incumbent  is  vacant, 
whether  it  be  a  new  or  an  old  one.  A  new  house  is  as  vacant  as  one  tenanted  for  years, 
which  was  abandoned  yesterday. 

In  Stocking  vs.  State,  7  Indiana,  326,  it  was  shown  that  the  legislature 

created  a  new  judicial  circuit  for  which  the  governor  appointed  a  judge 

under  section  18,  article  5,  of  the  constitution,  which  provides  that  the 

governor  shall  by  appointment  fill  a  vacancy  in  the  office  of  judge  cf 

35  E  c 


546  ELECTORAL    COUNT    OF    1877. 

any  court ;  and  it  was  held  that  it  was  competent  for  the  governor  to 
appoint  a  judge  uto  hold  his  office  until  a  judge"  should  be  elected. 

In  People  vs.  Parker,  37  California,  650,  it  was  said  by  Sprague,  jus 
tice,  in  his  opinion  defining  the  term  "vacancy  :" 

It  not  only  includes  vacancies  in  terms  of  office  which  have  been  partially  filled  by 
an  incumbent,  but  includes  all  offices  and  terms  of  office,  constitutional  and  statutory, 
having  no  dejure  incumbent,  either  by  reason  of  a  statutory  vacancy  or  by  reason  of  the 
existence  of  an  office  or  term  of  office  for  the  incumbency  of  which  no  person  has  been 
legitimately  designated. 

Crockett,  justice,  remarked : 

A  vacancy  in  an  office  begins  when  there  ceases  to  be  an  incumbent  to  fill  it,  and  it 
continues  as  long  as  there  is  no  incumbent. 

The  California  cases  hold  that  the  power  to  fill  a  "  vacancy  occurring 
from  any  cause  gives  authority  to  fill  vacancies  caused  by  the  failure  of 
the  people  to  elect."  Chief-Justice  Field,  now  of  this  Commission,  in 
his  learned  opinion  in  The  People  vs.  Whitman,  10  California  Keports, 
48,  denied  that  an  officer  holding  beyond  a  term  "  until  his  successor 
was  elected  and  qualified"  prevented  a  "vacancy."  He  said  : 

For  many  of  the  most  responsible  and  important  offices  in  the  State  there  can  be  no 
election  except  to  fill  a  vacancy  or  for  a  full  term,  and  if  a  vacancy  cannot  exist  by  a 
failure  of  a  person  to  qualify,  whether  such  failure  arises  from  death,  acceptance  of  an 
appointment  under  the  Federal  Government,  or  resignation  in  advance  of  the  right  to 
the  office — and  the  reasons  assigned  in  the  present  case  will  apply  to  any  of  those 
causes — it  would  often  happen  that  weak  and  incompetent  men,  for  whom  not  a  vote 
could  be  obtained  from  the  people,  would  retain  for  long  terms  positions  of  great  trust 
and  power,  to  the  serious  detriment  of  the  public  interests. 

But  it  is  said  that  the  supreme  court  of  Rhode  Island  decided  in  No 
vember  last  that  iueligibility  avoids  an  election,  and  that  in  such  case, 
with  or  without  resignation,  there  is  no  vacancy.  (16  American  Law 
Register,  N.  S.,  15.)  But  the  court  decided  no  such  general  question. 
The  court  held  that  these  facts  did  not  create  such  a  vacancy  as  is  pro 
vided  for  in  the  peculiar  statute  of  that  State.  Its  language  is : 

If  any  electors  chosen  as  aforesaid  shall,  after  their  said  election,  (1)  decline  the  said 
office  or  (2)  be  prevented  by  any  cause  from  serving  thereon,  the  other  electors,  when 
met,  *  *  *  shall  fill  such  vacancies. 

Here  the  power  is  not  to  fill  all  vacancies,  but  such  vacancies  :  vacan 
cies  of  electors  who  had  been  actually  chosen,  vacancies  only  in  two 
specified  cases:  (1)  when  a  duly-appointed  elector  declines  to  act,  and 
(2)  when  such  elector  is  prevented  from  serving  by  sickness  or  other 
causes.  The  Oregon  statute  gives  a  broader  power,  a  power  to  fill  va 
cancies  arising  in  any  manner ;  not  in  two  specified  cases,  but  in  all 
cases. 

There  is  a  class  of  cases  in  which  some  courts  have  held  that,  when 
an  officer  is  elected  for  a  given  term,  "and  until  a  successor  is  elected 
and  qualified,"  in  case  of  a  non-election  at  the  expiration  of  the  term, 
there  is  no  vacancy,  because,  by  force  of  express  provision,  the  incum 
bent  continues.  (Brightly,  670;  Comm.  vs.  Hauley,  9  Pa.,  St.,  513; 
Coinm.  vs.  Baxter,  27  Pa.  St.,  444  ;  State  vs.  Cobb,  2  Kansas,  32  ;  State 
vs.  Jenkins,  43  Mo.,  261 ;  State  vs.  Robinson,  1  Kansas,  17 ;  State  vs. 
Benedict,  15  Minn.,  199  ;  McCrary  on  Elections,  page  170,  section  236  ; 
Stratton  vs.  Oatland,  28  Cal.,  51;  People  vs.  Stratton,  28  Cal.,  382  j 
People  vs.  Tilton,  37  Cal,  614 ;  Contra.  People  vs.  Reed,  6  Cal.,  288 ; 
People  vs.  Mizner,  7  Cal.,  524 ;  People  vs.  Parker,  37  Cal.,  639.)  (These 
cannot  affect  the  question  I  am  now  discussing. 

The  Constitution  of  the  United  States  provides  as  to  Senators  that — 

If  vacancies  happen  by  resignation  or  otherwise  during  the  recess  of  the  legislature 
any  State,  the  executive  thereof  may  make  temporary  appointments  until  the  next 
meeting  of  the  legislature. — Art.  1,  sec.  3. 


ELECTORAL    COUNT    OF    1577.  547 

It  has  been  held  that  this  does  not  authorize  an  appointment  in  a 
case  where  the  legislature  has  failed  to  elect.  But  this  rests  on  two 
grounds  not  applicable  to  the  case  of  electors :  First,  that  the  word 
u  happen  "  limits  the  power  to  cases  where  there  has  been  an  incumbent, 
and  that  a  restrictive  rule  of  interpretation  applies,  because  the  leg 
islature  can  always  be  convened,  and  the  governor  should,  on  grounds 
of  public  policy,  have  no  occasion  for  refusing  to  call  a  session,  thereby 
to  magnify  his  own  power.  (Story,  Const.,  sec.  1559  j  McCrary,  171, 
sec.  237 ;  Clarke  &  Hall,  871.) 

I  submit,  then,  to  this  honorable  Commission,  that  if  there  was  a  case 
of  non-election  there  was  a  "vacancy"  which  Odell  and  Cartwright  could 
and  did  lawfully  fill. 

I  now  proceed  to  show — 

Second,  that  Watts  was  elected;  that  he  became  de  facto  an  elector, 
if  not  de  jure ;  that  the  acts  of  such  an  officer  are  valid,  and  that  his 
resignation  created  a  vacancy  which  was  properly  filled  by  his  re-appoint 
ment. 

It  has  already  been  shown  that  Watts  received  a  majority  of  the 
popular  vote  and  that  he  presents  sufficient  evidence  of  title  to  the  office. 
On  these  facts  he  was  lawfully  elected,  for  reasons  some  of  which  I  will 
state : 

1.  The  constitution  and  statute  of  Oregon  in  express  terms  declare 
that  he  u  having  the  highest  number  of  votes  shall  be  declared  and 
deemed  elected.'7    The  policy  of  the  statute  is  to  secure  officers  without 
an  interregnum. 

2.  The  disqualifying  clause  of  the  Constitution  is  directory*  not  man 
datory. 

The  Constitution  does  not  say  that  "  a  person  holding  an  office  of 
trust  or  profit"  shall  not  hold  the  office  of  elector,  but  it  directs  the  peo 
ple  who  vote  in  the  exercise  of  their  duties.  It  prescribes  a  rule  of  public 
policy,  but  not  a  mandatory  prohibition  on  the  person  appointed. 

Lord  Mansfield  declared  that  those  provisions  are  mandatory  which 
relate  to  u  circumstances  which  are  of  the  essence  of  a  thing  required  to 
be  done,"  while  others  are  directory.  (Rex  vs.  Loxdale,  1  Burr.,*  447.) 
The  appointment  is  the  essence  of  the  thing  required  to  be  done ;  the 
qualifications  of  the  candidate  are  non-essentials,  or  at  least  are  not  the 
essence  of  what  is  to  be  done. 

3.  This  question  is  determined  ~by  the  authorities.     In  Saint  Louis  County 
vs.  Sparks,  10  Missouri,  121,  the  court  say : 

A  statute  prescribing  qualification  to  an  office  is  merely  directory,  and  although  an 
appointee  does  not  possess  the  requisite  qualification  his  appointment  is  not  therefore 
void,  unless  it  is  so  expressly  enacted.  (20  Louisiana  An.,  114  ;  People  vs.  Cook,  14 
Barb.,  259;  Greeuleaf  vs.  Low,  4  Denio,  168;  Weeks  vs.  Ellis,  2  Barb.,  324;  Keeser  vs. 
McKisson,  2  Rawle,  139 ;  McCrary  on  Elections,  sec.  78.) 

In  Commonwealth  vs.  duly,  56  Pa.  State  Eeports,  270,  it  was  shown 
that  Cluly  received  a  majority  of  votes  as  a  candidate  for  sheriff  against 
McLaughlin,  the  minority  candidate.  McLaughlin  instituted  quo  war- 
ranto  proceedings  to  oust  Cluly,  on  the  ground  that  he  was  ineligible 
by  reason  of  having  held  the  office  previous  to  this  election  as  long  as 
the  constitution  permitted.  His  honor  Judge  Strong,  now  of  this 
Commission,  in  deciding  the  case,  said  : 

The  votes  cast  at  an  election  for  a  person  who  is  disqualified  from  holding  an  office 
are  not  nullities ;  they  cannot  be  rejected  by  the  inspectors,  nor  thrown  out  of  the 
count  by  the  return-judges ;  the  disqualified  person  is  a  person  still  and  every  vote 
thrown  for  him  is  formal. 

In  Saunders  vs.  Haynes,  13  California,  page  153,  the  court  say : 

It  will  be  observed  that  the  point  of  this  defense  is  that  the  votes  cast  for  Turner 


548  ELECTORAL    COUNT    OF    1577. 

supposing  lie  received  the  highest  number,  were  nullities  because  of  his  assumed  iuel- 
igibility ;  but  we  do  not  so  consider.  Although  some  old  cases  may  be  found  affirming 
this  doctrine,  we  think  that  the  better  opinion  at  this  day  is  that  it  is  not  correct. 

4.  If  Watts  was  ineligible  his  election  and  induction  into  office  made 
him  an  officer  de  facto,  and  his  acts  as  such  are  valid. 

The  courts  have  met  directly  the  question  whether  the  acts  of  officers 
can  be  declared  invalid  because  not  duly  elected,  and  it  is  now  undis 
puted  law  that,  if  a  person  conies  into  office  by  color  of  legal  appoint 
ment  or  election,  he  is  an  officer  de  facto,  his  acts  in  that  capacity  are 
valid  and  effectual  when  they  concern  the  public  and  third  persons, 
although  it  may  finally  appear  that  he  has  no  legal  or  constitutional 
right  to  the  office.  His  official  acts  are  as  valid  as  those  of  an  officer 
de  jure,  and  they  cannot  be  invalidated  by  any  inquiry  or  evidence  back 
of  his  certificate  of  election. 

This  doctrine  has  been  deemed  so  essential  to  the  public  interest  that 
persons  declared  ineligible  by  law  have  nevertheless  been  regarded  as 
officers  de  facto  and  their  official  acts  valid  when  done  under  color  of 
legal  appointment.  The  law  is  so  well  settled  upon  this  subject  that  I 
will  content  myself  with  a  reference  to  authorities  without  reading  them. 
In  McGregor  vs.  Balch,  14  Vermont,  428,  it  was  held  that  although  a 
postmaster  was  ineligible  to  be  elected  justice  of  the  peace,  yet  having 
been  elected  and  acting  under  color  of  office  he  was  a  justice  of  the  peace 
defacto,  and  his  acts  were  valid  as  to  the  public  and  third  persons.  In 
Baird  vs.  Bank  of  Washington,  11  Serg.  and  ft.,  (Pa.)  414,  the  court  say : 

The  principle  of  colorable  election  holds  not  only  in  regard  to  the  right  of  electing, 
but  of  being  elected.  A  persou  indisputably  Ineligible  may  be  an  officer  de  facto  by  color 
of  election.  (Pritchett  vs.  People,!  Gilmer, 529;  People  vs.  Aminons, 5  Gilmer,  107  ; 
cases  collected  in  Chase's  Decisions  by  Johnson,  462,  where  see  Cicsar  Griffin's  case.) 

In  Saint  Louis  County  vs.  Sparks,  10  Missouri,  121,  the  court  say : 

When  the  appointing  power  has  made  an  appointment  and  a  person  is  appointed 
who  has  not  the  qualifications  required  by  law,  the  appointment  is  not  therefore  void 
The  person  appointed  is  de  facto  an  officer.  His  acts  *  *  *  are  valid  and  binding' 

To  the  same  effect  is  Knight  vs.  Wells,  Luftwych,  508 ;  16  Viner's 
Abridgment,  114;  Bean  vs.  Thompson,  19  New  Hampshire,  115;  Mc- 
Crary  on  Elections,  sec.  79. 

The  postmasters  who  were  appointed  as  electors  in  1836,  although 
ineligible,  voted  for  President,  and  their  right  to  do  so  was  so  far  con 
ceded  that  no  complete  inquiry  was  made  of  the  facts.  (House  Miscel 
laneous  Document  13,  second  session  Twenty-fourth  Congress,  p.  71.) 

The  Houses  of  Congress  have  determined  that  the  acts  of  officers 
de  facto  are  valid  for  all  purposes  of  an  election.  (Barnes  vs.  Adams, 
2  Bartlett,  760;  McCrary,  sec.  79.) 

Many  laws  have  been  passed  in  Congress  by  the  casting  votes  ot 
members  who  were  subsequently  declared  not  legally  elected.  But  the 
laws  they  made  by  their  votes  have  always  been  held  valid.  The 
same  may  be  said  of  the  laws  in  almost  every  State  in  the  Union.  Judg 
ments  have  been  rendered  in  the  courts  by  judges  who  were  subse 
quently  ousted  from  office  on  quo  tvarranto  as  not  legally  elected,  but 
their  judgments  still  stood  as  valid  and  unquestioned.  A  large  part  of 
the  land-titles  in  many  of  the  States  depends  on  official  acts  of  persons 
ousted  from  office  as  not  legally  elected,  but  the  titles  are  not  thereby 
disturbed. 

To  overturn  all  this  law  is  to  destroy  the  foundations  of  society,  the 
title  to  property,  tbe  obligations  of  the  domestic  relations,  and  convert 
the  land  into  a  pandemonium. 

The  ineligibility  of  Watts,  then,  did  not  render  his  election  void.    He 


ELECTORAL    COUNT    OF    Ifc77.  549 

was  an  elector  de  facto  when  he  did  any  official  act.  As  there  was  then 
no  vacancy,  it  was  impossible  that  Cronin  could  be  at  the  same  time  an 
elector  dejure  or  de  facto.  Watts  did  act  under  his  election.  He  resigned, 
and  that  was  an  official  act.  He  must  have  entered  on  the  office  in 
order  that  he  might  resign.  The  record  shows  sufficiently  that  he  acted 
in  the  organization  of  the  electors,  and  after  that  absented  himself, 
resigned,  was  re-appointed,  again  appeared,  and  acted. 

His  title  to  office  is  twofold  :  an  appointment  by  the  people,  shown  in 
evidence  by  the  lists  of  electors  certified  by  the  secretary  of  state,  and 
an  appointment  by  the  remaining  two  electors,  whose  title  to  office  is 
clear  and  unquestionable. 

From  all  this  it  is  shown  that  Watts  was  duly  appointed  an  elector  and 
that  the  votes  cast  by  Odell,  Cartwright,  and  Watts  for  President  and 
Vice-President  are  the  votes  provided  for  by  the  Constitution.  This 
result  is  not  only  sanctioned  and  sanctified  by  law,  but  it  is  still  further 
sanctified  by  the  gratifying  fact  that  it  carries  out  the  purpose  of  our 
republican  institutions  by  giving  eifect  to  the  will  of  the  people  of 
Oregon. 

If  the  vote  of  Cronin  could  be  counted  for  President  and  Vice-Presi- 
dent,  it  would  rob  the  people  of  Oregon  of  the  highest  political  right 
they  have  ;  it  would  rob  the  people  of  the  whole  republic  of  their  law 
ful  choice  of  President  and  Vice-President,  and  bring  shame  and  dis 
honor  upon  our  institutions.  It  needs  no  expose  of  any  attempted 
bribery  to  render  this  purpose  effectual,  to  secure  for  it  the  detestation 
of  mankind  and  the  execration  of  history. 

Mr.  Commissioner  EDMUNDS.  Mr.  President,  I  move  that  the  Com 
mission  take  a  recess  until  seven  o'clock,. to  meet  in  the  Senate  cham 
ber. 

Mr.  Commissioner  ABBOTT.  I  move  that  we  now  adjourn  until  ten 
o'clock  to-morrow  morning. 

Mr.  Commissioner  THURMAN.  I  hope  the  motion  will  be  withdrawn 
for  a  moment  until  we  decide  whether  we  shall  extend  the  time  for  the 
argument  by  counsel. 

Mr.  Commissioner  ABBOTT.  I  withdraw  the  motion  if  Judge  Thur- 
man  desires. 

Mr.  Commissioner  EDMUNDS.     I  withdraw  my  motion. 

Mr.  Commissioner  THURMAN.  If  we  are  not  to  extend  the  time 
allowed  for  argument  I  should  be  in  favor  of  adjourning  until  to-morrow, 
and  then  the  four  hours  of  argument  may  be  heard  and  concluded  by 
two  o'clock  and  we  shall  have  time  to  deliberate ;  but  if  the  time  is  to 
be  extended,  then  I  might  be  quite  willing,  unwell  as  I  am,  to  stay  to 
night. 

The  PRESIDENT.  1  understood  that  counsel  asked  for  an  exten 
sion. 

Mr.  Commissioner  THURMAN.  If  counsel  insist  upon  that  request, 
I  hope  that  will  be  decided  first. 

The  PRESIDENT.     What  was  the  request  ? 

Mr.  HOADLY.  We  did  request  an  extension  of  time  for  two  hours 
additional. 

Mr.  EVARTS.  On  our  part  we  do  not  desire  any  additional  time,  as 
we  suppose  the  discussion  is  mainly  one  of  law. 

Mr.  Commissioner  HOAR.  I  should  like  to  have  the  counsel  state 
whether  they  propose  to  offer  any  testimony  and  whether  they  have 
that  offer  of  testimony  now  prepared. 

The  PRESIDENT.'  I  will  allow  that  question  to  be  answered  before 
I  put  the  motion. 


550  ELECTORAL   COUNT    OF   1877. 

Mr.  HOADLY.  We  expect  to  offer  testimony.  We  have  asked  the 
Conimisson  to  make  an  order  for  the  production  of  certain  testimony 
which  we  desire  to  use. 

The  PEESIDENT.  It  has  been  made.  The  subpoena  has  been 
signed. 

Mr.  Commissioner  HOAR.  I  should  like,  Mr.  President,  before 
determining  the  question  of  the  extension  of  time,  to  have  the  offer  of 
testimony  made  in  form,  made  now. 

Mr.  Commissioner  BEAD  LEY.    So  as  not  to  occupy  time  to-morrow  ? 

Mr.  Commissioner  HOAR.  I  do  not  mean  by  that  that  I  desire  the 
counsel  to  offer  their  witnesses  now,  but  I  desire  to  have  the  offer 
(which  has  been  made  in  all  the  other  cases)  before  the  tribunal  as  to  the 
substance  of  the  fact  that  is  proposed  to  be  proven  before  voting  on 
the  question  of  the  extension  of  time. 

The  PRESIDENT.  I  will  inquire,  are  counsel  ready  to  make  the 
offer? 

Mr.  HOADLY.    We  are. 

The  PRESIDENT.    Make  it. 

Mr.  HOADLY.  I  say  "  ready."  I  suppose  it  is  in  the  next  room. 
We  have  prepared  the  offer  and  caused  it  to  be  printed,  and  I  suppose 
it  can  be  had  in  a  moment. 

Mr.  MERRICK.     It  is  very  brief. 

Mr.  HOADLY.    There  is  not  a  copy  in  the  room  now. 

Mr.  Commissioner  HOAR.  I  move  that  counsel  be  permitted  to  offer 
that  before  the  other  question  is  decided. 

Mr.  Commissioner  EDMUNDS.  To  occupy  the  time  while  this  paper 
is  being  sent  for,  I  wish  to  say  on  the  question  of  the  extension  of  time 
that  it  is  now  Wednesday  night ;  Saturday  week  will  be  the  3d  day  of 
March,  and  there  are  several  States  yet  to  be  gone  through,  and  one 
which,  according  to  the  general  rumor,  will  be  one  that  we  shall  be 
obliged  ourselves  to  act  upon.  Now  it  does  seem  to  me  that  we  ought 
all  to  submit  to  much  personal  inconvenience,  as  I  do,  and  as  I  know 
Judge  Thurman  does,  in  order  to  get  on.  The  Senate  Chamber  is  at  our 
disposal,  where  we  can  be  as  comfortable  at  night  as  we  can  be  here  in 
the  day-time,  except  from  the  weariness  of  long  sitting.  So  I  should  hope 
that  on  all  hands  we  should  be  willing  now,  with  all  these  questions  as 
to  what  are  the  offers  and  how  much  time  may  be  needed,  which  per 
haps  we  cannot  tell — I  should  be  very  glad  to  give  all  that  is  necessary 
and  that  is  possible — but  I  think  it  better  that  we  should  take  a  recess 
now  and  meet  at  seven  o'clock,  and  then,  in  an  hour  or  two,  we  can 
ascertain  exactly  where  we  are  and  what  we  ought  to  do. 

The  PRESIDENT.  I  think  we  ought  to  receive  the  offer  before  any 
motion. 

Mr.  Commissioner  EDMUNDS.  I  did  not  make  a  motion,  only  a 
suggestion. 

Mr.  Commissioner  MORTON.  Mr.  President,  I  desire  to  say  that 
considering  the  critical  condition  of  public  business,  and  the  exigency 
now  before  the  country,  we  ought  not  to  extend  the  time.  I  would 
always  be  willing  to  gratify  and  accommodate  counsel ;  but  I  believe 
that  every  idea  they  have  to  advance,  every  authority  to  refer  to,  can 
be  produced  satisfactorily  in  two  hours  on  each  side.  I  do  not  believe 
there  is  the  slightest  advantage  to  be  gained  by  anybody  by  the  exten 
sion  of  time. 

The  PRESIDENT,  (to  counsel.)  Are  you  ready  to  make  the  offer  of 
proof  ? 

Mr.  HOADLY.    Not  at  this  moment.    Mr.  Green  has  gone  for  it. 


ELECTORAL    COUNT    OF    1877.  551 

Mr.  MEEEICK.  The  papers  were  here,  but  accidentally  have  been 
mislaid. 

The  PEESIDENT.  Mr.  Commissioner  Miller  suggests  that  we  had 
better  take  the  question  upon  the  motion  for  the  extension  of  time 
without  waiting  for  the  offer. 

Mr.  MEERICK.    I  have  a  copy  here  now. 

The  PRESIDENT.  You  can  read  that.  The  Commission  desire 
that  the  offer  should  be  read  in  their  hearing  audibly. 

Mr.  HOADLY— 

First.  The  undersigned,  of  counsel  for  objectors  to  certificate  No.  1,  offer  in  evi 
dence  a  duly-certified  copy  of  the  commission  of  John  W.  Watts  as  postmaster  at 
Yam  Hill,  in  the  county  of  La  Fayette,  State  of  Oregon,  which  said  commission  was 
issued  in  the  year  1873,  and  they  also  offer  to  prove  that  said  Watts  duly  qualified  and 
entered  upon  said  office,  being  an  office  of  profit  and  trust  under  the  United  States, 
and  that  he  was  the  incumbent  thereof  on  the  7th  day  of  November,  1876,  and  up  to 
and  after  the  6th  day  of  December,  1876,  and  until  his  successor  was  thereafter  ap 
pointed  and  qualified ;  and  they  further  offer  to  prove  that  said  John  W.  Watts  is  the 
same  person  whose  name  appears  in  said  certificate  No.  1  as  having  voted  for  President 
and  Vice-President  of  the  United  States  as  a  member  of  the  electoral  college  of  the 
State  of  Oregon. 

Second.  The  undersigned  further  offer  to  prove  that  more  than  eleven  hundred 
voters  of  the  State  of  Oregon  who  cast  their  ballots  in  favor  of  said  Watts  as  elector 
for  President  and  Vice-President  of  the  United  States,  at  the  election  held  on  the  7th 
day  of  November,  1876,  had  notice  that  said  Watts  was  a  postmaster  in  the  service  of 
the  United  States,  and  that  he  was  thereby  disqualified  from  becoming  an  elector  for 
President  and  Vice-President  of  the  United  States. 

This  is  signed : 

R.  T.  MERRICK. 
GEORGE  HOADLY. 

The  PEESIDENT.  Now  I  will  put  the  question  on  the  extension  of 
time.  The  request  is  to  extend  the  time  two  hours  on  the  side  of  the 
objectors  to  certificate  No.  1. 

Mr.  Commissioner  BEAD  LEY.  Mr.  President,  I  should  be  very  reluc 
tant  to  curtail  the  time  of  counsel  in  the  discussion  of  the  questions  be 
fore  us,  so  important  as  they  are,  and  I  always  have  been  disposed  to 
extend  time  when  it  has  been  asked;  but  it  seems  to  me  that  after  the 
question  has  already  been  discussed  in  many  of  its  leading  aspects, 
two  hours  on  each  side  already  occupied,  with  two  hours  more,  will  be 
as  much  as  can  be  reasonably  asked  in  the  present  exigency  of  public 
affairs.  I  would  much  prefer  that  counsel  should  confine  themselves  to 
the  time  we  have  laid  down  in  our  rules,  and  that  we  should  adjourn 
until  to-morrow,  instead  of  extending  the  time  and  sitting  to-night. 

Mr.  Commissioner  HUNTON.  Mr.  President,  I  understand  that  the 
two  hours  proposed  to  be  devoted  to  the  argument  of  this  case  on 
either  side  embrace  also  the  argument  on  the  offer  of  testimony  and 
upon  the  whole  case.  Now,  under  the  rules  of  this  Commission  coun 
sel  have  a  right  to  debate  each  offer  of  evidence  for  fifteen  minutes 
on  each  side  ;  and  it  was  understood  in  the  last  case,  as  I  believe,  that 
in  lieu  of  those  fifteen  minutes  on  the  offering  of  each  piece  of  testi 
mony  we  should  extend  the  time  for  the  main  argument  and  let  all 
the  offers  be  made  at  once.  I  think  that  rule  ought  to  be  pursued  in 
this  case;  in  lieu  of  the  fifteen  minutes  that  the  counsel  would  have 
a  right  to  debate  each  offer  of  testimony  under  the  rule,  I  think  we 
should  extend  the  time  so  as  to  cover  that  fifteen  minutes'  debate  on 
each  point  of  testimony.  I  think,  therefore,  it  is  reasonable  that  the 
time  of  the  argument  should  be  extended. 

The  PEES1DENT.  I  desire  to  add  one  remark  in  explanation  of  the 
vote  I  shall  give.  I  shall  vote  to  extend  the  time.  I  do  it  very  largely 


552  ELECTORAL    COUNT    OF    1877. 

on  the  ground  that,  after  the  argument  closes,  there  is  no  opportunity 
for  the  examination  of  authorities.  We  depend  chiefly  upon  the  bar, 
during  the  arguments,  for  our  information  in  respect  to  the  authorities, 
and  with  that  view  I  shall  vote  to  extend  the  time. 

Mr.  Commissioner  EDMUNDS.  Mr.  President,  I  make  this  motion 
on  the  subject  of  the  application  for  the  extension  of  time : 

That  we  proceed  with  the  case  at  seven  o'clock  in  the  Senate  Chamber,  and  that 
counsel  have  three  and  a  half  hours. 

There  are  two  objections  here  which  would  cover  half  an  hour's  ar 
gument.  I  want  to  give  all  the  time  possible.  I  move  that  they  have 
three  and  a  half  hours  on  a  side  for  the  argument  of  objections,  and 
merits,  and  everything. 

Mr.  EVABTS.    The  offers  of  testimony  1 

Mr.  Commissioner  EDMUNDS.  Yes,  including  the  offers  of  testi 
mony. 

Mr.  MEEEICK.    That  will  be  satisfactory. 

Mr.  Commissioner  BAYAED.  Is  the  extension  of  time  desired  on 
both  sides  ? 

Mr.  Commissioner  EDMUNDS.  No ;  the  opposite  side  say  not ;  but 
of  course  in  making  the  order  we  ought  to  extend  it  to  both  sides.  If 
we  can  spend  two  hours  this  evening,  it  will  be  about  fair. 

The  PEESIDENT.  I  will  treat  that  as  the  original  motion.  Please 
reduce  it  to  writing. 

Mr.  Commissioner  EDMUNDS.  My  motion  is  that  the  hearing  pro 
ceed  in  the  Senate  Chamber  at  seven  o'clock  and  thirty  minutes  p.  m., 
and  that  counsel  have  three  hours  and  a  half  on  each  side  for  the  whole 
case,  covering  offers  of  proof,  &c. 

Mr.  Commissioner  THUKMAN.  Mr.  President,  as  that  order  is 
drawn  up,  it  does  not  include  the  time  that  might  be  occupied  in  hear 
ing  the  testimony  in  case  any  shall  be  admitted. 

Mr.  Commissioner  EDMUNDS.  I  do  not  intend  to  have  the  testi 
mony  of  witnesses  come  out  of  the  three  hours  and  a  half,  because  it  is 
obvious  that  we  could  not  hear  the  testimony  of  eleven  hundred  wit 
nesses,  to  prove  that  they  knew  the  disqualification,  in  that  time. 

Mr.  Commissioner  THUKMAN.  Then  the  proposition  is  that  the 
argument  shall  proceed  before  any  testimony  is  oifered. 

Mr.  Commissioner  EDMUNDS.  That  depends.  In  whatever  order 
they  go,  they  have  so  much  time  for  speaking. 

Mr.  Commissioner  THUEMAN.  I  have  never  been  able  to  under 
stand  since  this  Commission  had  its  first  sitting  why  facts  that  are  in 
disputable  have  not  been  admitted  and  thereby  the  time  of  the  Commis 
sion  saved.  The  first  offer  of  proof  in  this  case  is  that  Watts  was 
postmaster  at  Yam  Hill,  in  the  county  of  La  Fayette,  Oregon,  on  the 
7th  of  November,  1876,  and  up  to  and  after  the  6th  of  December,  1876. 
That  he  was  postmaster  on  the  7th  of  November,  1876, 1  have  supposed 
was  not  a  disputed  fact.  Why  that  should  not  be  admitted,  and  proof 
in  regard  to  that  and  the  time  that  would  be  occupied  in  making  the 
proof  should  not  be  saved,  I  am  not  at  all  able  to  understand.  Whether 
he  was  postmaster  on  the  6th  of  December,  1876,  I  do  not  understand 
to  be  an  undisputed  question,  and  upon  that,  testimony  might  well  be 
taken. 

So  as  to  the  second  proposition,  as  to  whether  more  than  eleven  hun 
dred  voters  of  the  State  of  Oregon  who  cast  their  votes  for  him  knew 
of  his  ineligibility ;  that  is  a  statement,  of  course,  which  no  one  could 
be  asked  to  admit.  But  so  far  as  time  can  be  saved  by  admitting  what 


ELECTORAL    COUNT    OF    1877.  553 

is  indisputable,  I  have  thought  from  the  very  first  that  the  admission 
ought  to  have  been  made  on  both  sides. 

Now,  in  respect  to  this  testimony,  until  the  Commission  decides 
whether  it  shall  be  received  or  not,  I  do  not  know  how  counsel  can 
proceed.  We  propose  to  give  three  hours  and  a  half.  I  think  that  is 
ample  for  the  discussion,  both  of  the  question  of  admissibility  and  of 
the  merits,  but  until  you  decide  whether  the  testimony  shall  be  admit 
ted  at  all  I  really  do  not  see  how  counsel  are  to  know  how  to  conduct 
their  case. 

Mr.  Commissioner  HOAR.  Mr.  President,  if  this  motion  should  be 
adopted,  a  motion  will  be  made  that  the  counsel,  in  discussing  the  ad- 
missioility  of  their  testimony  on  either  side,  may  draw  at  their  pleasure 
on  the  time  allowed  for  their  final  argument,  as  was  done  in  the  Louis 
iana  case.  That  answers  Judge  Thurman's  question. 

The  PRESIDENT.    I  do  not  quite  understand  you,  Mr.  Hoar. 

Mr.  Commissioner  HOAR.  I  say,  if  this  proposition  of  Mr.  Edmunds 
shall  be  adopted,  a  further  motion  will  be  made,  that  counsel,  in  dis 
cussing  the  question  of  the  admissibility  of  testimony,  shall  be  permit 
ted  to  add  to  the  fifteen  minutes  as  much  of  their  final  time  as  they  see 
fit  to  take,  as  they  did  in  the  Louisiana  case  ;  that  is,  counsel  having 
three  and  a  half  hours  in  all,  if  they  choose,  instead  of  spending  fifteen 
minutes  only  on  their  first  offer  of  testimony,  may  spend  three  and  a 
half  hours  on  it. 

The  PRESIDENT.  I  do  not  consider  any  motion  before  the  Commis 
sion  except  the  one  submitted  by  Mr.  Edmunds,  that  the  Commission 
proceed  in  the  Senate  Chamber  at  seven  and  a  half  o'clock  this  evening, 
and  that  the  counsel  have  three  and  a  half  hours  on  each  side  for  the 
discussion  of  the  whole  case. 

Mr.  Commissioner  GARFIELD.  Mr.  President,  I  have  no  objection 
to  that  proposition  if  it  can  be  executed  in  accordance  with  the  mani 
fest  intention  of  the  mover  5  that  is,  if  we  can  go  forward  to-night  and 
hold  a  session  which  will  hear  a  large  part  of  the  argument  that  we  ex 
pect  to  hear.  But  we  did  precisely  this  sort  of  thing  a  week  ago,  ex 
tended  the  time  to  four  hours  and  a  half  on  a  side,  with  an  understand 
ing  that  we  were  to  have  a  night  session,  and  before  we  had  started 
over  twenty  minutes  on  that  night's  session,  or  a  little  longer,  perhaps, 
we  adjourned  over,  and  then  we  had  the  whole  accumulated  time  on  our 
hands  and  nothing  gained. 

Mr.  Commissioner  MILLER.  That  was  on  account  of  counsel  who 
said  they  could  not  go  on. 

Mr.  Commissioner  GARFIELD.  I  was  out  at  the  moment  that  was 
done.  But  if  it  can  be  that  we  shall  have  a  session  to-night  and  hear 
the  major  part  of  this  argument,  I  shall  cheerfully  vote  for  the  resolu 
tion. 

Mr.  Commissioner  THURMAN.  I  want  to  say  one  word  in  reply  to 
the  suggestion  of  brother  Hoar.  He  says  that  if  this  rule  be  adopted, 
then  the  counsel  may  take  out  of  their  time  allowed  for  the  argument 
upon  the  merits  as  much  time  as  they  please  and  occupy  that  time  in 
arguing  the  question  of  the  admissibility  of  the  testimony,  as  was  done 
in  the  Louisiana  case.  But  the  cases  are  very  different.  In  the  Louis 
iana  case  the  Commission  directed  them  to  argue  the  question  of  the 
admissibility  of  the  testimony,  and  the  Commission  decided  that  ques 
tion  before  they  were  called  upon  to  make  any  argument;  on  the  merits. 
It  is  very  true  that  they  occupied  all  their  time,  so  that  they  had  no 
time  left  for  argument  upon  the  merits.  But  if  this  order  be  adopted, 
then,  without  knowing  whether  they  are  to  give  their  evidence  or  not, 


554  ELECTORAL   COUNT    OF    1977. 

they  are  to  go  on  upon  each  side  and  occupy  the  three  hours  and  a  half, 
and  they  will  not  know  what  will  be  the  decision  of  the  Commission  as 
to  the  adrnissibility  of  the  testimony.  I  do  not  think  that  is  the  way 
to  try  a  case.  It  seems  to  me  it  would  be  very  much  better  to  stick  to 
our  rule  and  allow  fifteen  minutes  upon  an  offer  of  testimony  which 
would  give  half  an  hour  on  a  side,  and  then  allow  the  three  hours  for 
the  argument  upon  the  merits,  which  would  amount  to  the  same  thing 
as  the  order  offered  by  the  Senator  from  Vermont. 

Mr.  Commissioner  HOAR.  The  suggestion  I  made  does  not  require 
counsel  to  take  more  than  fifteen  minutes.  It  leaves  the  whole  matter 
to  the  discretion  of  counsel.  Counsel  make  these  two  offers  of  testi 
mony.  If  they  choose  to  present  that  point  of  their  case  in  a  fifteen 
minutes7  argument,  or  without  argument,  they  can  do  so.  If  they  wish 
to  draw  fifteen  minutes  or  an  hour  out  of  their  final  time,  as  it  has  been 
extended,  they  can  do  so.  The  order  does  not  require  them ;  it  only 
permits  them  in  their  discretion,  to  which  the  case  certainly  can  be 
intrusted. 

Mr.  Commissioner  THUEMAN.  But  the  question  which  troubles 
me  is,  when  will  the  Commission  decide  on  the  admissibility  of  the  tes 
timony  ? 

Mr.  Commissioner  HOAE.    After  it  is  argued. 

Mr.  Commissioner  MILLEE.  When  the  court  get  through  hearing 
argument,  they  decide  whether  the  testimony  shall  be  admitted  or  not. 

The  PEESIDENT.  The  only  question  before  the  Commission  is  on 
the  motion  of  Senator  Edmunds. 

Mr.  Commissioner  ABBOTT.  I  desire  to  ask  Senator  Edmunds  how 
long  it  is  proposed  that  we  shall  hold  a  session  this  evening  ? 

Mr.  Commissioner  EDMUNDS.  I  think  we  ought  to  sit  two  full 
hours. 

Mr.  Commissioner  ABBOTT.    I  agree  to  that. 

The  PRESIDENT.     Are  you  ready  for  the  question  on  the  motion  ? 

Mr.  Commissioner  MOETON.     What  is  the  motion  f 

The  PEESIDENT.  That  the  hearing  of  the  case  proceed  in  the 
Senate  Chamber  at  half  past  seven  o'clock ;  and  that  the  parties  have 
three  and  a  half  hours  on  each  side  for  argument. 

Mr.  Commissioner  MOETON.  I  suggest  that  that  motion  is  divisi 
ble.  The  question  about  going  to  the  Senate  Chamber  is  one  thing.  I 
should  like  to  have  the  question  separated. 

The  PEESIDENT.  I  will  regard  the  question  as  divisible.  The 
first  question  is  whether  the  Commission  will  proceed  with  the  hearing 
in  the  Senate  Chamber  at  half  past  seven  o'clock. 

This  branch  of  the  motion  was  agreed  to. 

The  PEESIDENT.  The  other  division  of  the  motion  is  that  the 
parties  be  allowed  three  hours  and  a  half  on  a  side  for  the  discussion 
of  the  whole  question. 

This  branch  of  the  motion  was  agreed  to. 

Mr.  Commissioner  HOAE.  I  move  that  in  arguing  the  question  of 
admissibility  of  evidence,  counsel  be  permitted  to  take,  in  addition  to 
the  fifteen  minutes  allowed  by  the  rule,  as  much  of  the  time  remaining 
to  them  as  they  see  fit. 

Mr.  Commissioner  EDMUNDS.  That  is  unnecessary.  This  is  a 
substitute  for  the  whole  thing.  They  proceed  under  this  order  alone. 

Mr.  Commissioner  HOAE.    If  that  is  the  understanding,  all  right. 

The  PEESIDENT,  (at  six  o'clock  and  forty-four  minutes  p.  m.)  The 
Commission  will  now  take  a  recess  until  half  past  seven  o'clock. 

The  Commission  re-assembled  in  the  Senate  Chamber  at  seven  o'clock 
and  thirty  minutes  p.  m. 


ELECTORAL    COUNT    OF    1877.  555 

Mr.  HOADLY.  Mr.  President  and  gentlemen  of  the  Commission,  the 
first  proposition  to  which  I  address  myself  is  that  the  decisions  made  by 
the  Commission  in  the  cases  of  Florida  and  Louisiana,  applied  to  this 
case,  require  the  Commission  to  sustain  the  electoral  votes  cast  by 
Cronin,  Miller,  and  Parker,  namely,  one  for  Tilden  and  Hendricks,  and 
two  for  Hayes  and  Wheeler.  Without  retracing  its  steps  and  with 
drawing  the  conclusions  the  Commission  has  announced  in  the  cases  of 
Florida  and  Louisiana,  the  result  cannot  be  reached  which  is  desired  by 
our  learned  antagonists. 

In  order  that  we  may  in  the  briefest  possible  manner  ascertain  the 
point  of  contention,  I  will  read  from  the  decision  of  this  Commission  in 
the  case  of  Louisiana : 

And  the  Commission  has  by  a  majority  of  votes  decided,  and  does  hereby  decide,  that 
it  is  not  competent,  under  the  Constitution  and  the  law  as  it  existed  at  the  date  of  the 
passage  of  said  act,  to  go  into  evidence  aliunde  the  papers  opened  by  the  President  of 
the  Senate  in  the  presence  of  the  two  Houses  to  prove  that  other  persons  than  those 
regularly  certified  to  by  the  governor  of  the  State  of  Louisiana,  on  and  according  to 
the  determination  and  declaration  of  their  appointment  by  the  returning-officers  for 
elections  in  the  said  State  prior  to  the  time  required  for  the  performance  of  their  duties, 
had  been  appointed  electors,  or  by  counter-proof  to  show  that  they  had  not,  or  that 
the  determination  of  the  said  returning-officers  was  not  in  accordance  with  the  truth 
and  the  fact ;  the  Commission  by  a  majority  of  votes  being  of  opinion  that  it  is  not 
•within  the  jurisdiction  of  the  two  Houses  of  Congress  assembled  to  count  the  votes  for 
President  and  Vice-President  to  enter  upon  a  trial  of  such  questions. 

I  do  not  understand  that  this  is  a  ruling  upon  a  mere  question  of 
proof,  but  that  is  a  ruling  upon  a  high  proposition  of  jurisdiction.  Nor 
do  I  understand  that  by  this  decision  is  meant  that  anything  and  every 
thing  which  any  person  claiming  to  be  an  elector  may  inclose  in  an 
envelope  and  address  to  the  President  of  the  Senate  has  the  force  of 
testimony  before  this  honorable  Commission,  but  only  that  those  docu 
ments  and  papers  which  if  offered  aliunde  would  be  competent,  may  be 
considered  when  found  within  the  envelopes,  and  that  the  determination 
and  decision  of  the  returning-board.  of  a  State,  acted  upon  by  the  gov 
ernor  of  the  State  in  the  manner  provided  in  the  one  hundred  and  thirty- 
sixth  section  of  the  Eevised  Statutes,  is  final  and  conclusive,  and  that 
the  names  therein  contained  are  the  names  of  the  true  and  valid  electors 
of  the  State. 

That  I  am  right  in  this  construction  of  this  decision  is  confirmed  by 
the  views  of  one  for  whom  long  knowledge  has  impressed  me  with  great 
respect.  I  am  not  personally  intimate  with  him,  but  intimate  in  the 
sense  in  which  any  citizen  may  be  said  to  be  intimate  with  the  judg 
ment,  the  opinions,  and  the  habits  of  accuracy  of  statement  of  a 
statesman.  I  say,  that  I  am  right  in  this  conclusion  is  confirmed  by  a 
statement  of  reasons  for  this  conclusion  given  in  the  Senate  of  the 
United  States  on  the  20th  of  February  by  a  member  of  this  Commission, 
the  honored  Senator  from  Indiana,  [Mr.  Morton.]  He  said: 

The  Constitution  says  the  certificates  shall  be  opened  by  the  President  of  the  Senate 
in  the  presence  of  the  two  Houses.  Whether  he  is  to  count  the  votes  or  whether  the 
two  Houses  are  to  count  the  votes,  and  I  assume  under  this  law  the  two  Houses  are  to 
do  it,  or  in  certain  cases  this  Electoral  Commission,  what  can  they  do  ?  They  have 
but  one  duty  to  perform,  and  that  is  to  ascertain  that  these  certificates  came  from  the 
electors  of  the  State.  When  that  is  done,  "the  votes  shall  then  be  counted."  They 
must  ascertain  the  fact  whether  they  came  from  the  electors  of  the  State  ;  and  when 
they  have  ascertained  that,  their  duty  is  at  an  end.  There  is  no  time,  there  is  no  place 
to  try  any  question  of  ineligibility  or  of  election  when  the  votes  are  to  be  counted. 
And  how  are  we  to  know  that  the  certificates  came  from  the  electors  of  the  State  ?  In 
the  first  place  the  act  of  Congress  provides  prima-facie  evidence,  the  governor's  certifi 
cate,  but  that  is  not  conclusive.  That  is  the  result  of  an  act  of  Congress.  Congress 
may  repeal  that  act,  or  it  may  provide  by  another  to  go  behind  it,  but  when  you  go 
behind  that  and  come  to  the  action  of  the  officers  of  the  State,  there  your  inquiry  is 


556  ELECTORAL    COUNT    OF    1877. 

at  an  end.  Whenever  the  officers  appointed  by  a  State  to  declare  who  have  been 
chosen  electors  have  acted  and  made  that  declaration,  it  is  final  so  far  as  Congress  is 
concerned.  The  action  of  the  State  officers  is  the  act  of  the  State. 

With  this  statement  of  principle  I  am  content.  My  proposition  is 
that  the  State  of  Oregon,  through  her  State  officers,  through  her  gov 
ernor,  supported  by  her  canvassing-board,  has  spoken,  and  the  result 
of  her  speech  is  here  in  the  certificates  of  E.  A.  Cronin,  William.  H. 
Odell,  and  John  0.  Cartwright,  which  certificates  are  attached  to  the 
votes  of  Cronin,  Miller,  and  Parker,  and  are  the  only  legitimate,  lawful 
evidence  of  the  act  of  Oregon,  without  which  the  pretended  votes  of 
Odell,  Cartwright,  and  Watts  fail  to  have  any  legal  effect  whatever. 

The  views  expressed  by  Senator  Morton  find  confirmation  in  the  case 
of  Dennett,  petitioner,  in  volume  32  of  the  .Reports  of  the  State  of  Maine, 
page  508.  The  opinion  was  pronounced  by  Shepley,  chief-justice,  and 
there  was  no  dissenting  opinion  : 

The  act  of  opening  and  comparing  the  votes  returned  for  county  commissioners  can 
not  be  performed  by  the  persons  holding  the  offices  of  governor  and  of  councilors 
unless  they  act  in  their  official  capacities,  for  it  is  only  in  that  capacity  that  the  power 
is  conferred  upon  them.  The  duty  is  to  be  performed  upon  the  responsibility  of  their 
official  stations  and  under  the  sanctity  of  their  official  oaths.  The  governor  and  coun 
cil,  and  not  certain  persons  that  may  be  ascertained  to  hold  those  offices,  must  deter 
mine  the  number  of  votes  returned  for  each  person  as  county  commissioner,  and  ascer 
tain  that  some  one  has  or  has  not  a  sufficient  number  to  elect  him. 

It  is,  then,  the  State  of  Oregon  which  speaks  when  the  governor,  under 
section  136  of  the  Eevised  Statutes  of  the  United  States,  in  obedience 
to  the  return  and  canvass  of  the  returning- officers,  to  the  declaration 
and  determination  of  the  result  of  the  canvass  by  the  returning-officers, 
issues  that  certificate. 

It  shall  be  the  duty  of  the  executive  of  each  State — 

Says  the  statute — 

to  cause  three  lists  of  the  names  of  the  electors  of  such  State  to  be  made  and  certified, 
and  to  be  delivered  to  the  electors  on  or  before  the  day  on  which  they  are  required  by 
the  preceding  section  to  meet. 

Again,  section  138 : 

The  electors  shall  make  and  sign  throe  certificates  of  all  the  votes  given  by  them, 
each  of  which  certificates  shall  contain  two  distinct  lists,  <fcc. 

And  so  the  next  section,  that  the  certificates  shall  be  sealed  and  de 
livered,  one  to  the  Federal  district  judge,  one  sent  by  mail  to  the  Presi 
dent  of  the  Senate,  and  one  sent  by  messenger  to  the  President  of  the 
Senate. 

ISToWj  I  ask  your  honors'  attention  to  the  question,  Who  were  the 
electors  ascertained  to  be  appointed  by  the  official  decision  and  deter 
mination  (that  I  believe  to  have  been  the  language  used  in  the  Florida 
case)  of  the  board  of  State  canvassers  of  the  State  of  Oregon  ?  Or,  to 
use  the  language  adopted  in  the  Louisiana  case,  Who  were  the  return- 
ing-officers  upon  and  according  to  whose  determination  of  their  appoint 
ment  the  governor  acted  or  failed  to  act,  as  the  case  may  be,  in  the  issue 
of  the  certificates  of  the  State  of  Oregon  ? 

This  leads  us  to  an  examination  and  comparison  of  the  statutes  of 
the  State  of  Oregon  in  connection  with  the  statutes  of  the  States  of 
Florida  and  Louisiana,  for  I  refer  to  Florida  and  Louisiana  in  order  that 
we  who  are  of  counsel  may  have  a  guide  to  the  real  effect  of  the  opin 
ions  already  pronounced  by  this  Commission;  I  mean,  of  course,  in  ap 
plying  to  the  case  of  Oregon  the  decisions  made  by  this  Commission  in 
the  matter  of  Florida  and  Louisiana. 

In  Florida  certain  persons  are  to 


ELECTORAL    COUNT    OF    1877.  557 

form  a  board  of  State  canvassers,  aiid  proceed  to  canvass  the  returns  of  said  election, 
and  determine  and  declare  who  shall  have  been  elected  to  any  such  office  or  as  such 
member,  as  shown  by  such  returns. 

Here  the  office  of  determination  and  declaration  is  saperadded  to  the 
office  of  canvassing ;  and  by  a  later  provision  in  the  same  section  the 
board  are  required  to 

make  and  sign  a  certificate  containing  in  words  written  at  full  length  the  whole  num 
ber  of  votes,  &c. 

And— 

When  any  person  shall  be  elected  to  the  office  of  elector,    *  the  governor  shall 

make  out,  sign,  and  cause  to  be  sealed  with  the  seal  of  the  State,  and  transmit  to  such 
person,  a  certificate  of  his  election. 

The  point  to  which  I  desire  particularly  your  attention  is  that  under 
the  laws  of  Florida  the  determination  and  decision  are  separated  in 
legal  thought,  and  thus,  in  legal  act,  from  the  canvass  itself;  and  so  we 
find  it  in  Louisiana,  as  is  made  manifest  in  the  oath  that — 

I  will  carefully  and  honestly  canvass  and  compile  the  statements  of  the  votes. 
Again — 

Within  ten  clays  after  the  closing  of  the  election  said  returning-officers  shall  meet  in 
New  Orleans  to  canvass  and  compile  the  statements  of  votes  made  by  the  commission 
ers  of  election,  and  make  returns  of  the  election  to  the  secretary  of  state.  They  shall 
continue  in  session  until  such  returns  have  been  compiled.  The  presiding  officer  shall, 
at  such  meeting,  open  in  the  presence  of  the  said  returning-officers  the  statements  of 
the  commissioners  of  election,  and  the  said  returuing-officers  shall,  from  said  state 
ments,  canvass  and  compile  the  returns  of  the  election  in  duplicate  ;  one  copy  of  such 
returns  they  shall  file  in  the  office  of  the  secretary  of  state,  and  of  one  copy  they  shall 
make  public  proclamation,  by  printing  in  the  official  journal  and  such  other  newspa 
pers  as  they  may  deem  proper,  declaring  the  names  of  all  persons  and  officers  voted 
for,  the  number  of  votes  for  each  person,  and  the  names  of  the  persons  who  have  been 
duly  and  lawfully  elected.  The  returns  of  the  election  thus  made  and  promulgated 
shall  be  prima  facie  evidence  in  all  courts  of  j  ustice  and  before  all  civil  officers,  until 
set  aside  after  contest  according  to  law,  of  the  right  of  any  person  named  therein  to 
hold  and  exercise  the  office  to  which  he  shall  by  such  return  be  declared  elected.  The 
governor  shall,  within  thirty  days  thereafter,  issue  commissions  to  all  officers  thus  de 
clared  elected,  who  are  required  by  law  to  be  commissioned. 

Now,  in  Oregon  the  language  of  the  sixtieth  section  is  this : 

The  votes  for  the  electors  shall  be  given,  received,  returned,  and  canvassed  as  the 
same  are  given,  returned,  and  canvassed  for  members  of  Congress.  The  secretary  of 
state  shall  prepare  two  lists  of  the  names  of  the  electors  elected,  and  affix  the  seal  of 
the  State  to  the  same,  &c. 

I  will  come  back  to  that  presently.  Let  us  now  see  how  votes  are 
given,  received,  returned,  and  canvassed  for  members  of  Congress.  Sec 
tion  37  is: 

The  county  clerk,  immediately  after  making  the  abstract  of  the  votes  given  in  his 
county,  shall  make  a  copy  of  each  of  said  abstracts,  and  transmit  it  by  mail  to  the  sec 
retary  of  state,  at  the  seat  of  government ;  and  it  shall  be  the  duty  of  the  secretary  of 
state,  in  the  presence  of  the  governor,  to  proceed,  within  thirty  days  after  the  election, 
and  sooner  if  the  returns  be  all  received,  to  canvass  the  votes  given  for  secretary  and 
treasurer  of  state,  state  printer,  justices  of  the  supreme  court,  members  of  Congress, 
and  district  attorneys. 

If  this  were  all  the  statute,  an  argument  by  implication  might  be  made, 
to  the  effect  that  the  duty  to  canvass  involves  the  duty  to  determine  the 
results  of  the  canvass.  But  this  is  not  all,  for  the  governor,  who  is  re 
quired  to  be  present,  is  not  an  idle  spectator,  as  is  claimed  by  the  object 
ors  to  certificate  No.  2  : 

Ami  the  governor  shall  grant  a  certificate  of  election  to  the  person  having  the  high 
est  number  of  votes,  and  shall  also  issue  a  proclamation  declaring  the  election  of  such 
person. 


558  ELECTORAL   COUNT   OF   1877. 

And  this  is  made  perfectly  plain  by  the  next  sentence : 

In  case  there  shall  be  no  choice  by  reason  of  any  two  or  more  persons  having  an  equal 
and  the  highest  number  of  votes  for  either  of  such  offices,  the  governor  shall,  by  proc 
lamation,  order  a  new  election  to  fill  said  offices. 

For  what  purpose  is  the  governor  present?  He  is  to  witness  the  can 
vass  and  declare  its  result,  and  his  declaration  of  its  result  is  the  certificate 
he  gives,  and  his  proclamation  declaring  the  election  of  such  person. 
He  is  not  there  by  way  of  idle  ceremony  any  more  than  the  two  Houses 
of  Congress  are  present  at  the  opening  of  the  envelopes  as  a  mere  idle 
ceremony.  He  is  there  to  do  what  is  required  of  him  to  do — to  witness 
the  canvass  and  to  declare  its  result.  But  if  this  be  not  so  in  the  matter 
of  members  of  Congress  of  Oregon,  it  is  unquestionably  so  with  regard 
to  the  final  determination,  decision,  and  declaration  of  the  result  of  the 
election  of  electors.  The  secretary  of  state  is  to  canvass.  No  duty  is 
imposed  on  him  to  declare  any  result  whatever.  He  is  to  canvass,  and 
what  is  that  canvass  ?  I  copied — perhaps  it  was  an  idle  thing — from  the 
approved  lexicographers  the  definition  of  the  word.  Worcester  says  : 

1.  To  sift ;  to  examine  ;  to  scrutinize. 

I  have  made  careful  search,  and  canvassed  the  matter  with  all  possible  diligence. — 
Woodivard. 

2.  To  debate;  to  discuss;  to  agitate. 

They  canvassed  the  matter  one  way  and  t'other. — L' 'Estrange. 
To  solicit  votes  from;  to  bespeak. 

And  Webster  traces  the  origin  of  the  word  to  the  old  French  word 
canebasser,  and  defines  it  thus : 

To  examine  curiously ;  to  search  or  sift  out,  as  canvass  in  Old  English,  and  probably 
in  Old  French,  signified  also  a  sieve,  a  straining-cloth. 

1.  To  sift ;  to  strain ;  to  examine  thoroughly ;  to  search  or  scrutinize ;  as,  to  canvass 
the  votes  for  senators. 

2.  To  take  up  for  discussion  ;  to  debate. 

An  opinion  that  we  are  likely  soon  to  canvass. — Sir  W.  Hamilton. 

3.  To  go  through  in  the  way  of  solicitation  ;  as,  to  canvass  a  district  for  votes. 

Here  is  no  necessary  implication  that  the  word  means  "  to  determine 
the  result.'7  It  is  to  examine,  scrutinize,  tabulate,  and  formulate,  but 
not  necessarily  to  ascertain  and  determine  results,  and  so  the  word  is 
used  in  Florida,  and  so  the  word  is  used  in  Louisiana,  and  so  the  cor 
responding  word  "  examine,"  as  I  shall  presently  show  you,  is  used  in 
Massachusetts,  and  so  the  word  is  used  in  Oregon.  When  we  come  to 
the  sixtieth  section  of  the  statute  we  find  that  this  view  is  confirmed. 
Let  us  now  return  to  the  sixtieth  section : 

The  votes  for  the  electors  shall  be  given,  received,  returned,  and  canvassed  as  the 
same  are  given,  returned,  and  canvassed  for  members  of  Congress. 

It  does  not  say  "  given,  received,  returned,  canvassed,  and  declared," 
or  "  given,  received,  returned,  canvassed,  and  certified.'7  It  says, "  given, 
received,  returned,  and  canvassed,"  and  the  provision  with  regard  to 
the  final  determination  and  decision  is  contained  in  the  next  clause  of 
the  section : 

The  secretary  of  state  shall  prepare  two  lists  of  the  names  of  the  electors  elected,  and 
affix  the  seal  of  the  State  to  the  same. 

Two  lists,  not  three ;  the  secretary  of  state,  not  the  governor.  It  is 
not  under  the  act  of  Congress  that  this  is  required,  for  the  act  of 
Congress  calls  for  no  great  seal  of  Oregon,  and  calls  for  no  certificate 
of  the  secretary  of  state  of  Oregon.  The  act  of  Congress  calls  lor  a  cer 
tificate  which  may  be  without  a  seal,  which  may  be  without  the  attesta 
tion  of  a  secretary.  The  act  of  Congress  simply  provides  that  it  shall 
be  the  duty  of  the  executive  of  each  State  to  cause  three  lists  of  the 


ELECTORAL    COUNT    OF    1877  559 

names  of  the  electors  of  such  State  to  be  made  and  certified.    But  Ore 
gon  says : 

The  secretary  of  state  shall  prepare  two  lists  of  the  names  of  the  electors  elected, 
and  affix  the  seal  of  the  State  to  the  same.  Such  lists  shall  be  signed  by  the  governor 
and  secretary,  and  by  the  latter  delivered  to  the  college  of  electors  at  the  hour  of  their 
meeting  on  such  first  Wednesday  of  December. 

And  here  are  the  lists  prepared  under  this  section,  to  which  are  signed 
the  names  of  the  governor  and  secretary,  under  the  great  seal  of  the 
State,  declaring  that  William  H.  Odell,  John  C.  Cartwright,  and  E.  A. 
Cronin  are  the  electors  elected : 

I,  L.  F.  Grover,  governor  of  the  State  of  Oregon,  do  hereby  certify  that  at  a  general 
election  held  in  said  State  on  the  7th  day  of  November,  A.  D.  1876,  William  H.  Odell 
received  15,206  votes,  John  C.  Cartwright  received  15,214  votes,  E.  A.  Cronin  received 
14,157  votes,  for  electors  of  President  and  Vice-President  of  the  United  States  ;  being 
the  highest  number  of  votes  cast  at  said  election  for  persons  eligible,  under  the  Con 
stitution  of  the  United  States,  to  be  appointed  electors  of  President  and  Vice-President 
of  the  United  States,  they  are  hereby  declared  duly  elected  electors  as  aforesaid  for 
the  State  of  Oregon. 

This  is  the  voice  of  Oregon,  according  to  the  judgment  of  this  Com 
mission  in  the  cases  of  Florida  and  Louisiana.  Its  truthfulness  has 
been  impeached ;  but  one  thing  I  am  certain  I  may  say  in  this  presence: 
it  is  as  true  as  the  certificates  which  have  received  the  approval  of  this 
Commission  coming  from  Florida  and  Louisiana. 

They  are  duly  elected,    They  are  hereby  declared — 

duly  elected  electors  as  aforesaid  for  the  State  of  Oregon. 

LA  FAYETTE  GROVER, 

Governor  of  Oregon. 
Attest: 

S.  F.  CHADWICK, 
Secretary  of  State  of  Oregon. 

But,  says  my  learned  friend,  the  secretary  of  state  has  simply  signed 
it  as  a  witness.  Not  so.  He  signed  it  in  attestation  of  the  truth  of  the 
fact.  He  is  a  participant  in  the  declaration  thereby.  He  has  attached 
the  great  seal  of  the  State.  It  is  the  act  of  the  governor  and  the  act  of 
the  secretary  in  the  ordinary  form,  and  being  such,  it  is  in  compliance 
with  the  sixtieth  section  of  the  statute  of  Oregon,  and  at  the  same  time 
•with  the  one  hundred  and  thirty-sixth  section  of  the  Eevised  Statutes 
of  the  United  States,  and  thus  constitutes  the  final  and  conclusive  de 
cision  and  determination  of  the  vote  of  the  State  of  Oregon,  according 
to  the  only  evidence  provided  by  law  by  which  this  tribunal  can  com 
municate  with  the  State  of  Oregon.  The  laws  of  the  United  States 
have  provided  but  a  single  method  by  which  this  tribunal  can  commu 
nicate  with  Oregon.  It  is  in  the  one  hundred  and  thirty-sixth  section 
of  the  Eevised  Statutes  of  the  United  States.  There  is  the  method 
pointed  out  by  law  by  which  the  voice  of  Oregon  may  speak  to  this  tri 
bunal,  fco  the  two  Houses  of  Congress,  and  which  this  tribunal,  standing 
in  the  place  of  the  two  Houses  of  Congress,  may  hear  as  the  voice  of 
Oregon,  as  has  been  decided  in  the  cases  of  Florida  and  Louisiana. 

I  submit  this  proposition  in  connection,  however,  with  a  decision  in 
the  State  of  Massachusetts. 

Mr.  Commissioner  THUEMAN.  Who,  by  the  laws  of  Oregon,  had 
the  custody  of  the  great  seal  of  the  State  ? 

Mr.  HOADLY.    I  am  unable  to  answer  the  question. 

Mr.  MATTHEWS.    The  secretary  of  state,  by  the  constitution. 

Mr.  HOADLY.  It  has  been  answered  probably  correctly.  I  do  not 
mean  by  "  probably  correctly  "  to  impeach  my  learned  friend ;  I  mean 

Mr.  MATTHEWS.    The  constitution  says  so. 


560  ELECTORAL    COUNT    OF    1877. 

Mr.  HO ADLY.  I  have  not  looked  at  it ;  but  I  say  there  is  nothing 
in  the  laws  of  Oregon  which  requires  any  such  certificate  or  exemplifi 
cation  as  is  presented  by  the  supporters  of  certificate  No.  1.  It  cannot 
be  found  there.  There  is  the  provision  of  Oregon,  section  sixty,  and  the 
abstract,  which  is  simply  a  certified  statement  of  the  number  of  votes 
received  at  the  election,  is  a  provision  aliunde  the  laws  of  Oregon, 
although  it  was  within  the  envelope  opened  by  the  President  of  the 
Senate. 

Mr.  Representative  LAWRENCE.  The  secretary  of  state  can  certify 
at  common  law. 

Mr.  HO  ADLY.  But  the  laws  of  Oregon  have  determined  and  pre 
scribed  who  shall  certify  to  this  tribunal.  That  certificate  we  present. 

Now  I  call  your  honors'  attention  to  the  opinion  of  the  judges  of  the 
supreme  judicial  court  of  Massachusetts,  signed  by  them  all — Horace 
Gray,  John  Wells,  James  D.  Colt,  Seth  Ames,  Marcus  Morton,  William 
C.  Endicott,  and  Charles  Devens,  jr.,  Boston,  March  5, 1875 — to  be  found 
on  page  GOO  of  the  one  hundred  and  seventeenth  volume  of  Massachu 
setts  Reports : 

The  seventh  chapter  of  the  general  statutes  has  constituted  the  governor  and  council 
a  board  to  examine,  as  soon  as  may  be  after  receiving  them,  the  returns  of  votes  from 
the  various  cities  and  towns  for  district  attorneys  and  other  officers  named  in  this 
article  of  the  constitution,  and  requires  the  governor  forthwith  to  transmit  to  such 
persons  as  appear  to  be  chosen  to  such  offices  a  certificate  of  such  choice,  signed  by  the 
governor  and  countersigned  by  the  secretary  of  the  commonwealth. 

Notice,  the  governor  and  council  are  obliged  to  examine  the  returns : 
it  does  not  say  "  to  examine  and  declare  the  result,"  but  u  to  examine :" 

The  nature  of  the  duties  thus  imposed  and  the  very  terras  or  the  statute  show  that 
they  are  to  be  performed  without  unnecessary  delay,  and  that  the  certificate  issued  by 
the  governor  to  any  person  appearing  upon  such  examination  to  be  elected  is  the  final 
and  conclusive  evidence  of  the  determination  of  the  governor  and  council  as  to  his 
election. 

I  submit  that  by  parity  of  reasoning  the  certificate  or  list  signed  by 
the  governor  and  secretary  of  state  of  Oregon,  under  the  great  seal  of 
the  State,  and  by  the  latter  delivered  to  the  college  of  electors  at  the 
hour  of  their  meeting  on  the  first  Wednesday  of  December,  is  the  final 
and  conclusive  evidence  of  the  determination  of  the  governor  and  sec 
retary  as  to  their  election.  Why  are  the  governor  and  secretary  required 
to  sign  these  lists  ?  It  is  that  the  chief  executive  of  the  State  and  the 
canvassing-officer  shall  unite  in  declaring  who  are  elected.  The  secre 
tary,  the  canvassing-onicer,  is  required  to  prepare  two  lists  of  the  names 
of  electors  elected,  and  to  affix  the  great  seal  of  the  State  to  the  same : 
and  the  governor,  in  whose  presence  the  canvass  is  made,  must  also  sign, 
and  together  their  signatures,  with  the  great  seal  of  the  State,  constitute 
the  final  and  conclusive,  irrefragable  evidence  who  are  the  electors  of 
the  State  of  Oregon. 

I  pass  from  this  proposition  to  consider  another.  It  is  a  familiar 
proposition  of  law  that  when  a  commission  or  certificate  of  election  has 
been  delivered  to  an  officer,  and  he  accepts  it,  and  enters  upon  the  per 
formance  of  the  duties  of  that  office,  he  becomes  an  officer  de  jure  et  de 
facto,  and  is  to  be  so  treated  in  all  courts,  in  all  places,  under  all  cir 
cumstances,  except  when  his  title  may  be  impeached  by  quo  warranto, 
certiorari,  or  proceeding  under  a  statute  for  contest.  This  evidence  is 
here  presented  by  E.  A.  Cronin,  J.  N.  T.  Miller,  and  John  Parker. 
They  come  here,  Crouin,  as  a  certificated  elector,  having  vouched  in 
Miller  and  Parker  to  vote  with  him  in  consequence  of  the  refusal  of 
Cartwright  and  Odell  to  act  with  him.  I  will  stop  a  moment  simply  to 


ELECTORAL    COUNT    OF    1877  561 

say  that  in  ruy  judgment  the  statements  contained  in  the  record  in 
connection  with  certificate  No.  2  are  confirmed  and  placed  beyond  the 
possibility  of  a  doubt  by  the  statements  contained  in  certificate  No.  1. 
Mr.  Cronin  says  (and  he  presents  the  authentic,  official  advice  to  this 
Commission  of  his  election  and  the  election  of  Odell  and  Cartwright) 
that  they  refused  to  act  with  him,  and  they  say  that  they  were  elected 
with  Watts,  and  that  they  organized  with  Watts  by  accepting  the 
resignation  of  Watts  and  electing  into  the  place,  thus  made  vacant  by 
the  declination  of  Watts,  Mr.  Watts  himself. 

I  respectfully  submit,  Mr.  President  and  gentlemen  of  the  Commission, 
that  there  is  no  contradiction  between  these  certificates.  Mr.  Cronin 
was  in  possession  of  the  official  decision  and  determination  of  the  can 
vassers  of  Oregon.  He  proposed  to  act.  Mr.  Watts's  name  is  not  in 
the  official  decision  and  determination  of  the  canvassers  of  Oregon,  but 
was  excluded  by  them.  Mr.  Watts  proceeded  to  act  with  Odell  and 
Cartwright.  They  did  not  say,  as  my  learned  friend  who  closed  the 
argument  for  the  objectors  would  have  this  Commission  to  understand, 
that  they  (Odell  and  Cartwright  with  Cronin)  made  the  board,  and  that 
Cronin  refused  to  act  with  them.  There  can  be  no  refusal  without  an 
opportunity.  They  proceeded  to  exclude  Cronin  by  accepting  Watts's 
resignation. 

Mr.  Commissioner  ABBOTT.  Is  there  any  allegation  anywhere  on 
that  certificate  that  they  refused  to  act  with  Cronin  or  that  Crouin 
refused  to  act  with  them J? 

Mr.  HOADLY.  Crouin's  name  is  not  in  that  certificate.  He  is 
ignored  utterly  and  entirely.  Odell  and  Cartwright  state  that  they 
acted  with  Watts, 'that  they  accepted  Watts's  resignation,  and  elected 
Watts  to  take  the  place  of  Watts,  all  the  while  it  being  shown  by  the 
official  decision  and  determination  that  Cronin  was  ready  to  act,  Cronin 
alleging,  with  Miller  and  Parker,  that  they  refused  to  act  with  him,  and 
they  alleging,  without  naming  him,  that  they  refused  to  act  with  him 
by  alleging  that  they  did  act  without  him  and  with  Watts. 

I  was  wrong  in  saying  that  their  record  does  not  name  Cronin.  It 
does  name  him,  but  it  names  him  to  confirm  the  statement  I  have  just 
made.  Certificate  No.  1  says  that  Odell  and  Cartwright  required  of 
the  governor  and  the  secretary  of  state  certified  lists,  which  both  those 
officers  refused  to  give  them,  thus  adding  to  their  official  decision  and 
determination  a  refusal  to  give  such  evidence  to  anybody  else. 

And  so  far  as  evidence  aliunde  the  lists  may  be  considered  (a  ques 
tion  which  this  Commission  may  yet  be  called  upon  to  decide)  they  do 
say: 

And  being  informed  that  such  lists  had  been  delivered  to  one  E.  A.  Cronin,  by  said 
secretary  of  state,  we,  each  and  ail- 
That  is,  Watts,  Odell,  and  Cartwright,  each  and  all- 
demanded  such  certified  lists  of  said  E.  A-  Cronin ;  but  he  then  and  there  refused  to 
deliver  or  to  exhibit  such  certified  lists  to  us  or  either  of  us. 

And,  therefore,  Mr.  Cronin  produces  the  lists  which  do  not  contain 
the  name  of  Watts. 

I  was  going  on  to  say  that  a  certificated  or  commissioned  officer  who 
enters  upon  the  discharge  of  duty  is  an  officer  de  jure  et  de  facto  in  all 
tribunals,  in  all  places,  with  reference  to  any  action  of  his  in  his  office, 
until  challenged  by  writ  of  quo  warranto,  or  contest  of  election,  or  writ 
of  certiorari.  The  lists  provided  for  by  the  one  hundred  and  thirty- 
sixth  section  of  the  Revised  Statutes  and  the  sixtieth  section  of  the 
36  E  c 


562  ELECTORAL    COUNT    OF    1877. 

statutes  of  Oregon  being  held  by  E.  A.  Cronin  did  make  him  an  elector 
dejure  et  de  facto  as  to  all  persons,  except  the  State  challenging  upon  quo 
warranto,  or  except  upon  certiorari,  or  except  upon  contest  of  election  ; 
and  to  that  proposition  I  desire  to  direct  a  few  remarks,  which  will  be 
mainly  by  way  of  referring  to  authority. 

I  will  read  first  from  the  case  of  the  People  v.  Miller,  16  Michigan 
Eeports,  page  56.  It  is  the  opinion  of  his  honor  Mr.  Justice  Chris- 
tiancy,  concurred  in  by  Judge  Cooley  and  Judge  Campbell,  and  I  am 
sure  I  need  not  say  in  this  hall  that  an  opinion  from  such  a  source,  with 
such  confirmation,  cannot  be  challenged  with  safety  in  any  court  of 
justice  in  the  land. 

The  certificate  of  election,  whether  rightfully  or  wrongfully  given,  confers  upon  the 
person  holding  it  the  prima-facie  right  of  holding  it  for  the  term,  and  this  prima-facie 
right  is  subject  to  be  defeated  only  by  his  voluntary  surrender  of  the  office,  or  by 
a  judicial  determination  of  the  right.  We  do  not  mean  to  say  that  if  the  respondent 
had  abandoned  or  should  abandon  his  claim  to  the  office  under  the  election,  witnessed 
by  the  certificate  admitting  the  relator's  right,  that  the  board  might  not  have  received 
andj  approved  the  relator's  bond,  but  they  certainly  had  no  jurisdiction  to  try  the 
validity  of  the  election  as  between  the  relator  and  the  respondent,  and  in  such  a  con 
test  the  certificate  of  election  was  conclusive  upon  them  until  the  right  should  be 
judicially  tried. 

The  head-note  or  syllabus  of  the  case  is  : 

The  certificate  of  election,  whether  rightfully  or  wrongfully  given  by  the  board  of 
canvassers,  confers  upon  the  person  holding  it  the  prima-facie  right  to  the  office  until 
his  right  is  rejected  by  a  voluntary  surrender  or  by  a  judicial  determination  against 
him. 

This  proposition  has  been  three  times  decided  in  the  State  of  Penn 
sylvania,  in  cases  to  which  I  will  direct  your  honors,  beginning  with 
the  case  of  Commonwealth  ex  relatione  Boss  v.  Baxter,  35  Pennsylvania 
State  Eeports,  p.  263  : 

A  return  by  the  election-officers  that  A  B  received  a  majority  of  the  votes  for  a 
township  office  is  legal  and  prima-facie  evidence  of  his  title  to  the  office  ;  and  it  can 
only  be  set  aside  by  proceedings  for  a  false  return  under  the  act  of  July  2,  1839.  It  can 
not  be  inquired  into  by  quo  warranto. 

So  in  the  forty-first  volume  Pennsylvania  State  Keports,  Hulseman 
and  Brinkworth  v.  Eems  and  Siner,  page  401,  a  case  of  great  interest 
in  many  respects.  I  read  from  pages  400  and  401.  It  was  an  action  in 
equity  for  an  injunction,  for  in  Pennsylvania  it  is  held  that  a  conflict 
between  two  officers  claiming  in  conflicting  rights  may  be  decided 
under  certain  circumstances  by  injunction  in  equity. 

We  have,  therefore,  no  ground  left  for  our  interference  but  the  single  one  that  the 
return  judges  included  in  their  enumeration  returns  purporting  to  be  from  three  com 
panies  of  volunteers,  which  were  forgeries.  We  admit,  therefore,  that  the  evidence 
proves  that  these  certificates  of  the  election  of  the  defendants  are  founded  in  manifest 
fraud,  the  forgery  of  some  unknown  person,  but  we  do  not  find  that  the  defendants 
had  any  hand  in  it ;  and  we  trust  they  had  not.  Can  we  on  this  account  interfere  and 
declare  the  certificates  void  ? 

Mr.  Commissioner  HOAE.    Who  were  the  defendants  in  that  case  ? 

Mr.  HOADLY.  It  was  a  proceeding  in  equity  by  John  Hulseman 
and  George  Brinkworth,  citizens  and  qualified  voters,  against  James 
Eems  and  Charles  B.  Siner. 

Mr.  Commissioner  HOAE.  Were  they  the  persons  claiming  the 
office? 

Mr.  HOADLY.  They  were  the  persons  claiming  the  office  and  hold 
ing  the  certificates  of  election. 

According  to  our  laws  the  election  has  passed  completely  through  all  its  forms,  the 
result  has  been  in  due  form  declared  and  certified,  and  the  defendants  have  received 


ELECTORAL    COUNT    OF    1877.  563 

their  certificates  of  election,  and  are  entitled  to  their  seats  as  members  of  the  common 
council.  The  title-papers  of  their  offices  are  complete,  and  have  the  signatures  of  the 
proper  officers  of  the  law  ;  and  if  they  are  vitiated  by  any  mistake  or  fraud  in  the 
process  that  has  produced  them,  this  raises  a  case  to  be  tried  by  the  forms  of  "a  con 
tested  election  "  before  the  tribunal  appointed  by  law  to  try  such  questions,  and  not 
by  the  ordinary  forms  of  legal  or  equitable  process  before  the  usual  judicial  tribunals. 

In  Kerr  and  others  vs.  Trego  and  others,  47  Pennsylvania  State  Re 
ports,  page  292,  the  syllabus  is : 

In  all  bodies  that  are  under  law,  where  there  has  been  an  authorized  election  for  the 
office  in  controversy,  the  certificate  of  election  which  is  sanctioned  by  law  or  usage  is 
the  prima  facie  written  title  to  the  office,  and  can  only  be  set  aside  by  a  contest  in  the 
forms  prescribed  by  law.  ,  • 

To  the  same  effect  the  case  of  The  People  vs.  Cook,  in  4  Selden's  Re- 
ports,  page  68 : 

The  certificate  of  the  board  of  canvassers  may  be  conclusive  of  the  election  of  an 
officer  in  a  controversy  arising  collaterally,  or  between  the  party  holding  it  and  a 
stranger.  But  between  the  people  and  the  party  in  an  action  to  impeach  it,  it  is  only 
prima  facie  evidence  of  the  right.  It  is  the  will  of  the  electors  and  not  the  certificate 
which  gives  the  right  to  the  office. 

So  again  in  33  New  York  Reports ;  I  will  read  from  page  606,  the  case 
of  Hadley  vs.  The  Mayor.  It  was  a  case  of  a  policeman  suing  for  salary. 
In  other  words,  it  was  an  action  in  which  the  question  arose,  as  it  arises 
here,  collaterally;  it  did  not  arise  by  quo  warranto;  it  did  not  arise  by 
certiorari;  it  did  not  arise  by  contest;  it  arose  as  here : 

The  second  exception  was  to  the  decision  by  which  the  court  excluded  the  inspect 
or's  returns.  The  object,  I  suppose,  was  to  show  that  the  returns  elected  Mr.  Quack- 
enbush  and  not  Mr.  Perry.  But  the  law  having  committed  to  the  common  council  the 
duty  of  canvassing  the  returns  and  determining  the  result  of  the  election  from  them, 
and  the  council  having  performed  that  duty  and  made  a  determination,  the  question 
as  to  the  effect  of  the  returns  was  not  open  for  a  determination  by  a  jury  in  an  action 
in  which  the  title  of  the  officer  came  up  collaterally.  If  the  question  had  arisen  upon 
an  action  in  the  nature  of  a  quo  warranto  information,  the  evidence  would  have  been 
competent.  But  it  would  be  intolerable  to  allow  a  party  affected  by  the  acts  of  a  per 
son  claiming  to  be  an  officer  to  go  behind  the  official  determination  to  prove  that  such 
official  determination  arose  out  of  mistake  or  fraud. 

So  also  in  Butcher's  Reports,  New  Jersey,  page  355,  the  case  of  The 
State  vs.  The  Clerk  of  the  County  of  Passaic : 

A  quo  warranto  is  the  legal  and  usual  mode  in  which  title  to  office  may  be  tried  and 
finally  adjudicated. 

The  determination  of  the  board  of  county  canvassers  has  no  such  final  effect  as  to 
interfere  with  a  full  investigation  of  the  result  of  an  election  upon  a  writ  of  quo  war 
ranto. 

Again,  on  page,356 : 

In  the  present  instance,  the  writ  appears  to  have  been  designed  as  ancillary  to  the 
application  for  a  mandamus,  in  order  to  bring  before  the  court  the  decision  of  the 
board  of  county  canvassers  and  the  evidence  upon  which  it  was  founded.  That  ap 
plication  having  been  denied,  and  the  office  having  been  filled,  a  decision  upon,  the 
validity  of  the  proceedings  of  the  board  would  be  nugatory.  It  would  neither  vacate 
the  commission  which  has  been  issued  nor  avail  the  plaintiff  in  any  subsequent  pro 
ceedings  which  may  be  instituted  to  determine  his  rights.  If  the  determination  of 
the  board  of  county  canvassers  partakes  at  all  of  the  character  of  a  judicial  act,  it  cer 
tainly  has  no  such  final  or  conclusive  effect  as  to  interfere  with  the  full  and  free 
investigation  of  the  legal  result  of  the  election  upon  a  writ  of  quo  warranto. 

_So  in  Minnesota,  in  the  fifteenth  volume  of  Minnesota  Reports,  page 
455,  the  decision  of  a  court,  one  of  the  judges  of  which  is  now  a  mem 
ber  of  the  United  States  Senate,  (Mr.  McMillan,)  State  of  Minnesota  &r 
rel.  R.  A.  Briggs  vs.  O.  A.  Churchill,  auditor,  &c. : 

Under  the  laws  of  this  State  the  result  of  the  canvass  by  aboard  of  county  canvass 
ers  is  a  decision  and  determination  of  the  election  of  the  persona  whom  they  declare 
to  be  elected. 


564  ELECTORAL    COUNT    OF    1877. 

The  abstract  of  the  canvass  of  the  Votes  in  the  form  prescribed  in  the  statute  is  the 
authentic  and  official  evidence  of  the  canvass  by  the  board  by  which  the  county  audi 
tor  is  to  be  governed  in  issuing  the  certificates  of  election. 

When  a  certificate  of  election  is  issued  and  delivered  by  the  auditor  to  a  person  de 
clared  to  be  elected  to  a  county  office,  in  accordance  with  the  official  canvass,  regular 
upon  its  face,  the  certificate  is  conclusive  evidence  of  the  right  of  the  "person  holding 
it  to  the  office  to  which  it  shows  him  to  have  been  elected,  except  in  a  proceeding 
where  this  right  is  directly  in  issue.  To  go  behind  a  certificate  thus  issued  and  de 
termine  the  correctness  of  the  canvass  involves  the  determination  of  the  right  of  the 
holder  of  the  certificate  to  the  office  ;  this  cannot  be  done  upon  mandamus. 

And  so  in  three  cases  in  the  twenty-fifth  volume  of  the  Louisiana  Ee- 
ports.  Certainly  whatever  authority  this  volume  may  have,  whatever 
respect  or  want  of  respect  may  be  shown  to  it,  it  is  not  for  those  who 
have  sustained  before  this  tribunal  the  acts  of  the  State  government  of 
which  the  authors  of  this  volume  are  part  and  parcel,  to  challenge  the 
decision  made  by  the  court  of  which  Mr.  Ludeling  was  chief-justice.  In 
The  State  vs.  Wharton,  page  3,  they  say  : 

Where  two  sets  of  officers  claim  to  be  the  legal  board  of  returniug-officers,  it  is  dif 
ficult  to  conceive  why  this  is  not  a  judicial  question. 

In  Collins  vs.  Knoblock  and  others,  page  263,  they  say : 

The  adjustment  and  compilation  of  election-returns,  determining  the  number  of  legal 
and  illegal  votes  cast  for  each  candidate,  declaring  the  result  of  an  election  and  fur 
nishing  the  successful  candidate  with  the  proper  certificate,  in  short  superintending 
and  controlling  all  the  details  of  an  election,  belong  properly  to  the  political  depart 
ment  of  the  government. 

In  The  State  on  the  relation  of  Bonner  vs.  Lynch,  page  267,  they  say  : 

The  defendant  having  been  returned  by  the  legal  returning-board  of  the  State  as 
elected  judge  of  the  fourth  district  court  of  New  Orleans,  and  upon  that  return  the 
acting  governor  having  issued  a  commission  to  him  according  to  law,  it  cannot  be  said 
that  one  holding  an  office  under  such  a  commission  has  intruded  into  or  unlawfully 
holds  the  office. 

In  the  twentieth  volume  of  Vermont  Keports,  page  473,  in  the  case  of 
Overseer  of  the  poor  of  Norwich  vs.  Halsey  J.  Yarringtou,  the  court  say : 

When  a  person  acting  as  justice  of  the  peace  holds  a  commission  for  that  office  from 
the  governor,  under  the  seal  of  the  State,  the  court  will  not  go  behind  that  conimis-. 
sion  to  inquire  whether  he  had  been  duly  appointed  to  that  office  by  the  general 
assembly  of  the  State  or  not. 

So  in  three  cases  in  the^State  of  Ohio. 

Mr.  Commissioner  MILLER.  That  was  not  in  a  proceeding  directly 
against  him  to  invalidate  the  act. 

Mr.  HOADLY.  Of  course  if  it  had  been  a  quo  warranto,  a  certiorari,  or 
a  contest,  the  question  would  have  arisen  judicially  alid  properly;  but 
it  was  not.  It  was  a  complaint  in  bastardy,  where  the  woman  for  the 
space  of  thirty  days  had  neglected  to  charge  the  putative  father,  and  a 
controversy  thereupon  arose. 

So  in  three  cases  in  the  State  of  Ohio,  in  which  it  was  decided  by  the 
supreme  court  of  that  State  each  time  that  a  proceeding  to  try  a  title 
to  an  office  was  a  j  udicial  proceeding.  In  one  of  these  cases  the  supreme 
iudicial  court  of  the  State  of  Ohio  were  called  upon  to  pass  upon  one 
of  the  most  important  questions  that  ever  arose  in  the  State.  It  had 
been  held  in  the  county  of  Wayne  that  John  K.  McBride  was  elected 
probate  judge  of  the  county  of  Wayne  by  reason  of  the  decision  that 
the  law  allowing  the  soldiers  in  the  field,  out  of  the  State  of  Ohio,  to 
vote,  was  not  in  conformity  with  the  constitution  of  the  State  of  Ohio ; 
and  the  cause  was  taken  by  writ  of  error  to  the  supreme  court  of 
Ohio.  The  first  question  that  court  was  called  upon  to  decide  was 
whether  this  was  a  judicial  question  which  could  be  removed  by  petition 


ELECTORAL    COUNT    OF    1877.  565 

in  error,  in  accordance  with  our  forms  of  practice,  to  that  court ;  and 
the  court  decided  that  it  was — that  a  proceeding  to  contest  the  election 
of  John  K.  McBride  was  a  judicial  proceeding,  and  the  commission 
having  been  delivered  to  him,  the  decision  and  ascertainment  of  who 
was  the  duly-elected  probate  judge  of  the  county  of  Wayne  was  a  judi 
cial  determination  and  decision  in  that  cause.  To  the  same  effect  is  the 
case  of  The  State  vs.  The  Commissioners  of  Marion  County,  (14  Ohio  State 
Eeports,  578,)  and  the  case  of  Powers  vs.  Eeed  and  others,  (19  Ohio  State 
Eeports,  205,  206,)  in  which  the  question  that  arose  was  whether  the 
declaration  of  the  result  of  an  election,  upon  which  depended  the  change 
of  the  county-seat  of  Wood  County  from  Bowling  Green  to  Perrysburgh, 
or  from  Perrysburgh  to  Bowling  Green,  was  a  judicial  determination, 
and  it  was  argued  before  the  supreme  court  of  Ohio,  as  your  honors  will 
find  by  reference  to  that  case,  by  one  of  the  first  lawyers  in  the  Western 
States,  a  gentleman  who  had  filled  the  highest  places  in  the  judicial 
department  of  the  State  of  Ohio — I  mean  Judge  Eanney — and  whose 
abilities  are  equal  to  the  positions  he  has  held,  that  that  question  was  a 
political  question  and  not  a  judicial  question.  But  his  argument  was 
overruled  by  the  unanimous  opinion  of  the  court. 

So  in  the  case  of  Morgan  vs.  Quackenbush,  which  was  cited  to  us  the 
other  day — I  will  read  a  passage  or  two — decided  by  Mr.  Justice  Ira 
Harris.  I  will  read  from  page  7«5  of  22  Barbour : 

The  certificate  of  a  board  of  canvassers  is  evidence  of  the  person  upon  whom  the 
office  has  been  conferred.  Upon  all  questions  arising  collaterally,  or  between  a  party 
holding  a  certificate  and  a  stranger,  it  is  conclusive  evidence  ;  but  in  a  proceeding  to 
try  the  right  to  office,  it  is  only  prlma  facie  evidence. 

Again,  on  page  79 — 

If  the  certificate  of  the  canvassers  declaring  Mr.  Perry  elected  vested  him  with  color 
able  title  to  the  office,  as  I  think  it  did,  so  that  he  had  a  right  to  enter  upon  the  dis 
charge  of  its  duties,  another  effect  of  that  decision  was  to  exclude  the  defendant, 
Quackenbush,  as  well  as  everybody  else,  from  the  office.  They  could  not  hold  as  ten 
ants  in  common,  each  having  a  legal  right  to  perform  its  functions.  If  Mr.  Perry  be 
came  mayor  de  facto,  the  defendant  Quackenbush,  whatever  his  right,  could  not  be 
mayor  in  fact  at  the  same  time. 

My  proposition  is  that  E.  A.  Crouin  became  vested  with  the  title  and 
the  office,  if  it  may  be  called  an  office,  at  least  with  the  right  to  discharge 
the  trusts  and  functions  of  an  elector,  by  the  certificate  of  the  governor 
of  Oregon,  attested  by  the  secretary  of  state  under  the  great  seal  of  the 
State,  and  that  this  made  him  de  facto  elector,  so  that  the  office  could 
not  be  held  at  the  same  time  as  tenant  in  common  or  otherwise  by  John 
W.  Watts.  He  was  the  incumbent ;  and  the  only  reply  that  I  care  to 
make  to  the  argument  which  is  founded  on  the  statute  of  Oregon  with 
regard  to  vacancies  is,  that  the  statute  relates  to  and  authorizes  an 
incumbent  to  resign  and  does  not  authorize  a  claimant  to  resign,  even 
though  he  be  claiming  dejure  against  an  incumbent  de  facto  holding.  I 
am  not  now  alluding  to  the  statute  of  Oregon  with  regard  to  the  election 
of  electors,  but  to  the  statute  in  regard  to  filling  vacancies  in  State  offices. 
That  I  do  not  think  your  honors  will  find  has  any  reference  to  this  case 
at  all  under  any  circumstances. 

Again,  in  Coolidge  vs.  Brigham,  1  Allen,  335,  Chief-Justice  Bigelow, 
pronouncing  the  opinion  of  the  whole  court,  said : 

The  magistrate  before  whom  the  action  was  originally  brought  was  an  officer  de 
facto.  He  was  not  a  mere  usurper,  undertaking  to  exercise  the  duties  of  an  office  to 
which  he  had  no  color  of  title.  He  had  an  apparent  right  to  the  office.  He  had  a  com 
mission  under  the  great  seal  of  the  State,  bearing  the  signature  of  the  governor,  with 
ins  certificate  thereon,  that  the  oaths  of  office  had  been  duly  administered,  and  in  all 
respects  appearing  to  have  been  issued  with  the  formalities  required  by  the  coustitu- 


566  ELECTORAL    COUNT    OF    1377. 

tion  and  laws  of  the  commonwealth.  He  was  thus  invested  with  the  apparent  muni 
ments  of  full  title  to  the  office.  Although  he  might  not  have  been  an  officer  de  jure, 
that  is,  legally  appointed  and  entitled  to  hold  and  enjoy  the  office  by  a  right  which 
could  not  on  due  proceedings  being  had  be  impeached  or  invalidated,  he  was  neverthe 
less  in  possession,  under  a  commission  prima  facie  regular  and  legal,  and  performing 
the  functions  of  the  office  under  a  color  and  show  of  right.  This  made  him  a  justice 
of  the  peace  de  facto. 

So  your  honors  will  find,  unless  something-  can  be  discovered  by  more 
diligent  search  than  I  have  made,  and  I  have  been  very  diligent,  that 
when  a  man  holds  a  certificate  or  a  commission,  whichever  may  be  the 
ordinary  evidence  of  title,  and  enters  upon  the  possession  of  the  office, 
he  is  an  officer  de  facto,  the  office  is  full,  there  can  be  no  other  officer  de 
facto.  His  title  can  only  be  impeached  judicially.  It  may  be  taken 
from  him  by  quo  warranto  ;  it  may  be  taken  by  certiorari ;  it  may  be 
taken  from,  him  by  proceedings  to  contest  his  election ;  but  in  the 
absence  of  these  three  methods  of  proceeding  his  title  is  perfect 
against  all  the  world.  Where  is  the  quo  icarranto  against  E.  A. 
Cronin  ?  It  may  be  said  that  there  was  a  very  short  time  in  which 
to  try  it.  No  shorter,  your  honors,  than  was  given  in  the  case  of 
Florida.  Where  is  the  certiorari  f  Where  was  the  proceeding  to  con 
test  ?  Here  comes  E.  A.  Cronin  with  the  certificate  of  election  under 
the  great  seal  of  Oregon,  signed  by  the  secretary  of  state,  signed  by 
the  governor,  and  no  judicial  proceeding  to  impeach  it.  Is  this  tri 
bunal  a  judicial  tribunal?  And  were  it  a  judicial  tribunal,  long  ago 
the  frauds  that  were  offered  to  be  proven  to  your  honors  in  the  case  of 
Louisiana  would  have  been  heard  and  redressed.  Were  this  a  judicial 
tribunal,  long  ago  the  wrongs  that  were  done  in  Florida  would  have  been 
heard  and  redressed.  But  this  is  a  legislative  body,  or  part  of  a  legis 
lative  body — delegates  from  the  legislative  body  of  the  United  States— 
without  power  to  exercise  any  judicial  function  whatever.  You  cannot 
try  upon  quo  warranto;  you  cannot  try  upon  certiorari;  you  cannot  con 
sider  as  upon  proceedings  to  contest  elections.  The  judicial  power  of 
the  United  States  has  been  confided  to  the  judges  of  the  Supreme  Court 
of  the  United  States  and  of  the  inferior  courts  ;  and  this  is  not  the  Su 
preme  Court  of  the  United  States  nor  any  other  court,  inferior  or  other 
wise. 

If  it  be  thought  that  my  argument  is  inconsistent  with  what  has  been 
argued  by  others  in  the  cases  of  Florida  and  Louisiana,  I  have  to  reply 
that  it  is  consistent  with  perfect  respect  to  the  decisions  of  this  tribunal. 
It  is  not  for  counsel  to  exhibit  such  disrespect  to  this  tribunal  as  to 
attempt  to  overrule  or  overthrow  its  decisions.  The  object  of  this  argu 
ment  is  to  enforce  the  decisipns  of  this  tribunal  and  cause  their  applica 
tion  to  the  State  of  Oregon  in  such  way  that  the  decisions  made  in  Flor 
ida  and  Louisiana  shall  not  have  the  effect  to  reverse  the  judgment 
which  the  people  of  the  United  States  on  the  7th  of  November  last 
pronounced.  Your  determination,  which  I  have  the  right  to  cite  as  au 
thority,  written  in  your  decisions,  pronounced  as  the  result  of  your  con 
scientious  examination,  is  here  higher  authority  than  any  expression  of 
persuasive  opinion,  however  cogent,  that  I  might  quote  from  the  decis 
ions  of  courts,  however  respectable;  and  therefore  I  commend  it  to  this 
tribunal  as  final  and  conclusive  evidence  of  the  principles  and  rules  of 
action  which  this  tribunal  ought  to  adhere  to  and  apply  in  this  case. 

But,  if  otherwise,  I  submit  that,  upon  the  merits  of  this  controversy, 
waiving  for  the  present  the  propositions  I  have  made,  your  honors  are 
required  to  decide  in  favor  of  the  Crouin  vote.  Here  I  desire  to  call 
your  honors7  attention  to  two  propositions :  First,  that  the  papers  in 
closed  with  the  certificate  No.  1  are  of  no  value  as  evidence  by  being 


ELECTORAL    COUNT    OF    1677.  567 

in  that  certificate  or  otherwise  unless  they  are  shown  to  be  duly  authen 
ticated  in  conformity  with  the  laws  of  Oregon.  I  read  from  section  78 
of  Freeman  on  Judgments : 

Nothing  can  be  made  a  matter  of  record  by  calling  it  by  that  name,  nor  by  insert 
ing  it  among  the  proper  matters  of  record. 

And  from  27  Connecticut  Keports,  Kiehols  vs.  City  of  Bridgeport. 
This  is  not  on  my  brief.  The  question  was  only  called  to  my  attention 
by  hearing  the  debate  of  the  objectors  to  certificate  No.  2. 

Mr.  Commissioner  GARFIELD.  The  point  you  are  making  now  is 
on  your  brief! 

Mr.  HOADLY.  It  is  not.  I  did  not  know  what  was  contained  in  cer 
tificate  Xo.  1  until  this  afternoon.  I  read  from  27  Connecticut,  page  465 : 

Between  the  reservation  of  the  case  and  the  term  to  which  it  had  been  continued  to 
await  our  advice,  it  is  obvious  that  there  were  no  proceedings  in  the  superior  court, 
and  that  whatever  proceedings  took  place  in  the  case  were  in  this  court,  and  conse 
quently  that  there  were  no  proceedings,  excepting  the  continuance  of  it,  which  it  was 
the  duty  or  province  of  the  clerk  of  the  superior  court,  or  which  it  would  have  been 
proper  for  him  to  record  as  a  part  of  the  doings  of  that  court ;  and,  plainly,  it  is  only 
of  the  doings  of  that  court  that  the  plaintiff  in  error  can  complain  on  this  writ  of 
error.  Such  being  the  case,  the  reservation  by  that  court  cannot  properly  be  regarded 
as  a  part  of  its  record,  notwithstanding  it  has  been  inserted,  as  if  it  were  a  part  of  it, 
by  the  clerk,  or  certified  by  him  to  be  such  ;  for  if  it  is  not,  in  its  nature,  a  proper 
method  of  record  in  the  case,  it  cannot  be  made  such  by  the  mere  circumstance  that 
it  has  been  so  inserted  or  attested.  He  cannot  make  it  a  record,  if,  from  its  qualities, 
it  is  not  so,  either  by  treating  it  as  such  or  calling  it  by  that  name. 

And,  secondly,  a  canvass  is  not  even  prima  facie  evidence  of  eli 
gibility,  as  held  by  the  court  of  appeals  of  Kentucky  in  Patterson  vs. 
Miller,  &c.,  2  Mete.,  Ky.,  497 : 

The  certificate  which  the  examining-board  issues  to  a  candidate  that  he  is  elected 
to  the  office  of  sheriff: — although  conclusive  evidence  that  he  was  elected  thereto, 
unless  his  election  be  contested  before  the  proper  board — is  not  even  prima  fade  evi 
dence  that  he  was  eligible  to  the  office. 

In  the  next  place,  the  question  arises,  going  behind  these  matters  and 
going  to  what,  if  evidence  were  received,  might  be  called  the  merits  of 
the  controversy,  the  question  arises,  what  is  the  law  of  Oregon — not 
the  general  American  public  law,  but  the  law  of  Oregon  with  regard 
to  the  election  of  electors  under  circumstan'ces  like  the  present  ?  It  has 
been  argued  and  seriously  claimed  that  the  governor  of  Oregon  had 
no  right  to  pass  upon  the  eligibility  of  electors;  that  he  was  bound  to 
see  the  Constitution  of  the  United  States  violated ;  that  he  was  imbe 
cile,  without  power.  My  friends  seem  to  deal,  as  their  stock  in  trade, 
in  want  of  power,  imbecility.  It  was  the.  imbecility  of  this  tribunal, 
according  to  their  argument,  which  prevented  the  examination  of  the 
truth  of  the  fact  with  regard  to  Florida  and  Louisiana,  and  now  it  is 
the  imbecility  of  the  governor  of  Oregon  which  will  enable  this  tribu 
nal  to  lend  its  aid  to  a  violation  of  the  Constitution  of  the  United 
States,  although  the  governor  refused  to  be  a  partaker  in  that  wrong. 
Let  us  see. 

It  is  admitted  that  the  law  of  Indiana  is  that  where  there  is  an  ineligible 
elector,  the  governor  not  only  may  but  must  take  cognizance  of  the" fact 
and  refuse  the  commission.  It  is  admitted  that  this  is  the  law  of  In 
diana;  that  the  governor  not  only  may  but  must  recall  a  commission 
once  issued  when  the  evidence  of  iueligibility  growing  out  of  a  consti 
tutional  disqualification  is  presented.  If  it  be  law  in  Indiana,  why  is  it 
not  law  in  Oregon  ?  It  is  law  in  Arkansas ;  it  is  law  in  Missouri ;  it  is 
law  in  Rhode  Island  ;  it  is  law  in  Massachusetts  ;  it  is  law  in  Oregon  5 


568  ELECTORAL    COUNT    OF    1877. 

and  the  authority  for  the  statement  is  the  solemn  adjudication  of  the 
supreme  court  of  each  one  of  these  States  ;  in  all  but  two,  of  the  court, 
judicially  speaking,  in  a  controversy  between  parties  ;  in  two,  speaking 
in  obedience  to  the  constitution  and  laws  of  the  State  in  answer  to  .a 
demand  by  the  governor  for  judicial  information.  It  is  the  law  of 
Arkansas  ;  so  held  in  two  cases  in  the  first  volume  of  Arkansas  reports, 
(Pike's  Reports,)  and  one  of  those  cases  is  that  which  Senator  Kelly 
began  to  read  this  afternoon,  page  21,  Taylor  vs.  The  Governor,  which 
was  a  case  where,  by  the  law  of  Arkansas,  a  defaulter  in  office  was  dis 
qualified.  There  it  was  held  by  the  supreme  court  of  that  State  that 
the  governor  had  a  right  to  take  notice  of  the  disqualification  and  with 
hold  the  commission,  and  not  only  that  he  had  the  right  to  do  it,  but 
that  it  was  his  duty  to  do  it.  In  the  same  volume,  in  a  later  case,  the 
exact  proposition  now  under  discussion  was  at  great  length  considered. 
I  refer  to  the  case  of  Hawkins  vs.  The  Governor,  pages  570  to  595.  There 
it  is  said : 

Again,  the  executive  is  bound  to  see  that  the  laws  are  faithfully  executed ;  and  he 
has  taken  an  oath  of  office  to  support  the  constitution.  How  can  he  perform  this  duty 
if  he  has  no  discretion  left  him  in  regard  to  granting  commissions  ?  For  should  the 
legislature  appoint  a  person  constitutionally  ineligible  to  hold  any  office  of  profit  or 
trust,  would  the  executive  be  bound  to  commission  him  ?  and  that,  too,  when  his  in- 
eligibility  was  clearly  and  positively  proven  ?  In  such  case  the  exercise  of  his  discre 
tion  must  be  admitted,  or  you  make  him,  not  the  guardian,  but  the  violator  of  the 
Constitution.  What,  then,  becomes  of  his  oath  of  office  ? 

Your  honors,  long,  long  ago,  and  by  one  of  the  greatest  men  who 
ever  sat  in  judgment  in  the  United  States  of  America,  a  man  whose 
word  is  law  to-day,  though  the  grass  has  been  growing  over  his  grave 
now  for  more  than  half  a  century,  the  law  was  thus  laid  down  : 

It  is  argued— 

Said  Chief- Justice  Parsons,  in  5  Massachusetts,  533 — 

that  the  legislature  can  not  give  a  construction  to  the  constitution,  cannot  make  laws 
repugnant  to  it.  But  every  department  of  Government  invested  with  certain  constitu 
tional  powers  must,  in  the  first  instance,  but  not  exclusively,  be  the  judge  of  its 
powers,  or  it  could  not  act. 

In  accordance  with  the  same  principle,  in  the  great  case  of  Martin  vs. 
Mott,  12  Wheatou,  29,  the  President  of  the  United  States  was  declared 
to  be  the  final  and  conclusive  judge  whether  a  case  of  insurrection  ex 
isted  calling  for  the  use  of  the  military  and  naval  forces  of  the  United 
States  for  its  suppression.  So  it  will  be  found  in  the  case  of  The  State 
ex  relatione  Bartley  vs.  Fletcher,  39  Missouri,  388 ;,  and  if  your  honors 
will  refer  to  the  case  of  The  State  vs.  Vail,  53  Missouri,  97,  which  was 
cited  this  afternoon  by  Mr.  Lawrence,  you  will  find  that  the  two  cases 
can  stand  together.  The  case  of  The  State  vs.  Vail  does  not  overrule 
the  Indiana  case  of  Gulick  v s.  New,  but  cites  it  and  distinguishes  it. 
But  let  me  read  a  passage  from  53  Missouri  to  show  that  the  case  in 
Indiana  is  there  cited  and  not  disapproved : 

But  in  the  case  in  Indiana,  it  is  conceded  that  where  the  candidate  receiving  the 
highest  number  of  votes  is  ineligible  by  reason  of  a  cause  which  the  voters  were  not 
bound  to  know,  such  as  nonage,  want  of  naturalization,  etc.,  the  result  is  a  failure  to 
elect.  *****  ft  is  unnecessary  to  determine  ivhether  it  would  be  the  rule,  in  any  case  of 
disqualifications,  whether  patent  or  latent. 

Now  come  back  to  the  case  of  The  State  on  the  relation  of  Bartley  vs. 
Fletcher,  39  Mo.,  388.  The  opinion  was  pronounced  by  Mr.  Justice 
Wagner.  After  reciting  that  it  is  by  the  constitution  of  the  State  made 
the  duty  of  the  governor  to  commission  all  officers  not  otherwise  pro 
vided  by  law,  that  this  is  clearly  an  exercise  of  political  power  of  a 
ministerial  character,  the  court  say : 

The  governor  is  bound  to  see  that  the  laws  are  faithfully  executed,  and  he  has  taken 


ELECTORAL    COUNT    OF    1877.  569 

an  oath  to  support  the  constitution.  In  the  correct  and  legitimate  performance  of  his 
duty  he  must  inevitably  have  a  discretion  in  regard  to  granting  commissions ;  for 
should  a  person  be  elected  or  appointed  who  was  constitutionally  ineligible  to  hold 
any  office  of  profit  or  trust,  would  the  executive  be  bound  to  commission  him  when 
his  ineligibility  was  clearly  and  positively  proven  ?  If  he  is  denied  the  exercise 
of  any  discretion  in  such  case,  he  is  made  the  violator  of  the  Constitution,  not  its 
guardian,  pf  what  avail,  then,  is  his  oath  of  office  ?  Or  if  he  has  positive  and  satis 
factory  evidence  that  no  election  has  been  held  in  a  county,  shall  he  be  required  to 
violate  the  law  and  issue  a  commission  to  a  person  not  elected,  because  a  clerk  has 
certified  to  the  election  ?  In  granting  a  commission  the  governor  may  go  behind  the 
commission  to  determine  whether  an  applicant  is  entitled  to  receive  a  commission  or 
not  where  the  objection  to  the  right  of  the  applicant  to  receive  it  rests  upon  the 
ground  that  a  constitutional  prohibition  is  interposed.  (Gulick  vs.  New,  14  Ind.,  93.) 

The  issuing  of  a  commission  is  an  act  by  the  executive  in  his  political  capacity,  and  is 
one  of  the  means  employed  to  enable  him  to  execute  the  laws  and  carry  on  the  appro 
priate  functions  of  the  State  ;  and  for  the  manner  in  which  he  executes  this  duty  he 
is  in  nowise  amenable  to  the  judiciary.  The  court  can  no  more  interfere  with  execu 
tive  discretion  than  the  legislature  or  executive  can  with  judicial  discretion. 

The  granting  of  a  commission  by  the  executive  is  not  a  mere  ministerial  duty,  but 
an  official  act  imposed  by  the  constitution,  and  is  an  investiture  of  authority  in  the 
person  receiving  it.  We  are  of  the  opinion,  therefore,  that  mandamus  will  not  lie 
against  the  governor  in  a  case  like  this. 

So  in  the  case  in  Maine,  7  Greenl.,  497.  In  Maine,  the  language  of  the 
constitution  is  that  a  majority  of  the  votes  shall  elect,  and  yet  to  the 
opinion  which  was  read  by  Senator  Kelly  this  afternoon  declaring  that; 
by  that  constitutional  provision  a  majority  of  votes  for  eligible  candidates 
is  meant  are  signed  the  honored  names  of  Prentiss  Mellen  and  Nathan 
Weston,  with  their  associate,  Albion  K.  Parris.  Tell  me  that  the  opinion 
that  votes  for  ineligible  candidates  are  void  stands  upon  no  authority  in 
America,  when  the  name  of  one  of  the  greatest  judicial  lights  that  ever 
illumined  the  sky  of  legal  jurisprudence  in  New  England  and  of  another 
second  only  to  him  are  signed  to  that  opinion  ! 

This  opinion  comes  first  to  us  from  one  of  the  signers  of  the  Declara 
tion  of  American  Independence.  The  first  judgment  ever  pronounced 
in  the  United  States  to  the  effect  that  a  million  of  people  voting  for  an 
ineligible  candidate  cannot  defeat  the  mandate  of  the  Constitution  to 
elect,  came  from  Samuel  Chase,  who  long  presided  at  the  head  of  the 
judiciary  of  Maryland,  and  as  a  member  of  the  Supreme  Court  of  the 
United  States,  against  whose  temper  much  was  said,  but  of  whose 
judicial  judgments  there  has  passed  into  history  no  sound  criticism 
whatever. 

It  has  been  said  here  this  afternoon  that  a  few  insignificant  opinions 
are  to  that  effect.  Yes,  they  are  the  insignificant  opinions  of  Samuel 
Chase,  and  Prentiss  Mellen,  and  Nathan  Weston,  and  Albion  K.  Parris, 
and  Samuel  E.  Perkins,  who,  for  a  score  of  years,  has  been  a  judge  of 
the  supreme  court  of  Indiana,  and  now  by  the  vote  of  the  people  last 
October  has  entered  upon  another  term  of  six  years.  The  judicial  opin 
ions  of  these  men  are  those  upon  which  this  doctrine  rfests.  The  time 
may  come  when  Justice,  blind,  deaf,  and  robbed  of  the  rest  of  her  powers, 
may  be  wafted  into  that  Nirvana  of  intellectual  inanition  which  the 
majority  of  the  human  race  believe  is  reserved  for  that  which  is  abso 
lutely  perfect  when  its  earthly  work  is  done.  On  that  day  the  names  of 
these  great  jurists  arid  the  recollection  of  the  wise  counsels  they  have 
left  us  will  be  forgotten  among  those  who  walk  in  the  ways  of  American 
jurisprudence  according  to  the  traditions  of  the  fathers,  because  on  that 
day,  but  not  sooner,  a  violation  of  the  Constitution  will  become  a  muni 
ment  of  office. 

But  I  was  considering  the  question  whether  the  governor  had  not 
furnished  to  us  the  final  and  conclusive  evidence  of  the  law  of  Oregon, 


570  ELECTORAL    COUNT    OF    1877. 

and  I  had  cited  the  case  in  Arkansas,  the  case  in  Missouri ;  I  had  not 
cited,  but  I  do  now  refer  your  honors  to  the  opinion  of  Mr.  Justice 
Cootey,  as  stated  in  his  work  on  Constitutional  Limitations,  page  41. 
I  had  cited  the  opinions  of  the  judges  of  Maine,  in  the  seventh  volume 
of  Greenleafs  Reports.  I  now  ask  your  attention  to  the  very  recent 
action  of  the  judges  and  executive  of  the  State  of  Rhode  Island,  in  the 
case  of  Corliss,  which  is  precisely  the  action  which  was  taken  in  the 
case  of  Cronin  by  the  governor  of  Oregon.  Had  the  governor  of  Oregon 
been  invested  by  the  constitution  of  Oregon  with  the  right  to  call  for 
the  opinions  or  the  judges,  and  upon  that  call  received  them,  the  action 
of  Rhode  Island  and  the  action  of  Oregon  would  have  been  precisely 
parallel.  In  Rhode  Island  the  governor  was  confronted  by  the  fact  that 
George  H.  Corliss  was  a  centennial  commissioner  and  that  his  name 
was  on  the  roll  of  those  receiving  the  highest  number  of  votes  for  elect 
ors.  Did  he  give  him  the  certificate?  Bid  he  refuse  the  certificate? 
He  refused.  He  called  upon  the  judges  of  Rhode  Island  for  their  judg 
ment  and  advice.  I  have  furnished  the  law  on  this  subject  in  my  brief, 
and  you  will  find,  by  reference  to  it,  that  the  advice  was  given  to  him. 
not  as  a  judicial  judgment,  but  as  advice  for  the  guidance  of  his  execu 
tive  action,  and  he  acted.  He  called  the  legislature  together.  He  did 
not  give  the  certificate  to  Corliss ;  he  withheld  it  from  Corliss.  He  called 
the  legislature  together,  and  they  elected  Slater,  who  received  the 
certificate  by  force  of  the  election  by  the  legislature.  So  in  Oregon; 
Senator  Kelly  read  you  this  afternoon  the  letter  from  the  chief-justice 
of  Oregon,  from  which  it  appears  that  in  the  State  of  Oregon  it  has 
been  judicially  determined  that  the  governor  has  a  right,  although  a 
district  attorney  may  be  in  office  exercising  the  powers  and  discharging 
the  duties  of  the  office,  to  declare  the  office  vacant,  and,  where  the  con 
stitution  has  worked  a  vacation  of  the  office  by  reason  of  the  incompat 
ibility  of  the  two  officers,  to  appoint  a  successor,  and  this  action  of  the 
governor  in  Oregon,  in  the  case  of  Gibbs  vs.  Bellinger,  was  sustained  by 
the  supreme  court  of  Oregon.  The  opinion  would  have  been  pro 
nounced  and  published  in  the  reports  long  ago  but  for  the  death  of  the 
lamented  Judge  Thayer,  by  whom  it  was  expected  to  be  written. 

So,  I  say  that  in  Oregon  as  well  as  in  Rhode  Island,  in  Maine,  in 
Arkansas,  in  Missouri,  we  are  fortified  in  the  opinion  that  the  action  of 
the  governor  in  this  case  was  proper,  and  that  it  was  and  is  the  action 
of  the  executive,  conclusive  and  final  as  evidence  to  this  court  of  what 
the  law  of  Oregon  is.  Why,  consider  for  one  moment.  Suppose  the 
governor  had  given  a  certificate  to  Mr.  Watts,  notwithstanding  his  dis 
qualification,  would  not  that  have  been  evidence  that?  Mr.  Watts  was  the 
elector  ?  Would  it  not  have  been  cited  as  evidence  that  the  law  of  Ore 
gon  was  that,  notwithstanding  the  disqualification,  Mr.  Watts  had  a 
right  to  the  certificate  ?  Was  not  the  governor  called  upon,  compelled, 
to  elect  which  horn  of  the  dilemma,  if  it  were  such,  he  would  choose ; 
which  view  of  the  law  at  least  he  would  take  ?  Could  he  avoid  it  ?  He 
must  say,  by  giving  the  certificate  to  Watts,  "  Notwithstanding  the 
Constitution"  of  the  United  States,  and  although  the  constitution  of 
Oregon  says  that  I  am  to  maintain  the  laws,  notwithstanding  this  man 
is  disqualified  by  law,  he  shall  have  the  certificate."  What  is  the  con 
stitution  of  Oregon  in  this  particular  ?  Let  me  read  the  passage.  Sec 
tion  10,  article  5,  of  the  executive  department,  says,  that  "he"  (the  gov 
ernor)  "shall  take  care  that  the  laws  be  faithfully  executed."  And  he 
is  sworn  to  support  the  Constitution  of  the  United  States  and  of  Oregon; 
yet  it  is  said  that  he,  bound  to  see  that  the  laws  were  faithfully  exe 
cuted  and  to  maintain  the  Constitution  of  the  United  States,  violated 


ELECTORAL   COUNT    OF    1877.  571 

bis  duty  in  not  giving  to  one  disqualified  by  the  Constitution  of  the 
United  States  a  certificate  of  election ! 

in  the  next  place  there  was  no  vacancy  into  which  Watts  could  be 
elected.  First,  there  was  an  officer,  if  it  may  be  called  such,  an  elector 
holding  office  de  facto,  and  I  refer  to  the  case  read  the  other  day  by  the 
learned  senior  counsel  on  the  other  side  from  the  eleventh  volume  of 
Sergeant  and  Eawle.  I  refer  to  the  passages  which  were  read  by  him 
to  show  that  when  there  is  in  office  an  officer  de  facto  he  completes  the 
whole  circumference  of  the  office  and  occupies  it  all,  and  that  there  can 
be  no  vacancy  and  can  be  no  intrusion  upon  him  while  he  occupies, 
otherwise  than  by  the  action  of  a  court  of  justice  acting  judicially. 

Also,  there  was  no  vacancy,  for  the  reason  that  by  the  laws  of  the 
United  States  contemplation  is  made  of  two  contingencies,  namely,  a 
failure  to  elect,  and  a  vacancy  when  the  electors  meet ;  and  this  was  the 
first  of  these  two  cases.  Upon  this  subject  I  have  already  been  heard 
in  the  Florida  case  by  the  Commission. 

My  learned  friend,  if  he  will  allow  me  to  call  him  such,  [Mr.  Evarts,] 
informed  us  the  other  day  that  there  is  no  choice;  we  have  to  say  office 
filled  or  office  vacant ;  there  is  no  tertium  quid,  no  via  media  in  which  our 
footsteps  may  be  safely  directed.  But  such  is  not  the  law  of  the  Senate 
of  the  United  States  as  held  in  this  chamber.  I  say  that  the  Senate  of 
the  United  States,  from  the  foundation  of  the  Government,  has  never 
deviated  from  the  rule  that  the  office  of  Senator  cannot  be  filled  by  the 
appointment  of  the  governor  of  a  State  when  the  legislature  has  failed 
to  elect  an  incumbent  during  its  session,  as  is  shown  by  Lanman's  case. 
Clarke  &  Hall,  871. 

But  I  am  told  that  the  House  decided  otherwise.  Ay,  the  House  did 
decide,  and  if  my  friend  [Mr.  Matthews]"had  not  stopped  with  his  read 
ing  of  history  just  where  he  did,  you  would  have  learned  all  that  the 
House  decided  in  the  case  to  which  he  referred.  I  do  not  consider  the 
decision  of  a  partisan  House  in  times  of  hot  party  politics  as  of  much 
value,  and  I  certainly  do  not  count  the  decision  which  was  reached  by 
118  yeas  against  101  nays  on  the  3d  day  of  October,  1837,  giving  to 
Claiborne  and  Gholson  their  seats  as  Representatives  from  the  State  of 
Mississippi,  as  authority  when  I  find  that  in  the  list  of  negative  votes 
are  inscribed  the  names  of  John  Quincy  Adams  and  Millard  Fillmore, 
of  John  Sergeant  and  Richard  Fletcher,  of  John  Bell  and  Thomas  Cor- 
win,  of  Caleb  Cushiug  and  E.  M.  T.  Hunter,  of  Henry  A.  Wise  and 
George  Evans,  of  Elisha  Whittlesey  and  James  Harlan  and  Thomas  M. 
T.  McKennan.  That  is  a  roll  of  names  before  which  I  bow  as  possessing 
greater  authority  than  the  whole  list  of  the  118  who  voted  in  the  affirma 
tive.  But  the  record  of  the  House  does  not  stop  there.  On  Monday, 
the  5th  day  of  February,  1838,  (page  160  of  the  sixth  volume  of  the  Con 
gressional  Globe,)  on  motion  of  John  Bell,  of  Tennessee,  by  a  vote  of  121 
yeas  to  113  nays,  the  following  resolution  was  adopted : 

Resolved,  That  the  resolution  of  this  House  of  the  3d  of  October  last  declaring  that 
Samuel  J.  Gholson  aud  John  F.  H.  Claiborne  were  duly  elected  members  of  the  Twenty- 
fifth  Congress  be  rescinded,  and  that  Messrs.  Gholson  and  Claiborne  are  not  duly  elected 
members  of  the  Twenty-fifth  Congress. 

First,  on  adopting  this  as  an  amendment,  the  yeas  were  119,  the  nays 
112,  and,  secondly,  on  adopting  the  resolution  as  thus  amended,  the  yeas 
were  121,  the  nays  113.  And  this  is  4<  the  sober  second  thought "  of  the 
House  of  Representatives  of  1837  and  1838  on  this  question. 

Mr.  Commissioner  EDMUNDS.  Is  there  not  something  peculiar  in 
the  conclusion  respecting  the  filling  of  the  office  of  a  Senator  by  a  gov 
ernor,  growing  out  of  the  language  of  the  Constitution,  that  where  a 


572  ELECTORAL    COUNT    OF    1677. 

vacancy  shall  happen  during  the  recess  of  the  legislature  the  governor 
may  fill  it  by  a  commission,  which  shall  hold  until  the  next  meeting  of 
the  legislature  ?  Does  not  that  have  some  bearing  upon  the  subject  ? 

Mr.  HOADLT.  No  doubt.  I  do  not  claim  that  all  the  cases  are^re- 
cisely  parallel. 

Mr.  Commissioner  HOAE.  What  was  the  point  decided  in  that  case? 
Be  good  enough  to  state  it. 

Mr.  HOADLY.  The  point  was  that  neither  Claiborne  and  Gholson 
nor  Prentiss  and  Ward  were  duly  elected  Eepresentatives  in  the  Twenty- 
fifth  Congress. 

Mr.  Commissioner  HOAR.  That  was  not  the  point  decided  ;  that 
was  the  fact. 

Mr.  HOADLY.  The  point  decided  was  that  the  resolution  adopted  on 
the  3d  of  October,  to  which  reference  was  made  the  other  day,  award 
ing  to  Claiborne  and  Gholson  their  seats  as  members  of  the"  Twenty- 
fifth  Congress,  should  be  rescinded. 

Mr.  Commissioner  HOAR.  My  question  was,  what  was  the  principle 
of  law  which  was  decided  and  for  which  you  cited  that  case  ? 

Mr.  HOADLY.  It  is  extremely  difficult  to  answer  that  question. 
There  may  have  been  differences  of  opinion  among  those  voting.  I  do 
not  cite  this  case  as  authority,  but  it  having  been  cited  in  authority 
against  me  the  other  day,  I  state  the  whole  of  the  facts  of  the  case  in 
order  that  it  shall  not  be  vouched  in  any  longer  as  authority  upon  the 
other  side.  Of  course,  there  was  a  political  controversy,  and  my  own 
opinion  is,  if  I  may  be  allowed  to  state  it,  that  the  party  feeling  of  the 
supporters  of  Mr.  Van  Buren  and  the  antagonists  of  his  administration 
had  much  more  to  do  with  the  result  than  any  judicial  considerations 
whatever. 

Mr.  Commissioner  HOAR.  Was  it  not  a  case  where  an  extra  session 
was  called  and  gentlemen  from  Mississippi  were  chosen  before  the  gen 
eral  law  permitted  them  to  be  chosen,  on  proclamation  of  the  gov 
ernor  ? 

Mr.  HOADLY.    That  was  the  case. 

Mr.  MATTHEWS.  Allow  me  to  interrupt  a  moment.  I  would  ask 
you  whether  or  not  the  resolution  of  the  House  of  Representatives  ad 
mitting  Claiborne  and  Gholson  to  the  extra  session  was  not  that  there 
was  a  vacancy  in  the  representation  of  Mississippi  in  the  House  of  Rep 
resentatives  in  consequence  of  the  expiration  of  the  terms  of  the  pre 
vious  members  of  Congress,  and  the  fact  that  the  election  for  the  mem 
bers  of  the  next  Congress  did  not  occur  until  the  following  November, 
and  did  not  the  governor  of  Mississippi  cause  that  vacancy  to  be 
filled  by  a  proclamation,  in  which  he  called  upon  the  electors  to  elect 
Representatives  to  fill  that  vacancy !  Was  not  the  resolution  admitting 
them  as  members  of  the  Congress  rescinded  at  the  regular  session  be 
cause  they  were  elected  only  to  fill  a  vacancy  ? 

Mr.  HOADLY.  I  will  answer  by  saying  that  the  whole  statement 
is  correct  except  the  u  because."  It  was  rescinded.  Now,  rescinding 
means  withdrawing  the  original  proposition,  and  that  is  the  language 
used.  It  was  not  by  virtue  of  a  vote  that,  the  vacancy  having  expired 
or  the  time  having  expired,  therefore  they  were  no  longer  members. 
But  Mr.  BelPs  amendment  was  that  the  original  resolution  should  be 
rescinded. 

This  reminds  me  of  another  matter  which  I  had  almost  forgotten,  and 
that  is  that  my  friends  may  possibly  cite  against  me  the  decision  of  the 
United  States  House  of  Representatives  in  what  is  known  as  the  "  broad- 
seal  case  "  from  New  Jersey,  a  debate  in  which  the  learned  President  of 


ELECTORAL    COUNT    OF    1877.  573 

this  Commission  participated  as  a  member  of  the  House.  My  answer  to 
that,  if  it  be  cited  against  me,  will  be  that  it  was  before  a  House  who 
were  the  judges  of  the  returns  'and  qualifications  of  their  own  members ; 
and  a  reference  to  Cooley,  page  133,  will  show  that  this  is  a  judicial 
power  expressly  conferred  upon  the  House. 

This  reminds  me  also  of  a  case  famous  in  the  annals  of  Ohio,  and  which 
ought  to  be  famous  in  the  annals  of  the  Federal  Union,  where  a  question 
once  arose  between  the  certificate  of  the  returning-officer  and  the  ab 
stract  of  the  votes,  in  which  the  judgment  arrived  at  was  most  conspic 
uous  and  most  beneficent.  In  the  year  1848  the  clerk  of  the  court  of 
common  pleas  of  the  county  in  which  I  live,  who,  by  law,  was  the  return- 
ing-officer,  certified  under  the  seal  of  the  county  that  George  E.  Pugh, 
Alexander  Long,  and  their  associates  were  elected  representatives  to 
the  legislature  of  Ohio ;  and  the  abstract  of  votes,  of  which  a  certified 
copy  was  taken,  by  Oliver  M.  Spencer  and  George  W.  Kunyau,  showed 
that  they  had  a  majority  of  the  votes  cast.  The  question  was  upon  the 
constitutionality  of  the  act  of  the  legislature  of  Ohio  dividing  the  county  of 
Hamilton  for  the  purposes  of  representation  in  the  State  legislature.  For 
thirty  days  the  State  of  Ohio  was  without  a  legislature,  in  anarchy  and 
confusion,  with  two  conflicting  parties  contending  for  pre-eminence ;  and 
at  the  end  of  thirty  days,  two  gentlemen,  still  living,  honored  citizens  of 
Ohio,  men  of  neither  the  whig  nor  the  democratic  party,  took  the 
responsibility  of  judging  that  the  certificate  of  the  clerk  was  the  official 
evidence  of  the  title,  and  upon  it  organized  that  legislature. 

Mr.  MATTHEWS.  Let  me  ask  you  there  whether  or  not  both  sides 
were  not  excluded  until  after  the  organization  ? 

Mr.  HOADLY.    That  may  be ;  but  the  organization 

Mr.  MATTHEWS.    Mr.  Commissioner  Payne  can  answer,  probably. 

Mr.  HOADLY.  I  accept  your  statement,  as  you  were  one  of  the 
authors  of  the  illustrious  act  to  which  I  allude,  a  partaker  of  its  honors 
and  of  its  responsibilities  ;  and  among  the  many  reasons  for  which  the 
people  of  Ohio  have  to  be  thankful  that  you  have  lived,  this  is  the  most 
conspicuous. 

Mr.  MATTHEWS.     I  hope  not. 

Mr.  HOADLY.  I  will  take  your  statement.  At  least  the  abstract 
did  not  secure  the  seats.  What  did  that  act  result  in  I  As  its  first 
result  it  made  it  possible  for  the  black  man,  who  before  that  time  had 
been  an  alien  and  a  vagabond  in  Ohio,  to  live  on  its  soil  a  citizen  of  the 
State.  It  made  it,  in  the  second  place,  possible  for  him  to  be  heard  in 
a  court  of  justice  as  a  witness  against  a  white  man.  In  the  third  place, 
it  made  Salmon  P.  Chase  Senator  of  the  United  States  from  the  State 
of  Ohio,  to  begin  that  illustrious  career  which  ended  in  the  chief -justice 
ship  of  the  Supreme  Court  of  the  United  States,  in  which  he  died. 
Every  man  in  Ohio  who  joined  in  this  act  has  been  honored  by  the  peo 
ple  of  the  State.  George  E.  Pugh  became  attorney-general  and  sen 
ator  ;  Salmon  P.  Chase  twice  governor  by  the  votes  of  his  then  oppo 
nents.  I  think,  as  a  citizen  of  Ohio,  I  have  no  reason  to  be  ashamed  of 
the  doctrine  that  the  broad  seal  of  the  county  of  Hamilton  is  better 
evidence  of  title  to  office,  even  though  the  clerk  in  issuing  it  determine 
against  the  constitutionality  of  a  statute,  than  the  abstract  of  votes 
copied  and  certified  to  by  him. 

There  was  no  vacancy  in  the  office  in  Oregon ;  I  come  back  to  that. 
A  vacancy  may  exist  in  Oregon  when  "occasioned  by  death,  refusal  to 
act,  neglect  to  attend,  or  otherwise."  My  learned  friend,  Mr.  Lawrence, 
says  the  word  "otherwise"  means  every  other  possible  manner  what 
soever.  It  is  a  cardinal  rule  in  the  interpretation  of  statutes  that  every 


574  ELECTORAL    COUNT    OF    1877. 

word  must  have  its  force,  and  that  words  will  not  be  treated  as  super 
fluous  ;  and  yet,  by  this  argument,  the  learned  gentleman  has  elimin 
ated  all  these  words,  including  the  word  ."  otherwise,"  from  the  statute. 
He  defines  the  word  "  otherwise  n  so  that  it  might  as  well  be  obliterated 
in  fact  from  the  law  in  which  it  is  written. 

And  if  there  shall  be  any  vacancy  in  the  office  of  elector  occasioned  by  death,  refusal 
to  act,  neglect  to  attend,  or  otherwise — 

This  means  that  there  are  some  vacancies  which  the  electors  present 
may  not  proceed  to  fill.  It  is  not  "  if  there  shall  be  any  vacancy  in  the 
office  of  elector,  the  electors  present  shall  immediately  proceed  to  fill  it," 
but  it  is  "  if  there  shall  be  any  vacancy  occasioned  by  death,  refusal  to 
act,  neglect  to  attend,  or  otherwise."  This  is  the  class  of  vacancies 
they  may  fill ;  not  every  vacancy.  If  it  had  been  every  vacancy  they 
might  fill,  then  the  words,  "  occasioned  by  death,  refusal  to  act,  neglect 
to  attend,  or  otherwise,"  would  have  been  omitted.  In  order  that  these 
words  may  have  their  proper  force,  the  word  "  otherwise"  must  be  con 
strued  in  its  ordinary  and  normal  legal  signification,  "of  other  like 
manner ; "  noscitur  a  sociis  is  the  rule.  General  words  are  restrained 
by  the  fitness  of  things.  We  have  in  the  statutes  of  Ohio  a  law  by 
which  a  railroad  company  may  acquire  and  convey  at  pleasure  all  real 
or  personal  estate  necessary  or  proper ;  and  yet  the  supreme  court  of 
Ohio,  in  10  Ohio  State  Eeports,  the  case  of  Coe  vs.  The  Columbus, 
Piqua  and  Indiana  Kailroad  Company,  have  said  that  although  the 
language  of  the  statute  is  general,  and  they  may  convey  any  real  estate 
necessary  and  proper  to  be  acquired  by  them,  yet  they  cannot  convey 
one  foot  of  the  land  which  is  pledged  to  the  maintenance  of  the  public 
uses  for  which  they  are  established.  They  cannot  convey  the  track  ; 
they  cannot  convey  the  right  of  way  except  by  mortgage  ;  and  that  is 
because  the  general  words  are  restrained  by  the  fitness  of  the  subject- 
matter. 

"  Occasioned  by  death,  refusal  to  act,  neglect  to  attend,  or  otherwise," 
does  not  mean  "occasioned  by  every  possible  circumstance  on  earth." 
If  it  did  the  law  would  have  said  so.  It  means  "occasioned  by  these 
methods,"  and  not  occasioned  otherwise  except  by  these  methods  or  the 
like  unto  them,  in  like  manner;  death 

Mr.  ^Representative  LA. WHENCE.     Death  or  something  like  death. 

Mr.  HOADLY.  Death,  or  something  which  comes  within  the  chain 
of  thought  which  connects  these  three  enumerated  classes,  consisting  of 
occurrences  happening  after  election.  The  act  of  Congress  makes  the 
distinction.  It  says  it'  there  is  a  failure  to  elect,  the  legislature  may 
decide  what  provision  shall  be  made.  If  there  is  a  vacancy  when  the 
college  meets,  the  legislature  may  provide  for  it.  These  are  all  cases  of 
vacancy  occurring  after  the  event  of  the  election,  and  do  not  contem 
plate  a  vacancy  which  occurs  by  reason  of  what  I  should  call  the  non- 
filling  of  the  office  occasioned  by  reason  of  there  being  a  non-election. 

Suppose  there  had  been  a  tie  vote.  Is  that  "otherwise"?  Does  non- 
election  by  a  tie  vote  create  a  vacancy  within  the  meaning  of  that 
statute?  That  tests  the  question.  I  say  not.  Why  not?  Because 
"occasioned  by  death,  refusal  to  act,  neglect  to  attend,  or  otherwise" 
are  words  that  cannot  be  dispensed  with,  and  necessarily  involve  the 
conclusion  that  there  are  some  methods  of  occasioning  vacancy  which 
are  not  within  the  statute.  It  would  have  said  "  if  there  be  any  vacancy 
the  electors  present  may  fill  it"  had  it  been  supposed  these  words  would 
be  interpreted  as  now  claimed.  A  tie  vote  involves  a  vacancy  or  what 
may  be  called  by  way  of  courtesy  a  vacancy.  It  is  a  failure  to  elect, 
which  is  not  contemplated  by  this  statute,  and  not  provided  for  by  this 


ELECTORAL    COUNT    OF    1S77.  575 

statute,  and  that  was  the  case  in  the  State  of  Rhode  Island  of  Corliss 
or  might  have  been.  It  was  alluded  to  in  the  decision  of  the  State  of 
Rhode  Island.  Your  honors  will  find,  by  referring  to  the  brief  which  we 
have  on  file,  a  large  number  of  cases  in  which  the  same  principle  is 
upheld. 

Mr.  Commissioner  MILLER.  What  do  you  make  of  the  words  u re 
fusal  to  act77? 

Mr.  HOADLY.  An  elector  who  has  been  elected  and  refuses  to  act 
creates  a  vacancy.  I  consider  the  word  Bother  wise77  to  refer  to  cases 
which  occur  after  there  has  been  a  complete  election,  just  as  section  133 
of  the  Revised  Statutes  of  the  United  States  provides.  These  are  all 
cases  coming  within  this  section. 

Mr.  Commissioner  MILLER.  You  do  not  think  it  necessary  that  he 
should  have  accepted  or  entered  on  the  duties  of  the  office  ? 

Mr.  HOADLY.  The  words  "  refusal  to  act77  avoid  that  difficulty.  If  it 
were  not  for  those  words  and  the  power  of  the  legislature  to  provide  in 
that  way,  I  think  the  rule  would  have  been  otherwise.  But  where  there 
is  an  elector  in  office  de  facto,  as  Cronin  was,  another  party  cannot  make 
a  vacancy  by  refusing  to  act.  The  ordinary  rule  is  that  in  order  that  a 
party  may  resign  he  must  be  an  incumbent.  So  Cockburn,  chief-justice, 
in  The  Queen  vs.  Blizzard,  Law  Reports,  2  Q.  B.,  55,  held;  so  Sawyer, 
chief-justice,  now  judge  of  the  United  States  circuit  court,  held,  in 
People  vs.  Tilton,  37  California,  617;  so  it  was  held  in  Miller  vs.  The 
Supervisor  of  Sacramento  County,  25  California,  93 ;  so  in  Common 
wealth  ex.  rel.  Broom  v.  Hanley,  9  Pennsylvania  State  Reports,  513. 
And  it  is  held  in  an  opinion,  which  I  will  hand  to  your  honors,  received 
to-day  by  mail,  of  the  supreme  court  of  Missouri,  a  case  printed  in  the 
Central  Law  Journal  of  Saint  Louis,  vol.  4,  No.  7,  on  Friday  last,  page 
156,  (in  accord  with  the  views  to  which  I  have  alluded,)  that  the  office 
had  been  once  filled,  and  therefore  there  was  a  vacancy ;  as  they  cite 
with  approval  the  case  of  The  State  vs.  Lusk,  18  Missouri,  333,  to  the 
effect  that  if  the  office  had  not  been  filled  by  the  qualification  of  the 
officer  before  his  death,  there  would  have  been  no  vacancy. 

I  come  to  consider  the  remaining  question  in  the  case.  I  say  that  by 
Oregon  law,  as  shown  by  the  certificate  of  the  governor  who  was  obliged 
to  act,  as  well  as  by  the  better  opinion,  the  weight  of  authority,  if  not 
the  number  of  cases  in  the  United  States,  the  mandate  to  elect  is  of 
such  paramount  authority  that  the  people  may  not  disobey  it  by  voting 
for  a  disqualified  candidate.  My  friends  on  the  other  side,  in  order  to 
maintain  their  proposition,  must  not  only  stand  upon  a  violation  of  the 
Constitution  of  the  United  States  by  the  election  of  a  disqualified  per 
son  ;  they  must  also  contend  that  a  plurality  may  violate  the  Constitu 
tion  and  prevent  an  election.  That  is  their  proposition;  and  by  making 
their  candidate,  Watts,  an  officer  de  facto  who  did  not  hold  the  certificate 
de  facto,  they  thus  manufacture  this  violation  of  the  Constitution  of  the 
United  States  by  a  plurality  into  a  muniment  of  title  to  office. 

We  have  several  things  to  consider  here  :  First,  the  Constitution  of 
the  United  States  says,  "  thou  shalt  elect,77  to  the  people  of  Oregon.  If 
I  may,  without  irreverence,  borrow  the  simile,  the  first  great  command 
ment  of  the  gospel  of  American  liberty  is,  "  thou  shalt  elect,77  and  the 
second  is,  "  thou  shalt  not  elect  a  disqualified  candidate.77  The  plural 
ity  may  elect ;  and  if  the  plurality  may  elect,  and  electing  a  disqualified 
candidate  defeats  an  election,  then  the  plurality  may  defeat  an  election. 
What  is  more  than  this,  it  is  perfectly  easy  for  more  than  three  candi 
dates  each  to  receive  a  majority  of  votes  in  the  State  of  Oregon.  I  will 
take  the  liberty  to  ask  your  honors7  attention  to  a  supposition  which 


576  ELECTORAL    COUNT    OF    1677. 

fairly  illustrates  the  principle  we  are  considering.  Thus  we  may  sup 
pose  that  in  the  State  of  Oregon,  where  there  were  three  electors  to  be 
chosen,  20,000  votes  may  be  cast,  divided  among  six  candidates :  A,  B, 
and  C  receive  each  9,800  votes ;  D,  E,  and  F  receive  9,700  votes.  The 
remaining  500  votes  may  be  thus  distributed:  To  A,  B,  and  D,  200  votes; 
to  A,  C,  and  D,  200  votes ;  to  B,  C,  and  D,  100  votes.  The  result  will 
be  :  For  A,  10,200  5  for  B,  10,100  ;  for  C,  10,100 ;  and  for  D,  10,200.  Sup 
posing,  now,  that  A  were  disqualified  by  holding  a  Federal  office,  who 
would  be  elected,  and  which  rule  ought  to  be  adopted  ?  That  which  re 
jects  A  as  disqualified,  and  B  and  G  as  not  elected,  by  reason  of  the 
votes  for  them  having  resulted  in  a  tie,  and  only  D  elected ;  or  that 
which  rejects  A  as  disqualified  and  returns  B,  C,  and  D  as  elected  ? 

This  is  not  very  likely  to  happen  at  this  time,  when  electors  are  mere 
automata  to  register  the  wishes  of  their  constituents  j  but  when  there 
shall  be  three  parties  again,  if  that  may  ever  be,  and  that  shall  happen 
which  happened  in  Pennsylvania,  that  two  of  them  coalesce  on  the  same 
list  of  electors,  with  the  intention  of  dividing  the  votes  of  the  electors 
according  to  the  heads  of  the  tickets,  as  was  proposed  to  be  done  in 
Pennsylvania  in  1856,  this  might  very  easily  happen  j  and  yet,  accord 
ing  to  the  proposition  of  my  friends  on  the  other  side,  the  result  would 
be  that  the  man  having  the  highest  number  of  votes  was  elected  though 
disqualified.  Now,  the  principle,  to  govern  us,  must  be  consistent :  First, 
with  the  constitutional  mandate  that  the  State  shall  appoint.  That  is  the 
mandate  of  the  Federal  Constitution  ;  it  is  the  mandate  of  the  Eevised 
Statutes ;  it  is  the  mandate  of  Oregon.  Secondly,  with  the  constitutional 
inhibition  that  no  person  holding  an  office  of  trust  or  profit  under  the 
United  States  shall  be  appointed.  Thirdly,  with  the  rule  that  a  major 
ity  vote  is  not  necessary,  but  a  plurality  suffices  for  election.  Fourthly, 
with  the  possibility  to  which  I  have  just  addressed  my  attention.  And, 
fifthly,  with  the  fact  that  upon  the  views  of  their  work  entertained  by 
those  who  made  the  Constitution,  the  candidates  for  electors  do  not  run, 
like  rivals  for  the  office  of  sheriff,  against  each  other,  but  the  choice  is 
made  by  selection  of  the  successful  candidates  out  of  the  whole  list  of 
those  named  in  that  connection. 

I  have  referred  your  honors  to  the  decision  in  Maine.  It  so  happens 
that  in  the  State  of  Maine  that  opinion  of  Chief-Justice  Mellen,  Chief- 
Justice  Weston,  and  Judge  Parris  became  crystallized  by  the  legislative 
department  of  the  State  as  one  of  the  laws  of  the  State  as  early  as  1840, 
and  has  remained  the  law  of  the  State  of  Maine  until  now,  and  my  brief 
refers  your  honors  to  this  law  of  the  State  of  Maine  by  which  ballots 
cast  for  ineligible  persons  are  not  to  be  counted.  It  is  only  in  igno 
rance  of  this  opinion  and  this  legislation  that  Spear  vs.  Robinson,  29 
Maine,  531,  (a  decision  really  directly  in  favor  of  my  proposition,)  and 
the  opinion  of  the  judges,  38  Maine,  597,  (which  does  not  touch  the 
point,)  have  ever  been  cited  against  it. 

It  is  the  law  of  the  State  of  Massachusetts,  God  bless  her.  I  have 
here  a  book  printed  by  the  authority  of  the  State  of  Massachusetts, 
being  reports  of  election  cases  in  Massachusetts.  This  book  came  from 
the  legislature  of  Massachusetts,  and  in  it  is  a  decision  in  1849  by  a 
committee,  approved  by  the  vote  of  her  legislature.  This  book  was 
compiled  by  Judge  Luther  S.  Gushing  and  his  associates,  by  direction 
of  the  legislature,  and  printed  by  the  State  for  the  information  of  her 
people  and  people  beyond  her  borders,  in  which  it  is  stated  as  the  law 
of  Massachusetts  that — 

There  is  no  reason  why  a  person  who  votes  for  an  ineligible  candidate  should  not  l»e 
put  upon  the  same  footing  with  one  who  does  not  vote  at  all  as  in  both  cases  the 


ELECTORAL    COUNT    OF    1877.  577 

parties  show  a  disposition  to  prevent  an  election,  and  both  of  them  show  an  unwilling 
ness  to  perform  their  duty  by  aiding  to  promote  those  elections  which  are  absolutely 
essential  to  the  existence  of  the  government ;  for  if  every  voter  refrained  wholly  from 
voting,  or  voted  for  an  ineligible  candidate,  the  resulb  would  be  the  same,  no  choice; 
and  although  it  is  true  that  no  penalty  is  attached  by  law  to  a  neglect  of  this  obliga 
tion  of  voting,  yet  the  obligation  is  not  the  less  plain  for  that,  and  the  committee 
believe  it  to  be  a  duty  too  important  to  be  neglected  and  too  sacred  to  be  trifled  with 
by  voting  for  fictitious  persons  or  ineligible  candidates. 

Maryland  spoke  in  1794,  in  the  case  of  Hatcheson  vs.  Tilden  &  Bord- 
ley,  4  Harris  &  McHenry,  279;  and  in  1865  and  1866  the  legislature  of 
Maryland,  acting  once  in  their  legislative  capacity,  and  acting  once  in. 
their  judicial  capacity,  followed,  in  the  cause  of  loyalty  and  of  recon 
struction  upon  loyal  principles,  the  rule  which  Chief- Justice  Samuel 
Chase  laid  down  for  their  government.  I  have  the  house  journal  and 
documents  of  the  State  of  Maryland  for  1865,  which  have  been  kindly 
furnished  me  by  a  friend  in  Baltimore  in  order  that  I  might  present  the 
original  authorities  to  your  honors.  In  the  constitution  of  Maryland, 
as  it  was  in  1865,  was  the  following  provision : 

If  any  person  has  given  any  aid,  comfort,  countenance,  or  support  to  those  engaged 
in  armed  hostility  to  the  United  States,  or  has,  by  any  open  deed  or  word,  declared 
his  adhesion  to  the  cause  of  the  enemies  of  the  United  States,  or  his  desire  for  the ' 
triumph  of  said  enemies  of  the  United  States,  he  is  disqualified  from  holding  any 
office  of  honor,  profit,  or  trust,  under  the  laws  of  this  State. 

Hart  B.  Holton,  who  had  not  a  majority  or  plurality  of  the  votes  cast 
for  senator  of  Howard  County  in  1865,  contested  the  seat  of  Littleton 
Maclin,  who  had  the  majority  of  the  legal  votes  of  the  voters  of  Howard 
County,  and  on  the  principles  enunciated  by  Chief-Justice  Chase,  be 
cause  of  the  disloyalty  of  Littleton  Maclin,  Hart  B.  Holton  gained  the 
seat  and  sat  as  a  senator  from  that  county.  In  1866,  before  the  house 
of  delegates,  acting  judicially,  George  E.  Gambrill  contested  the  office 
of  Sprigg  Harwood,  as  clerk  of  the  circuit  court  of  Anne  Arundel  County, 
on  the  ground  of  constitutional  ineligibility,  caused  by  an  increase  in 
the  profits  of  this  clerkship,  while  Harwood  was  a  senator  from  Anne 
Aruudel  County  in  1865.  The  committee  said  that  Harwood  was  ineli 
gible,  that  it  u  must  be  presumed  to  have  been  known  by  every  voter," 
that  in  a  case  like  this  it  would  be  highly  inexpedient  to  submit  this 
matter  to  another  election,  and  on  their  report  the  incumbent  of  the 
office  was  ousted  and  the  contestant  inducted  into  the  office  of  clerk  of 
Anne  Arundel  County. 

So  in  the  States  of  Missouri  and  Mississippi,  by  constitutional  amend 
ments,  introduced  and  adopted  for  the  purpose  of  securing  the  recon 
struction  of  those  States  in  accordance  with  the  loyal  sentiment  which 
demanded  the  maintenance  of  the  Federal  Union  at  all  hazards,  it  was 
provided  that  disloyalty  should  cause  such  disqualification  that  votes 
given  for  disloyal  persons  in  Mississippi  and  Missouri  should  not  be  cast 
up  or  counted  as  ballots.  This  principle,  springing  from  our  revolu 
tionary  fathers  and  helping  the  great  work  of  reconstruction,  helping  to 
secure  the  maintenance  of  the  Federal  Union  and  the  principles  of  loy 
alty  to  the  Federal  Union,  has  so  soon  as  this  become  so  odious  to  those 
who  maintained  arid  espoused  it  so  recently  that  by  its  rejection  is  to  be 
elected  a  President  of  the  United  States!  What  is  there  to  the  con 
trary  ?  Six,  or  eight,  or  ten  obiter  dicta,  and  that  is  the  whole  of  it,  and 
not  one  of  them  in  conflict  with  the  .principle  for  which  we  contend. 
Why,  your  honors,  the  presumption  omnia  bene  et  rite  esse  prccsumuntur 
donee  probetur  in  contrarium,  sustains  the  action  of  the  governor  of  Ore 
gon  until  there  shall  be  produced  in  evidence  something  to  show  that 
the  governor  of  Oregon  was  not  justified  in  the  course  which  he  took. 
37  72  c 


578  ELECTORAL    COUNT    OF    1877. 

We  are  justified,  then,  iu  presuming — we  need  not  the  evidence  which 
we  offer — that  the  fact  of  disqualification  existed,  and  was  so  notorious 
as  to  work  the  law  of  disqualification.  Therefore,  we  are  within  the 
rule  of  Furraan  vs.  Clute,  in  50  New  York,  451 :  therefore  we  are  within 
the  rule  which  has  been  adopted  in  the  case  of  Commonwealth  vs.  duly 
in  56  Pennsylvania  State  Eeports,  277 ;  so  that  we  are  within  the  rule 
which  was  adopted  in  the  obiter  dicta  to  which  I  shall  refer. 

Mr.  Commissioner  EDMUNDS.  Did  not  the  court  in  50  New  York 
hold  also  that  every  voter  must  know  what  the  law  was  ? 

Mr.  HOADLY.  Precisely  so ;  and  it  would  be  a  fitting  commentary 
upon  the  serious  character  of  the  suggestions  which  have  been  made  in 
disparagement  of  the  course  taken  by  the  governor  of  the  State  of 
Oregon  if  it  should  be  held  that  his  course  was  improper  in  consequence 
of  the  fact  that  the  15,000  people  who  voted  for  John  W.  Watts  were 
presumably  ignorant  of  the  Constitution  of  the  United  States.  Of  a 
lurking  statute  hidden  in  the  corners  of  a  statute-book,  like  the  statute 
that  governed  the  disqualification  of  the  supervisor  of  Schenectady,  it 
may  well  be  that  the  voters  might  be  ignorant,  but  of  a  disqualification 
inherent  in  a  constitutional  provision  which  enables  the  State  to  appoint 
.electors  no  man  ought  to  say  that  he  is  ignorant.  No  man  can  be  heard 
in  any  court  of  law  in  any  such  case  to  say,  I  submit,  that  he  is  u  ig 
norant." 

Three  times  Indiana  has  promulgated  the  principle  which  I  have  sug 
gested.  It  has  been  espoused  by  Judge  Cushing  in  his  book,  sections 
177,  et  seq.;  it  is  espoused  by  Grant  on  Corporations,  208;  it  is  the  law 
of  the  English  and  Irish  cases,  all  of  which  are  referred  to  in  the  brief, 
that  a  man  might  as  well  vote  for  the  man  in  the  moon,  or,  as  Governor 
Grover  in  his  decision  says,  for  Mount  Hood^  as  to  vote  for  a  disquali 
fied  candidate  knowingly ;  and  what  is  there  to  the  contrary  ?  As  I 
said,  the  Pennsylvania  case  concedes  that  a  vote  given  with  knowledge 
for  an  ineligible  candidate  cannot  be  counted.  In  the  cases  in  Califor 
nia,  in  the  first  one,  Malony  vs.  Whitman,  10  Cal.,  38,  the  question  did  not 
require  or  receive  decision,  for  the  majority  of  the  court  found  that  the 
officer  was  not  ineligible.  In  Saunders  vs.  Haynes,  13  Cal.,  145,  the  other 
case,  it  is  assumed  that  a  majority  of  those  voting  by  mistake  of  law  or 
fact  happened  so  to  cast  their  vote.  The  case  in  Wisconsin  (State  vs. 
Giles,  1  Chandl.,  112,)  which  has  been  considered  the  leading  case  on  the 
other  side,  is  as  pure  a  piece  of  gratis  dictum  as  ever  was  pronounced  in 
a  court  in  this  country.  After  stating  that  tke  officer  was  not  ineligible, 
the  court  go  on  to  say : 

Such  being  the  opinion  of  the  court,  it  is  unnecessary  to  pass  on  the  second  question 
whether  in  the  event  of  the  person  receiving  the  highest  number  of  votes  being  ineli 
gible,  the  person  having  the  next  highest  number  is  elected. 

Then,  I  will  not  say  by  the  same  force  with  which  I  address  the  pupils 
in  my  law -school,  but  by  the  same  judicial  authority  that  I  have  the 
right  to  express  when  I  address  students  in  a  law-school,  the  court  go 
on,  having  decided  that  it  was  not  their  duty  to  say  anything  about  it, 
to  expound  the  law,  in  order  that  on  future  occasions  their  succesors 
may  have  the  benefit  of  it,  and  in  State  vs.  Smith,  14  Wisconsin,  497, 
their  successors  get  the  benefit  of  it,  and  adopt  it  without  giving  any 
reasons.  Judge  Lurnpkin,  in  Georgia,  State  vs.  Sweariugen,  12  Geo.,  23, 
followed  the  same  wise  example,  deciding  that  DO  restriction  of  resi 
dence  "  was  imposed  on  the  voters  of  the  young  but  rapidly  growing 
town  of  Oglethorpe  in  their  selection  of  a  suitable  person  to  fill  the 
office  of  clerk  and  treasurer."  Having  decided  that  there  was  no  such 


ELECTORAL    COUNT    OF    1877.  579 

ineligibility,  he  proceeded  to  lay  down  the  law  of  the  court  obiter  in 
these  words : 

Under  no  circumstances  could  we  permit  the  informant  to  be  installed  into  these 
appointments. 

In  Missouri  the  first  case,  State  vs.  Boal,  in  46  Missouri,  528,  is  in  ac 
cordance  with  the  views  which  we  maintain. 

As  regards  the  votes  cast  for  the  defendant,  they  were  nugatory.  It  was  as  though 
no  such  votes  had  been  cast  at  the  election. 

And  the  case  of  The  State  vs.  Yail,  53  Mo.,  97,  does  not  withdraw  this 
limitation,  but  simply  confines  it  to  cases  of  latent  disqualification^ 
saying : 

It  is  unnecessary  to  determine  whether  it  would  be  the  rule  in  any  case  of  qualifica 
tions,  whether  patent  or  latent. 

The  case  in  Tennessee,  Pearce  vs.  Hawkins,  2  Swan,  87,  decides  that 
the  votes  are  illegal  and  void,  which  is  a  case^  as  far  as  it  goes,  in  our 
favor.  The  case  in  Michigan,  People  vs.  Molitor,  23  Mich.,  341,  is  dis 
posed  of  by  an  admission  in  pleading;  the  court  say  the  party  admitted 
his  case  away  in  pleading.  The  case  in  21  Louisiana  Annual  Keports, 
289,  Fish  vs.  Collins,  decides,  with  modesty,  I  suppose,  if  there  be  such 
an  article  in  the  supreme  court  of  that  State,  that  it  was  unnecessary 
to  express  an  opinion  whether  the  votes  cast  for  a  person  notoriously 
known  to  be  ineligible  should  be  rejected  or  not,  as  no  such  allegations 
were  made  in  the  petition.  The  cases  in  18  and  20  Louisiana  Annual 
Eeports,  114,  State  vs.  Gastinel,  are  to  the  same  effect. 

Whatever  might  have  been  his  rights  had  he  contested  the  election  of  the  defendant 
in  accordance  with  law,  we  are  not  called  upon  to  say. 

The  case  in  Mississippi,  Sublett  vs.  Bidwell,  47  Miss.,  273,  is  nearest  to 
a  case  in  opposition  to  the  principle  for  which  I  contend,  of  any  in  the 
United  States.  There  it  is  said : 

If  the  majority  make  choice  of  a  candidate  under  some  personal  disability  disquali 
fying  him  from  taking  and  enjoying  the  office,  the  utmost  that  can  be  said  of  it  is  that 
there  has  been  no  election. 

u  Personal  disability,"  not  the  disability  of  the  State  to  appoint,  but 
personal  disability  applicable  to  the  candidate. 

In  Ehode  Island,  as  is  shown  by  a  letter  from  William  Beach  Law 
rence,  of  which  I  have  reprinted  a  large  portion  in  my  brief,  the  opin 
ion  on  this  proposition  is  purely  obiter  dictum,  there  having  been  a  tie 
between  the  three  highest  democratic  candidates  for  elector,  and,  there 
fore,  the  result  which  was  reached  by  the  governor,  that  there  was  no 
vacancy,  a  failure  to  elect  being  the  necessary  result,  and  not  the  result 
produced  by  the  reasons  given  by  the  supreme  court. 

These  are  all  the  cases  in  the  United  States.  I  believe  I  have  re 
ferred  in  my  brief  to  every  case  within  the  borders  of  this  land  and  of 
Great  Britain,  except  one  case  in  Coxe's  Eeports,  page  318,  The  State  vs. 
Anderson,  which  went  off  on  the  proposition  that  in  certiorari  there  was 
a  discretion,  but  the  court  would  not  exercise  that  discretion  to  displace 
a  man  who  was  disqualified,  because  it  would  leave  the  office  vacant, 
and  did  not  allude  at  all  to  the  question  whether  there  was  any  antag 
onist  or  whether  his  antagonist  received  any  votes. 

And  if  we  look  beyond  the  United  States,  and  assume  that  the  com 
mon  law  of  England  prevails  in  Oregon,  there  is  nothing  to  the  contrary 
of  our  view. 

Now,  testing  by  principle,  I  say  Cronin  was  elected.  Testing  by 
method,  would  a  quo  warranto  have  run  in  favor  of  Watts?  Would 


580  ELECTORAL    COUNT    OF    1877. 

not  the  disqualification  have  killed  his  title  ?  Could  he  by  quo  warranto 
or  certlorari  or  contest  have  obtained  the  place  I  Cronin  held  it  de 
facto  ;  Watts  was  a  postmaster  disqualified.  Test  it  now  by  the  rules 
of  method  under  laws  similar  to  that  which  we  have  in  Ohio  and  many 
of  the  States  in  which  a  quo  warranto  may  be  supported  at  the  instance 
of  the  competing  candidate,  and  pursued,  not  merely  to  the  ousting  of 
the  incumbent,  but  to  the  induction  of  the  man  who  ought  to  have  been 
successful ;  and  on  what  principle  of  law  could  John  W.  Watts,  who 
did  not  hold  this  commission,  have  got  from  any  court  of  justice  in  this 
laud  the  title  to  which  he  now  lays  claim?  Cronin  held  the  title ; 
Crouin  cast  the  vote ;  Watts  was  not  elector  de  facto,  and  it  is  a  ques 
tion  whether  he  was  de  jure.  Ask  yourselves,  learned  judges,  whether 
any  one  of  you  sitting  in  quo  ivarranto  would  have  awarded,  as  against 
the  officer  de  facto,  possession  of  the  office  to  a  man  whom  the  Constitu 
tion  of  the  country  said  should  not  hold  it  !  On  principle  the  mandate 
to  elect  was  fulfilled  by  the  election  of  Crouin.  If  WTatts  be  called 
elected,  the  mandate  to  elect  was  disobeyed.  If  Watts  be  called  elected, 
the  mandate  not  to  elect  a  disqualified  person  was  disobeyed.  Tested 
by  method  and  by  the  rules  which  apply  in  courts  of  justice,  tell  me 
how  any  lawyer  can  say  that  a  disqualified  candidate  can  seize  an  office 
by  any  process  known  to  the  laws  of  our  country  out  of  the  hands  of 
one  who  holds  it  de  facto,  even  although  that  one  be  not  elected  ?  He 
may  have  a  judgment  that  the  office  is  vacant;  that  is  all  he  can  have, 
and  that  is  the  end  of  the  whole  thing  as  far  as  he  is  concerned. 

Mr.  President  and  gentlemen  of  the  commission  :  Into  your  hands, 
assisted  by  the  enlightened  labors  of  those  who  are  to  follow  me 
in  argument,  I  commit  this  cause.  No  cause  was  ever  submitted  more 
momentous  in  its  issues  or  its  consequences.  It  involves  the  question 
whether  government  of  the  people,  by  the  people,  for  the  people,  shall 
be  suspended  in  the  Executive  department  of  these  United  States  for 
the  next  four  years. 

At  the  election  in  November  last,  Samuel  J.  Tilden  and  Thomas  A. 
Hendricks  received  for  President  and  Vice-President  of  the  United 
States  a  vast  majority  of  the  total  popular  vote,  a  majority  of  the  legal 
popular  vote  in  the  States  of  Louisiana  and  Florida,  and  one  certificated 
electoral  vote  in  the  State  of  Oregon.  Your  sense  of  duty  has  prevented 
your  listening  to  the  testimony  which  would  have  established  their  title 
to  the  electoral  votes  of  Louisiana  and  Florida.  This  was  because  you 
possessed  no  judicial  power  whatever.  Had  you  been  endowed  with  any 
portion  of  the  judicial  power  of  the  United  States,  there  is  no  doubt,  that, 
before  this  time,  its  exercise  would  have  relieved  the  people  of  the  United 
States  from  the  serious  apprehension  of  great  danger,  of  danger  that, 
for  four  weary  years,  the  choice  of  the  American  people  shall  be  frus 
trated,  and  a  usurper  sit  in  the  seat  of  Washington  and  Jefferson,  of 
Jackson  and  of  Lincoln. 

If  you  adhere  to  the  principle  which  has  thus  far  guided  your  action, 
this  danger  will  be  averted.  Without  the  exercise  of  judicial  power, 
you  cannot  deprive  Tilden  and  Hendricks  of  their  Oregon  vote,  or  award 
it  to  Hayes  and  Wheeler. 

You  have  been  likened  unto  judges  in  Israel,  and  warned  not  to  make 
jour  proceedings  so  intolerably  inconvenient  that  the  people  should 
desire  a  king.  The  people,  whose  cause  I  represent,  will  never,  never, 
never  wish  for  a  king;  but  I  may  remind  the  counsel  that  it  was  not 
because  the  action  of  their  judges  was  inconvenient  that  the  people  of 
Israel  desired  a  king,  but  because  their  judges  "perverted judgment." 

Conscript  fathers  of  the  American  Kepublic,  the  flower  and  crown  of 


ELECTORAL    COUNT    OF    J«77.  581 

the  enlightened  jurisprudence  of  pagan  Rome  were  the  two  maxims, 
"UbijuSj  Hi  remedium,"  "Suum  cuique  tribuito^  May  it  be  the  happy 
fortune  of  our  nation  and  of  yourselves,  as  the  expounders  of  its  consti 
tutional  powers,  not  to  lessen  the  force  or  diminish  the  universality  of 
their  application. 

So  shall  Time,  the  corroder  and  consumer  of  all  finite  things,  pass  your 
work  by  untouched,  and  after  generations,  as  they  may  meet  with  ques 
tions  of  disputed  succession,  shall  point  to  and  follow  it,  saying  u  Behold 
the  great  example  of  our  fathers.  In  their  ways  will  we  walk,  for  they 
are  the  ways  of  righteous  judgment  and  of  peace ; "  and  the  arms  of  them 
who  serve  liberty  in  all  the  lands  shall  be  strengthened,  for  they  shall 
know  that  in  monarchies  questions  of  succession  are  resolved  by  the 
sword,  in  republics  by  justice. 

So  shall  Art,  which  keeps  in  eternal  remembrance  the  realities  of 
things,  still  delineate  Justice  with  bandaged  eyes  and  open  ears,  and 
History  shall  not  record  that  Justice  here,  at  the  expense  of  her  hearing, 
regained  her  sight. 

Mr.  Commissioner  ABBOTT.  I  move  that  the  Commission  adjourn  to 
meet  at  ten  o'clock  to-morrow  morning  in  the  Supreme  Court  room. 

The  motion  was  agreed  to ;  and  (at  nine  o'clock  and  fifty-five  minutes 
p.  m.)  the  Commission  adjourned. 

THURSDAY,  February  22,  1877. 

The  Commission  met  at  ten  o'clock  a.  m.*  in  the  Supreme  Court  room, 
pursuant  to  adjournment,  all  the  members  being  present. 

The  counsel  representing  the  objections  to  the  various  Oregon  certifi 
cates  were  present. 

The  Journal  of  yesterday  was  read  and  approved. 

The  PRESIDENT.  Counsel  in  opposition  to  certificate  No,  2  will 
now  be  heard. 

Mr.  MATTHEWS.  Mr.  President  and  gentlemenjof  the  Commission, 
life  is  a  series  of  surprises,  and  the  succession  of  the  arguments  which 
has  taken  place  before  this  Commission  is  no  exception  to,  but  rather 
an  illustration  of,  that  truth.  When  the  case  of  Florida  was  opened  by 
the  learned  counsel  who  is  to  conclude  the  argument  in  this,  [Mr.  Merrick,] 
he  assumed  and  attacked  as  our  position  that  the  certificate  of  the  gov 
ernor  of  a  State  accompanying  the  list  of  electors  was  conclusive  and 
could  not  be  impeached,  could  not  be  set  aside,  could  not  be  contradicted. 
And  among  the  first  words  which  I  had  the  honor  in  reply  to  say  in  the 
presence  of  this  honorable  Commission,  I  was  compelled  to  remove  that 
misapprehension  on  the  part  of  the  adverse  counsel,  and  to  say  that  we 
held  to  no  such  doctrine ;  and  in  the  course  of  argument  I  stated  our 
proposition  in  this  way : 

But,  Mr.  President  and  gentlemen,  if  you  go  behind  the  certificate,  what  are  you  lim 
ited  to  by  the  necessity  of  the  thing  ?  In  my  judgment,  you  are  limited  to  this  :  to  an 
inquiry  into  what  are  the  facts  to  which  he  should  have  certified  and  did  not;  not  what  are 
or  may  be  the  ultimate  and  final  facts  and  right  of  the  case.  The  facts  to  be  certified 
by  the  governor  in  this  or  in  any  case  are  the  public  facts  which  by  law  remain  and 
constitute  a  part  of  the  record  in  the  public  offices  and  archires  of  the  State,  and  of 
which,  being  governor  for  the  time  being,  he  has  official  knowledge. 

We  undertook  to  draw  a  line  of  demarkation  in  that  instance,  first, 
between  the  constitutional  authority  of  the  State  in  the  making  of  the 
appointment,  in  the  doing  of  all  those  things  which  constitute  and  verify 
the  appointment,  which  complete  it,  which  constitute  afactum  to  be  en 
rolled  in  the  public  offices  of  the  State  in  perpetual  memorial  of  the  fact; 
and,  on  the  other  hand,  the  Federal  authority  which  took  the  matter  up 


582  ELECTORAL    COUNT    OF    1877. 

from  the  point  where  the  State  left  it,  after  it  had  been  transferred  by 
the  State  into  the  custody  of  Federal  authority. 

We  undertook,  also,  to  draw  a  line  of  distinction  in  another  place ; 
and  that  was  between  things  and  proofs,  between  the  thing  to  be  certi 
fied  and  the  certificate  which  certified  it;  and  we  claimed  then,  as  we 
have  consistently  done  throughout,  that  the  certificate  of  a  thing  was 
matter  of  form  ;  the  thing  certified  was  the  matter  of  substance;  and 
that  in  every  case  where  it  could  be  alleged  that  the  certificate  was  false, 
in  that  it  did  not  conform  to  the  thing  to  be  certified,  you  might  correct 
the  certificate  by  showing  the  fact  to  be  certified. 

The  statement  of  these  propositions  was  made  in  the  opening  of  the 
argument  in  the  Florida  case  on  our  side.  It  was  enlarged  and  ampli 
fied  and  demonstrated  and  applied  by  the  learning  and  the  eloquence 
of  my  colleagues  who  continued  the  further  argument  in  that  and  the 
succeeding  case  of  Louisiana  5  and  under  the  guidance  of  their  skillful 
and  experienced  hands  in  applying  the  sound  constitutional  principle 
out  of  which  those  manifest  distinctions  sprung,  we  were  guided  by  a 
pilot  as  wise  and  successful  as  Paliuurus  himself  between  Scylla  and 
Charybdis.  It  was  therefore,  Mr.  President,  somewhat  of  a  surprise  to 
find  that  the  position  which  we  had  taken  so  much  pains  to  make  clear 
and  to  prove,  now  not  only  has  been  adopted  by  the  gentlemen  on  the 
other  side,  but  that,  going  beyond  that,  they  have  adopted  the  dogma 
which  originally  they  improperly  ascribed  to  us ;  and  we  hear  for  the 
first  time  in  this  continuous,  although  interrupted  debate,  the  cry  from 
our  adversaries  of  the  sanctity  and  impenetrability  of  the  formal  certifi 
cate  of  the  governor.  It  is  now  claimed  by  the  learned  gentleman  who 
spokejwith  somuch  ability  in  the  Senatechamber  last  night  [Mr.Hoadly] 
that  the  idea  on  which  he  founded  the  whole  structure  of  his  argument 
has  passed  into  adjudication  by  the  decision  of  this  tribunal  in  the 
Louisiana  case.  The  language  of  this  tribunal  upon  that  point  is  this  : 

And  the  Commission  has  by  a  majority  of  votes  decided,  and  does  hereby  decide,  that 
it  is  not  competent,  under  the  Constitution  and  the  law  as  it  existed  at  the  date  of  the 
passage  of  said  act,  to  go  into  evidence  aliunde  the  papers  opened  by  the  President  of 
the  Senate  in  the  presence  of  the  two  Houses,  to  prove  that  other  persons  than  those 
regularly  certified  to  by  the  governor  of  the  State  of  Louisiana  on  and  according  to 
the  determination  and  declaration  of  their  appointment  by  the  returning-officers  for 
elections  in  said  State  prior  to  the  time  required  for  the  performance  of  their  duties 
had  been  appointed  electors,  or  by  counter-proof  to  show  that  they  had  not. 

So  that  the  very  ground  on  which  we  stood  at  the  beginning  is  the 
ground  which  has  been  hallowed  by  this  tribunal  and  is  the  ground  on 
which  we  stand  to-day  ;  and  that  is,  that  it  is  the  certificate  of  the  gov 
ernor  which  is  based  on  and  according  to  the  determination  and  declara 
tion  of  the  appointment  of  electors  by  the  re  turn  ing-officers  for  elec 
tions  in  the  said  State  prior  to  the  time  required  for  the  performance  of 
their  duties,  which  is  under  the  Constitution  and  laws  of  the  United 
States  the  conclusive  evidence  of  the  persons  who  are  entitled  to  cast 
the  electoral  vote  of  the  State. 

Mr.  President,  that  is  not  the  only  surprise.  In  the  case  of  Florida 
the  attempt  was  made  by  the  show  and  offer  of  proof  to  go  behind  the 
final  action  of  the  State  in  the  appointment  of  electors  by  showing 
that  the  process  had  been  erroneous,  illegal,  without  jurisdiction,  in 
volving  transgressions  of  law,  and  tainted  by  fraud.  The  same  offer, 
though  greatly  exaggerated  and  enlarged,  was  made  in  the  case  of 
Louisiana  ;  and  it  seemed  as  if  the  offers  of  their  proof  proposed  by  the 
gentlemen  on  the  other  side  grew  the  stronger  and  larger  just  in  propor 
tion  to  the  certainty  which  they  had  attained  that  they  would  not  be 
put  to  the  test  of  an  attempt  to  make  them  good ;  and  we  were  treated 


ELECTORAL    COUNT    OF    1877.  583 

at  the  same  time  with  exhibitions  of  virtuous  indignation,  which  for 
one  at  least  1  was  not  expecting  or  prepared  to  witness  in  that  quarter, 
of  the  enormity  of  sanctifying  wrong  and  fraud ;  and  the  tribunal  and 
the  counsel  and  all  who  were  engaged  in  the  transaction  were  involved 
in  one  universal  sentence  of  condemnation,  as  if,  by  establishing  some 
legal  principles  in  the  course  of  a  transaction  which  at  least  has  the 
form  of  a  judicial  inquiry  and  professes  to  be  governed  by  constitutional 
and  legal  principles,  we  were  confessing  the  wrongs  which  we  alleged 
it  was  incompetent  for  this  tribunal  to  investigate. 

I  was  reminded,  Mr.  President,  by  that  of  some  remarks  which  bear 
the  authority  of  the  Supreme  Court  of  the  United  States,  and  were  de 
livered  by  Mr.  Justice  Field,  in  the  case  of  Bradley  vs.  Fisher,  in  13 
Wallace,  348;  where  it  was  decided  by  the  Supreme  Court  of  the  United 
States  that  a  civil  action  for  damages  would  not  lie  against  the  judge 
of  a  superior  court  for  anything  done  by  him  in  his  official  capacity, 
although  it  was  alleged  in  the  petition  to  have  been  done  corruptly, 
wantonly,  and  maliciously,  to  the  injury  of  the  plaintiff;  and  that 
learned  judge,  who  delivered  the  opinion  of  the  court,  made  these  gen 
eral  remarks,  which  apply  in  the  present  controversy,  wherein  (quoting 
from  an  old  authority  in  Coke  as  to  the  ground  of  that  public  policy, 
that  it  would  tend  to  the  scandal  and  subversion  of  all  justice,  and  those 
who  are  the  most  sincere  would  not  be  free  from  continual  calumniation) 
he  says : 

The  truth  of  this  latter  observation  is  manifest  to  all  persons  having  much  experi 
ence  with  judicial  proceedings  in  the  superior  courts.  Controversies  involving  not 
merely  great  pecuniary  interests,  but  the  liberty  and  character  of  the  parties,  and  con 
sequently  exciting  the  deepest  feelings,  are  being  constantly  determined  in  those 
courts,  in  which  there  is  great  conflict  in  the  evidence  and  great  doubt  as  to  the  law 
which  should  govern  their  decision.  It  is  this  class  of  cases  which  impose  upon  the 
judge  the  severest  labor,  and  often  create  in  his  mind  a  painful  sense  of  responsibility. 
Yet  it  is  precisely  in  this  class  of  cases  that  the  losing  party  feels  most  keenly  the  de 
cision  against  him,  and  most  readily  accepts  anything  but  the  soundness  of  the  decision 
in  explanation  of  the  action  of  the  judge.  Just  in  proportion  to  the  strength  of  his 
convictions  of  the  correctness  of  his  owu  view  of  the  case  is  he  apt  to  complain  of  the 
judgment  against  him,  and  from  complaints  of  the  judgment  to  pass  to  the  ascription 
of  improper  motives  to  the  judge.  When  the  controversy  involves  questions  affecting 
large  amounts  of  property  or  relates  to  a  matter  of  general  public  concern,  or  touches 
the  interests  of  numerous  parties,  the  disappointment  occasioned  by  an  adverse  de 
cision  often  finds  vent  in  imputations  of  this  character,  and  from  the  imperfection  of 
human  nature  this  is  hardly  a  subject  of  wonder.  If  civil  actions  could  be  maintained 
in  such  cases  against  the  judge,  because  the  losing  party  should  see  fit  to  allege  in  his 
complaint  that  the  acts  of  the  judge  were  done  with  partiality  or  maliciously  or  cor 
ruptly,  the  protection  essential  to  judicial  independence  would  be  entirely  swept  away. 
Few  persons  sufficiently  irritated  to  institute  an  action  against  a  judge  for  his  judicial 
acts  would  hesitate  to  ascribe  any  character  to  the  acts  which  would  be  essential  to  the 
maintenance  of  the  action. 

In  those  cases  the  offer  of  proof,  even  in  the  form  in  which  it  was  most 
offensive,  went  only  to  a  certain  point,  to  prove,  it  was  alleged,  fraud  in 
that  return  and  result  which  had  been  declared  by  the  returning-board 
of  the  State,  in  order  to  penetrate  below  that,  to  the  primary  returns. 
But  when,  on  the  other  hand,  it  was  urged  that  when  they  were  reached 
we  should  have  occasion  to  retort  with  charges  of  fraud  and  oppression, 
and  intimidation  and  cruelty,  and  arts  and  stratagems,  the  effect  of 
which  had  been  to  falsify  those  primary  election  returns,  there  we  were 
met  with  the  argumentum  ab  inconvenienti,  and  no  less  a  personage  and 
lawyer  than  the  distinguished  advocate  at  that  time  in  the  case,  from 
New  York,  Mr.  O'Oonor,  in  answer  to  the  objection,  said  that  when  the 
inquiry  took  that  range — when  it  came  to  involve  questions  of  fraud  on 
both  sides — this  tribunal,  by  virtue  either  of  some  judicial  or  parlia 
mentary  discretion,  could  stop  the  inquiry  at  the  most  convenient  point; 


584  ELECTORAL    COUNT    OF    1877. 

could  stop  the  inquiry,  I  suppose,  when  they  had  heard  one  side,  and 
refuse  to  hear  the  other. 

No,  Mr.  President,  I  am  not  willing  to  let  this  last  opportunity  in  all 
probability  which  I  shall  have  to  address  this  tribunal,  pass  without 
entering  my  solemn  protest  against  the  pretension  to  morality  which  by 
ascription  has  been  made  the  foundation  and  substratum  of  this  com 
plaint.  It  is  a  morality  which  does  not  go  very  deep.  It  is,  to  say  the 
most  of  it,  not  more  than  skin  deep;  for  when  the  proposition  is  made 
to  probe  the  wound  to  the  bone,  then  it  is  said  that  you  cannot  go 
behind  the  record  of  the  votes  actually  cast.  It  is  a  morality  based 
upon  the  sanctity  of  votes  actually  cast,  without  reference  to  who  cast 
them,  how  they  were  cast,  whether  the  same  man  cast  more  than  one, 
whether  or  not  thousands  upon  thousands  of  honest  and  legitimate  votes 
were  not  kept  out  and  prevented  from  being  actually  cast  by  the  frauds 
and  violence  of  those  who  want  their  votes  to  be  counted  because  they 
are  cast  and  exclude  those  who  wanted  to  cast  them  and  were  deprived 
of  the  opportunity. 

Now,  one  of  the  things  which  are  not  a  surprise  is  that,  in  spite  of  the 
changed  circumstances  of  the  case,  we  have  an  exhibition  in  this  of 
precisely  the  same  standard  and  gauge  of  morals.  We  have  Cronin 
elevated  upon  a  pedestal  for  public  adoration  by  his  inventor  as  the  new 
statue  of  popular  rights,  freedom  of  elections,  purity  of  the  ballot-box, 
honest  ballots,  fair  voting,  and  we  are  all  called  to  fall  down  and 
worship  him  ! 

We  have  no  offers  in  this  case  to  prove  any  bribery,  to  show  that  he 
was  paid  $3,000,  under  pretense  of  his  expenses  to  Washington  City  as 
mesenger,  made  by  contract  notoriously  before  he  flocked  altogether  by 
himself  to  make  a  college  of  himself.  We  have  no  offer  to  prove  the 
various  tricks,  and  devices,  and  stratagems,  and  the  correspondence 
locked  in  what  were  supposed  to  be  undecipherable  hieroglyphics,  to 
show  that,  so  far  from  this  being  an  attempt  on  the  part  of  any  of  the 
parties  implicated  in  it  as  actors  or  advisers  to  maintain  constitutional 
doctrines  and  constitutional  rights,  it  was  a  deep-laid  and  deliberate 
scheme  to  defraud  and  rob  the  people  of  Oregon  of  their  just  influence 
in  the  electoral  college. 

I  wonder  that  my  friend  who  spoke  last  night,  when  he  was  undertak 
ing  to  cite  to  this  tribunal  the  definition  of  what  constituted  a  vacancy 
from  Worcester  and  from  Webster,  did  not  disclose  the  little  pocket 
dictionary  which  was  made  use  of  as  the  means  of  transmitting  unintel 
ligible  hypocrisy  between  Gramercy  Park  and  Salem,  and  let  us  see 
by  the  application  of  that  cipher  what  it  was  he  wished  to  have  under 
stood. 

Mr.  President,  the  argument  made  last  evening  in  support  of  what  for 
convenience'  sake  may  be  called  the  Cronin  certificate  by  my  learned 
friend  Judge  Hoadly  is  founded,  in  my  judgment,  upon  two  false  assump 
tions,  the  proper  understanding  and  recognition  of  which  at  once  put  an 
end  to  the  whole  mountain  both  of  authority  and  reasoning  by  which  he 
undertook  to  support  his  conclusions.  The  first  of  these  false  assump 
tions  is  this  :  that  the  Cronin  certificate,  the  certificate  of  the  governor 
of  Oregon  appended  to  the  list  of  electors  of  which  Cronin  is  one,  was 
and  is  the  authorized  declaration  of  the  result  of  the  election  by  the 
proper  legal  canvassing  officer  of  the  State  of  Oregon.  He  could  not 
claim  less  than  that,  for  otherwise  he  was  unable  to  bring  his  argument 
within  the  scope  of  the  decision  of  this  tribunal  in  the  Louisiana  case. 
He  was  therefore  compelled  to  assume  and  argue  that  by  the  statutes 
of  Oregon  the  governor  of  that  State  was  authorized  to  make  such  a 


ELECTORAL    COUNT    OF    1877.  585 

certificate  as  be  has  made,  and  that  in  law  that  document  in  its  form 
and  substance  is  the  canvass  of  the  election  for  electors,  behind  which 
this  tribunal  has  decided  that  it  constitutionally  cannot  go. 

The  next  false  assumption  on  which  his  argument  is  based  is  that 
this  certificate  is  in  the  nature  of  a  commission  lawfully  issued  by  the 
governor  to  an  officer,  and  which  it  is  necessary  that  he  should  have 
in  order  to  be  a  warrant  in  law  for  the  execution  of  the  duties  of  his 
office.  It  is  in  respect  to  this  second  proposition  that  a  large  number 
of  authorities  was  cited  to  show  that,  in  cases  where  a  governor  has, 
by  law  or  under  the  constitution  of  his  State,  an  executive  discretion 
in  respect  to  the  appointment  and  commissioning  of  officers,  that  dis 
cretion  may  be  exercised  by  him  in  granting  or  withholding  that  com 
mission  for  sufficient  legal  reasons,  in  which  he  cannot  be  controlled 
by  the  action  of  the  judicial  tribunals  of  the  country  by  mandamus  or 
quo  warrantor  and  that  therefore,  in  such  cases,  he  is  made  the  judge 
of  the  facts  in  respect  to  eligibility  or  otherwise,  on  which  he  may 
proceed  in  the  execution  and  exercise  of  his  official  discretion,  the 
whole  of  which  immediately  and  peremptorily  falls  to  the  ground 
when  it  is  once  known  and  ascertained  and  declared,  as  the  law  is, 
that  this  certificate,  even  if  it  had  been  made  in  conformity  with  some 
law,  which  it  is  not,  either  of  Congress  or  of  the  State  of  Oregon,  was 
not  intended  and  does  not  have  the  effect  of  constituting  the  warrant 
of  these  officers  for  the  exercise  of  their  official  duties. 

Now,  let  mo  examine  the  first  of  these  two  propositions  in  the  light 
of  the  statutes  and  constitution  of  the  State  of  Oregon,  in  order  to  ascer 
tain  what  mode  has  been  adopted  by  the  legislature  of  the  State  of 
Oregon  for  the  appointment  of  electors  for  that  State.  By  section  58 
(page  141  of  the  printed  pamphlet)  it  is  provided  that — 

On  the  Tuesday  next  after  the  first  Monday  in  November,  1864,  and  every  four  years 
thereafter,  there  shall  be  elected  by  the  qualified  electors  of  this  State  as  many  electors 
of  President  and  Vice-President  as  this  State  may  be  entitled  to  elect  of  Senators  and 
Representatives  in  Congress. 

They  are  to  be  elected  by  the  qualified  electors  of  the  State,  by  a 
popular  election.  Now,  by  the  sixtieth  section  it  is  provided  that — 

The  votes  for  the  electors  shall  be  given,  received,  returned,  and  canvassed  as  the 
same  are  given,  returned,  and  canvassed  for  members  of  Congress. 

There  that  proposition  ends.  We  are  to  ascertain  what  constitutes 
the  legal  canvass  for  electors  of  Oregon,  and  in  order  to  do  that  we  are 
referred  by  this  section  to  those  steps  which  by  law  are  provided  to  be 
taken  in  the  canvass  for  the  election  of  members  of  Congress.  Now, 
we  shall  ascertain  that  by  turning  to  the  thirty-seventh  section,  on  page 
139,  wherein  it  is  provided : 

The  county  clerk,  immediately  after  making  the  abstract  of  the  votes  given  in  his 
county,  shall  make  a  copy  of  each  of  said  abstracts,  and  transmit  it  by  mail  to  the 
secretary  of  state,  at  the  seat  of  government ;  and  it  shall  be  the  duty  of  the  secretary 
of  state,  in  the  presence  of  the  governor,  to  proceed  within  thirty  days  after  the  elec 
tion,  and  sooner  if  the  returns  be  all  received,  to  canvass  the  votes  given  for  secretary 
and  treasurer  of  state,  State  printer,  justices  of  the  supreme  court,  member  of  Congress, 
and  district  attorneys. 

And  there  that  proceeding  ends,  and  there  ends  the  declaration  of  the 
statute  in  reference  to  all  the  steps  which  are  included  in  the  canvass 
for  members  of  Congress.  When  a  canvass  takes  place,  however,  for 
member  of  Congress,  after  the  canvass  is  concluded,  it  is  then  provided 
that — 

The  governor  shall  grant  a  certificate  of  election  to  the  person  having  the  highest 
number  of  votes,  and  shall  also  issue  a  proclamation  declaring  the  election  of  such 
person. 


586  ELECTORAL    COUNT    OF    1877. 

But  inasmuch  as  that  constitutes  no  part  of  the  canvass  for  members 
of  Congress,  it  is  not  any  part  of  the  canvass  for  electors  of  the  State. 
On  the  other  hand,  the  original  section,  60,  to  which  I  now  recur,  pro 
vides,  instead  of  that: 

The  secretary  of  state  shall  prepare  two  lists  of  the  names  of  the  electors  elected? 
and  affix  the  seal  of  the  State  to  the  same. 

But,  mark  you,  that  is  no  part  of  the  canvass;  it  is  a  certification 
merely  of  the  result  of  that  canvass.  The  canvass  is  something  dis 
tinct;  the  canvass  is  the  determination,  the  declaration,  the  record  of 
the  facts  of  the  election  as  they  have  been  transmitted  by  the  clerks  of 
the  various  counties  to  the  secretary  of  state,  and  by  him  are  put  into 
that  form  which  shows  who  had  the  highest  number  of  votes,  and  there 
entered  of  record  in  his  office  as  a  part  of  the  public  archives  of  the 
State  for  the  benefit  of  whom  it  may  concern ;  and,  as  was  remarked, 
any  man  in  the  State,  any  citizen,  has  a  right  by  law  to  go  to  the  sec 
retary  of  state,  and,  upon  the  tender  of  the  payment  of  the  lawful  fees, 
demand  from  him  a  certificate  of  that  record  as  of  any  other. 

Now,  then,  we  have  arrived  at  the  two  things  which  are  separate  and 
distinct :  the  substantial  thing,  which  consists  of  the  showing  made  of 
record  of  the  number  of  votes  cast  for  each  of  the  electors,  showing  who 
had  the  greatest  number  of  votes,  and  that  is  the  canvass ;  and  it  is  not 
essential,  it  is  no  necessary  part  of  that  canvass,  it  is  not  made  so  by 
any  law,  that  the  secretary  of  state  or  anybody  else  should  by  any  formal 
declaration  or  publication  make  manifest,  more  than  it  is  by  the  inspec 
tion  of  the  record,  who  has  been  in  point  of  fact  elected.  There  is  no 
discretion  in  that  matter  ;  there  is  no  room  for  any  doubt;  there  is  no 
possible  uncertainty.  The  law  and  the  constitution  of  the  State  of 
Oregon  both  unite  in  stamping  upon  that  document  and  that  record  as 
it  remains  in  the  office  of  the  secretary  of  state  the  legal,  constitutional, 
and  only  possible  result,  namely,  that  the  man  appearing  from  that 
record  to  have  the  highest  number  of  votes  shall  be  deemed  to  be 
elected. 

Then  what  have  we  here?  On  page  2,  certificate  No.  1,  we  have  the 
very  thing.  It  is  not  proof  of  the  thing ;  it  is  an  exhibition  of  the  thing ; 
and  it  is  a  production  of  it  in  court.  We  have  made  profert  of  the  iden 
tical,  substantial,  and  only  real  thing;  and  that  is  the  canvass  of  the 
election.  The  secretary  of  state  of  Oregon,  who  is  the  custodian  of  the 
great  seal  of  the  State  by  virtue  of  his  office,  certifies : 

That  the  foregoing  tabulated  statement  is  the  result  of  the  vote  cast  for  presidential 
electors  at  a  general  election  held  in  and  for  the  State  of  Oregon  on  the  7th  day  of 
November,  A.  D.  1876,  as  opened  and  canvassed  in  the  presence  of  his  excellency  L.  F. 
Grover,  governor  of  the  said  State,  according  to  law,  on  the  4th  day  of  December,  A.  D. 
1876,  at  two  o'clock  p.  m.  of  that  day,  by  the  secretary  of  state. 

That  is  the  res  gestce;  that  is  the  appointment  by  the  State  in  the 
manner  prescribed  by  the  legislature  thereof;  that  is  the  muniment  of 
title ;  that  is  the  constitutional  and  legal  foundation  of  right.  That  it 
is  which  constitutes  the  investiture  by  the  State  upon  the  party  of  his 
official  title,  rank,  and  character.  All  else  is  mere  certification ;  all  else 
is  mere  proof,  prima  facie  or  conclusive  as  the  law  makes  it  in  express 
terms,  and  not  otherwise;  and  no  scrap  of  law,  no  iota  of  a  statute,  no 
word  has  been  quoted  to  give  effect  to  any  certification  other  than  that 
which  according  to  the  principles  of  the  common  law  belong  to  it.  It 
is  prima  facie  evidence;  it  is  to  be  taken  as  true  until,  confronted  with 
the  fact,  it  is  shown  to  be  false,  just  as  the  exemplification  of  a  recorded 
judgment  is  to  be  taken  as  true  until  on  allegation  of  diminution  or 
error  or  mistake,  on  certiorari,  the  court  may  order  up  the  original  and 
compare  it  with  the  alleged  copy. 


ELECTORAL    COUNT    OF    1877.  587 

That  this  certificate  provided  in  section  60  to  be  made  by  the  secre 
tary  of  state,  containing  lists  of  the  names  of  the  electors  elected,  has 
no  other  or  greater  effect  than  that  I  have  ascribed  to  it,  and  is  not  in 
the  nature  of  a  warrant  required  by  law  to  enable  the  parties  named 
therein  to  proceed  in  the  execution  of  their  office,  is  apparent  from  the 
language  of  the  statute  and  from  the  whole  purview  and  meaning  of  the 
constitution  arid  the  laws. 

Now,  Mr.  President,  leaving  the  parties  to  stand  upon  that  document, 
proven  in  that  way,  making  manifest  that  fact,  which  by  the  constitu 
tion  and  laws  of  Oregon  constitutes  their  appointment,  is  the  very  ap 
pointment  to  their  office  of  electors,  let  us  examine  for  a  while  its  rival. 

Tbe  certificate  of  the  governor,  No.  2,  is  a  document  which  is  intruded 
here  in  argument  as  a  substitute  for  that  canvass,  under  pretense  of 
being  that  canvass.  This  certificate  is  a  certificate  of  the  governor.  It 
is  attested,  to  be  sure,  by  the  secretary  of  state,  but  only  as  a  witness. 
It  is  not  the  certificate  of  the  secretary  of  state ;  it  is  not  the  declara 
tion  of  the  canvassing  officer.  It  conforms  in  no  particular  with  any 
statutory  requirements  affecting  the  declaration  of  the  result  of  the 
election.  It,  to  be  sure,  purports  to  give  the  names  of  three  persons 
with  the  number  of  votes  received  by  each ;  but  it  does  not  state  that 
they  are  the  persons  who  had  the  highest  number  of  votes  cast  at  that 
election,  and  it  interpolates  a  conclusion  of  law — at  least  that  is  an  ad 
missible  inference  from  its  face — incorporating  the  judgment  of  the  gov 
ernor  upon  a  question  of  law.  when,  according  to  these  statutes,  if  he 
did  anything  at  all,  he  could  only  certify  to  the  fact.  And  as  to  the 
functions  of  canvassing  boards  upon  that  matter,  I  beg  to  call  the  atten 
tion  of  the  tribunal  to  a  decision  in  the  case  of  Newcum  vs.  Kirtley,  in 
13  Ben  Monroe.  I  read  from  page  524,  from  a  decision  of  Judge  T.  A. 
Marshall,  of  Kentucky,  the  point  of  which  was  that  a  canvass  after  an 
election  had  been  made  by  the  proper  canvassing  board  wherein  the 
facts  shown  were  contradicted  by  the  result  declared,  and  the  court 
held  that  the  facts  shown  were  to  be  taken  as  the  authority,  rejecting 
the  incompetent  and  unwarranted  and  unauthorized  declaration  made 
by  the  canvassing  officer  inconsistent  with  the  facts  which  he  had  certi 
fied  to,  saying  : 

And  if  the  consequence  stated  be  regarded  as  a  decision — 

That  is,  consequently  entitling  him  to  the  certificate  of  election — 

or  a  certificate  that  Kirtley  is,  on  the  ground  of  the  majority  stated,  entitled  to  the 
office,  it  is  unauthorized  and  illegal,  because  upon  the  facts  found  and  stated  by  the 
board  Kirtley  had  not  a  majority  of  the  legal  votes  given,  and  hie  title  could  not  be 
made  out  either  by  adding  to  his  votes  others  not  given  or  by  taking  from  Newcum 
votes  admitted  to  be  legal  and  actually  given  for  him.  If  the  board  had  a  right  to  do 
anything  with  the  2  votes  not  given,  surely  it  was  to  have  added  them  to  the  poll  of 
Kirtley.  But  although  this  would  have  made  a  majority,  it  would  not,  as  we  have 
seen,  have  entitled  Kirtley  to  the  office.  And  they  might  just  as  well  and  with  equal 
effect  have  made  the  majority  in  correcting  the  vote  improperly  set  down  for  Newcuin 
when  it  was  given  for  Kirtley,  by  taking  2  from  Newcuin  and  adding  2  to  Kirtley  on, 
that  account,  as  to  have  made  it  as  they  have  done,  by  subtracting  11  instead  of  9  votes 
from  Newcum,  when  from  their  own  showing  9  only  should  have  been  subtracted.  Or 
they  might  as  well,  after  finding  that  Newcum  had  a  majority  of  1  of  the  legal  votes 
given,  have  gone  on  to  say, "  and  subtracting  2  legal  votes  from  Newcum  gives  Kirtley 
a  majority  of  1  vote,  consequently  entitling  him  to  the  certificate  of  election."  The 
subtraction  of  the  2  votes,  for  a  reason  not  only  insufficient  but",  actually  excluded  by 
statute  from  all  influence  in  the  calculation,  is  just  as  illegal  as  the  subtraction  of  them 
without  any  reason  at  all. 

The  case,  then,  as  appearing  upon  the  face  of  the  document  exhibited  by  Kirtley  to 
establish  his  right  to  the  office,  is  substantially  this :  that  the  board,  finding  that  New- 
cnna  has  a  majority  of  1  of  all  the  legal  votes  given,  illegally  subtract  from  his  poll  2 
of  the  legal  votes  given  for  him,  and  thus  produce  an  apparent  majority  of  1  vote  for. 
Kirtley ;  consequently,  as  they  say,  entitling  him  to  the  certificate.  And  the  question 


588  ELECTORAL    COUNT    OF    1877. 

is  whether  the  court  to  which  this  document  was  presented  as  evidence  of  Kirtley's 
right  to  be  sworn  in  as  its  clerk  was  bound  by  this  argumentative  conclusion,  contra 
dicted  by  the  facts  established  by  the  document  itself,  and  manifestly  based  upon  au 
illegal  and  arbitrary  calculation.  We  say  that  this  conclusion  is  no  more  authoritative 
when  based  upon  a  palpable  violation  of  the  law  of  the  land  directly  applicable  to  the 
subject,  and  about  which  there  can  be  no  mistake  or  difference  of  opinion,  than  if  it 
bad  been  based  upon  a  palpable  violation  of  the  plainest  rules  of  vulgar  arithmetic; 
that,  the  document  being  offered  to  the  court  as  evidence  of  the  right  involved  in  the 
motion  and  for  its  consideration  in  determining  the  right,  it  was  the  right  and  duty  of 
the  court  to  consider  the  whole  document  and  to  determine  the  right  as  upon  the  whole 
document  and  the  law  arising  thereon,  as  it  appeared  to  be  for  one  or  the  other  party  ; 
and  that  if  the  conclusion  had  been  expressed  in  the  most  formal  terms,  that  "conse- 


which  this  conclusion  was  arrived  at  and  showed  conclusively  that  it  was  in  direct 
contradiction  of  the  facts  found  and  a  palpable  violation  of  the  law  applicable  to 
them,  it  was  the  right  and  duty  of  the  court  to  disregard  the  concluding  judgment  as 
illegal  and  void,  and  consequently  insufficient  to  entitle  Kirtley  to  the  office. 

Now,  with  respect  to  the  office  of  this  certificate,  without  reading  what 
nevertheless  if  there  were  more  time  I  should  think  very  profitable 
reading,  I  ask  your  honors  to  remember  what  you  are  all  familiar  with, 
and  that  is  the  language  and  reasoning  of  Chief-Justice  Marshall  in  the 
case  in  1  Cranch,  of  Marbury  vs.  Madison,  wherein  he  draws  the  distinc 
tion  between  the  appointment  and  the  evidence  of  that  appointment 
and  points  out  the  cases  where  the  commission  itself  is  the  appointment 
and  where  the  delivery  is  not  essential ;  and  I  refer  also  to  the  case  in  19 
Howard,  of  The  United  States  vs.  Le  Baron,  from  which  I  shall  read  a 
paragraph  on  page  78: 

The  transmission  of  the  commission  to  the  officer  is  not  essential  to  his  investiture 
of  the  office.  If,  by  any  inadvertence  or  accident,  it  should  fail  to  reach  him,  his  pos 
session  of  the  office  is  as  lawful  as  if  it  were  in  his  custody.  It  is  but  evidence  of 
those  acts  of  appointment  and  qualification  which  constitute  his  title  and  which  may 
be  proved  by  other  evidence,  where  the  rule  of  law  requiring  the  best  evidence  does 
not  prevent. 

Upon  the  authority  of  an  officer  whose  sole  duty  it  is  to  certify  to  the 
facts  which  constitute  a  result  without  inquiry  into  the  right  of  the  party, 
or  into  his  qualification,  or  into  his  eligibility,  I  ask  attention  also  to  a 
case  in  3  Wendell,  on  page  437 : 

The  relator  has  been  appointed  since  the  1st  day  of  January,  instant,  a  commissioner 
of  deeds  in  the  city  of  New  York.  On  presenting  himself  before  the  clerk  of  the 
common  pleas  of  New  York  to  take  the  oath  of  office,  the  clerk  refused  to  administer 
the  oath,  on  the  ground  that  the  relator  was  a  minor  within  the  age  of  twenty-one, 
and  therefore  incompetent  to  hold  the  office.  The  relator  applies  for  a  mandamus 
directing  the  clerk  to  administer  the  oath. 

Chief-Justice  Savage  says : 

A  minor  and  an  alien  are  incapable  of  holding  a  civil  office  within  this  State,  (1 
Revised  Statutes,  116,  sec.  1  ;)  but  it  is  not  the  province  of  the  officer  to  whom  appli 
cation  is  made  to  administer  the  oath  of  office  to  determine  whether  the  person  pre 
senting  himself  is  or  is  not  capable  of  holding  an  office.  It  is  the  duty  of  such  officer, 
on  the  production  of  the  commission,  to  administer  the  oath.  If  an  appointment  has 
been  improvidently  made,  there  is  a  legal  mode  in  which  it  may  be  declared  void.  Let 
an  alternative  mandamus  issue. — 3  Wendell's  Reports,  437,438. 

And  yet  why  should  not  the  clerk  of  the  court  of  common  pleas  in 
the  State  of  New  York,  who,  I  presume,  takes  the  oath  to  support  the 
constitution  of  the  State  of  New  York  and  the  Constitution  of  the  United 
States,  whenever  an  incompetent  person  applies  to  him  to  be  inducted 
into  an  office,  and  he  is  required  to  clothe  him  with  that  without  which 
he  cannot  act — why  should  he  not,  in  imitation  of  the  example  of  La 
Fayette  Grover,  the  governor  of  Oregon,  constitute  himself  the  guardian 
of  the  Constitution  of  the  country  ?  Why  should  he  not  assume  also 
the  same  right,  the  same  duty  to  undertake  to  exercise  a  discretion 


ELECTORAL    COUNT    OF    1877.  589 

which,  if  not  given  to  him  by  statute,  yet  belongs  to  him  as  the  natural 
protector  and  guardian  of  the  constitutional  liberties  of  the  country, 
and  so  refuse  to  do  any  act  which  he  may  be  called  upon  to  perform, 
and  which  may  be  necessary  to  put  into  office  an  incompetent,  ineligible, 
and  incapable  person  ? 

Why,  Mr.  President,  in  no  particular  does  this  certificate  of  the  gov 
ernor  of  Oregon  conform  in  any  respect  either  to  the  statutes  of  the 
United  States  or  to  the  statutes  of  Oregon.  It  is  no  declaration  of 
the  canvass;  it  does  not  profess  to  be.  It  is  not  a  list  of  the  elec 
tors;  it  does  not  profess  to  be.  It  is  not  a  declaration  of  the  can 
vassing  officer,  because  he  is  not  that  officer,  but  the  secretary  of 
state  is;  and  it  might  as  well  be  claimed  that  the  attesting  wit 
ness  to  a  deed  is  a  party  to  its  covenants,  and  that  Mr.  Chad  wick 
by  attesting  this  certificate  has  in  that  contradicted  that  which  he 
had  no  right  to  contradict,  and  which  he  has  certified  to  under  the  great 
seal  of  the  State,  and  which  constitutes  the  valid,  sole,  and  only  bind 
ing  result  of  that  canvass. 

But,  Mr.  President,  let  us  suppose  for  a  moment  that  this  certificate 
No.  2  is  sufficient  and  proper  and  conformable  to  law ;  and  let  us  see 
what  legal  consequences  follow.  It  declares  that  William  H.  Odell, 
John  C.  Cartwright,  and  E.  A.  Crouin  were  "duly  elected  electors  as 
aforesaid  for  the  State  of  Oregon."  Suppose  now  for  a  moment  that 
the  governor  had  a  right  to  make  that  declaration,  and  that  he  had  a 
right  to  make  it  in  this  form;  let  us  see  what  the  result  is.  Then  Odell, 
Cartwright,  and  Cronin  constituted  the  college  of  electors.  As  has 
been  said  forcibly  by  one  of  the  contestors  on  our  side,  that  is  a  body 
composed  of  these  individuals  who  are  required  to  meet  to  consult,  to 
deliberate,  to  act  in  conjunction.  They  cannot  each  go  off  by  himself 
and  act  as  an  elector  individually ;  it  is  a  college ;  and  a  college,  even 
according  to  the  maxim  of  the  civil  law,  can  only  be  constituted  by 
three  persons,  not  less ;  and  by  the  Constitution  of  the  United  States 
no  college  of  electors  can  be  composed  of  any  less  number,  because 
they  must  be  equal  to  each  State's  Senators  and  Representatives,  and 
as  each  State  is  entitled  to  one  Representative  without  respect  to  popu 
lation,  the  minimum  of  a  college  of  electors  is  at  least  three  persons 
meeting  together,  consulting  together,  deliberating  together,  voting 
together.  There  seems  to  have  prevailed  a  contrary  impression  in  Ore 
gon,  and  that  is  that  one  of  them  might  meet  by  himself.  I  beg  upon 
that  point,  as  the  only  case  that  I  have  heard  of  at  all  in  analogy,  to 
call  the  attention  of  the  tribunal  to  the  case  of  Sharp  vs.  Dawes,  de 
cided  in  the  court  of  appeals  of  England,  reported  in  the  January  num 
ber  of  the  Law  Reports  of  this  year,  in  the  Queen's  Bench  division,  on 
page  .26.  It  was  an— 

Appeal  from  an  order  of  the  Queen's  Bench  division  making  absolute  an  order  to  in 
crease  the  amount  of  a  verdict  for  the  plaintiff. 

At  the  trial  it  appeared  that  the  Great  Caradon  mine  was  a  mining  company  in 
Cornwall,  carrying  on  business  on  the  cost-book  system.  The  company  had  offices 
in  London,  and  on  the  22d  of  December,  1874,  a  notice  was  duly  given  that  a  general 
quarterly  meeting  of  the  shareholders  would  be  held  on  the  30th  of  December,  at  the 
London  offices,  for  the  purpose  of  passing  the  accounts,  making  a  call,  receiving  a  re 
port  from  the  agent,  and  transacting  any  ordinary  business  of  the  company. 

The  only  persons  who  attended  at  the  time  appointed  for  the  meeting  were  the  sec 
retary,  G.  Sharp,  and  one  shareholder,  R.  H.  Silversides— 

The  secretary  not  being  a  member  of  the  corporation — 

who  held  twenty-five  shares.    A  circular  was  then  sent  to  the  shareholders,  with  the 
accounts  and  the  following  notice  : 
"At  a  general  meeting  of  the  shareholders,  held  at  2  Gresham  buildings,  Basinghall 


590  ELECTORAL    COUNT    OF    1877. 

street,  London,  E.  C.,  on  Wednesday,  the  30th  day  of  December,  1874,  pursuant  to 
notice,  R.  H.  Silversides  in  the  chair.  The  notice  convening  the  meeting  having  been 
read,  the  minutes  of  the  last  meeting  were  confirmed. 

"The  financial  statement  ending  the  23th  of  November,  showing  a  balance  of  £83 
11#.  Gd.  against  the  shareholders,  having  been  read,  it  was 

"Resolved,  That  the  same  be  received'and  passed. 

"Captain  William  Taylor's  report  having  been  read,  it  was 

"Resolved,  That  the  same  be  received  and  passed,  and,  together  with  the  financial 
statement,  be  printed  and  circulated  among  the  shareholders. 

"Resolved,  That  a  call  of  4s.  tid.  per  share  be  now,  and  is  hereby,  made,  payable  to 
the  secretary,  and  that  a  discount  of  5  per  cent,  be  allowed  if  paid  by  the' 25th  of 
January,  1875. 

"Resolved,  In  consequence  of  the  death  of  Lieutenant-Colonel  W.  T.  Nicolls,  and 
until  the  appointment  of  a  shareholder  to  act  in  his  stead,  that  all  checks  be  signed 
by  Mr.  R.  H.  Silversides  and  Mr.  Granville  Sharp  jointly. 

"R.  H.  SILVERSIDES, 

. .          "  Chairman. 

"Resolved,  That  a  vote  of  thanks  be  given  to  the  chairman. 

"GRANVILLE  SHARP, 

"Secretary." 

There  was  no  rule  of  the  company  varying  the  requirements  of  the  Stannaries  act, 
(32  and  33  Viet.,  c.  19.)  By  rule  4  : 

"The  secretary  shall  call  a  general  meeting  of  the  shareholders  once  in  every  three 
calendar  months,  to  be  held  at  such  time  and  place  as  shall  be  appointed  by  the  com 
mittee  of  management." 

The  defendant,  one  of  the  shareholders,  refused  to  pay  this  call,  and  the  action  was 
brought  against  him  in  the  name  of  the  secretary  for  the  amounts  due  on  a  previous 
call  and  on  this  call. 

Judgment  was  given  for  the  plaintiff  for  the  amount  due  on  the  previous  call,  with 
leave  to  move  to  increase  it  by  the  amount  due  on  the  second  eal  1. 


Lord  COLERIDGE,  chief-justice.  This  is  an  attempt  to  enforce  against  the  defendant 
a  call  purporting  to  have  been  made  under  §  10  of  the  Stannaries  act,  1869.  Of  course 
it  cannot  be  enforced  unless  it  was  duly  made  within  the  act.  Now,  the  act  says  that 
a  call  may  be  made  at  a  meeting  of  a  company  with  special  notice,  and  we  must  as 
certain  what,  within  the  meaning  of  the  act,  is  a  meeting,  and  whether  one  person 
alone  can  constitute  such  a  meeting.  It  is  said  that  the  requirements  of  the  act  are 
satisfied  by  a  single  shareholder  going  to  the  place  appointed  and  professing  to  pass 
resolutions.  The  sixth  and  seventh  sections  of  the  act  show  conclusively  that  there 
must  be  more  than  one  person  present ;  and  the  word  "  meeting"  prima  facie  means  a 
coming  together  of  more  than  one  person.  It  is,  of  course,  possible  to  show  that  the 
word  "meeting"  has  a  meaning  different  from  the  ordinary  meaning,  but  there  is 
nothing  here  to  show  this  to  be  the  case.  It  appears,  therefore,  to  me  that  this  call 
was  not  made  at  a  meeting  of  the  company  within  the  meaning  of  the  act.  The  order 
of  the  court  below  must  be  reversed. 

HELLISH,  L.  J.  In  this  case,  no  doubt,  a  meeting  was  duly  summoned,  but  only  one 
shareholder  attended.  It  is  clear  that,  according  to  the  ordinary  use  of  the  English 
language,  a  meeting  could  no  more  be  constituted  by  one  person  than  a  meeting  could 
have  been  constituted  if  no  shareholder  at  all  had  attended.  No  business  could  be 
done  at  such  a  meeting,  and  the  call  is  invalid. 

Mr.  MERBICK.  Permit  me  to  ask  a  question.  Suppose  there  had 
been  no  dispute  about  the  regularity  of  the  appointment  of  electors  and 
two  of  them  had  died  ? 

Mr.  MATTHEWS.  I  suppose  the  vacancy  would  have  to  be  filled  in 
some  mode  to  be  provided  by  the  legislature.  They  did  not  die  ;  they 
were  there  in  their  places.  But  this  gentleman,  Mr.  Cronin,  according 
to  his  own  statement  of  what  occurred  at  that  time,  did  not  act  with  the 
others  and  went  on  and  appointed  two  more  himself. 

Mr.  Commissioner  EDMUNDS.  He  says  in  his  certificate  that  they 
refused  to  act  with  him. 

Mr.  MATTHEWS.  And  he  thereupon  appointed  two  others  in  their 
stead.  Now,  Mr.  President  and  gentlemen,  I  take  it  that  one  in  a  col- 
ege  which  necessarily  consists  of  three  is  not  capable  by  himself  of 


ELECTORAL    COUNT    OF    1877.  591 

instituting  any  action,  and  that  the  action  of  a  quorum  or  majority  of 
the  body,  the  record  of  whose  action  is  before  us,  who  certify  that  they, 
having  ascertained  the  existence  of  a  vacancy,  went  on  to  fill  it,  is  to  be 
taken  as  the  conclusive  and  legitimate  account  of  the  proceedings  of  the 
body.  In  support  of  the  conclusion  to  be  based  upon  this  argument,  I 
refer  with  satisfaction  to  the  decision  of  the  supreme  court  of  the 
State  of  Oregon,  cited  by  my  learned  friend  Judge  Hoadly  last  evening. 
That  was  a  case  where  the  prosecuting  attorney  having  accepted  an 
office  under  the  Government  of  the  United  States,  which  was  incom 
patible  according  to  the  laws  of  Oregon  with  tbe  office  which  he  had 
previously  exercised  under  the  laws  of  Oregon,  the  governor  of  Oregon 
commissioned  another  person  as  district  attorney,  upon  the  ground  that 
he  had  ascertained  and  declared  a  vacancy  in  consequence  of  the  ineli- 
gibility  of  the  occupant,  on  account  of  his  incompeteucy  to  continue  to 
hold  the  office.  In  that  case,  by  the  law  of  Oregon,  the  governor  is 
authorized  to  fill  vacancies,  and  upon  the  argument  that  the  person 
authorized  to  fill  a  vacancy  has  the  power  to  ascertain  and  determine 
and  declare  the  existence  of  the  facts  which  constitute  a  vacancy,  by 
that  judgment  these  two  electors,  who  by  the  terms  of  the  statute  of 
Oregon  were  the  only  persons  who  had  power  to  fill  vacancies,  had 
the  right  also  to  ascertain  and  declare  the  existence  of  those  facts  which 
constituted  in  law  a  vacancy. 

And  that  brings  me  to  a  consideration  of  the  question  as  to  what 
under  the  laws  of  Oregon  constitutes  a  vacancy  in  the  electoral  college. 
My  friend  on  the  other  side  who  addressed  the  tribunal  last  evening 
expended  some  time  and  strength  in  undertaking  to  demonstrate  by  the 
application  of  the  maxim  noscitur  a  sociis,  that  the  enumeration  of  the 
particular  instances  of  a  vacancy  in  that  section  of  the  statute  which 
authorizes  the  body  to  fill  the  vacancy  excludes  the  idea  of  the  words 
"or  otherwise"  expressing  any  other  than  those  of  a  like  class.  He 
limits,  therefore,  what  constitutes  a  vacancy  to  the  occurrence  of  facts 
transpiring  since  the  date  of  the  popular  election.  I  think  that  in  such 
a  statute,  where  the  object  is  to  see  to  it  that  the  substantial  rights  of 
the  State  are  preserved  in  keeping  up  the  full  number  to  which  it  is 
entitled  in  its  electoral  college,  in  order  that  its  just  influence  in  public 
affairs  may  not  be  diminished  by  any  of  the  accidents  and  casualties  of 
life,  no  such  rule,  no  such  maxim,  no  such  limit  can  be  applied 
to  its  interpretation  ;  that  it  is,  on  the  other  hand,  to  be  interpreted  in 
a  large  and  liberal  sense  for  the  promotion  of  the  object  which  the 
statute  had  in  view,  and  that  is  the  furnishing  to  the  body  of  the  elect 
oral  college  the  means,  the  opportunity,  the  power  to  fill  vacancies  in 
their  body  which  at  the  day  when  they  meet  are  ascertained  to  have 
occurred,  as  fully  and  completely  as  the  legislature  itself  by  any  means 
could  supply.  Certainly  there  is  no  reason  why,  in  its  application  to 
such  a  state  of  things,  the  ordinary,  plain,  arid  common-sense  meaning 
of  the  terms  should  be  wrested  by  the  application  of  any  artificial 
maxim. 

But  without  dwelling  on  that,  I  beg  to  call  the  attention  of  yourself, 
Mr.  President,  and  the  tribunal,  to  one  or  two  authorities  on  the  point 
that  a  vacancy  such  as  we  claim  to  have  existed  in  this  case  may  be 
and  be  declared.  I  refer  to  the  case  of  Stevens  vs.  Wyatt,  16  Ben. 
Monroe,  542,  where  it  was  expressly  held  that  the  election  of  an  ineli 
gible  candidate,  (the  very  point  made  here,)  so  far  from  electing  a 
minority  candidate,  created  a  vacancy,  a  vacancy  ab  initio,  from  the 


commencement  of  the  term  ;  and  with  reference  to  the  case  of  The 
Commonwealth  vs.  Hanley,  in  9  Pennsylvania  State 


Reports,  513,  and 


592  ELECTORAL    COUNT    OF    1877. 

a  large  number  of  similar  cases,  it  is  only  necessary  to  point  out  this 
fact  to  show  their  want  of  application  to  this  argument ;  and  that  is, 
that  in  these  cases,  notably  in  the  case  in  9  Pennsylvania  State  Keports, 
the  facts  were  that  there  was  an  incumbent  of  the  office  by  virtue  of  a 
previous  election  holding  over,  under  a  statute  to  that  effect,  until  his 
successor  should  be  elected  and  qualified.  The  successor  was  elected, 
but  died  before  he  was  qualified  and  before  the  commencement  of  the 
term  of  office,  and  because  by  express  statute  the  officer  already  in  held 
over,  it  was  adjudged  that  there  was  no  vacancy  because  there  was  an 
existing  incumbent. 

Mr.  Commissioner  EDMUNDS.  Under  the  statute  he  would  hold 
until  his  successor  was  qualified. 

Mr.  MATTHEWS,  Until  elected  and  qualified.  In  the  opinion  of 
the  judges  in  re  Dinslow,  38  Maine,  597,  the  judges  of  the  supreme  court 
of  Maine  certified  to  the  governor  the  exact  state  of  the  case  as  fur 
nishing  the  ground  for  the  opinion  which  I  maintain;  a  majority  of  the 
votes  at  an  election  having  been  canvassed  for  a  man  already  dead,  the 
judges  held  that  there  was  a  vacancy  in  the  office  beginning  with  its 
term  and  entitling  the  governor  to  appoint. 

I  have  already  referred  last  evening,  in  a  colloquy  which  took  place, 
between  my  brother  Hoadly  and  myself,  to  the  Claiborne  and  Gholson 
case,  which  is  a  valid  precedent  on  the  point.  What  was  that?  In 
the  interim  between  the  expiration  of  the  term  of  a  member  of  Con 
gress  by  the  expiration  of  the  Congress  itself  on  the  4th  of  March 
and  the  period  provided  by  the  laws  of  the  State  for  the  regular  elec 
tion  biennially,  in  the  case  of  an  extra  session  being  called,  there  is  a 
vacancy  in  the  representation  of  that  State  in  the  House  of  Representa 
tives,  which,  under  the  Constitution  of  the  United  States,  is  to  be 
filled,  and  it  was  filled  in  that  case  by  an  election  held  under  a  procla 
mation  of  the  governor  calling  for  an  election  to  fill  a  vacancy.  The 
two  members  sent  were  admitted  in  the  extra  sesskm  to  the  whole 
Twenty-fifth  Congress ;  and  afterward  the  resolution  was  only  rescinded 
so  far  as  to  adjudge  that  they  ought  not  to  have  been  admitted  as 
members  for  the  entire  term,  but  only  to  fill  that  vacancy  until  by 
regular  election  under  the  statutes  of  the  State  the  full  term  could  be 
filled. 

Now  I  call  attention  to  another  congressional  precedent  in  re  Flan 
ders  and  Hahn,  Thirty-seventh  Congress,  third  session,  in  which  there 
was  a  report  by  Mr.  Dawes,  chairman  of  the  Committee  of  Elections. 
Flanders  and  Hahn  claimed  to  have  been  elected  members  of  the  House 
of  Representatives  from  Louisiana.  The  law  of  that  State,  entitled 
"An  act  relative  to  elections,"  approved  March  15,  1855,  provided : 

SEC.  33.  Be  it  further  enacted,  #c.,  That  in  case  of  vacancy,  by  death  or  otherwise,  in 
the  said  office  of  Representative,  between  the  general  elections,  it  shall  be  the  duty  of 
the  governor,  by  proclamation,  to  cause  an  election  to  be  held  according  to  law  to  fill 
the  vacancy. 

General  Shepley,  having  been  appointed  military  governor  of  the 
State,  on  the  14th  of  November,  1862,  issued  his  proclamation  ordering 
an  election  for  members  of  Congress  in  the  first  and  second  congres 
sional  districts,  to  be  held  on  the  3d  of  December,  18G2.  The  objection 
was  made  in  debate  that  the  election  was  void,  because,  the  time  for  the 
regular  election  having  passed  without  one  being  held,  there  was  no 
vacancy  occasioned  by  death  or  otherwise  which  could  be  filled  by  a 
special  election  under  the  governor's  proclamation.  Mr.  Dawes,  in 
reply,  said: 

Where  the  time  prescribed  by  the  regular  law  for  the  election  of  a  Representative  to 


ELECTORAL    COUNT    OF    1877.  593 

Congress  passes,  for  any  reason  whatever,  and  there  is  nobody  in  office,  there  is  a 
vacancy  which  the  governor  of  a  State  is  required  to  fill.  I  think  the  offipe  is  quite  as 
empty  with  nobody  in  it  as  if  somebody  had  been  in  it  a  part  of  the  term  and  then 
died.  The  House  has  passed  upon  that  question  heretofore.  The  question  was  up  for 
discussion  in  this  hall  in  one  of  the  Virginia  cases,  and  the  point  was  taken  by  the 
claimant  in  the  House  that  there  could  not  be  a  vacancy  unless  the  office  had  been 
once  filled  ;  but  the  House  thought  otherwise,  and  I  think'the  House  was  right. 

The  claimants  were  admitted.  But,  Mr.  President  and  gentlemen  of 
the  Commission,  it  is  hardly  worth  while  to  hunt  for  authority  on  this 
point  when  it  is  so  near  at  hand  in  the  State  of  Oregon  itself,  for  that 
State  has  undertaken  to  define  by  statute  what  shall  constitute  a 
vacancy.  The  very  text  of  the  statute  which  prescribes  the  mode  for 
the  election  of  presidential  electors,  title  6,  section  48,  enumerates  the 
instances  which  shall  constitute  vacancies.  They  are: 

1.  The  death  of  the  incumbent. 
'2.  His  resignation. 

3.  His  removal. 

4.  His  ceasing  to  be  an  inhabitant  of  the  district,  county,  town,  or  village  for  which 
he  shall  have  been  elected  or  appointed,  or  within  which  the  duties  of  his  office  are 
required  to  be  discharged. 

5.  His  conviction  of  an  infamous  crime,  or  of  any  offense  involving  a  violation  of  his 
oath. 

6.  His  refusal  or  neglect  to  take  his  oath  of  office,  or  to  give  or  renew  his  official 
bond,  or  to  deposit  such  oath  or  bond  within  the  time  prescribed  by  law. 

7.  The  decision  of  a  competent  tribunal,  declaring  void  his  election  or  appointment. 

Now,  it  is  argued  on  the  other  side  that  this  cannot  apply,  because, 
in  the  case  of  Watts,  on  the  supposition  that  he  was  ineligible  at  the 
time  of  his  original  appointment,  there  was  no  decision  by  a -.compe 
tent  tribunal  declaring  void  his  election  or  appointment;  and  yet  the 
other  side  have  argued  that  the  governor  had  the  right  to  declare  his 
election  void,  and  that  that  was  the  decision  of  a  competent  tribunal. 
If  so,  then  I  ask  whether  the  consequence  does  not  flow  from  this 
statute  that,  instead  of  electing  the  minority  candidate,  it  merely 
created  a  vacancy. 

But,  Mr.  President  and  gentlemen  of  the  Commission,  there  is  another 
view  to  take,  much  stronger  and  entirely  conclusive.  It  has  been 
argued — it  must  be  argued  in  order  to  sustain  the  claim  made  here ; 
without  it  there  is  no  standing  ground — that  the  election  of  an  ineligi 
ble  candidate  under  the  Constitution  is  void,  void  ab  initio,  void  by 
virtue  of  the  constitutional  provision.  On  that  they  base  the  right  of  the 
minority  candidate,  because  they  say  that  a  man  ineligible  to  hold  an  office, 
or  a  man  ineligible  to  be  appointed  to  an  office  cannot  take  it,  cannot 
hold  it ;  that  the  attempt  is  abortive  ;  that  it  is  null  and  void  ;  in  other 
words,  that  an  ineligible  candidate  actually  elected  cannot  become  an 
incumbent ;  and  the  gentlemen  interpret  this  statute  by  interpolating 
the  word  "incumbent"  throughout  all  of  its  provisions.  Be  it  so;  it 
establishes  my  proposition.  What  is  it,  then  f  "  The  decision  of  a  com 
petent  tribunal  declaring  void  his,"  that  is,  the  incumbent's,  "  election 
or  appointment."  Then  a  man  can  be  an  incumbent,  although  his  election 
or  appointment  is  void!  In  other  words,  this  statute  recognizes  the  law 
and  the  fact  that  prohibitions  establishing  incapacities  for  office  do  not 
necessarily  execute  themselves  otherwise  than  through  the  judgments 
of  competent  tribunals ;  that  a  man,  notwithstanding  the  incapacity, 
may  in  fact  hold  the  office,  and  if  his  holding  of  that  office  is  not  legal 
and  valid  he  fills  it  with  his  natural  person  and  capacity  as  completely 
as  if  he  was  invested  with  all  lawful  power,  until  it  becomes  vacant 
either  by  the  decision  of  a  competent  tribunal  declaring  the  nullity  of 
his  original  appointment,  or  by  his  getting  out  of  the  way  in  some  other 
38  E  c 


594  ELECTORAL   COUNT    OF   1877. 

mode.  Now  if,  notwithstanding  the  election  is  void,  an  ineligible  can 
didate  may  actually  be  put  into  occupation  of  the  office  until  a  decision 
of  a  competent  tribunal  declaring  the  invalidity  of  his  election  creates 
a  vacancy  under  that  statute,  I  ask  in  all  reason  and  common  sense 
whether  he  cannot  voluntarily  create  a  vacancy  by  doing  that  which  he 
might  be  compelled  to  do  by  a  decision  of  a  competent  tribunal. 

But  it  is  said  that  this  title  only  applies  to  vacancies  occurring  in 
State  offices  and  cannot  be  held  to  apply  to  the  case  of  the  office  of 
elector.  But,  Mr.  President  and  gentlemen,  even  011  the  supposition 
that  it  refers  primarily  to  elections  to  offices  held  under  the  State  con 
stitution  and  the  authority  of  the  State,  nevertheless  the  reference  in 
the  other  title,  which  has  express  directions  concerning  vacancies  in  the 
electoral  body  and  a  mode  of  filling  them,  must  be  construed,  because 
in  pari  materia,  by  the  context ;  so  that  when  you  come  to  understand 
what  the  legislature  meant  by  a  vacancy  occurring  "  otherwise  n  in  the 
electoral  body,  it  means  a  vacancy  occurring  in  any  one  of  the  ways  in 
which  by  law  a  vacancy  may  be  created  in  reference  to  State  offices. 

So,  then,  there  is  no  flaw  in  the  argument;  it  is  conclusive  ;  it  is  ir 
refragable.  There  it  stands  on  the  express  terms  and  letter  of  the  very 
statutes  of  the  State,  showing  that,  admitting  Watts  to  have  been  an 
ineligible  candidate,  admitting  his  election  to  have  been  utterly  void, 
still  he  was  the  person  declared  duly  elected  because  he  had  the  highest 
number  of  votes ;  and  notwithstanding  his  ineligibility  and  notwith 
standing  the  voidness  of  his  election,  he  was  capable  under  the  constitu 
tion  and  laws  of  Oregon  of  being  inducted  into  the  office,  of  holding  it 
until  by  resignation  or  the  decision  of  a  competent  tribunal  ousting  him 
from  it  a  vacancy  should  be  declared ;  and  then  a  majority  of  the  elect 
oral  college  by  a  plurality  of  votes,  and  not  by  the  solitary  voice  of 
Cronin,  were  called  into  being  and  into  efficacy,  and  had  power  to  fill  up 
to  the  full  measure  of  constitutional  right  the  number  of  votes  to  which 
the  State  of  Oregon  was  entitled. 

•I  must  confess,  Mr.  President  and  gentlemen,  that  I  was  not  a  little 
surprised  at  the  view  which  my  learned  friend  [Mr.  Hoadly]  took  about 
the  condition  of  the  law  of  England  and  this  country  on  the  subject  of 
the  effect  of  votes  cast  for  an  ineligible  candidate.  I  know  that  he  has 
given  far  more  industriously  his  attention  to  the  collection  of  cases  on 
that  subject  than  I  have,  for  I  confess  that  I  never  regarded  it  as  quite 
worth  my  while  to  trace  out  in  detail  the  history  of  judicial  decisions  on 
that  subject.  I  was  satisfied  with  a  general  knowledge  derived  from  an 
examination  of  a  few  cases  and  from  the  tendency  of  the  reasonings 
which  lie  at  the  foundation  of  the  true  doctrine  on  the  subject. 

The  PRESIDENT.  Is  there  any  difference  between  a  vote  cast  for 
an  ineligible  candidate  and  a  blank  ? 

Mr.  MATTHEWS.  Yes,  sir;  just  as  much  as  there  is  between  a  man 
and  a  mouse,  between  a  live  man  capable,  by  the  natural  exercise  of  his 
functions,  of  doing  the  thing  which  the  law  puts  upon  him,  and  a  mere 
nothing. 

A  man's  a  man  for  a'  that. 

And  though  incapable  by  law  of  holding  an  office,  he  nevertheless 
may  be  put  into  an  office,  and  if  nobody  objects  he  can  exercise  the 
functions  of  the  office  and  discharge  its  duties,  and  every  single  act  has 
just  as  much  vitality  and  validity  as  if  he  was  the  most  thoroughly-fur 
nished  man  by  the  law  for  the  performance  of  all  its  duties.  Allow  me  on 
that  point  to  refer  for  a  moment  to  a  case  that  I  intended  to  refer  to,  a 
decision  and  an  opinion  of  Chief- Justice  Chase  in  the  Caesar  Griffin  case, 
for  the  purpose  of  enforcing  what  I  believe  to  be  the  true  doctrine  on 


ELECTORAL    COUNT   OF    1877.  595 

this  subject;  and  that  is,  that  without  legislation  declaring  the'conse- 
quences  of  the  casting  of  votes  for  an  ineligible  man,  under  such  circum 
stances  there  is  no  power  in  the  Constitution  or  out  of  it  to  put  it  in 
force. 

By  the  fourteenth  amendment  to  the  Constitution  certain  persons  were 
declared  to  be  disqualified  to  hold  certain  offices,  and  a  judge  in  the 
State  of  Virginia  came  within  the  prohibition,  the  actual  incumbent  of 
an  office.  If  the  prohibition  has  that  blighting  and  paralyzing  effect 
which  seems  to  be  attributed  to  it  by  some,  it  executes  itself  at  the  mo 
ment  it  comes  into  force  upon  the  state  of  things  just  as  they  are,  and 
it  deprives  the  officer,  if  he  be  in  office,  of  the  power  to  continue  in  office 
just  as  much  as  it  deprives  the  elected  man  from  taking  office.  And  if 
the  doctrine  be  true,  every  act  done  by  this  judge  after  the  adoption  of 
that  fourteenth  amendment  became  utterly  null  and  void,  provided  al 
ways  it  be,  as  is  claimed,  the  legal  consequence  from  the  doctrine  that 
an  incapable  person  holding  an  office  makes  all  his  acts  invalid.  In 
this  case  it  was  said  to  invalidate  the  sentence  of  punishment  of  a  crimi 
nal  who  had  been  adjudged  to  the  penitentiary  by  this  judge  while  in 
office,  Judge  Sheffey.  What  I  call  special  attention  to  is  that  Chief- 
Justice  Chase,  not  content  with  referring  to  the  general  principle  and 
to  the  decided  cases — which  are  just  as  numerous  as  all  the  disqualify 
ing  acts  and  statutes  of  Parliament  in  Great  Britain  passed  during  the 
time  of  civil  war — but  arguing  upon  oitr  own  Constitution,  goes  on 
to  show  by  illustrations  what  his  opinion  is. 

Mr.  Commissioner  THUEMAK.    From  what  do  you  read  ? 

Mr.  MATTHEWS.  This  is  Johnson's  Reports,  so  called,  of  Chase's 
Decisions,  page  425. 

Mr.  Commissioner  GARFIELD.     Circuit  Court  Reports'? 

Mr.  MATTHEWS.     Of  the  circuit  court  in  Virginia. 

Instructive  argument  and  illustration  of  this  branch  of  the  case  might  be  derived 
from  an  examination  of  those  provisions  of  the  Constitution  ordaining  that  no  person 
shall  be  a  Representative  or  Senator  or  President  or  Vice-President  unless  having  cer 
tain  pre-prescribed  qualifications.  These  provisions,  as  well  as  those  which  ordain  that 
no  Senator  or  Representative  shall,  during  his  term  of  service,  be  appointed  to  any  of 
fice  under  the  United  States  under  certain  circumstances,  and  that  no  person  holding 
any  such  office  shall,  while  holding  such  office,  be  a  member  of  either  House,  operate  on 
the  capacity  to  take  office.  The  election  or  appointment  itself  is  prohibited  and  inval 
idated  ;  and  yet  no  instance  is  believed  to  exist  where  a  person  has  been  actually  elected, 
and  has  actually  taken  the  office  notwithstanding  the  prohibition,  and  his  acts  while 

exercising  its  functions  have  been  held  invalid. 

•*#*#### 

It  results  from  the  examination  that  persons  in  office  by  lawful  appointment  or  elec 
tion  before  the  promulgation  of  the  fourteenth  amendment  are  not  removed  therefrom 
by  the  direct  and  immediate  effect  of  the  prohibition  to  hold  office  contained  in  the 
third  section,  but  that  legislation  by  Congress  is  necessary  to  give  effect  to  the  prohi 
bition,  by  providing  for  such  removal.  And  it  results  further  that  the  exercise  of  their 
several  functions  by  these  officers,  until  removed  in  pursuance  of  such  legislation,  is 
not  unlawful. 

On  page  421 — 

In  the  judgment  of  the  court  there  is  another,  not  only  reasonable,  but  very  clearly 
warranted  by  the  terms  of  the  amendment,  and  recognized  by  the  legislation  of  Con 
gress.  The  object  of  the  amendment  is  to  exclude  from  certain  offices  a  certain  class 
of  persons.  Now,  it  is  obviously  impossible  to  do  this  by  a  simple  declaration,  whether 
in  the  Constitution  or  in  an  act  of  Congress,  that  all  persons  included  within  a  partic 
ular  description  shall  not  hold  office,  for,  in  the  very  nature  of  things,  it  must  be  as 
certained  what  particular  individuals  are  embraced  by  the  definition  before  any  sen 
tence  of  exclusion  can  be  made  to  operate.  To  accomplish  this  ascertainment  and 
insure  effective  results,  proceedingo,  evidence,  decisions,  and  enforcements  of  decisions, 
more  or  less  formal,  are  indispensable,  and  these  can  only  be  provided  for  by  Congress. 

Mr.  President  and  gentlemen,  certainly  it  is  reasonable  to  suppose 
that  such  ought  to  be  the  construction. 


596  ELECTORAL    COUNT    OF    1877. 

Mr.  Commissioner  MORTON.  I  wish  to  ask  a  question.  Where  an 
office  is  filled  by  an  ineligible  person  serving  as  officer  de  facto  and  his 
acts  are  held  valid  as  to  third  persons,  could  the  office  at  the  same  time 
be  held  to  be  vacant  ? 

Mr.  MATTHEWS.  No,  sir,  it  is  not  vacant.  He  is  in  office,  acting 
in  office.  He  can  vacate  it  by  resignation  ;  but  if  there  is  an  officer  de 
facto  the  office  is  not  vacant, 

Mr.  Commissioner  MORTON.  My  question  is  whether,  holding  the 
office  to  be  vacant,  would  not  the  effect  be  to  hold  his  acts  to  be  void 
as  to  third  persons  ? 

Mr.  MATTHEWS.  Yes,  sir,  if  the  office  was  vacant,  certainly.  Then 
there  is  no  officer  there.  But  the  very  point  of  this  decision  is  that 
although  ineligible  to  hold,  though  incapable  to  take,  though  prohibited 
by  the  constitution  from  continuing  in  office,  nevertheless  he  was  in 
office,  and  there  was  no  vacancy.  Such  is  the  case  in  11  Sergeant  and 
Bawle,  which  was  read  to  the  court  in  the  Louisiana  argument,  the  case 
of  the  director  of  the  Bank  of  Washington. 

Mr.  Commissioner  GAB  FIELD.  What  was  the  decision  of  Chief- 
Justice  Chase  in  regard  to  the  judgment  against  Griffin  ? 

Mr.  MATTHEWS-  He  upheld  the  judgment  and  remanded  the  pris 
oner,  it  being  an  application  for  a  habeas  corpus  to  discharge  him  on  the 
ground  of  the  invalidity  of  the  sentence.  The  case  in  11  Sergeant  and 
Kawle,  413,  of  Baird  vs.  The  Bank  of  Washington,  which  argues  the 
question  at  length,  states  that — 

This  principle  of  colorable  election  holds  not  only  in  regard  to  the  right  of  election 
but  also  of  being  elected.  A  person  indisputably  ineligible  may  be  an  officer  de  facto 
by  color  of  election. 

I  was  on  the  point,  however,  of  referring  a  little  more  at  large  to  the 
question  about  the  self-executing  power  of  the  Constitution  in  reference 
to  these  prohibitions.    It  was  urged  in  argument  on  another  occasion 
that  no  such  legislation  was  needed  in  the  case  of  these  prohibitions, 
as  was  shown  by  the  analogy  of  certain  other  prohibitions,  as,  for  in 
stance,  it  was  said  that  there  was  a  prohibition  upon  the  States  against 
emitting  bills  of  credit ;  the  States  are  prohibited  from  passing  any  ex 
post  facto  laws,  or  any  laws  impairing  the  obligation  of  contracts ;  and 
it  was  asked  with  an  air  of  triumph,  as  if  the  question  itself  was  its  own 
answer,  what  legislation  was  ever  needed  to  execute  those  provisions  of 
the  Constitution  ?    Why,  Mr.  President  and  gentlemen,  the  question 
proves  my  proposition,  because  there  has  been  legislation  in  execution 
of  those  provisions,  and  without  it  they  could  not  be  executed  to-day. 
For  instance,  what  is  the  sole  example  of  the  execution  of  that  constitu 
tional  prohibition  against  the  laws  of  States  impairing  the  obligation  of 
contracts  ?    It  is  never  executed  except  when  it  arises  as  a  judicial 
question  between  private  persons.    A  sues  B  upon  a  promissory  note ; 
B  sets  up  a  defense  that  a  statute  of  the  State  in  which  he  resides  has 
discharged  him  from  his  obligation.    A  demurs  to  the  defense,  and  the 
cause  is  carried,  by  virtue  of  the  judiciary  act  of  Congress,  to  the  Su 
preme  Court  of  the  United  States  from  the  decision  of  a  State  court,  in 
order  to  determine  that  question,  and  they  do  determine  it,  because  the 
Supreme  Court,  having  become  vested  by  that  act  of  Congress  with  ju 
risdiction  and  the  power  to  try  cases  at  law  and  in  equity  arising  under 
the  Constitution  and  laws  of  the  United  States,  is  bound  by  the  doctrine 
that  the  Constitution  of  the  United  States  is  the  law  of  that  case  to  en 
force  it  judicially  ;  but  if  the  court  had  never  been  empowered  to  act  by 
an  act  of  Congress,  it  could  not  have  executed  that  provision  of  the 
Constitution. 


ELECTOKAL    COUNT    OF    1877.  597 

Mr.  Commissioner  BRADLEY.  Could  not  members  of  Congress  ex 
ecute  it  without  any  act  of  Congress  ? 

Mr.  MATTHEWS.  Only  by  that  provision  of  the  Constitution 
which  makes  each  House  the  judge  of  the  elections,  returns,  and 
qualifications  of  its  own  members  ;  and  it  is  not  executed  in  any  other 
way  than  as  dependent  on  the  political  will  and  power  of  each  House, 
and  each  House  could,  in  defiance  of  the  Constitution,  without  any  means 
of  preventing  it,  admit  an  ineligible  member  to  its  body.  Where  is  the 
power  to  execute  the  Constitution  against  the  House  if  it  chooses  to 
admit  an  incompetent  person,  an  incapable  person  1 

Mr.  President,  just  think  of  it.  It  is  proposed  now  in  this  case, 
without  previous  legislation,  without  any  indication  of  the  will  of  Con 
gress  as  to  what  ought  to  be  the  consequences,  to  disfranchise  the  people 
of  a  State  because  some  man  holding  an  insignificant  and  unknown 
office  of  trust  or  profifc  under  the  United  States,  in  violation  of  the  pro 
visions  of  the  Constitution,  has  been  voted  for  as  elector.  Non  constat 
but  that  Congress  in  the  execution  of  its  power  to  legislate  to- carry 
into  effect  those  provisions  of  the  Constitution  might  withhold  any  such 
consequence  as  that ;  they  might  by  legislation  prevent  such  appoint 
ments,  anticipate  them,  impose  penalties  for  the  violation ;  but  I  take 
it  that  the  American  Congress  has  yet  to  come  into  being  that,  if 
deliberately  called  upon  to  legislate  in  that  behalf,  would  impose  the 
penalty  of  disfranchiseineut  upon  a  State  because  an  elector  had  been, 
"voted  for  who  was  incapable  of  exercising  the  office. 

Mr.  Commissioner  BRADLEY.  Your  position,  then,  is  that  no  one 
but  the  regularly-constituted  authorities  has  jurisdiction  and  can  oust 
an  ineligible  person  who  has  been  elected  ? 

Mr.  MATTHEWS.  Yes,  sir;  because  there  must  be  a  tribunal  to  de 
termine  the  facts.  It  is  a  judicial  question,  a  question  to  be  ascertained 
upon  evidence,  or  at  any  rate  there  must  be  some  mode  provided  by 
law  to  go  into  the  question  and  decide  it,  whether  judicial  or  otherwise. 

Mr.  President,  I  have  sufficiently  argued  all  the  points  arising  upon 
this  case  that  occur  to  me  which  require  the  attention  that  I  ought 
to  give,  and  I  leave  the  remainder  of-  the  argument  to  be  made  by  the 
distinguished  gentlemen  with  whom  I  have  the  honor  to  act  in  this  argu 
ment.  I  have  endeavored  to  treat  this  argument  as  a  judicial  argument 
and  as  a  professional  argument.  I  am  aware  of  the  peculiar  nature  of 
the  question.  I  am  aware  of  the  peculiar  constitution  of  the  tribunal. 
I  am  perfectly  well  apprised  that  this  is  not  an  ordinary  litigation,  that 
it  is  a  controversy  involving  party  passions,  party  prejudices,  personal 
interests,  and  public  interests.  I  have  endeavored  in  the  course  of 
what  has  seemed  to  me  to  be  considerable  provocation,  nevertheless  to 
possess  my  soul  in  patience.  I  have  not  from  the  beginning  until  now 
argued  a  proposition  affirmatively  that  I  did  not  affirmatively  believe  to 
be  sound  and  true.  I  have  not  defended  any  position  which  I  did  not 
sincerely  believe  not  only  to  be  defensible,  but  worthy  of  being  de 
fended.  I  do  not  stand  here  to-day  as  counsel  for  any  party  or  any 
person.  I  stand,  Mr.  President  and  gentlemen,  as  I  have  endeavored 
to  stand  from  the  beginning,  in  the  attitude  of  a  man  who  stands  by 
great  constitutional  and  legal  principles.  I  care  nothing  whatever  for 
the  popular  cry  and  clamor  that  it  may  suit  anybody  with  loud  and 
boisterous  trumpets  to  proclaim  to  the  East  and  to  the  West  and  to  the 
North  and  to  the  South.  I  am  satisfied  with  what  I  have  said  or  at 
tempted  to  say,  except  that  I  have  been  able  to  do  it  so  imperfectly  and 
unsatisfactorily.  I  am  satisfied,  and  I  shall  ever  remember  hereafter 
with  grateful  recollections  if  I  shall  be  able  to  attribute  to  any  word 


598  ELECTORAL    COUNT    OF    1877. 

that  I  have  uttered  the  safety  not  only  as  I  believe  of  our  constitu 
tional  form  of  government,  but  doctrines  which  lie  at  the  foundation  of 
all  possible  government. 

This  idea  that  any  man  and  every  man,  whether  in  his  private  and 
individual  capacity  or  in  his  official  character  with  certain  prescribed 
bounds  for  his  power,  has  a  right  to  step  out  of  his  sphere  at  any 
moment  when  his  party  interests  or  his  personal  prejudices  or  any  other 
motives  may  call  him  to  what  he  considers  to  be  the  execution  of  the 
high  act  of  conserving  and  preserving  constitutional  powers  and  rights, 
irrespective  merely  of  his  influence  morally  and  politically  as  a  citizen  j 
this  idea  which  has  pervaded  the  action  in  this  case,  to  ascribe  it  to  the 
best,  to  the  highest  motives — and  God  knows  I  only  wish  it  were  true 
that  I  could  ascribe  it  to  any  such  motives — on  the  supposition  that  the 
governor  of  a  State,  limited  by  law  to  the  performance  of  certain  strictly- 
defined  and  well-understood  ministerial  duties,  can  upon  his  own  mere 
motion,  on  the  idea  that  there  is  something  resting  on  his  conscience 
on  behalf  of  the  great  regis  of  the  Constitution,  to  take  upon  himself 
functions  and  powers  which  do  not  belong  to  him,  which  have  been  de 
nied  to  him,  is  simply  to  confuse  all  the  boundaries  and  political  divis 
ions  of  government ;  it  is  to  unite  the  executive,  the  judicial,  and  the 
legislative  powers  of  society  in  a  single  hand ;  and  the  wisest  statesmen 
•who  framed  the  foundations  of  our  Government  warned  us  at  the  time 
of  the  adoption  of  our  Federal  Constitution  against  that  very  consumma 
tion,  and  applauded,  as  they  had  a  right  to  do,  the  work  of  their  hands, 
guided  as  they  were  by  divine  wisdom  in  the  establishment  of  our 
present  form  of  government  under  our  model  Constitution  as  the  best 
example  the  world  had  ever  seen  of  that  deliberate  division  and  entire 
definition  of  the  boundary  between  the  departments  of  government. 
It  was  the  very  definition  and  essence  of  personal  and  political  freedom. 

Mr.  Commissioner  STBONG.  Mr.  President,  it  is  very  apparent  from 
the  course  this  argument  has  taken  that  the  whole  time  allotted  to  the 
counsel  on  each  side  is  likely  to  be  consumed  before  we  come  to  the  ques 
tion  of  the  admissibility  of  this  evidence.  Already,  on  the  part  of  the 
objectors  to  certificate  No.  1,  two  hours  and  a  half  have  been  consumed, 
and  on  the  other  side  nearly  two  hours  have  been  consumed,  and  yet 
the  question  is  pending  before  us  whether  there  is  any  evidence  to  be 
received  outside  of  the  certificates  and  papers  submitted  to  us  by  the 
President  of  the  Senate.  This  is  likely  to  produce  a  very  awkward 
state  of  things.  I  should  like  to  have  the  evidence  in,  if  it  is  admissible, 
before  the  counsel  yet  to  speak  conclude  the  argument  which  shall  be 
submitted  by  them  j  and  I  move  you,  sir,  that  the  evidence  described 
in  the  first  item  of  the  offer  which  was  made  last  evening  be  received 
subject  to  the  decision  of  the  Commission  in  regard  to  its  legal  effect, 
and  if  there  be  any  evidence  on  the  other  side  which  is  intended  to 
counteract  this,  that  that  also  be  received  at  this  stage  of  the  proceed 
ings,  before  the  two  counsel  who  are  to  conclude  the  argument  shall 
commence  their  arguments. 

Mr.  Commissioner  GARFIELD.  You  refer  to  the  first  offer  in  the 
printed  offers,  Judge  Strong  f 

Mr.  Commissioner  STRONG.     The  first  offer. 

The  PRESIDENT.  The  motion  of  Judge  Strong  is  that  the  evi 
dence  specified  in  the  first  offer  of  the  objectors  to  certificate  No.  1  be 
now  received,  subject  to  all  questions  as  to  its  legal  effect. 

Mr.  Commissioner  EDMUNDS.  And  any  evidence  on  the  same 
point 


ELECTORAL    COUNT    OF    1877.  599 

Mr.  Commissioner  STRONG.  Certainly,  any  evidence  on  the  same 
point  that  may  be  offered  on  the  other  side  upon  the  same  condition. 

The  PRESIDENT.    The  question  is  on  the  motion  in  that  form.     . 

The  motion  was  agreed  to. 

Mr.  EVARTS.  We  may  be  in  a  little  difficulty,  Mr.  President  and 
gentlemen.  Our  witnesses  attended  all  day  yesterday,  and  we  were 
prepared  to  go  on  without  a  moment's  delay.  I  have  now  inquired 
whether  they  are  ready,  and  I  find  that  Mr.  Tyner,  the  Postmaster- 
General,  is  not  here.  He  was  in  attendance  last  evening  and  all  day 
yesterday.  I  have  no  reason  to  doubt,  however,  that  he  is  quite 
accessible. 

Mr.  MERRICK.  I  have  not  yet  learned  whether  an  answer  has  been 
returned  to  our  subpoena. 

Mr.  Commissioner  MORTON.  The  Postmaster-General  was  here,  and 
told  me  he  could  not  remain  a  long  time,  but  would  come  on  being  tele 
graphed  for. 

Mr.  EVARTS.  I  have  no  doubt  he  is  quite  accessible ;  only  we 
wished  to  be  excused  for  any  apparent  remissness. 

The  PRESIDENT.  Of  course  we  understand  that  there  is  a  neces 
sary  delay.  The  question  is  addressed  to  counsel  for  objectors  to  certifi 
cate  No.  1.  Are  you  ready  to  offer  the  proof  specified  in  the  first  article 
of  your  offer  ? 

Mr.  MERRICK.  I  presume  we  are!  We  issued  yesterday  a  subpoena 
duces  tecum,  and  I  suppose  the  return  is  made.  It  ought  to  be. 

The  PRESIDENT.  Ascertain  that  fact  and  report  without  delay, 
if  you  please. 

Mr.  Commissioner  MILLER,  (to  Mr.  Merrick.)  You  asked  for  cer 
tain  papers,  which  were  ordered  to  be  furnished  you. 

Mr.  MERRICK.  Your  honors  ordered  the  papers  to  be  furnished, 
and  I  presume  the  papers  have  been  sent  here;  but  I  do  not  know.  A 
request  had  been  previously  made,  by  one  of  the  objectors,  of  the  De 
partment  to  give  certified  copies  of  those  public  records  to  be  used  in 
this  investigation,  in  the  hope  that  having  them  on  hand  any  delay 
might.be  avoided  ;  but  the  Department  refused  to  give  the  papers  until 
required  by  a  subpoena. 

Mr.  Commissioner  THURMAN.  Did  you  not  issue  a  subpcena  yes 
terday  ? 

Mr.  MERRICK.  There  was  an  order.  We  asked  for  a  subpcena,  and 
the  court  gave  an  order  that  the  papers  should  be  furnished. 

Mr.  Commissioner  THURMAN.     Was  that  served  yesterday  ? 

Mr.  MERRICK.  That  I  suppose  was  served,  but  the  Secretary  not 
being  in  attendance,  I  am  unable  to  state. 

The  PRESIDENT.    The  Secretary  will  be  sent  for. 

Mr.  Commissioner  MORTON.  Postmaster-General  Tyner  was  here 
last  evening  with  the  papers. 

The  PRESIDENT.  I  have  sent  for  the  Secretary,  and  the  minute 
he  comes  in  we  shall  have  the  information. 

Mr.  MERRICK.  The  papers  were  placed,  by  the  permission  of  the 
court,  in  the  hands  of  the  proper  officer  of  this  tribunal  to  be  served 
on  the  Postmaster-General;  but  whether  they  have  been  served  or  not 
I  do  not  know. 

Mr.  Commissioner  MILLER.  Who  was  the  proper  officer  to  serve 
the  papers  ? 

Mr.  MERRICK.    I  presume  the  marshal. 

Mr.  Commissioner  MILLER.  Mr.  Reardon  is  here,  and  he  can  state 
whether  he  has  served  them  or  not.  [A  pause.]  The  deputy  marshal 


600  ELECTORAL    COUNT    OF    1877. 

tells  me  he  served  the  process  on  the  Postmaster-General  last  evening 
in  this  room. 
.  Mr.  MERRICK.    It  has  been  served,  then. 

Mr.  EVARTS.  He  would  have  been  in  attendance  at  the  opening  of 
this  Commission  this  morning  if  it  had  not  been  arranged  for  the  busi 
ness  to  proceed  otherwise. 

Mr.  Commissioner  MILLER.  I  understand  there  was  no  subpoena 
duces  tecum  asked  for  or  served.  These  gentlemen  asked  for  an  order 
for  the  production  of  a  certain  paper,  which  I  saw  the  President  sign.  I 
think  myself  they  ought  to  have  seen  by  this  time  whether  that  paper 
was  produced. 

Mr.  EVAKTS.  Whenever  the  Postmaster-General  comes  I  think  he 
will  have  with  him  all  the  papers  that  are  desired  on  either  side. 

Mr.  Commissioner  THURMAN.  I  move  that  the  Commission  take  a 
recess  until  one  o'clock.  The  papers  ought  to  be  here  by  that  time. 

Mr.  Commissioner  MILLER.  I  think  half  an  hour  would  be  long 
enough. 

Mr.  Commissioner  GARFIELD.  I  think  the  Postmaster- General  has 
been  here  this  morning;  and  I  suppose  in  twenty  or  thirty  minutes  we 
can  have  the  papers.  He  may  be  here  sooner  than  that.  I  move  to 
amend  by  making  the  time  half  past  twelve. 

Mr.  Commissioner  THURMAN.  That  is  only  twenty  minutes.  I  will 
say  till  quarter  of  one,  then. 

Mr.  Commissioner  GARFIELD.    I  will  accept  that. 

The  PRESIDENT.  It  is  moved  that  the  Commission  take  a  recess 
until  a  quarter  to  one  o'clock. 

The  motion  was  agreed  to  at  twelve  o'clock  and  ten  minutes  p.  m. 

The  Commission  re-assembled  at  twelve  o'clock  and  forty-five  min 
utes  p.  m. 

The  PRESIDENT.  The  Commission  is  ready  to  receive  the  evi 
dence  specified  in  the  first  offer,  subject  to  all  questions  as  to  its  legal 
effect. 

Mr.  MERRICK.  Mr.  President,  we  offer  a  duly-certified  copy  of  the 
commission  of  John  W.  Watts  as  postmaster  at  La  Fayette,  in  the 
county  of  Yam  Hill,  State  of  Oregon,  issued  on  the  7th  of  February. 
1873. 

Mr.  EVARTS.  This  paper,  if  the  court  please,  is  satisfactory  enough 
as  being  a  copy,  but  it  does  not  prove  itself  as  a  copy.  The  Postmaster- 
General  is  in  attendance  here  with  these  papers  under  a  subpoena  duces 
tecum,  and  he  can  produce  them  as  a  witness  and  also  give  evidence 
concerning  the  facts,  if  necessary. 

The  PRESIDENT.    Are  they  not  certified  ? 

Mr.  EVARTS.  They  are  not  certified  as  copies.  Still  I  do  not  care. 
They  are  no  doubt  copies,  excepting  that  they  should  come  as  a  part  of 
the  testimony  of  the  Postmaster-General,  Mr.  Tyner,  it  seems  to  me. 

Mr.  MERRICK.  Do  counsel  on  the  other  side  object  to  the  evi 
dence  ? 

Mr.  EVARTS.    I  have  stated  exactly  my  position. 

The  PRESIDENT.  I  understand  the  paper  is  not  objected  to.  It 
will  be  therefore  received. 

Mr.  Commissioner  THURMAN.    Are  not  these  copies  exemplified? 

Mr.  EVARTS.  They  are  not  exemplified.  As  I  have  said,  they  do 
not  prove  themselves. 

The  PRESIDENT.  The  question  is,  Mr.  Evarts,  whether  you  object 
to  the  papers. 

Mr.  EVARTS.    I  submit  this  to  the  Commission,  that  the  Postmaster- 


ELECTORAL   COUNT    OF   1877.  601 

General  should  produce  them  here  under  his  subpoena  5  and  he,  therefore, 
should  be  the  witness  to  produce  them.  I  shall  make  no  objection, 
however. 

Mr.  MERRICK.     We  did  not  issue  a  subpoena  for  him. 
The  PRESIDENT.     The  paper  will  be  received.    The  objection  goes 
to  its  effect,  I  understand. 

Mr.  Commissioner  EDMUNDS.  I  understood  Mr.  Evarts  to  make 
the  point  that  the  paper  in  its  present  condition  is  incompetent  to  prove 
the  fact  stated  in  it,  but  is  willing  that  it  should  come  in  subject  to  that 
question. 

The  PRESIDENT.     Subject  to  that  question. 

Mr.  MERRICK.  I  take  it  the  objection  stated  by  Mr.  Commissioner 
Edmuuds  is  somewhat  different  from  the  character  of  the  objection  as 
stated  by  the  President.  Mr.  Commissioner  Edmunds  understands  the 
objection  to  be  to  matter  of  form.  The  President  understood  the  ob 
jection  to  be  waived  as  to  form  and  go  to  the  substance  of  the  paper, 
the  effect  of  it.  I  used  inaccurate  language  in  saying  that  we  had 
issued  a  subpoena  duces  tecum.  We  applied  for  duly-certified  copies  of 
these  papers,  and  the  Commission  ordered  the  duly-certified  copies  to 
be  furnished,  and  these  have  been  placed  in  my  hands. 
The  PRESIDENT.  Under  the  order  ? 

Mr.  MERRICK.  Under  and  in  response  to  the  order  of  the  Com 
mission. 

Mr.  EVARTS.  I  have  no  doubt  of  their  authenticity.  All  I  sub 
mitted  was  that  their  proper  production  as  proof  should  be  through 
the  witness  who  brought  them  as  copies,  they  not  proving  themselves. 
Mr.  MERRICK.  If  that  is  insisted  upon  as  an  objection,  and  the 
authentication  is  not  sufficiently  formal  under  the  statutes  of  the 
United  States  to  justify  their  introduction  into  the  case  as  testimony, 
we  shall  have  to  ask  the  indulgence  of  the  Commission  to  have  them 
authenticated  according  to  law,  that  there  may  be  a  proper  return  to 
the  order  which  you  have  passed  in  the  premises. 

The  PRESIDENT.  I  shall  rule,  in  the  absence  of  any  instructions, 
that  the  papers  in  their  present  form  are  not  sufficient,  if  objected  to. 

Mr.  EVARTS.  The  Postmaster-General  is  in  attendance,  and  is  ready 
to  verify  them  as  copies  from  his  office. 

The  PRESIDENT.    Pass  them  to  him,  then,  and  have  them  verified. 
Mr.  EVARTS.    There  is  not  the  least  occasion  for  delay  or  formality. 
Mr.  Tyner  is  here. 

The  PRESIDENT,  (to  Mr.  Merrick.)  I  think  you  have  a  right  to  cer 
tified  copies,  and  it  is  for  you  to  pass  them  to  the  Postmaster-General 
and  have  them  certified ;  not  for  the  Commission. 

Mr.  Commissioner  MILLER.  I  concur  with  the  Presiding  Officer.  I 
do  not  think  you  are  compelled  to  introduce  Mr.  Tyner  as  a  witness  in 
order  to  get  certified  copies  of  papers  from  his  office.  If  he  has  not  cer 
tified  them  you  can  have  them  certified.  I  am  sorry  for  the  delay. 

Mr.  MERRICK.  I  so  understand  my  rights,  and  with  that  under 
standing  am  endeavoring  to  discharge  my  duty. 

The  PRESIDENT.  The  Postmaster-General  can  verify  them  in  five 
minutes,  I  suppose. 

Mr.  EVARTS.  If  the  Commission  passes  on  the  question  that  the 
Postmaster-General  is  not  the  proper  party  as  a  witness  to  produce  these 
papers,  then  I  will  waive  the  certificate.  I  do  not  wish  to  cause  delay 
or  trouble.  My  only  point  is  that  the  Postmaster-General  must  have 
the  proper  opportunity. 
The  PRESIDENT.  I  am  of  the  opinion,  Mr.  Evarts,  that  the  other 


602  ELECTORAL    COUNT    OF    1877. 

side  have  a  right  to  a  certified  copy  from  the  Postmaster-General  under 
the  order  already  issued,  and  Judge  Miller  concurs  with  me. 

Mr.  EVAETS.  I  am  willing  that  it  should  be  treated  as  if  it  were  a 
certified  copy. 

The  PEESIDENT.  Very  well,  then,  it  will  be  received.  Let  the  next 
paper  be  offered. 

Mr.  MEEEICK.  The  next  paper  that  we  offer  in  evidence  is  the  com 
mission  of  Henry  W.  Hill,  as  postmaster  at  La  Fayette,  in  the  county 
of  Yam  Hill,  State  of  Oregon,  issued  on  the  3d  of  January  in  the  year 
1877,  reciting  that — 

Whereas  on  the  23d  day  of  November,  1876,  Henry  W.  Hill  was  appointed  postmaster 
at  La  Fayette,  county  of  Yam  Hill,  State  of  Oregon ;  and  whereas  he  did,  on  the  llth 
day  of  December,  1876,  execute  a  bond  and  has  taken  the  oath  of  office,  as  required  'by 
law,  know  ye,  &c. 

Mr.  Commissioner  HOAE.  •  Is  that  one  of  the  offices  to  which  the 
appointment  is  made  by  the  President  or  by  the  Postmaster-General? 

Mr.  EVAETS.  It  is  a  Postmaster-General's  appointment.  It  is  not 
necessary  for  me  to  object  to  this  last  paper  as  not  being  material,  for 
all  these  objections  are  reserved. 

The  PEESIDENT.     Under  the  words  "  the  effect." 

Mr.  Commissioner  THUEMAN.  Have  you  any  evidence  that  Hill 
was  the  successor  of  Watts  ?  Nothing  appears  on  this  paper  to  show 
that  he  was  the  successor  of  Watts. 

Mr.  MEEEICK.  Nothing  appears  on  the  paper  to  show  that  he  was 
the  successor  of  Watts,  but  taking  the  two  papers  together,  if  they  are 
left  to  stand  alone  unexplained  by  the  other  side,  we  respectfully  submit 
that  they  sufficiently  show  that  Hill  was  Watts's  successor. 

The  PEESIDENT.    Have  you  any  further  papers u? 

Mr.  MEEEICK.     We  have  no  further  papers.    We  rest  now. 

The  PEESIDENT.    Is  there  anything  in  reply  * 

Mr.  EVAETS.    We  will  call  the  Postmaster-General. 

Hon.  JAMES  N.  TYNER  sworn  and  examined. 
By  Mr.  EVARTS  : 

Question.  You  are  Postmaster-General  of  the  United  States  1 

Answer.  I  am, 

Q.  And  have  been  since  what  period  ? 

A.  About  the  12th  or  13th  of  July  last. 

Q.  And  in  the  discharge  of  the  duties  of  that  office  during  that 
period  ! 

A.  Yes,  sir. 

Q.  Do  you  know  of  Mr.  Watts  having  held  office  as  postmaster  in 
Oregon,  at  Yam  Hill? 

A.  No,  sir;  John  W.  Watts  held  the  office  of  postmaster  at  La  Fay 
ette,  in  Yam  Hill  County,  Oregon. 

Q.  Who  has  the  appointment  of  that  class  of  officers! 

A.  It  is  a  fourth-class  office,  the  appointments  to  which  are  vested  in 
the  Postmaster-General.  It  is  not  a  presidential  office. 

Q.  Did  Mr.  Watts  resign  that  office (? 

A.  He  did. 

Q.  At  what  date? 

Mr.  MEEEICK.    Wait  a  moment.    Let  the  resignation  be  produced. 

Mr.  EVAETS.    I  ask  what  is  the  date  of  the  resignation  ? 

Mr.  GEEEN.  We  submit  that  the  best  evidence  is  the  written  resig 
nation,  if  any  exists. 


ELECTORAL    COUNT    OF    1877.  603 

The  PRESIDENT.    Do  you  object  to  the  question  I 

Mr.  MEEEICK  and  Mr.  GEEEN.    Yes,  sir. 

The  PEESIDENT.  I  will  submit  to  the  Commission  the  question 
whether  the  objection  shall  be  sustained. 

Mr.  Commissioner  GAEFIELD.    What  is  the  objection  ? 

Mr.  Commissioner  ABBOTT.  I  understand  the  counsel  merely  desire 
to  know  if  there  was  a  written  resignation,  which  I  suppose  they  have  a 
right  to,  upon  the  question  proposed  by  Mr.  Evarts. 

The  WITNESS.    No  such  question  has  been  put  to  me. 

Mr.  EVAETS.    I  asked  at  what  time  the  resignation  took  place. 

Mr.  Commissioner  ABBOTT.  I  understand,  then,  that  counsel  on 
the  other  side  interpose  and  ask  if  that  resignation  was  in  writing ; 
because  if  it  was  the  writing  would  be  the  best  evidence. 

The  PEESIDENT.  No;  they  objected  generally,  as  I  understand. 
But  that  question  may  be  put  preliminarily  whether  it  was  in  writing. 
.  Mr.  EVAETS,  (to  the  witness.)  Did  you  receive  auy  resignation  from 
Mr.  Watts? 

Mr.  MEEEICK.    Was  it  in  writing  ? 

Mr.  EVAETS.    I  first  asked  whether  he  received  any. 

The  WITNESS.    I  did. 

Q.  (By  Mr.  EVARTS.)     In  what  form  1  ,  .> 

A.  By  telegraph  ;  and  afterward  in  writing. 

Q.  Have  you  the  telegram  ? 

A.  I  have. 

Q.  Produce  it. 

A.  [Producing  telegram.]     This  is  it. 

Mr.  EVAETS.     1  offer  it. 

The  PEESIDENT.    Eead  it. 

Mr.  EVAETS.    It  reads  : 

PORTLAND,  OREGON,  November  13, 1876. 

Received  at  Post-Office  Department,  Washington 

Mr.  GEEEN.  We  object  to  the  introduction  of  that  paper.  We  will 
let  it  go,  however,  for  what  it  is  worth. 

Mr.  Commissioner  EDMUNDS.  Let  us  find  out  exactly  what  the 
objection  is. 

The  PEESIDENT.    On  what  ground  do  you  object 1 

Mr.  GEEEN.  There  is  no  authentication  of  the  signature  ;  there  is 
no  proof  that  Watts  sent  the  paper.  It  is  a  mere  telegraphic  mem 
orandum  received  by  the  Postmaster-General  at  this  end  of  the  line, 

Mr.  EVAETS.  We  certainly  should  have  to  begin  with  this,  I  sup 
pose. 

The  WITNESS.  I  also  stated  that  there  was  a  resignation  in  writ 
ing.  I  will  submit  that  also. 

Mr.  Commissioner  EDMUNDS.    One  thing  at  a  time. 

Mr.  EVAETS.     I  propose  to  read  this  telegram,  if  I  am  allowed. 

The  PEESIDENT.  I  must  submit  the  question  to  the  Commission. 
An  objection  is  made  to  the  admissibility  of  the  telegram,  and  the  ques 
tion  is  whether  the  objection  shall  be  sustained. 

Mr.  Commissioner  HOAE.  I  do  not  understand  that  we  are  passing 
finally  on  the  question  of  its  weight,  but  whether  it  shall  be  admitted 
de  bene. 

The  PEESIDENT.    Upon  its  admissibility  at  present. 

Mr.  Commissioner  THUEMAN.  I  understand  the  offer  of  proof  is 
that  the  Postmaster-General  received  a  telegram  on  such  a  day.  That 
is  one  step.  I  do  not  see  why  it  is  not  admissible.  Whether  the  whole 
chain  can  be  established  is  another  thiog. 


604  ELECTORAL    COUNT    OF    1877. 

The  PRESIDENT.    The  question  is  on  sustaining  the  objection. 
The  question  being  put,  the  objection  was  overruled. 
The  PRESIDENT.    Read  the  telegram. 
Mr.  EVARTS.     It  is— 

PORTLAND,  OREGON,  November  13. 1S7G. 
To  J.  N.  TYNER,  Postmaster- General,  Washington,  D.  C.  : 

I  hereby  resign  as  postmaster  at  La  Fayette,  Yam  Hill  County,  Oregon.  Answer  by 
telegraph. 

JOHN  W.  WATTS, 
Postmaster  La  Fayette,  Oregon. 

Q.  (By  Mr.  EVARTS.)  Are  the  stamps  as  to  the  Department  receipt 
of  the  telegram  the  stamps  of  the  Department  ? 

A.  No,  sir;  that  is  the  stamp  of  the  telegraph  company,  whose  office 
is  located  in  the  building. 

Q.  Do  you  know  when  this  was  received  I 

A.  It  was  received  on  the  morning  of  the  14th  of  November. 

Q.  At  what  hour,  do  you  know  ? 

A.  I  should  think  about  ten  o'clock. 

Q.  Did  you  make  any  answer  to  this  telegram  ? 

A.  I  did. 

Q.  Have  you  a  copy  of  the  telegram  that  you  sent  ? 

A.  I  made  answer  by  telegram,  of  which  this  is  a  copy,  [producing 
paper.] 

The  PRESIDENT.    Do  you  offer  that  ? 

Mr.  EVARTS.    I  do. 

The  PRESIDENT.    Read  it  if  there  be  no  objection. 

Mr.  EYARTS.    It  is— 

POST-OFFICE  DEPARTMENT,  OFFICE  OF  POSTMASTER-GENERAL. 

Washington,  D.  C.}  November  14, 1676. 
To  JOHN  W.  WATTS,  Portland,  Oregon  : 

Your  resignation  as  postmaster  at  La  Fayette,  Yam  Hill  County,  Oregon,  bearing 
date  on  November  13,  Ib76,  is  hereby  accepted. 

JAMES  N.  TYNEB, 

Postmaster- General. 
Charge  Post-Office  Department. 

(To  the  witness.)    Did  you  send  that  telegram  to  him  on  that  day  ? 

A.  I  did  ;  by  the  Western  Union  Telegraph  Company. 

Q.  (By  Mr.  EVABTS.)  When  did  you  receive  this  letter  I  [Handing 
a  letter  to  the  witness.] 

A.  This  letter  was  received  by  the  Post-Office  Department  on  the  9th 
day  of  December,  through  J.  B.  Underwood,  special  agent  of  the  Post- 
Office  Department. 

Mr.  EVARTS.    It  is  addressed— 

To  Hon.  J.  B.  UNDERWOOD,  Special  Agent  of  ihe  Post-Office  Department. 

Mr.  MERRICK.  The  signature  of  that  letter  is  not  identified.  We 
object  to  it  on  that  ground. 

The  PRESIDENT.     On  what  ground  ? 

Mr.  MERRICK.    The  signature  has  not  been  proved. 

Mr.  EVARTS.  I  propose  to  show  that  this  paper  was  received,  and 
is  on  file  at  the  Post-Office  Department. 

Mr.  Commissioner  THURMAN.    What  is  the  date  of  it  ? 

Mr.  EVARTS.     November  12,  1876. 

The  PRESIDENT.  The  Commission  have  heard  the  objection  to  the 
admissibility  of  the  paper.  Shall  the  objection  be  sustained  ? 

The  question  being  put,  the  objection  was  overruled. 


ELECTORAL    COUNT    OF    1877.  605 

The  PRESIDENT.     Read. 
Mr.  EYARTS.    It  is— 

To  Hon.  J.  B.  UNDERWOOD, 

Special  Agent  of  the  Post- Office  Department : 

DEAR  SIR  :  I  hereby  tender  my  resignation  as  postmaster  at  La  Fayette,  in  Yam  Hill 
County  and  State  of  Oregon,  and  ask  that  my  resigaation  be  immediately  accepted. 

J.  W.  WATTS, 
Postmaster  La  Fayette,  Oregon. 
NOVEMBER  12, 1876. 

(To  the  witness.)  Who  is  J.  B.  Underwood,  and  what  was  his  relation 
to  the  Post-Office  Department? 

A.  He  was  a  special  agent  of  the  Post-Office  Department,  with  official 
and  personal  residence  in  Oregon  at  that  time. 

Q.  (By  Mr.  EYABTS.)  How  did  this  paper  come  to  the  Post-Office 
Department  ? 

A.  In  due  course  of  mail,  transmitted  by  J.  B.  Underwood,  special 
agent  of  the  Post-Office  Department. 

A.  With  any  communication  from  him  f 

A.  Yes,  sir.  A  communication  which  referred  to  another  matter,  how 
ever. 

Q.  Please  produce  it. 

A.  This  is  it.     [Producing  a  letter.] 

Q.  Upon  receiving  the  telegraphic  resignation  and  accepting  it  by 
telegram,  did  you  make  any  communication  on  the  subject  to  Under 
wood  1 

A.  I  did. 

Q.  By  telegram? 

A.  By  telegram. 

Q.  Have  you  that  telegram  ? 

A.  Yes,  sir.     [Producing  a  telegram.]     This  is  it. 

The  PRESIDENT.  Let  it  be  read  if  there  is  no  objection. 

Mr.  EVARTS.     It  is— 

POST-OFFICE  DEPARTMENT,  OFFICE  OF  THE  POSTMASTER-GENERAL, 

Washington,  D.  C.,  November  14, 1876. 
To  J.  B.  UNDERWOOD, 

Special  Agent  Post-Office  Department,  Portland,  Oregon: 

J.  W.  Watts,  postmaster  at  La  Fayette,  Yam  Hill  County,  Oregon,  has  resigned. 
You  will  take  charge  of  said  office  and  continue  in  charge  thereof  until  a  successor  is 
appointed.  Acknowledge  receipt  of  this  telegram. 

JAMES  N.  TYNER, 

Postmaster-  General. 
Charge  Post-Office  Department. 

(To  the  witness.)    Did  you  receive  an  answer  by  telegram  ? 
A.  I  did.    This  is  it.     [Producing  a  telegram.] 
The  PRESIDENT.    Eead,  if  not  objected  to. 
Mr.  EVABTS.    It  is— 

PORTLAND,  OREGON,  November  14, 1876. 
To  JAMES  N.  TYNER,  Postmaster-General,  Washington,  D.  C.  : 
Your  telegram  received.    Will  take  charge  of  office  this  evening. 

J.  B.  UNDERWOOD, 

Special  Agent. 

(To  the  witness.)  Subsequently  did  you  receive  any  other  communi 
cation  ? 

A.  I  did  in  writing,  by  mail. 

Q.  (By  Mr.  EVARTS.)  This  is  the  first  ?    [Presenting  a  letter.] 
A.  That  is  the  first. 

The  PRESIDENT.    Eead,  if  not  objected  to. 
Mr.  EVARTS.    It  is— 


606  ELECTORAL    COUNT    OF    1877. 

EUGENE,  OREGON,  November  24, 1876. 

SIR  :  In  accordance  with  your  instructions  of  the  14th  instant,  I  proceeded  at  once 
to  take  charge  of  the  post-office  at  La  Fayette,  in  Yam  Hill  County,  Oregon,  vice  J.  W. 
Watts,  resigned.  I  took  a  full  inventory  of  all  property,  giving  receipts  as  required 
by  law,  and  moved  the  office  into  another  building  at  once,  and  got  things  running  in 
good  order  the  same  day.  I  am  now  conducting  business  of  the  office  in  my  name  as 
special  agent  and  acting  postmaster,  awaiting  the  appointment  of  Henry  W.  Hill,  who 
is  now  acting  as  my  assistant  under  my  appointment,  it  being  impossible  for  me  to 
give  my  whole  attention  to  the  special  duties  of  the  office,  as  just  at  this  time  I  ain 
crowded  with  other  duties  pertaining  to  the  business  of  the  Department.  I  inclose 
the  oath  of  my  assistant. 

I  have  the  honor  to  be,  very  respectfully,  &c., 

J.  B.  UNDEKWOOD, 
Special  Agent  Post-Office  Department. 
Hon.  J.  N.  TYNER, 

Postmaster-General,  Washington,  D.  C. 

(To  the  witness.)  Did  you  receive  that  telegram  [handing  a  telegram] 
and  when  f 

A.  I  received  that  telegram  on  the  22d  day  of  November,  1876. 
Q.  State  when  the  letter  which  I  have  just  read  was  received. 
A.  It  was  received  at  the  Post-Office  Department  December  9,  187G. 
Mr.  EVARTS.    The  telegram  which  is  identified  is— 

EUGENE  CITY,  OREGON.  November  22.  1S76. 
To  J.  W.  MARSHALL, 

First  Assistant  Postmaster,  Washington,  D.  C. : 
Appoint  Henry  W.  Hill  postmaster,  La  Fayette,  Oregon. 

J.  B.  UNDERWOOD, 
Special  Agent,  Post- Office  Department. 

(To  the  witness.)  When  did  you  say  that  was  received  ? 

A.  On  the  22d  day  of  November,  1876. 

Q.  Did  you  have  any  further  communications  anterior  to  the  issuing 
of  this  commission  to  Mr.  Hill  ? 

A.  Not  any ;  on  that  recommendation  Mr.  Hill  was  appointed. 

Q.  You  made  the  appointment  at  what  date  ? 

A.  Henry  W.  Hill  was  designated  for  appointment  as  postmaster  at 
La  Fayette,  Oregon,  on  the  23d  day  of  November,  1876. 

Q.  In  what  way  was  he  designated  ? 

A.  He  was  designated  for  appointment  in  the  usual  form.  That  is  the 
original,  [producing  a  paper.] 

Q.  This  is  the  form  I 

A.  It  is. 

Q.  This  is  Mr.  Marshall's  signature,  is  it  I 

A.  It  is. 

Mr.  EYAETS.     I  will  read  it : 

November  21,  1876,  La  Fayette  Office,  Yam  Hill  County,  Oregon  State— John  W. 
Watts  postmaster,  appointed  February  7, 1873;  salary,  $270 ;  postal  bond.  $2,000 ;  money- 
order  bond,  $3,000.  Appoint  Henry  W.  Hill  in  place  of  J.  W.  Watts,  resigned.  J. 
W.  Marshall,  First  Assistant  Postmaster- General. 

(To  the  witness.)  That  is  the  ordinary;form  ? 

A.  It  is  the  ordinary  form. 

Q.  And  after  that  was  any  action  taken  by"you  otherwise  than  sign 
ing  the  commission  ? 

A.  Yes,  sir.  A  letter  designating  the  appointment  was  forwarded  to 
the  appointee  accompanied  by  a  blank  bond,  which  bond  on  being  filled 
by  the  appointee  is  returned  to  the  Post-Office  Department,  after  which 
and  after  its  approval  the  commission  issues. 

Q.  At  what  time  did  any  such  letter  issue  f 

A.  On  the  23d  day  of  November,  1876.  This  is  the  bond  itself,  [pro 
ducing  a  paper.] 


ELECTORAL    COUNT    OF    1377.  607 

Q.  Was  this  bond  forwarded  ? 

A.  That  bond  was  forwarded  in  blank,  filled  up  by  Hill,  and  returned 
to  the  Department. 

Q.  And  then  when  was  the  indorsement  completed  ? 

A.  The  bond  was  executed  on  the  llth  day  of  December,  1876,  as 
shown  by  the  certificate  of  the  officer.  The  commission  issued  on  the  3d 
day  of  January,  1877,  and  was  transmitted  to  Henry  W.  Hill  by  mail  on. 
the  4th  day  of  January,  1877. 

Q.  When  was  this  bond  in  blank  forwarded  with  the  designation  you 
have  spoken  of? 

A.  On  the  23d  day  of  November.  1876. 

Q.  It  was  sent  from  your  Department  on  the  23d  day  of  November 
with  the  designation  and  the  bond  to  be  filled  up  ? 

A.  Yes,  sir. 

Q.  Are  there  any  other  papers  on  the  subject  ? 

A.  None. 

Mr.  EVARTS.     We  are  through  with  this  witness. 

The  PRESIDENT.    The  other  side  can  cross-examine. 

Mr.  GREEN.    We  have  no  questions  to  ask. 

Mr.  Commissioner  THURMAN.  I  wish  to  ask  the  Postmaster-Gen 
eral  a  question. 

(To  the  witness.)  Is  there  any  law  or  regulation  of  the  Department 
which  requires  the  accounts  of  postmasters  to  be  settled  up  before  their 
resignation  takes  effect  I 

A.  No,  sir. 

By  Mr.  Commissioner  THURMAN: 

Q.  There  is  nothing  of  that  kind  1 

A.  Nothing  that  I  am  aware  of. 

Mr.  EVARTS.    I  will  call  Mr.  Watts. 

JOHN  W.  WATTS  sworn  and  examined. 
By  Mr.  EVARTS  : 

Question.  Were  you  the  postmaster  at  La  Fayette,  Yam  Hill  County, 
Oregon f? 

Answer.  I  was. 

Q.  Did  vou  resign  that  office  ? 

A.  I  (M. 

Q.  When? 

A.  On  the  13th  day  of  November,  1876. 

Q.  By  telegram  \ 

A.  Yes,  sir. 

Q.  Did  you  receive  any  acceptance  of  your  resignation  ? 

A.  I  did. 

Q.  When? 

A.  On  the  14th  day  of  November. 

Q.  Was  that  by  telegram  ? 

A.  It  was. 

Q.  Do  you  know  J.  B.  Underwood,  special  agent  of  the  Post-Office 
Department ;  and  did  you  know  him  in  November  last  ? 

A.  I  did. 

Q.  What  was  done  in  reference  to  your  office  after  your  resignation, 
by  you? 

A.  On  the  14th  of  November  Mr.  Underwood  showed  me  a  telegram 
that  he  said  he  had  received  from  the  Postmaster-General,  directing 
him  to  take  charge  of  the  office,  and  I  immediately  delivered  it  to  him, 
making  my  settlement  with  him,  and  turned  everything  over  to  him. 


608  ELECTORAL    COUNT    OF    1877. 

Q.  Did  you  have  a  settlement  with  him  ? 

A.  Yes,  sir;  I  settled  the  accounts  of  my  office  with  him. 

Q.  Was  the  post-office  kept  by  you,  in  what  building,  or  in  what  re 
lation  to  any  other  business  ? 

A.  It  was  in  my  drug-store. 

Q.  Did  it  continue  in  that  store  ? 

A.  It  did  not. 

Q.  Where  was  it  removed  to,  and  when  ? 

A.  It  was  removed  about  a  block  away  from  my  store  to  the  drug 
store  of  Littlefield  &  Hill  on  the  next  morning. 

Q.  That  was  on  the  14th? 

A.  Yes.  It  was  late  in  the  afternoon  when  I  arrived  there  by  rail, 
and  Mr.  Underwood  did  not  move  it  away  that  night.  It  was  late  in 
the  evening,  perhaps  eight  o'clock.  It  was  locked  up  there,  and  the 
next  morning  it  was  taken  over  to  the  drug-store  of  Littleiield  &  Hill. 

Q.  Did  you  act  as  postmaster  at  all  after  the  14th  of  November,  1876  ? 

A.  I  did  not. 

Q.  Was  the  post  office  kept  open  there  after  that  ? 

^.  It  was  not. 

Q.  Not  at  your  place,  but  in  the  town  ? 

A.  It  was  in  the  town  ;  not  at  iny  place. 

Q.  Who  acted  as  postmaster  in  charge  of  the  duties  there? 

A.  H.  W.  Hill,  as  I  understood,  was  appointed  by  Mr.  Underwood 
when  he  arrived.  He  remained  there  two  or  three  days  opening  the 
new  office,  and  he  remained  there  perhaps  the  third  day. 

Q.  And  thereafter  the  duties  of  the  office  were  performed  not  at  all 
by  you  but  by  another  person  and  at  another  place  ? 

A.  It  was.    I  performed  no  duties  as  postmaster  after  that  time. 

Cross-examined  by  Mr.  GREEN  : 

Q.  Were  you  a  candidate  for  the  office  of  elector  of  President  of  the 
United  States,  and  Vice-President? 

A.  I  was. 

Mr.  EVAETS.  I  object  to  that  inquiry,  unless  it  is  for  the  mere  pur 
pose  of  identification. 

Mr.  GREEN.  That  is  all. 

Mr.  EYAETS.  I  admit  that  he  is  the  same  person. 

Q.  (By  Mr.  GREEN.)  Where  is  Eugene,  in  the  State  of  Oregon  ? 

A.  Eugene  City  you  have  reference  to  ? 

Q.  I  speak  of  the  place. 

A.  At  the  head  of  the  Willamette  Valley. 

Q.  How  far  is  it  from  La  Fayette? 

A.  I  think  about  seventy-five  miles ;  perhaps  a  little  more. 

Q.  Have  you  settled  your  accounts  with  the  Post-Office  Department 
as  postmaster  at  La  Fayette  ? 

A.  It  is  not  fully  settled,  in  this  way :  There  is  a  commission  yet  coming 
to  me,  and  I  had  a  few  dollars  that  I  did  not  pay  over  to  Mr.  Under 
wood.  There  was  a  commission  due  to  me  for  part  of  that  quarter  and 
there  were  a  few  dollars  kept  back  which  would  about  balance,  as  we 
supposed.  All  the  rest  I  paid  to  him;  every  dollar. 

Q.  Have  your  accounts  been  adjusted  by  the  auditing  officers  of  the 
Post-Office  Department? 

A.  Not  that  I  know  of.  I  went  to  the  Post-Office  Department  since 
I  came  here  and  inquired,  and  they  said  that  they  had  immediately  sent 
a  full  statement  to  ine,  but  it  had  not  reached  there  when  I  left  there. 
I  have  not  seen  it. 


ELECTORAL    COUNT    OF    1877.  609 

Q.  When  did  yon  leave  Oregon  ? 

A.  I  think  I  left  there  about  the  15th  of  December;  I  think  it  was  on 
the  15th  that  I  left  home. 

Mr.  GREEN.  Has  the  Commission  confined  us  to  testimony  under  the 
first  offer  of  proof? 

Mr.  Commissioner  EDMUNDS.  We  have  not  passed  upon  the  second 
offer  yet. 

The  PRESIDENT.  It  has  not  been  passed  upon.  If  there  are  no 
further  questions,  Mr.  Watts  can  step  aside. 

Mr.  EVARTS.  Mr.  Watts  could  identify  those  papers.  They  are  in 
his  own  handwriting,  some  of  them. 

The  PRESIDENT.  Unless  there  are  some  further  interrogatories,  he 
can  retire. 

J.  M.  McGREW  sworn  and  examined. 
By  Mr.  EVARTS  : 

Question.  Does  the  settlement  of  postmasters'  accounts  come  under 
your  department  ? 

Answer.  It  does. 

Q.  Has  the  account  of  Mr.  Watts,  as  postmaster,  been  settled  by  the 
Department? 

A.  It  has. 

Q.  As  of  what  date  are  his  emoluments  and  salary  fixed  by  that 
settlement? 

A.  To  and  including  the  14th  day  of  November,  1876.  This  is  the 
last  rendered  by  him. 

Mr.  EVARTS.  I  do  not  care  to  pursue  the  details  unless  it  is  required. 
The  other  side  can  cross-examine. 

Cross-examined  by  Mr.  GREEN  : 

Q.  As  the  Sixth  Auditor,  Mr.  McGrew,  have  you  charge  of  the  ac 
counts  of  this  postmaster? 

A.  I  have. 

Q.  When  were  his  accounts  audited  ? 

A.  They  were  audited  some  time  during  the  last  of  the  month — during 
January. 

Q.  Fix,  as  near  as  your  recollection  serves,  the  date  when  they  were 
audited. 

A.  His  accounts  were  received  in  the  office  on  the  llth  day  of  Decem 
ber. 

Q.  And  the  action  of  the  auditing  department  took  place  some  time 
in  the  month  of  January,  1877  ? 

A.  It  is  impossible  to  give  the  exact  date,  as  we  have  30,000  accounts 
of  that  description  to  settle  each  quarter.  It  was  settled  some  time 
during  the  last  month. 

The  PRESIDENT.    Is  the  testimony  closed  ? 

Mr.  EVARTS.    I  suppose  it  is. 

The  PRESIDENT.    Anything  further  on  the  other  side  ? 

Mr.  HOADLY.     No,  sir. 

The  PRESIDENT.     The  argument  will  be  resumed. 

Mr.  EVARTS.  Mr.  President  and  gentlemen  of  the  Commission,  in 
assigning  at  the  outset  of  this  discussion  the  dividing-line  between  the 
authority  of  the  Government  of  the  United  States,  by  any  legislation 
that  it  might  think  adequate  and  desirable,  or  in  execution  of  the  con 
stitutional  power  of  counting  the  votes  without  any  legislation  on  the 
subject,  and  the  authority  of  the  respective  States— the  line  that  di- 
39  E  c 


610  ELECTORAL    COUNT   OF    1877. 

vided  what  belonged  to  the  State  and  what  might  be  the  subject  of  inquiry 
to  the  Federal  Government,  observing  constitutional  limits  on  the  one 
side  and  the  other — the  counsel  for  the  objectors  with  whom  I  am  asso 
ciated  laid  down  the  proposition  that  the  ultimate  fact  under  the  laws 
of  the  State  in  completion  of  the  election  by  the  certification  of  boards 
or  officers  charged  with  the  completion  of  the  final  canvass  was  a  point 
beyond  which,  in  looking  into  the  transactions  of  the  State,  the  Federal 
Government  could  not  go.  We  laid  down  at  the  same  time  the  further 
proposition  that  this  conclusion  of  the  State's  action  was  the  principal 
fact  that  under  the  legislation  of  Congress  was  made  the  subject  of  any 
lawful  certification,  and  that  as  that  principal  fact  could  not  be  over 
reached  by  any  previous  inquiry  into  the  transaction  of  the  State,  so 
that  principal  fact  could  not  be  disparaged  or  falsified  by  any  congres 
sional  authority  exercised  in  certification  of  that  fact. 

The  proposition  as  we  then  laid  it  down  for  Florida,  we  adhered 
to  in  the  case  of  Louisiana ;  and  the  proposition  as  thus  laid  down  we 
adhere  to  in  the  case  of  Oregon.  We  find  in  Oregon,  as  in  Florida  or 
Louisiana,  that  by  its  laws  there  is  some  final  ministerial  canvass,  which, 
completed,  shows  what  the  election  was  ;  and  we  need  only  to  look  into 
the  laws  of  this  State,  as  of  the  other  States,  to  see  whether  the  appar 
ent  canvassing-board  was  one  that  had  such  authority  under  the  laws 
of  the  State. 

We  have  also  asserted  and  adhered  to  but  one  proposition  as  to  the 
powers  and  duties  of  this  Commission.  From  the  first  and  until  now 
we  have  discarded  any  notion  that  you  were  a  court  or  could  exercise 
the  powers  of  a  court  "in  inquiring  into  the  actual  facts  of  an  election  in 
the  States.  Not  so,  however,  with  the  learned  counsel  who  from  time 
to  time  in  the  different  stages  of  this  matter  have  appeared  as  our  oppo 
nents.  The  whole  proposition  as  to  Florida,  on  their  part,  was  based 
upon  the  idea  that  you  were  a  court,  with  the  powers  in  quo  warranto 
of  a  court,  and  were  controlled  in  the  exercise  of  those  powers  by  no 
other  consideration  than  seemed  to  you  just  in  their  exercise  and  as  any 
other  court  would  be  governed  in  such  exercise.  The  logic  of  that  argu 
ment  was  accepted  that  if  you  had  not  that  penetrating  and  purging 
power  of  a  court,  looking  for  and  producing  the  very  right  of  the  matter 
as  the  election  itself  should  disclose  it,  then  our  proposition  that  the 
evidence  upon  which  we  rested  as  the  result  of  the  State's  action  in  pro 
ducing  electors  in  Florida  was  the  "  be-all  and  the  end-all,"  unless  some 
subsequent  movement  in  that  State  might  have  displaced  it. 

When,  then,  we  came  to  Louisiana — which  differed  not  at  all  from 
Florida  in  the  principles  of  law  applicable  to  it  on  this  point  of  the 
State's  authority  and  the  point  of  inquiry  which  repelled  any  further  in 
quisition  on  your  part — the  principles  then  avowed  were  that  the  idea 
of  your  being  a  court  with  powers  in  quo  warranto  was  wholly  inadmis 
sible,  wholly  inadmissible  in  the  nature  of  the  transaction,  wholly  inad 
missible  from  the  impassable  barriers  interposed  by  the  Constitution. 
Indeed,  these  propositions  which  we  had  laid  down  in  the  Florida  case, 
the  support  of  these  propositions  in  reason  and  authority,  were  all 
adopted  and  enforced  as  the  doctrine  of  our  opponents  in  the  Louisiana 
case. 

Now  when  we  come  to  this  case,  even  with  more  force  and  earnest 
ness  and  with  a  greater  reach  and  exhaustion  of  argument  and  authority, 
every  proposition  that  either  in  the  Florida  or  in  the  Louisiana  case  we 
contended  for,  upon  this  point,  is  avowed,  is  defended,  is  insisted  upon  by 
our  opponents.  Nor  will  it  do  for  our  learned  friends  to  put  their  ac 
ceptance  of  these  propositions  upon  the  mere  concession  that  this  Coin- 


ELECTORAL    COUNT    OF    1877.  611 

mission  has  so  decided  and  that  further  debate  is  inappropriate  and  un 
warrantable.  They  have  themselves  in  a  prolonged  discussion  main 
tained,  as  matter  of  law  and  upon  authority,  not  only  the  position  that 
we  took  as  to  the  action  of  a  State  bringing  an  elector  into  the  execution 
of  his  power  as  an  elector,  but,  as  I  understand  the  accomplished  and 
experienced  lawyer  who  yesterday  presented  the  argument  of  our  oppo 
nents,  such  a  person  is,  until  quo  warranto,  until  certiorari,  until  some  form 
of  judicial  contestation  disturbs  his  position,  not  only  ade  facto  but  also 
a  dejure  representative  of  the  office. 

Never  having  had  a  doubt  that  before  many  weeks  had  passed  the 
general  judgment  of  the  profession  of  this  country  would  sustain  these 
positions  that  we  espoused,  and  that  have  been  sanctioned  by  this 
Commission,  I  must  yet  confess  that  I  did  not  expect  so  signal  and  im 
mediate  a  confirmation  of  that  expectation  as  the  present  and  explicit 
avowal,  espousal,  and  maintenance  of  these  positions  by  our  learned 
opponents,  and  I  welcome  this  as  a  great  and  valuable  aid  in  furnishing 
an  answer  to  the  irresponsible  and  rash  comments  that  have  been  made 
in  various  relations,  and  especially  in  the  public  press,  upon  these  con 
troverted  points  of  law,  which  have  formed  the  material  of  the  forensic 
discussions  before  this  Commission  and  of  its  decisions. 

I  understand  that  in  securing  that  unanimity  of  the  profession  so 
desirable  in  a  community  accustomed  to  look  upon  the  law  as  the  prin 
cipal  safeguard  of  the  welfare  of  the  state,  this  adherence  of  our  oppo 
nents  will  go  far  to  check  any  rising  disposition  to  further  public 
contest  on  the  subject.  You  have  decided  questions  of  constitutional 
law ;  you  have  decided  them  in  the  presence  of  great  agitations  of  the 
people,  and  you  have  decided  them  in  a  way  that  will  establish  them 
firm  and  sure  principles  in  the  future,  when  agitations  shall  take  other 
complexions  and  be  pushed  in  the  interest  of  other  parties.  By  what 
you  have  done,  by  what  you  shall  do,  the  principles  of  the  Constitu 
tion  and  the  maintenance  of  the  laws  of  this  country  in  the  great 
transaction  of  a  presidential  election  are  made  certain,  intelligible,  ra 
tional,  and  sound. 

Now  in  Oregon  it  is  very  plain  that  an  election  was  held  and  through 
all  its  stages  was  conducted  with  an  entire  observance  of  the  require 
ments  of  law,  with  an  entire  acceptance  on  the  part  of  the  whole  popu 
lation  of  the  election  and  its  result,  up  to  the  last  stage  of  it,  with  every 
step  unquestioned  in  its  integrity,  its  justice,  and  its  conformity  to  law. 
The  result  reached  by  the  authentic  canvass  of  the  votes,  by  the  proper 
authority,  and  in  the  proper  presence,  showed  on  each  side  the  vote  for 
electors,  according  to  law,  being  upon  general  ticket,  that  three  on  the 
one  side  ran  even  with  each  other,  three  on  the  other  side  even  with 
each  other,  except  by  the  casual  and  unimportant  disparity  of  a  few 
votes  as  between  the  several  candidates  on  the  same  ticket.  All  that 
has  disturbed  this  result  has  occurred  after  the  completion  of  the  elec 
tion  and  its  certification  as  completed  by  the  proper  authority,  after 
the  final  canvass  and  its  certification  by  the  officer  of  state  charged 
with  the  duty  of  canvassing  and  certifying.  That  canvass  remains  of 
record  now  in  the  secretary  of  state's  office,  undisturbed,  undisputed, 
unquestioned.  That  is  the  fact  upon  which  the  title  of  the  electors  for 
President  and  Vice-President  for  the  State  of  Oregon  rests.  Thereafter 
there  remains  nothing  to  be  done  on  the  part  of  any  official  of  that 
State,  under  the  terms  of  the  Constitution  of  the  United  States  noth 
ing  whatever,  and  under  the  law  of  Congress  there  remains  but  one  act 
to  be  performed,  to  wit,  the  provision  by  the  executive  of  the  State  and 
the  delivery  to  the  electoral  college  that  was  elected  of  triple  certifi- 


612  ELECTORAL    COUNT    OF    1877. 

cates  to  accompany  as  a  formal  authentication  the  action  of  the  electoral 
college. 

All  that  our  learned  friends  urge  as  arguments  upon  what  they  con 
sider  an  improvident,  an  unsound,  and  dangerous  doctrine  on  our  part, 
but  urged  only  in  anticipation  of  hearing  our  views,  is  that  this  result 
of  the  canvass  of  an  election  made  matter  of  record  according  to  the 
laws  of  a  State  might  be  falsified,  might  be  perverted,  might  be  de 
stroyed  by  the  process  of  certification,  if  we  should  hold  that  the  form 
was  greater  than  the  substance.  All  those  hypothetical  suggestions 
are  now  brought  in  play  as  actual  transactions  occurring  in  the  State 
of  Oregon  ;  and  now  the  pretension  that  certification  is  paramount  to 
the  thing  certified,  not  amendable  by  the  thing  certified,  not  amendable 
by  the  record  which  is  the  thing  to  be  certified — all  those  propositions 
proceed  from  our  opponents  as  their  champions.  They  have  not  changed 
places  with  us,  for  we  never  occupied  any  such  position.  They  have, 
however,  assumed  the  propositions,  from  time  to  time,  which  were  neces 
sary  and  suitable  for  the  particular  occasions  on  which  they  used  them. 
It  has  been  convenient,  as  it  seems  to  us,  for  this  representation  of 
diverse  sentiments  and  opinions  at  different  times,  that  they  have  not 
been  presented  by  the  same  counsel.  We  have  a  change  in  the  advo 
cates  attending  a  change  in  the  propositions. 

First,  let  us  understand  what  is  presented,  in  the  shape  of  evidence, 
that  bears  upon  the  construction  of  what  is  contained  in  the  certificates 
which  are  plenary  evidence  before  you,  they  having  been  opened  and 
transmitted  by  the  President  of  the  Senate.  It  is  that  Mr.  Watts,  hold 
ing  a  small  post-office  of  the  fourth  class  in  the  State  of  Oregon,  ap 
pointed  years  before,  was  discharging  the  duties  of  that  office  on  the 
7th  of  November ;  that  on  the  14th  of  November  he  resigned  his  office, 
and  his  resignation  was  accepted ;  that  thereafter  the  Department  ac 
cepted  the  charge  of  the  office  and  conducted  it  from  that  time  forward, 
and  that,  as  matter  of  fact,  the  office  itself  was  changed  from  the  place 
of  business  of  Watts,  the  postmaster  who  resigned,  to  the  place  of  busi 
ness  of  the  officer  designated  to  take  his  place,  Mr.  Hill,  having  a  drug 
store,  and  then  becoming  immediately  assistant  postmaster  under  the 
special  agent,  and  in  due  course  of  time  receiving  a  commission  as  post 
master  in  full.  Then  Mr.  Watts,  whenever  you  come  to  consider,  if  you 
do,  the  question  of  whether  he  could  be  appointed  an  elector  on  the  6th 
of  December,  on  his  refusal  to  act  upon  his  prior  appointment,  is  un 
mistakably  placed  before  you  in  the  position  of  a  postmaster  who  had 
resigned,  and  who  had  received  from  the  Post-Office  Department  the 
acceptance  of  the  trust  that  he  had  laid  aside,  which  thenceforth  was  con 
ducted  by  the  Department  itself  under  its  agents. 

I  do  not  think  that  I  need  now  to  re-argue  in  the  least  either  the 
question  of  ineligibility  as  justifying  proof,  or  the  question  of  whether 
an  ineligible  candidate  is  vested  with  an  office  until  by  some  determina 
tion  he  is  excluded  from  it.  Whatever  we  said  that  received  the  assent 
of  this  Commission  in  the  former  arguments  needs  not  to  be  repeated. 
Whatever  was  said  that  did  not  receive  the  assent  of  this  Commission 
will  be  of  no  service  in  that  regard  if  it  be  repeated.  I  shall  therefore 
proceed  with  the  inquiry  into  the  validity  of  the  vote  of  the  three  elect 
ors  in  the  first  certificate,  as  it  rests  upon  the  evidence  in  your  posses 
sion  proceeding  from  the  State,  delivered  into  the  hands  of  the  President 
of  the  Senate,  and  opened  before  the  two  Houses  of  Congress,  and  now 
deposited  with  you  as  evidence  for  you  to  regard. 

What,  then,  does  this  certificate  No.  1  contain  ?  I  ask  your  attention 
to  the  parts  of  it  that  I  shall  now  designate.  I  ask  attention  to  the 


ELECTORAL   COUNT   OF   1877.  613 

certificate  of  the  electors,  commencing  at  the  foot  of  page  3  of  the  printed 
paper.    It  is  their  certificate  of  the  votes  that  they  cast : 

UNITED  STATES  OF  AMERICA, 

State  of  Oregon,  County\of  Marion,  88  : 

We,  W.  H.  Odell,  J.  C.  Cartwright,  and  J.  W.  Watts,  electors  of  President  and  Vice- 
President  of  the  United  States  for  the  State  of  Oregon,  duly  elected  and  appointed  in 
the  year  A.  D.  1876,  pursuant  to  the  laws  of  the  United  States,  and  in  the  manner  di 
rected  by  the  laws  of  the  State  of  Oregon,  do  hereby  certify  that  at  a  meeting  held  by 
us  at  Salem,  the  seat  of  government  in  and  for  the  State  of  Oregon,  on  Wednesday,  the 
6th  day  of  December,  A.  D.  1876,  for  the  purpose  of  casting  our  votes  for  President  and 
Vice-President  of  the  United  States— 

A  vote  was  duly  taken,  by  ballot,  for  President  of  the  United  States,  in  distinct 
ballots  for  President  only,  with  the  following  result : 

The  whole  number  of  votes  cast  for  President  of  the  United  States  was  three  (3)  votes. 

That  the  only  person  voted  for  for  President  of  the  United  States  was  Rutherford  B. 
Hayes,  of  Ohio. 

That  for  President  of  the  United  States  Rutherford  B.  Hayes,  of  Ohio,  received  three 
(3)  votes. 

In  testimony  whereof  we  have  hereunto  set  our  hands  on  the  first  Wednesday  of 
December,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and  seventy-six. 

W.  H.  ODELL. 
J.  C.  CARTWRIGHT. 
J.  W.  WATTS. 

That  is  all  that  the  Constitution  of  the  United  States  requires.  The 
twelfth  article  of  the  amendments  is : 

The  electors  shall  meet  in  their  respective  States  and  vote  by  ballot  for  President 
and  Vice-President ;  *  *  *  they  shall  name  in  their  ballots  the  person  voted  for  as 
President,  and  in  distinct  ballots  the  perSon  voted  for  as  Vice-President,  and  they  shall 
make  distinct  lists  of  all  persons  voted  for  as  President,  and  of  all  persons  voted  for  as 
Vice-President,  and  of  the  number  of  votes  for  each ;  which  lists  they  shall  sign  and 
certify,  and  transmit  sealed  to  the  seat  of  Government  of  the  United  States,  directed 
to  the  President  of  the  Senate.  The  President  of  the  Senate  shall,  in  the  presence  of 
the  Senate  and  House  of  Representatives,  open  all  the  certificates,  and  the  votes  shall 
then  be  counted. 

That,  then,  is  a  discharge  of  the  entire  constitutional  duty,  and  with 
the  full  certification  of  its  discharge  that  the  Constitution  requires. 
What  duty  has  been  added  by  the  act  of  Congress  to  be  performed  by 
the  college  of  electors  in  this  behalf?  In  the  one  hundred  and  thirty- 
eighth  section  of  your  revision  this  is  their  duty  : 

The  electors  shall  make  and  sign  three  certificates  of  all  the  votes  given  by  them  > 
each  of  which  certificates  shall  contain  two  distinct  lists,  one  of  the  votes  for  President 
and  the  other  of  the  votes  for  Vice-President,  and  shall  annex  to  each  of  the  certificates 
one  of  the  lists  of  the  electors  which  shall  have  been  furnished  to  them  by  direction  of 
the  executive  of  the  State. 

This  paper  contains  no  such  list,  we  will  suppose ;  but  is  it  a  failure 
of  duty  on  the  part  of  the  electors  I  Is  there  even  a  presumption  that 
they  have  received  such  paper,  and  have  omitted  to  include  it  in  their 
return  ?  By  no  means.  If  any  default,  any  imperfection  in  the  duty  of 
those  electors  is  to  be  charged,  it  must  be  based  on  the  fact  that  the 
executive  furnished  that  college  with  the  list  as  the  act  of  Congress 
required  the  executive  to  do,  and  that  they  have  omitted  it ;  and  we  find 
as  a  part  of  the  minutes  of  this  electoral  college  a  statement  as  to  this 
matter  of  fact,  whether  that  college  was  ever  furnished  with  any  of  the 
lists  that  the  executive  of  the  State  was  trusted  by  the  act  of  Congress 
to  furnish.  They  make  out  a  sworn  statement  before  a  proper  magis 
trate,  whose  authority  to  administer  the  oath  is  certified  by  the  secretary 
of  state  as  a  proper  officer  for  that  purpose : 

UMITED  STATES  OP  AMERICA, 

State  of  Oregon,  County  of  Multnomah,  88  : 

We,  J.  C.  Cartwright,  W.H.  Odell,  and  J.W.  Watts,  being  each  duly  and  severally 
sworn,  say  that  at  the  hour  of  twelve  o'clock  m.  of  the  (6th)  sixth  day  of  December 


614  ELECTORAL   COUNT   OF    1877. 

A.  D.  1876,  we  duly  assembled  at  the  State  capitol,  in  a  room  iu  the  capitol  building  at 
Salem,  Oregon,  which  was  assigned  to  us  by  the  secretary  of  state  of  the  State  of  Oregon. 
That  we  duly,  on  said  day  and  hour,  demanded  of  the  governor  of  the  State  of  Oregon 
and  of  the  secretary  of  state  of  the  State  of  Oregon  certified  lists  of  the  electors  for 
President  and  Vice-President  of  the  United  States  for  the  State  of  Oregon,  as  provided 
by  the  laws  of  the  United  States  and  of  the  State  of  Oregon  ;  but  both  L.  F.  Grover, 
governor  of  the  State  of  Oregon,  and  S.  F.  Chadwick,  secretary  of  state  of  said  State, 
then  and  there  refused  to  deliver  to  us,  or  either  of  us,  any  such  certified  lists  or  any 
certificate  of  election  whatever.  And  being  informed  that  such  lists  had  been  delivered 
to  one  E.  A.  Crouin  by  said  secretary  of  state,  we  each  and  all  demanded  such  certified 
lists  of  said  E.  A.  Cronin,  but  he  then  and  there  refused  to  deliver  or  to  exhibit  such 
certified  lists  to  us,  or  either  of  us.  Whereupon  we  have  procured  from  the  secretary 
of  state  certified  copies  of  the  abstract  of  the  vote  of  the  State  of  Oregon  for  electors  of 
President  and  Vice-President  at  the  presidential  election  held  in  said  State  November 
7,  A.  D.  1876,  and  have  attached  them  to  the  certified  list  of  the  persons  voted  for  by 
us  and  of  the  votes  cast  by  us  for  President  and  Vice-President  of  the  United  States, 
in  lieu  of  a  more  formal  certificate. 

W.  H.  ODELL. 

J.  W.  WATTS. 

JOHN  C.  CARTWRIGHT. 

Sworn  and  subscribed  to  before  me  this  6th  dav  of  December,  A.  D.  1876. 
[SEAL.]  THOS.  H.  CANN, 

Notary  Public  for  State  of  Oregon. 

What  becomes  now  of  the  proposition  of  a  State  being  defrauded  of 
its  vote  in  the  electoral  college  when  its  electors,  appointed  according 
to  the  will  of  the  people  of  the  State,  have  assembled,  discharged  their 
constitutional  duty,  and  are  deprived  by  the  executive  of  the  State  of 
the  certified  lists  which  it  becomes  a  part  of  their  duty,  if  they  receive 
them  from  him,  and  only  in  such  case,  to  append  in  verification  ? 
Which  is  it  that  is  to  stand,  the  electors  made  by  the  Constitution  of 
the  United  States  sufficient  certifiers  of  their  own  action,  made  by  the 
act  of  Congress  only  subject  to  the  single  duty  besides  of  inclosing  the 
lists  that  the  governor  may  have  given  them  ?  Here  you  have  the 
electors  meeting,  voting,  certifying,  and  transmitting,  and  showing  that 
the  absence  of  the  governor's  list  arises  from  the  governor's  default  and 
not  their  own,  and  that  they  have  supplied  the  fact  on  which  the  gov 
ernor's  list  must  rest  if  it  be  lawful,  the  fact  of  the  final  canvass  of  the 
election,  produced  before  you  now  here  just  as  if  you  inspected  it  your 
self  in  the  office  of  secretary  of  state. 

Now  my  friends  are  in  the  face  of  the  proposition  whether  a  fraudu 
lent,  or  a  perverse,  or  an  ignorant  governor  can  subtract  or  withhold 
the  paper,  and  the  electoral  college  be  destroyed  and  the  presidential 
vote  be  lost.  If  we  were  to  proceed  no  further,  I  should  ask,  the  gov 
ernor's  certificate  withheld,  was  there  any  excuse  for  that,  is  there  any 
pretense  that  it  was  delivered  ¥  Not  the  slightest.  Nobody  pretends 
that  the  governor  of  Oregon  ever  furnished  those  lists  to  the  electoral 
college ;  nobody  pretends  that  any  messenger  or  intermediary  of  his 
ever  delivered  those  lists  to  the  electoral  college.  What  is  the  language 
of  the  act  of  Congress  in  that  behalf! 

It  shall  be  the  duty  of  the  executive  of  each  State  to  cause  three  lists  of  the  names 
of  the  electors  of  such  State  to  be  made  and  certified,  and  to  be  delivered  to  the 
electors  on  or  before  the  day  on  which  they  are  required  by  the  preceding  section  to 
meet. 

Is  it  to  the  college,  to  the  body,  or  is  it  not  1  It  is  to  the  college  or 
body.  Did  the  governor  ever  deliver  them  to  this  college  or  to  this 
body  that  was  met  ?  Did  Mr.  Cronin  ever  deliver  them  as  the  agent , 
of  the  governor  to  this  college  or  body  that  was  met  ?  Its  title  to  them 
was  complete.  The  duty  and  obligation  of  the  governor  in  this  behalf 
were  complete  when  the  college  was  assembled  at  the  capitol.  No 


ELECTORAL    COUNT    OF    1877.  615 

matter  who  composed  it,  whether  Watts  was  a  member  or  Cronin 
was  a  member,  the  papers  were  then  to  be  delivered  to  the  college,  and 
their  subtraction,  their  withholding,  needs  no  description  of  fraud  or 
contrivance.  It  was  an  absolute  desertion  of  duty,  and  such  desertions 
of  duty  are  never  gratuitous.  They  always  have  an  object,  and  the 
result  that  followed  is  the  object  designed. 
How  is  the  act  of  Oregon  in  this  behalf? 

The  secretary  of  state  shall  prepare  two  lists  of  the  names  of  the  electors  elected 
and  affix  the  seal  of  the  State  to  the  same.  Such  lists  shall  be  signed  by  the  governor 
and  secretary,  and  by  the  latter  delivered  to  the  college  of  electors  at  the  hour  of 
their  meeting  on  such  first  Wednesday  of  December. 

Was  that  done?  If  you  employ  an  agent  or  messenger,  instead  of 
delivering  with  due  formality  and  openly,  as  I  venture  to  say  has  been 
done  in  every  State  in  this  Union,  has  been  done  in  Oregon  until  this 
election,  then  you  are  responsible  to  see  that  the  messenger  or  agent 
makes  the  delivery.  I  then  say  that  this  certification  and  action  of  this 
college  are  all  that  the  Constitution  and  the  laws  of  the  United  States 
require,  and  that  on  the  face  of  this  certificate,  the  college  making  its 
representations,  and  the  knowledge  of  this  college  in  respect  to  its 
majority  of  attending  members  being  open  to  any  inquiry,  you  are  at 
once  face  to  face  with  the  proposition  whether  a  subtraction,  a  suppres 
sion  by  the  executive  of  the  State  of  one  of  these  lists,  entitles  both 
Houses  of  Congress  to  throw  out  the  vote  of  the  State. 

But  this  certificate  contains  a  great  deal  more.  The  occasion  for  its 
containing  so  much  more  is  undoubtedly  because  of  this  violation  of 
duty  on  the  part  of  the  executive  of  the  State,  but  what  does  it  con 
tain  ?  It  contains  an  abstract  of  votes  cast  at  the  presidential  election 
as  on  file  in  the  secretary  of  state's  office.  It  is  the  very  canvass  itself 
of  every  county  for  every  candidate  and  in  every  figure  that  becomes 
the  subject  of  tabulation. 

SALEM,  STATE  OF  OREGON  : 

Thereby  certify  that  the  foregoing  tabulated  statement  is  the  result  of  the  vote  cast 
for  presidential  electors  at  a  general  election  held  in  and  for  the  State  of  Oregon  on 
the  7th  day  of  November,  A.  D.  1876,  as  opened  and  canvassed  in  the  presence  of  his 
excellency  L.  F.  Grover,  governor  of  said  State,  according  to  law,  on  the  4th  day  of 
December,  A.  D.  1876,  at  two  o'clock  p.  m.  of  that  day,  by  the  secretary  of  state. 

[SEAL.]  S.  F.  CHAD  WICK, 

Secretary  of  State  of  Oregon. 

Besides  this  there  is  this  certificate,  the  importance  of  which  will 
appear  from  the  citation  of  some  of  the  statutes  of  Oregon  which  I 
shall  mention  : 

UNITED  STATES  OF  AMERICA, 
STATE  OF  OREGON,  SECRETARY'S  OFFICE, 

Salem,  December  6,  1876. 

I,  S.  F.  Chadwick,  secretary  of  the  State  of  Oregon,  do  hereby  certify  that  I  am  the 
custodian  of  the  great  seal  of  the  State  of  Oregon  ;  that  the  foregoing  copy  of  the 
abstract  of  votes  cast  at  the  presidential  election  held  in  the  State  of  Oregon  Novem 
ber  7,  1876,  for  presidential  electors,  has  been  by  me  compared  with  the  original 
abstract  of  votes  cast  for  presidential  electors  aforesaid,  on  file  in  this  office,  and  said 
copy  is  a  correct  transcript  therefrom  and  of  the  whole  of  the  said  original  abstract 
of  votes  cast  for  presidential  electors. 

That  is  that  transaction  which,  observed  and  attended  to  by  the  gov 
ernor  in  a  certificate,  would  give  to  his  certificate  the  support  in  law  if 
he  had  discharged  the  duty  in  fact : 

In  witness  whereof  I  have  hereto  set  my  hand  and  affixed  the  great  seal  of  the 
State  of  Oregon  the  day  and  year  above  written. 

[SEAL.]  S.  F.  CHADWICK, 

Secretary  of  the  State  of  Oregon. 


616  ELECTORAL   COUNT   OF    1877. 

Besides  that  there  is  this: 

List  of  votes  cast  at  an  election  for  electors  of  President  and  Vice-President  of  the  United 
States  in  the  State  of  Oregon  held  on  the  7th  day  of  November,  1876. 

FOR  PRESIDENTIAL  ELECTORS. 

W.  H.  Odell  received  fifteen  thousand  two  hundred  and  six  (15,206)  votea. 
J.  W.  Watts  received  fifteen  thousand  two  hundred  and  six  (15,206)  votes. 
J.  C.  Cartwright  received  fifteen  thousand  two  hundred  and  fourteen  (15,214)  votes. 

E.  A.  Cronin  received  fourteen  thousand  one  hundred  and  fifty-seven  (14,157)  votes. 
H.  Klippel  received  fourteen  thousand  one  hundred  and  thirty-six  (14,136)  votes. 
W.  B.  Laswell  received  fourteen  thousand  one  hundred  and  forty-nine  (14,149)  votes. 
Daniel  Clark  received  five  hundred  and  nine  (509)  votes. 

F.  Sutherland  received  five  hundred  and  ten  (510)  votes. 
Bart  Curl  received  five  hundred  and  seven  (507)  votes. 

S.  W.  McDowell  received  three,  (3,)  Gray  one,  (1,)  Simpson  one,  (1,)  and  Salisbury 
one  (1)  vote. 

I,  S.  F.  Chad  wick,  secretary  of  state  in  and  for  the  State  of  Oregon,  do  hereby  cer 
tify  that  the  within  and  foregoing  is  a  full,  true,  and  correct  statement  of  the  entire 
vote  cast  for  each  and  all  persons  for  the  office  of  electors  of  President  and  Vice-Presi- 
dent  of  the  United  States  for  the  State  of  Oregon  at  the  general  election  held  in  said 
State  on  the  7th  day  of  November,  A.  D.  1876,  as  appears  by  the  returns  of  said  elec 
tion  now  on  file  in  my  office. 

[SEAL.]  S.  F.  CHAD  WICK, 

Secretary  of  State  of  Oregon. 

There  is  the  list  by  the  executive  authority  of  the  State  of  Oregon  so 
far  as  it  was  lodged  in  the  office  and  committed  to  the  secretary  of  state, 
so  far  as  the  great  seal  of  the  State  affixed  by  the  executive  officer  of 
the  State  having  its  custody  could  make  a  certification  by  a  State. 
Who  else  is  there  in  Oregon  that  can  certify  a  list?  Who  has  the  list  I 
Who  has  the  seal  ?  Who  has  the  office  both  of  record  and  of  certifica 
tion  ?  The  secretary  of  state.  Supposing,  then,  that  to  be  so  for  a  mo 
ment,  where  do  you  find  any  defect  of  that  in  being  an  adequate  compli 
ance  with  the  act  of  Congress  and  the  act  of  Oregon  that  gives  jou 
a  list  of  the  persons  appointed  ?  You  have  nothing  to  do  but  to  read 
the  laws  of  Oregon  and  see  that  electors  are  to  be  appointed  by  elec 
tion,  and  that  in  every  election  held  in  that  State  the  persons  that  have 
the  highest  number  of  votes  shall  be  declared  elected — that  is  in  the 
Constitution ;  and  in  the  election  laws  "  that  the  persons  having  the 
highest  number  of  votes  shall  be  deemed  elected,'7  and  then  you  discard 
all  the  rest  as  surplusage  and  unnecessary  verification  of  the  thing  cer 
tified.  What  does  it  want  under  the  act  of  Oregon  ?  The  act  of  Ore 
gon  requires  a  list  to  be  given  by  the  secretary  of  state  under  the  great 
seal  of  the  State,  and  only  requires  that  the  governor  shall  sign  it.  The 
governor,  in  pursuance  of  the  great  breach  of  trust  and  duty  which  he 
had  meditated  and  was  performing,  refused  his  name  to  that  certifica 
tion.  Does  that  cease  to  be  a  certification  that  the  Congress  of  the 
United  States  will  accept  as  an  adequate  observance  of  the  directory 
duty  that  the  executive  authority  of  a  State  shall  furnish  lists  of  the 
persons  appointed  ?  I  think  not.  We  shall  see  by  very  brief  references 
that  under  the  laws  of  Oregon  this  paper  now  here  before  you  is  to  you 
as  matter  of  evidence  precisely  the  same  as  if  you  had  before  you  the 
original  paper  in  the  office  of  the  secretary  of  state.  I  ask  attention 
to  the  laws  of  Oregon,  not  printed  in  the  little  syllabus,  that  relate  to 
the  subject  of  evidence  of  public  writings,  at  pages  253,  256,  and  257  of 
the  Oregon  code.  The  constitutional  provision  is  given  in  this  pamphlet, 
page  137 : 

There  shall  be  a  seal  of  State,  kept  by  the  secretary  of  state  for  official  purposes, 
which  shall  be  called  "  the  seal  of  the  State  of  Oregon." 

The  secretary  of  state  shall  keep  a  fair  record  of  the  official  acts  of  the  legislative 
assembly  and  executive  department  of  the  State. 


ELECTORAL   COUNT   OF    1877.  617 

The  secretary  of  state,  by  the  law  of  Oregon,  is  keeper  of  the  action 
of  the  executive  department  of  the  State — 

and  shall,  when  required,  lay  the  same  and  all  matters  relative  thereto  before  either 
branch  of  the  legislative  assembly. 

The  seven  hundred  and  seventh  section  of  the  Oregon  revision  pro 
vides  : 

Every  citizen  of  this  State  has  a  right  to  inspect  any  pnblic  writing  of  this  State, 
except  where  otherwise  expressed  and  provided  by  this  code  or  some  other  statute. 
Every  public  officer  having  the  custody  of  a  public  writing  which  the  citizen  has  a 
right  to  inspect,  is  bound  to  give  him  on  demand  a  certified  copy  of  it  on  payment  of 
the  legal  fees  therefor,  and  such  copy  is  primary  evidence  of  the  original  writing. 

The  documents  that  are  embraced  within  this  duty  of  the  secretary  of 
State  are  named,  so  far  as  pertinent  to  this  inquiry,  on  page  256,  and 
within  this  certificate,  as  provided  in  section  738  : 

Whenever  a  copy  of  a  writing  is  certified  to  be  used  as  evidence,  the  certificate  shall 
state  that  the  copy  has  been  compared  by  the  certify  ing-officer  with  the  original,  and 
that  it  is  a  correct  transcript  therefrom,  and  of  the  whole  of  such  original  o*  of  a 
specified  part  thereof.  The  official  seal,  if  there  be  any,  of  the  certifying-officer  shall 
also  be  affixed  to  such  certificate,  &c. 

Looking  at  this  certificate,  then,  with  the  act  of  Congress  before  you 
in  reference  to  certified  lists  that  are  to  be  used  and  employed,  can  you 
have  any  doubt  that  this  contains  all  that  is  necessary  to  make  action, 
the  bonafide  action,  the  complete  lawful  action,  of  the  electors  and  of 
the  State  that  had  chosen  them  electors — the  disparagement  of  the  au 
thentication  under  the  act  of  Congress  by  the  governor's  withholding 
of  his  certificate,  if  unexplained,  not  affecting  the  certification  by  the 
electors,  who  have  done  their  duty  under  the  Constitution,  and  are 
chargeable  with  no  want  of  duty  under  the  act  of  Congress  or  under  the 
act  of  Oregon  ? 

We  have,  besides,  the  minutes  of  the  college.  Now  are  the  electors 
a  body  ?  They  are  so  described  in  the  statutes  of  the  United  States ; 
they  are  so  described  in  the  statutes  of  Oregon.  They  are  necessarily  a 
college  under  the  power  confided  in  them  to  fill  vacancies,  which  both 
by  the  act  of  Congress  and  by  the  statutes  of  their  respective  States  is 
confided  to  them. 

Mr.  Commissioner  BRADLEY.    Mr.  Evarts,  who  made  this  list  ? 

Mr.  EVARTS.    The  original  as  now  on  file  ? 

Mr.  Commissioner  BRADLEY.    Yes. 

Mr.  EVARTS.  The  secretary  of  state,  as  the  canvassing-officer,  in 
the  presence  of  the  governor,  as  I  understand. 

Mr.  Commissioner  ABBOTT.  Permit  me  to  ask  if  there  is  any  law 
that  you  have  discovered,  Mr.  Evarts,  which  permits  the  secretary  of 
state  to  certify  to  a  result  drawn  from  certain  figures  before  him,  certain 
returns  ?  Is  it  not  simply  that  he  can  certify  to  any  paper  for  what  it 
is  worth  ? 

Mr.  EVARTS.    By  reason  of  this  general  power  ? 

Mr.  Commissioner  ABBOTT.    Yes,  sir. 

Mr.  EVARTS.  He  has  given  a  certificate  of  the  full  paper;  that  is 
the  canvass.  All  the  rest  is  a  transaction  lower  down  in  the  election. 
These  are  all  the  counties  of  the  State,  all  the  votes  returned,  all  the  can 
didates  voted  for,  the  distribution  and  the  tabulation,  and  was  done  by 
him  in  the  presence  of  the  governor. 

Mr.  Commissioner  ABBOTT.  I  will  call  your  attention  to  the  certifi 
cate  on  the  second  page : 

I  hereby  certify  that  the  foregoing  tabulated  statement  is  the  result  of  the  vote  cast 
for  presidential  electors,  &c. 


618  ELECTORAL    COUNT    OF    1877. 

Mr.  EYARTS.    Yes. 

As  opened  and  canvassed  in  the  presence  of  his  excellency  L.  F.  Grover,  governor  of 
said  State. 

That  is  canvassing ;  producing  the  tabulated  vote  from  the  votes  for 
warded  from  the  precincts  and  counties  is  the  canvass. 

Mr.  Commissioner  BRADLEY.    The  next  says  "  copy  of  abstract." 

Mr.  EYARTS.    Yes. 

Mr.  Commissioner  BRADLEY.  "  Compared  with  the  original  ab 
stract  of  votes  cast  for  presidential  electors  aforesaid  on  file  in  this  of 
fice." 

Mr.  EYARTS.  Yes ;  and  the  whole  of  it.  Will  any  one  tell  me  what 
else  there  was  to  canvass  ?  What  more  can  anybody  do  than  take  the 
returns  ?  They  cannot  alter  them ;  they  are  all  to  be  opened,  all  to  be 
canvassed,  and  the  result  produced.  Whether  you  call  it  a  result,  pro 
vided  it  be  a  paper  formal,  complete,  recorded,  or  whether  you  call  it  an 
abstract  of  the  votes  according  to  law,  it  is  the  transaction  that  the  law 
confides  to  the  officer,  and  it  is  its  execution  as  he  files  it  after  he  has 
performed  the  duty.  You  will  see  by  the  election  laws  that  section  37 
provides : 

The  county  clerk,  immediately  after  making  the  abstract  of  the  votes  given  in  his 
county — 

The  same  word  is  used ;  that  is  his  return  ;  that  is  his  canvass.  The 
abstract  is  the  canvass  set  down  as  the  result — 

shall  make  a  copy  of  each  of  said  abstracts,  and  transmit  it  by  mail  to  the  secretary  of 
state  at  the  seat  of  government ;  and  it  shall  be  the  duty  of  the  secretary  of  state,  in 
the  presence  of  the  governor,  to  proceed  within  thirty  days  after  the  election,  and 
sooner  if  the  returns  be  all  received,  to  canvass  the  votes  given  for  secretary  and  treas 
urer  of  state,  state  printer,  justices  of  the  supreme  court,  member  of  Congress,  and  dis 
trict  attorneys;  and  the  governor  shall  grant  a  certificate  of  election  to  the  person 
having  the  highest  number  of  votes,  and  shall  also  issue  a  proclamation  declaring  the 
election  of  such  person. 

Then  for  the  officers  designated  in  regard  to  the  election  of  President : 

The  votes  for  the  electors  shall  be  given,  received,  returned,  and  canvassed  as  the 
the  same  are  given,  returned,  and  canvassed  for  members  of  Congress.  The  secretary 
of  state  shall  prepare  two  lists,  &c. 

There  being  no  provision  for  a  governor's  commission  or  anything  of 
that  kind;  but  I  will  not  repeat  the  argument  of  my  learned  associate, 
so  effectually,  as  it  seems  to  me,  made,  in  regard  to  this  operation.  What 
I  have  to  say  to  your  honors  is  this,  that  you  have  included  by  authen 
tication  satisfactory  to  the  laws  of  Oregon  of  the  very  canvass  itself  as 
it  now  appears  of  record  in  the  department  of  state.  There  is  no  other 
canvass.  The  blotter  or  the  slate  in  which  there  may  have  been  a  ten 
tative  addition  of  numbers  is  not  the  transaction  of  record.  This  is  the 
very  thing.  It  never  existed  as  a  canvass  till  it  stood  in  that  shape, 
and  standing  in  that  shape,  it  could  acquire  nothing  additional,  tolerate 
nothing  additional. 

In  the  minutes  this  board  proceeds  with  its  own  transactions.  The 
hour  having  arrived, 

The  meeting  was  duly  organized  by  electing  W.  H.  Odell  chairman  and  J.  C.  Cart- 
wright  secretary. 

The  resignation  of  J.  W.  Watts,  who  was,  on  November  7,  A.  D.  1876,  duly  elected 
an  elector  of  President  and  Vice-President  of  the  United  States  for  the  State  of  Oregon, 
was  presented  by  W.  H.  Odell,  and,  after  being  duly  read,  was  unanimously  accepted, 

You  have  his  resignation.  It  was  a  transaction  in  perfect  good  faith. 
It  was  in  open  day.  It  was  matter  of  record  in  this  college.  It  rested 
upon  an  uncertain  opinion  as  to  whether  his  having  been  postmaster 


ELECTORAL    COUNT    OF    1877.  619 

destroyed  his  eligibility,  whether  it  would  destroy  his  vote  ;  he  refuses 
to  act  uuder  that  appointment  for  fear  of  that  public  injury  to  the 
State  of  Oregon.  He  did  his  duty  in  the  college  of  electors.  If  Cro- 
nin  was  a  member  of  the  college  and  Cronin  had  attended  and  Cro- 
nin  had  part  in  the  transactions,  whatever  was  done  by  Watts  was 
done  openly  and  would  be  seen  and  known  by  Cronin  as  well  as  the 
others,  and  if  there  remained  further  controversy,  further  action  of  the 
college  to  determine  who  were  the  three,  that  would  have  been  taken, 
that  would  have  been  recorded  in  the  minutes ;  but  of  the  principal 
fact,  that  Watts  refused  to  act  under  his  original  appointment  on  the 
scruple  that  his  State  might  thereby  lose  a  vote  that  it  was  entitled  to, 
the  college  proceed  (the  disability  having  been  removed  in  their  con 
struction,  and  in  yours,  as  I  submit)  to  recognize  the  will  of  the  people 
of  Oregon  in  their  selection  of  the  person  of  Mr.  Watts,  a  man  known 
and  trusted  by  that  people,  and  gave  him  a  title  which,  trusting  to,  the 
State  of  Oregon  would  not  put  in  peril  one  of  its  votes. 

Then  the  voting  proceeds,  and  the  ballots  are  here.  The  very  ballots 
themselves,  the  originals  that  were  deposited  are  here,  each  of  them 
bearing  the  indorsement  of  the  elector  who  deposited  it.  Therefore  you 
have  the  election  here,  and  now  I  should  like  to  know  whether  under 
the  Constitution  of  the  United  States,  under  the  statute  of  1792,  under 
the  law  of  Oregon  about  presidential  elections,  these  minutes  are  not 
plenary  proof  of  the  action  of  that  college,  if  that  was  a  college.  Did 
anybody  ever  pretend  that  the  certificate  named  by  the  act  of  Congress 
was  any  part  of  the  warrant  of  the  electors  to  act  in  the  college  ?  No. 
It  is  to  be  delivered  to  the  electors  acting  in  the  college  in  order  that 
they  may  use  it  as  part  of  their  transaction.  Who  can  contradict  this? 
Who  can  be  heard  to  contradict  it?  You  have  then  this  absolute  proof. 
When  this  college  convened  and  undertook  to  act,  there  were  present 
the  two  men  that  without  any  impeachment  had  a  perfect  title  to  the 
office.  There  was  present  a  third  man,  and  there  was  nobody  else  pres 
ent,  and  then  the  transaction  went  on. 

I  apprehend,  therefore,  that  unless  you  hold  that  the  want  of  the  gov 
ernor's  certificate,  its  subtraction  by  the  violation  of  the  governor's  duty, 
is  sufficient  to  suppress  the  electoral  college  and  the  vote  of  the  State, 
you  have  here  everything  that  you  need  under  the  act  of  Congress,  under 
the  Constitution  of  the  United  States,  without  looking  at  the  certificates 
which  they  put  in  in  support  of  their  title,  out  of  abundant  caution, 
in  the  abundant  performance  of  duty,  in  order  that  it  may  be  seen  that 
the  absence  of  any  formality  is  not  to  be  imputed  to  them  from  the  ab 
sence  of  the  principal  fact  on  which  and  from  which  the  formality 
derives  its  sole  claim  to  existence. 

We  have  another  certificate,  and  this  contains  nothing  that  contra 
dicts  the  other,  nothing  that  by  itself  can  stand  on  its  own  inspection 
as  an  adequate  transaction.  In  the  first  place,  what  is  the  certificate  of 
the  governor?  Does  this  comply  with  the  act  of  Congress? 

I,  L.  F.  Grover,  governor  of  the  State  of  Oregon,  do  hereby  certify  that  at  a  general 
election  held  in  said  State  on  the  7th  day  of  November,  A.  D.  1876,  William  H.  Odell 
received  15,206  votes,  John  C.  Cartwright  received  15,214  votes,  E.  A.  Cronin  received 
14,157  votes,  for  electors  of  President  and  Vice-President  of  the  United  States ;  — 

The  syntax  arrangement,  perhaps,  is  a  little  at  fault,  but  we  begin 
after  a  semicolon  thus  : 

being  the  highest  number  of  votes  cast  at  said  election  for  persons  eligible,  under  the 
Constitution  of  the  United  States,  to  be  appointed  electors  of  President  and  Vice- 
President  of  the  United  States,  they  are  hereby  declared  duly  elected  electors  as  afore 
said  for  the  State  of  Oregon. 


620  ELECTORAL   COUNT   OF   1877. 

That  is  a  negative  pregnant.  The  disparity  of  votes  is  shown.  The 
fact  of  election  on  a  general  ticket  is  matter  of  law  in  the  State.  You 
have  in  the  other  certificate  the  clear  certification  of  how  the  fact  was 
as  to  who  had  the  highest  number  of  votes.  Now  this  governor  has 
undertaken  by  the  insertion  of  the  word  "eligible"  to  cover  himself 
from  the  condemnation  of  open  and  recognized  fraud  and  falsehood, 
and  he  has  undertaken  by  giving  a  reason,  instead  of  obeying  the  con 
stitution  and  laws  of  Oregon,  to  save  himself  from  having  absolutely 
deserted  his  duty.  If  there  ever  was  a  State  that  had  taken  every  pre 
caution  to  provide  that  all  these  suggestions,  all  these  surmises,  that  by 
some  method  of  construction,  by  some  usurpation  of  power,  others  than 
the  men  who  received  the  highest  number  of  votes  could  be  deemed 
elected  anywhere,  in  that  State  the  constitution  and  the  laws  of  Oregon 
had  so  provided.  Why  was  not  the  word  "  eligible  "  put  into  the  con 
stitution  and  put  into  the  laws  as  determining  who  should  be  the  prod 
uct  of  an  election,  who  should  be  declared  the  product  of  an  election, 
who  should  be  treated  as  the  product  of  an  election  ?  The  constitution 
provides,  as  you  have  seen,  that — 

In  all  elections  held  by  the  people  under  this  constitution,  the  person  or  persons 
who  shall  receive  the  highest  number  of  votes  shall  be  declared  duly  elected. 

Concede  for  the  moment  that  electors  are  not  within  that  clause  of 
the  constitution,  nevertheless  this  shows  what  the  constitutional  law  of 
Oregon  was  with  respect  to  what  makes  an  election ;  and  when  the 
legislature  has  determined  that  the  electors  for  President  and  Vice- 
President  of  the  United  States  shall  be  produced  by  the  method  of  elec 
tion,  and  when  they  have  a  law  which  is  not  limited  to  anything  except 
the  question  whether  the  election  is  in  the  State  and  ascribes  the  effi 
cacy  of  the  highest  number  the  case  is  complete  and  final,  as  they  do  in 
this  clause : 

In  all  elections  in  this  State  the  person  having  the  highest  number  of  votes  for  any 
office  shall  be  deemed  to  have  been  elected. 

That  is  section  40.  But  in  the  election  law  you  will  find  the  strongest 
provision  as  to  the  highest  number  of  votes  in  the  instance  when  it  does 
prevent  an  election,  because  there  are  two  for  the  same  office  having  the 
highest  number  of  votes.  In  section  36  : 

If  the  requisite  number  of  county  or  precinct  officers  shall  not  be  elected  by  reason 
of  two  or  more  persons  having  an  equal  and  the  highest  number  of  votes  for  one  and 
the  same  office,  the  clerk  whose  duty  it  is  to  compare  the  polls  shall  give  notice  to  the 
several  persons  so  having  the  highest  and  an  equal  number  of  votes  to  attend  at  the 
office  of  the  county  clerk  at  a  time  to  be  appointed  by  said  clerk,  who  shall  then  and 
there  proceed  publicly  to  decide  by  lot  which  of  the  persons  so  having  an  equal  num 
ber  of  votes  shall  be  declared  duly  elected ;  and  the  said  clerk  shall  make  and  deliver 
to  the  person  thus  declared  elected  a  certificate  of  his  election  as  hereinbefore  pro 
vided. 

Had  the  clerk  a  right  to  discharge  the  duty  limited  to  casting  votes 
and  the  imperative  obligation  to  declare  the  one  who  received  the  lot — 
had  the  clerk  the  right  to  substitute  for  that  duty  a  determination  that 
there  were  no  two  persons  that  had  received  the  highest  number  of 
votes,  and  the  lot  was  not  required,  because  he  thought  one  of  them 
was  not  eligible  ?  But  the  clerk  has  in  regard  to  those  officers  every 
power  that  the  governor  has  in  regard  to  the  other  officers,  (see  section 
37:) 

In  case  there  shall  be  no  choice  by  reason  of  any  two  or  more  persons  having  an 
equal  and  the  highest  number  of  votes  for  either  of  such  offices — 

That  is,  the  larger  offices  of  the  State — 

the  governor  shall  by  proclamation  order  a  new  election  to  fill  said  offices. 


ELECTORAL   COUNT   OF    1877.  621 

Is  not  that  an  imperative  duty  on  the  governor  when  there  are  two 
having  the  highest  number  of  votes  ?  The  law  of  Oregon  is  that  dis 
qualification  does  not  elect  the  other,  and  that  in  that  case  there  must 
be  a  new  election ;  and  has  this  governor  the  authority  to  determine 
that,  instead  of  having  a  new  election,  he  will  commission  the  one,  not 
that  has  the  highest  number  of  votes — for  that  is  inscrutable,  they  being 
equal — but  the  one  that  he  thinks  is  eligible  I  What  becomes  of  the 
right  of  the  people  to  have  a  new  election  I  They  voted  for  the  men ; 
they  have  produced  that  result ;  and  they  are  entitled  to  the  conse 
quence  of  the  election. 

What  then  is  the  title  I  What  does  it  rest  upon  I  It  is  quite  imma 
terial  to  you  what  the  Cronin  title  in  the  abstract  is.  The  point  for 
you  to  determine  is,  which  of  these  colleges  is  to  be  counted.  There 
cannot  be  two  colleges.  When  the  civil  law  lays  down  the  proposition 
that  tres  facit  collegium,  it  lays  it  down  in  the  assertion  of  a  principle, 
not  by  an  arbitrary  rule.  The  principle  of  a  college  is  that  the  majority 
governs,  and  that  principle  cannot  be  applied  to  a  less  number  than 
three.  One  man  is  not  a  college ;  two  men  are  not  a  college,  for  there 
is  not  a  majority  there  unless  it  be  unanimity.  Unanimity  is  not  the 
essence  of  a  college.  So  long  as  people  are  unanimous  they  proceed 
in  their  natural  rights  as  individuals;  but  three  make  a  college  because 
the  vital  principle  of  a  college  is  that  the  majority  exercise  the  power 
of  the  college ;  and  here  what  have  you  before  you  ?  A  college  of  three ; 
a  college  assembled;  and  what  is  Cronin's  account  of  it?  That  all 
three  met,  and  instead  of  saying  anything  short  he  undertakes  to  say 
that  they  refused  to  act  as  electors  of  President  and  Vice-President. 
Will  you  allow  his  statement,  backed  by  the  certifying  names  of  two 
men  who  were  not  present — for  they  came  in  afterward  and  were  chosen 
electors  by  Cronin,  after  the  transaction  upon  which  he  bases  the  form 
ation  of  his  college — will  you  allow  Oronin's  statement  that  these  two 
men  resigned,  declined,  remitted,  deserted  the  duty  of  voting  for  Presi 
dent  of  the  United  States  to  outweigh  their  own  certificate,  their  own 
action,  their  own  return,  their  own  ballots  that  are  here  before  you?  I 
should  think  not.  And  if  you  are  bound  to  look  at  the  matter  upon 
the  legal  question  whether  the  majority  of  the  college  can  fill  the  va 
cancy  or  whether  the  minority  of  the  college  can  fill  the  vacancy,  each 
having  assumed  to  do  it,  you  will  have  no  great  trouble  in  determining 
that  the  majority  anchors  the  college  to  itself,  and  that  the  minority  is 
no  college  at  all. 

Supposing  it  to  be  true  that  these  electors  did  not  recognize  Cronin, 
did  not  regard  him  as  an  elector ;  they  had  the  right  to  that  judgment. 
Nobody  else,  I  think,  regarded  him  as  such  except  upon  the  experi 
mental  invention  of  him  to  see  whether  he  could  be  manufactured  to 
stand  until  after  the  counting  of  this  vote.  But  did  you  ever  hear  that 
when  a  bank  director  or  a  member  of  any  corporation  or  of  any  board, 
municipal  or  civil,  under  the  Government  of  the  United  States  or  under 
the  government  of  any  State,  did  not  recognize  the  title  of  one  man 
claiming  to  be  a  member  of  that  board,  anything  happened  except  that 
he  was  excluded,  and  if  he  was  wrongfully  excluded  he  must  right 
himself  by  law  I  Other  parties  might  question  whether  the  action  of 
the  board  taken  after  that  exclusion  was  or  was  not  lawful.  But  did 
you  ever  hear  that  the  exclusion  of  a  member  of  the  board,  lawful  or 
unlawful,  just  or  unjust,  authorized  him  to  go  and  fill  the  board  and  go 
on  with  business  !  I  think  that  is  as  great  a  novelty  in  the  law  of  col 
leges,  of  civil  boards,  of  governmental  boards,  or  of  private  boards,  as 
was  ever  suggested.  If  you  depart  from  the  proposition  that  whatever 


622  ELECTORAL   COUNT   OF    1877. 

may  have  happened  in  respect  to  Crouin  of  injustice  or  exclusion,  that 
did  not  make  him  the  college,  you  have  this  absurd  possibility  in  a  State 
like  Oregon,  that  you  would  have  three  colleges,  each  man  preferring  to 
throw  the  votes  his  own  way  and  by  his  own  authority.  But  if  you 
adopt  the  rule  that  the  majority  constitutes  the  college,  you  put  your 
self  under  the  protection  of  the  principle  which  governs  all  corporate 
action,  that  there  can  be  but  one  college,  one  board,  because  the  ma 
jority  draws  to  itself  all  the  powers  of  the  board. 

Now  look  at  the  very  peremptory  direction  of  the  law  of  Oregon  in 
respect  to  the  conduct  of  the  board  when  it  meets  to  discharge  its  duty 
— section  59 : 

The  electors  of  President  and  Vice-President  shall  convene  at  the  seat  of  government 
on  the  first  Wednesday  of  December  next  after  their  election,  at  the  hour  of  twelve  of 
the  clock  at  noon  of  that  day ;  and  if  there  shall  be  any  vacancy  in  the  office  of  an  elect 
or,  occasioned  by  death,  refusal  to  act,  neglect  to  attend,  or  otherwise,  the  electors 
present  shall  immediately  proceed  to  fill,  by  viva  [voce  and  plurality  of  votes,  such 
vacancy  in  the  electoral  college. 

Can  you  have  a  plurality  of  votes  when  only  one  vote  is  cast  ? 

And  when  all  the  electors  shall  appear  or  the  vacancies,  if  any,  shall  have  been 
filled,  as  above  provided,  &c. 

They  are  not  allowed  to  go  on ;  they  are  not  allowed  to  act  for  the 
State  of  Oregon  until  they  are  possessed  of  the  means  of  casting  its 
whole  vote. 

Mr.  Commissioner  ABBOTT.  Permit  me  to  ask  you,  Mr.  Evarts,  what 
would  be  the  case  if  two  of  the  electors  had  died  since  the  election  ? 
There  is  but  one  left  in  the  land  of  the  living  ;  must  the  State  lose  its 
two  votes  or  three  ? 

Mr.  EVARTS.    If  the  whole  three  have  died  ? 

Mr.  Eepresentative  ABBOTT.  No;  if  two  have  died  and  there  is  but 
one  left  ? 

Mr.  EVARTS.  If  two  have  died  and  there  is  one  left,  the  State 
ought  to  exercise  a  power  reserved  to  it  to  treat  the  election  as  having 
failed,  or  it  may  be  the  votes  would  be  lawful.  There  is  no  existing 
law  of  Oregon,  and  no  existing  law  of  any  State,  that  in  its  terms  cov 
ers  the  case  of  there  not  being  a  college  to  proceed  to  fill  vacancies. 
There  can  be  no  college  when  you  are  reduced  to  one.  You  have  an 
elector,  I  agree,  and  it  is  certainly  undesirable  that  the  State  should 
lose  its  votes.  That  I  agree,  and  I  agree  that  an  honest  effort  to  pre 
sent  the  vote  to  the  Congress  here  acting  on  the  subject  should  receive 
every  indulgence  on  the  part  of  the  political  authority  that  deals  with 
the  question,  but  I  certainly  cannot  as  matter  of  law  admit  either  under 
the  act  of  Congress  or 

Mr.  HOADLY.  Will  you  permit  a  question  ?  Does  the  word  "  plu 
rality"  there  refer  to  plurality  of  the  original  number  elected,  or  of 
those  remaining  after  the  vacancy? 

Mr.  EVARTS.  There  is  nothing  that  confines  it  to  the  whole  num 
ber.  It  is  a  clear  authority  to  them  to  choose  by  the  plurality  of  a  quo 
rum. 

Mr.  HOADLY.     To  those  remaining? 

Mr.  EVAETS.  Of  those  remaining;  but  that  does  not  touch  the 
question  of  whether  there  should  or  should  not  be  a  quorum  to  act. 
The  ordinary  rule  of  corporations  and  colleges  is  that  a  majority  of  a 
quorum  is  equivalent  to  a  majority  of  the  whole.  There  must  be  some 
statute  to  the  contrary.  This  college  of  electors  consisted  of  the  two 
men  clearly  chosen,  that  are  not  blotted  out  by  any  evidence  before 
you,  except  the  certificate  of  Cronin,  not  that  they  refused  to  act  with 


ELECTORAL    COUNT    OF    1877.  623 

him,  but  he  says  they  refused  to  act  as  electors.  Where  is  his  evi 
dence  ?  Where  is  the  record  ?  Where  are  the  minutes  ?  Where  is  the 
notice  in  writing  ?  Where  is  the  absenteeism  ?  That  is  not  certified 
to ;  but  they  refused  to  act  as  electors,  and  he  then  proceeded  to  fill 
their  places  by  his  single  vote. 

Now,  whether  or  not  under  the  laws  of  some  States  that  faculty  could 
reside  in  a  single  elector,  it  does  not  reside  in  a  single  elector  by  the 
act  of  Oregon.  Oregon  had,  by  the  provisions  of  the  electoral  law  of  the 
Union,  power  to  provide  for  a  failure  of  election.  What  was  that?  It 
was  when  the  election  failed,  when  there  was  no  production  of  enough 
electors,  if  you  please,  to  meet  the  true  exigency  of  the  law  in  that  be 
half,  if  it  required  a  majority  to  be  produced  by  an  election  ;  and  it  is  in 
that  case,  and  in  that  case  only,  that  the  State  is  allowed  by  the  United 
States  law  to  substitute  in  ;the  place  of  the  regular  mode  of  election 
some  secondary  method.  But  it  does  not  require  the  State  to  provide 
a  different  mode  of  filling  a  vacancy  arising  from  a  failure  to  elect,  from 
the  mode  that  they  adopt  for  filling  a  vacancy  arising  in  any  other  man 
ner.  Oregon  has  settled  that  question  for  itself,  that  in  whatever  icay, 
on  the  very  day  of  casting  the  electoral  vote,  a  vacancy  in  the  college 
should  exist,  it  should  be  filled.  Thus,  while  the  Constitution  makes 
it  absolutely  necessary  that  there  should  be  a  personal  attendance  to 
cast  a  vote,  and  that  a  majority  cannot  cast  an  absent  vote,  because  the 
voting  is  to  be  by  ballot,  and  the  ballots  are  to  be  counted,  the  State 
determines  that  by  no  chance  will  it  lose  a  vote  if  there  be  persons  pres 
ent  on  that  day  who  can  fill  the  places  and  save  the  State  its  full 
representation  in  the  electoral  college. 

The  State  of  Ehode  Island,  finical  as  it  was  in  its  legislation,  instead 
of  making  a  better  arrangement  than  this  of  Oregon  and  the  other  States, 
placed  itself  under  a  much  worse  system,  according  to  the  judicial  opin 
ion  given  by  the  supreme  court  of  that  State.  Suppose  that  when  the 
legislature  of  that  State  undertakes  by  a  new  appointment  to  fill  the 
vacancies  originating  from  a  failure  of  the  people  to  elect,  it  should  be 
found  that  the  legislature  has  filled  the  vacancy  by  a  person  who,  when 
he  comes  to  the  college,  proves  himself  to  be  disqualified,  what  is  to 
happen  in  that  State  then  ?  The  legislature  has  not  given  to  the  col 
lege  the  plenary  power  to  fill  vacancies.  The  resignation  or  withdrawal 
of  the  disqualified  elector  will  not  allow  the  college  to  fill  his  place.  The 
same  vice  inheres  in  the  choice  by  the  legislature  of  an  unqualified  per 
son  that  would  arise  from  such  an  election  by  the  people,  and  the  State 
must  lose  the  vote.  To  be  sure,  practically,  in  a  State  like  Ehode 
Island,  where  the  governor  by  blowing  his  horn  at  the  door  of  the  exec 
utive  mansion  can  summon  the  legislature  as  the  farmer's  wife  calls 
to  dinner  the  hands  from  the  hay-field,  there  would  be  no  difficulty  in 
suddenly  supplying  the  vacancy  ;  but  for  the  great  State  of  Oregon, 
where  there  were  found  insuperable  difficulties  in  getting  the  legis 
lature  together,  no  such  arrangement  would  be  either  wise  or  suitable. 

Now,  upon  an  examination  of  all  these  certificates  I  have  been  quite 
gratified  to  find  that,  although  these  operators  up  in  Oregon  were  as 
harmless  as  serpents,  they  were  also  no  wiser  than  doves.  Nothing  has 
been  done  there  that  defeats  the  Constitution  of  the  United  States,  that 
defrauds  the  State  of  Oregon,  that  defeats  the  election  of  President. 
All  that  has  resulted  from  the  attempt  to  perpetrate  and  consummate  a 
fraud  is  to  exhibit  the  fraud  to  public  condemnation  ;  but  the  safety  of 
the  State  remains  unharmed. 

Mr.  MEEEICK.  Mr.  President  and  gentlemen  of  the  Commission, 
it  would  certainly  be  extremely  grateful  to  me  if  I  could  pass  by  in 


624  ELECTORAL    COUNT    OF    1877. 

acquiescing  silence  the  expressions  of  satisfaction  which  the  learned 
counsel  who  last  addressed  you  was  pleased  to  use  at  the  supposed 
fact  that  we  of  counsel  who  have  been  conducting  these  cases  on  behalf 
of  the  people  of  the  United  States  had  finally,  in  the  vicissitudes  to 
which  the  cases  have  been  subjected,  come  to  believe  in  and  accept  as 
the  law  of  the  land  those  principles  which  he  and  his  learned  friends 
had  advanced  in  the  beginning  of  the  discussion  as  the  proper  and  cor 
rect  rules  of  law  upon  which  the  matters  submitted  to  this  Commission 
should  be  solved  and  settled,  and  which,  as  he  claims,  have  passed  into 
the  judgments  of  this  tribunal.  I  do  not  wish  to  criticise  those  judg 
ments  and  shall  refrain  from  any  such  unpleasant  office,  but  when  my 
personal  opinion  is  challenged  or  demanded,  I  should  be  doing  a  gross 
injustice  to  the  profession  and  to  myself  if  I  seemed  to  acquiesce  in  the 
accuracy  of  the  statement  made  by  the  counsel.  I  wish  it  were  differ 
ent  ;  I  lament  that  the  statement  is  not  accurate  in  every  particular,  for 
surely  there  can  be  no  greater  satisfaction  to  a  member  of  the  legal 
profession  than  to  feel  that  in  the  discharge  of  a  conscientious  duty  he 
can  with  all  his  ability  and  all  his  efforts  maintain  as  the  law  of  the  land 
those  principles  that  have  passed  into  solemn  adjudication,  whether 
they  be  the  adjudications  of  courts  or  the  adjudications  of  tribunals 
exercising  the  highest  political  authority  of  the  country.  For  myself, 
as  to  these  principles  I  occupy  now  the  same  position  in  reference  to 
their  conformity  to  constitutional  law  and  the  ordinary  rules  of  justice 
that  I  did  when  I  entered  upon  the  office  of  opening  the  debate  upon 
the  case  of  the  State  of  Florida  j  but  I  must  accept,  I  am  compelled  to 
accept,  whether  I  approve  or  not,  the  judgment  of  those  tribunals 
having  the  authority  to  pronounce  judgment  in  the  premises;  and  in 
the  argument  of  cases  before  the  tribunal  by  which  those  judgments 
have  been  pronounced,  and  before  which  they  must  be  respected,  it 
becomes  my  duty  to  those  I  represent  and  my  duty  to  myself,  to  conform 
my  arguments  and  positions  to  the  rules  they  have  laid  down  and  as  far 
as  possible  adapt  my  positions  to  the  rulings  that  have  been  made ;  and 
therefore  in  the  argument  of  the  case  of  Oregon  I  shall  address  myself 
to  this  tribunal  in  an  appeal  that  they  shall  adhere  to  what  they  have 
already  determined  and  give  to  Oregon  the  benefit  of  the  application 
of  the  same  principles  they  have  applied  to  Florida  and  to  Louisiana. 

It  is  unquestionably  true  that  if  the  adjudications  referred  to  had  the 
acceptance  and  approval  of  the  whole  profession  of  the  country,  you 
would  have  accomplished  a  result  going  far  to  pacify  the  public  mind, 
and  calm  the  agitations  of  the  public  heart,  but  nothing  you  can  now 
do  will  be  so  effectual  in  lashing  that  heart  into  a  higher  condition  of 
excitement  than  to  challenge  by  decisions  that  are  to  follow  the  decis 
ions  you  have  already  given. 

When  we  opened  the  discussion  upon  the  case  of  Florida,  I  main 
tained  before  this  Commission  that  it  was  competent  for  you,  in  the 
exercise  of  the  powers  vested  in  you  under  the  organic  act,  which 
made  you  the  recipient  of  all  the  powers,  whether  judicial  or  legisla 
tive,  in  this  particular,  possessed  and  capable  of  being  exercised  by  the 
two  Houses  of  Congress  conjointly  or  separately,  to  go  behind  the  cer 
tificate  of  the  executive  of  the  State  upon  charges  of  mistake  or  fraud ; 
I  speak  of  the  certificate  of  the  executive  of  the  State  authorized  and 
directed  by  the  Congress  of  the  United  States.  In  the  case  of  Florida, 
in  addition  to  claiming  for  this  tribunal  the  power  referred  to,  we  claimed 
for  you  the  further  power  to  give  heed  to  the  voice  of  the  State  herself 
when,  after  her  tones  had  been  simulated  by  those  not  authorized  to 
speak  for  her,  she  came  to  the  Federal  Government  through  the  differ- 


ELECTORAL   COUNT    OF    1877.  625 

ent  departments  of  her  State  government,  asserting  the  fact  that  she 
had  not  been  truly  represented  in  the  electoral  college  and  asking  you 
to  hear  the  voice  of  her  people  as  testified  to  by  those  departments. 
Her  executive,  her  legislative,  and  her  judicial  departments  came  before 
you  and  asked  that  the  opinion  of  her  people  might  be  truly  reflected 
in  the  estimate  to  be  made  of  the  sentiment  of  the  country  upon  which 
was  to  be  founded  the  title  to  the  succession  of  the  Presidency  of  the 
United  States. 

The  learned  counsel  on  the  other  side  took  issue  upon  these  positions, 
and  this  tribunal  determined  that  there  was  no  authority  in  this  organ 
ization  to  go  behind  the  certificate  of  the  governor  authorized  by  the 
act  of  Congress,  when  founded  upon  the  results  of  the  canvassing-board 
of  the  State.  But  I  have  always  been  at  a  loss  to  know,  I  have  always 
been  unable  to  discover,  where  the  tribunal  learned  that  in  the  case  of 
Florida  there  ever  had  been  a  canvass  of  the  votes  of  that  State  by  any 
board  other  than  that  which  was  authenticated  in  the  certificate  of  the 
so-called  Tildeu  electors,  made  under  the  authority  of  the  act  of  the  27th 
of  January,  1877,  and  I  therefore  infer  that  whatever  may  have  been  in 
the  private  opinions  of  the  Commissioners  the  significance  of  those 
words  relating  to  the  conformity  of  the  certificate  of  the  governor  to 
the  results  of  the  canvassing-board,  the  true  and  real  meaning  of  the 
judgment  of  the  tribunal  was  that  the  certificate  of  the  governor  was 
the  conclusive  fact,  the  ultimate  fact,  beyond  which  you  had  no  power 
to  go. 

The  learned  counsel  who  opened  this  case  on  behalf  of  the  objectors 
to  certificate  No.  2,  thought  proper,  in  the  exercise  of  a  wise  and  discrim 
inating  judgment  as  to  the  merits  of  men,  to  pay  a  high  compliment  to 
his  distinguished  associate  who  has  just  addressed  the  Commission.  I 
fully  coincide  in  the  high  compliment  he  thought  proper  to  pay  to  that 
distinguished  gentleman.  He  spoke  of  him  as  the  modern  pilot  in  the 
law,  equal  in  learning  and  wisdom,  upon  its  vast  sea,  to  guide  safely  the 
bark  of  professional  enterprise  at  whose  helm  he  was  placed  between 
Scylla  and  Charybdis,  and  challenged  in  that  behalf  the  fame  of  old 
Palinurus.  It  needed  no  disclosure  from  the  counsel  on  the  other  side 
to  satisfy  this  Commission  that  when  the  bark  of  the  counsel  on  the 
other  side  was  tossed  against  the  Scylla  of  Florida,  the  pilot  looked 
ahead  to  the  Charybdis  that  threatened  peril  in  Oregon.  It  was  appa 
rent  from  the  discussion  that  such  was  the  preconcerted  purpose  of  the 
voyage,  and  now  it  is  established  from  the  admission.  But  adroitly  as 
he  may  have  led  on  his  way,  if  this  Commission  adheres  to  the  course 
to  which  the  helm  was  set  to  shun  the  reefs  of  Florida,  the  bark  must 
be  wrecked  on  those  of  Oregon. 

Mr.  President  and  gentlemen  of  the  Commission,  looking  to  the  exact 
words  of  the  decision  in  the  case  of  Florida,  what  is  it  ? 

The  ground  of  this  decision,  stated  briefly  as  required  by  said  act,  is  as  follows: 
That  it  is  not  competent  under  the  Constitution  and  the  law  as  it  existed  at  the 
date  of  the  passage  of  said  act,  to  go  into  evidence  aliunde  the  papers  opened  by  the 
President  of  the  Senate  in  the  presence  of  the  two  Houses  to  prove  that  other  persons 
than  those  regularly  certified  to  by  the  governor  of  the  State  of  Florida  on,  and  ac 
cording  to,  the  determination  and  declaration  of  their  appointment  by  the  board  of 
State  canvassers  of  said  State  prior  to  the  time  required  for  the  performance  of  their 
duties  had  been  appointed  electors,  or  by  counter-proof  to  show  that  they  had  not. 

In  the  case  of  Louisiana  the  same  identical  words  are  repeated  in  the 
decision.  Now,  are  we  to  infer  that  there  is  any  particular  virtue  in  the 
decision  either  of  the  returning-board  of  Florida  or  the  returning-board 
of  Louisiana  ?  Is  there  anything  particularly  sacred  in  either  of  those 
organizations,  and  so  powerful  as  to  prevent  intrusion  from  the  Federal 
40  E  C 


626  ELECTORAL    COUNT    OF    1877. 

Government  into  those  States,  or  to  check  you  in  the  solemn  and  serious 
inquiries  you  were  asked  to  make  ?  No  ;  the  answer  has  been  given  by 
the  learned  counsel  on  the  other  side  himself,  which  was  this  :  that  when 
the  United  States,  in  executing  the  duty  confided  to  the  two  Houses  of 
Congress  of  counting  the  votes  for  President  and  Vice-President  of  the 
United  States,  meet  with  an  authentication  from  a  State,  under  its  laws 
they  were  thereby  arrested  and  debarred  from  any  further  proceeding. 
You  may  pass  beyond  the  certificate  of  the  governor,  if  given  in  pursu 
ance  of  the  act  of  Congress,  for  that  certificate  is  not  given  in  the  dis 
charge  of  a  State  duty  confided  to  the  governor  by  State  law,  but  that 
certificate  is  given  in  response  to  what  purports  to  be  a  mandatory  act 
of  Congress,  but  what  in  fact  is  simply  a  Federal  request ;  and  which  is 
given  in  recognition  of  such  request  and  under  the  rules  of  courtesy 
rather  than  from  the  obligations  of  law. 

But,  in  this  inquiry,  how  far  shall  you  go,  and  where  shall  you  stop? 
You  go  behind  the  certificate,  as  you  have  decided,  until  you  find  some 
authentication  of  the  fact  with  reference  to  which  you  are  inquiring, 
made  under  the  authority  and  by  virtue  of  a  power  in  the  State  herself. 
When,  in  the  case  of  Florida  and  Louisiana,  you  passed  by  the  certificate 
of  the  governor,  given  in  obedience  to  the  act  of  Congress,  and  found 
yourselves  confronted  with  the  results  arrived  at  of  a  returning-board, 
you  said,  u  Here  we  must  stop,  for  here  the  State  has  challenged  Fed 
eral  power,  and  bade  it  take  no  further  step  in  invading  the  State  and 
the  matters  of  self-government."  It  was  not  the  result  of  the  canvass; 
it  was  not  any  virtue  in  the  board;  it  was  not  because  of  any  sanctity 
in  Wells  or  Casanave  or  their  associates,  but  it  was  because  when  you 
reached  them  you  reached  the  broad  seal  of  the  State,  affixed  as  evi 
dence  to  a  State  fact,  under  State  law,  and  by  State  authority. 

It  is  needless  for  me  to  say  that  the  greatest  difficulty  the  fathers  of 
this  Republic  encountered  in  the  organization  of  our  complex  system 
was,  so  to  adjust  its  relations  and  powers  that  community  independence 
might  be  preserved  in  the  States  and  local  self-government  perpetuated 
to  those  oganizations,  and  under  such  limitations  and  restrictions  that 
while  this  power  was  left  unimpaired  there  should  be  adequate  authority 
given  to  the  central  authority  of  the  Union  to  deal  with  our  foreign 
affairs,  and  preserve  and  perpetuate  the  combination  of  States  and  peo 
ples  that  was  formed  and  united  under  the  Constitution  of  the  United 
States.  To  mark  that  dividing-line  between  the  States  and  the  Federal 
Government  was  the  most  difficult  office  thos«  extraordinary  men  were 
called  on  to  perform;  and  they  performed  it  so  well,  so  wisely,  and  so 
perfectly  that  perpetual  harmony  and  perpetual  peace  would  reign  in 
this  country,  in  so  far  as  any  internecine  strife  could  ever  disturb  the  one 
or  the  other,  if  each  of  these  great  powers,  the  Federal  Government  of 
the  Union  and  the  local  governments  of  the  States,  would  move  in  those 
respective  orbits  upon  which  they  were  propelled  by  the  fathers  of  the 
republic.  In  regarding  the  respective  rights  of  these  political  organi 
zations,  the  Federal  Government,  speaking,  as  I  understand  your  decis 
ions,  through  the  adjudications  of  this  tribunal,  has  said  that  as  the 
appointment  of  the  electors  is  given  to  the  States  by  special  grant  of 
power,  as  the  appointment  of  the  electors  is  a  power  in  the  States,  and 
the  States  are  required  to  exercise  that  power,  when  they  have  done  so, 
we  will  go  no  further  into  the  inquiry  as  to  the  propriety  of  State  action 
than  the  authentication  of  the  State  act  by  the  great  seal  of  the  State ; 
and  whenever  we  find  that  seal  affixed  to  the  ultimate  fact  under  the 
authority  of  State  law,  and  by  the  sanction  of  the  State  organization, 
there  we  must  stop. 


ELECTORAL    COUNT    OF    1877.  627 

If  that  is  not  the  meaning  ot  the  decision,  then  we  are  here  dealing 
with  the  smallest  matters  of  technical  law,  and  indulging  in  something 
similar  to  pleas  and  replications  and  rejoinders  and  rebutters  and  surre 
butters  and  demurrers  indefinite,  and  settling  the  rights  of  forty  million 
people  upon  technicalities  and  subtleties  that  any  one  of  the  distin 
guished  gentlemen  I  now  address  would  scout  and  discard  if  introduced 
into  his  court  in  any  case  involving  even  the  smallest  and  most  insignifi 
cant  right.  Your  decision  must  rest,  if  it  rests  at  all  in  the  confidence  of  the 
people,  upon  the  doctrine  of  State  rights  in  their  relation  to  the  rights 
of  the  Federal  Union.  It  must  rest  in  the  confidence  of  the  people,  if 
it  find  repose  in  their  confidence  at  all,  upon  some  broad  principle  which 
they  can  comprehend  and  understand,  and  which,  comprehending  and 
understanding,  they  will  recognize  and  accept,  and  even  in  the  anguish 
of  their  disappointment  welcome  and  cherish  as  wise  and  judicious,  be 
cause  it  conies  from  wise  and  judicious  men,  and  is  commended  by  sound 
and  broad  reasoning. 

But  if  these  questions  are  to  be  settled  upon  any  such  narrow  and 
technical  grounds  as  my  brothers  on  the  other  side  contend  for,  the 
wound  which  this  Commission  was  organized  to  heal  in  the  nation 
they  will  only  make  bleed  the  freer;  and  for  four  years  to  come  the 
American  people,  while  submitting  to  legitimate  authority,  will  recognize 
that  there  is  in  this  country  the  anomalous  condition  of  two  Presidents, 
one  a  President  de  facto,  and  another  a  President  de  jure  though  not  in 
office. 

I  was  pleased  at  first  to  hear  my  learned  brothers  on  the  other  side 
commend  the  doctrine  of  State  rights  with  so  much  apparent  zeal ;  but 
I  felt  their  want  of  earnestness  and  sincerity,  and  as  I  listened  to  their 
disquisition  upon  this  subject  there  was  brought  vividly  to  my  mind  the 
saddest,  grandest,  and  most  transcendent  event  in  the  history  of  the 
human  race :  They  took  him  and  they  clothed  him  with  purple ;  planted 
as  the  insignia  of  royalty  a  crown  of  thorns  upon  his  brow ;  they  put  a 
reed  within  his  hand  for  a  scepter,  and  fell  down  before  him  in  the  mock 
ery  of  adoration.  When  the  sacrifice  was  accomplished,  the  veil  of  the 
temple  was  rent  and  darkness  was  spread  upon  the  face  of  the  earth. 

There  is  a  people  to-day  scattered  over  the  world,  inhabitants  of  every 
country,  but  without  a  home  or  country  of  their  own. 

Mr.  President  and  gentlemen  of  the  Commission,  in  what  particular 
does  the  law  of  Louisiana  or  the  law  of  Florida,  in  reference  to  the 
ascertainment  of  the  result  of  the  appointment  of  electors,  differ  from 
the  law  of  Oregon  !  By  the  law  of  Florida  a  board  is  appointed  that 
is  required  to  canvass  the  returns  and  determine  the  result.  Similar 
language,  but  hardly  so  strong,  is  used  in  the  law  of  Louisiana.  Now, 
what  is  the  law  of  Oregon  upon  this  subject?  Section  60,  which  has 
been  frequently  read,  provides : 

The  votes  for  the  electors  shall  be  given,  received,  returned,  and  canvassed  as  the 
same  are  given,  returned,  and  canvassed  for  members  of  Congress. 

And,  as  was  very  properly  remarked  by  one  of  the  learned  counsel, 
that  ends  that  paragraph  and  terminates  the  duty  of  canvassing. 
The  secretary  of  state  shall  prepare  two  lists  of  the  names  of  the  electors — 

What  electors?  Not  those  that  have  received  the  highest  number  of 
votes,  but — 

two  lists  of  the  names  of  the  electors  elected,  and  affix  the  seal  of  the  State  to  the 
same.  Such  lists  shall  be  signed  by  the  governor  and  secretary,  and  by  the  latter 
delivered  to  the  college  of  electors  at  the  hour  of  their  meeting  on  such  first  Wednes 
day  of  December. 


628  ELECTORAL    COUNT    OF    1877. 

Here  is  an  executive  duty  to  be  performed.  The  electors  that  are 
elected  are  to  receive  this  certificate.  Who  is  to  determine  who  is 
elected  ?  Is  not  that  office  confided  to  the  parties  who  are  engaged  by 
the  mandate  of  the  law  in  this  transaction  ? 

"  Prepare  two  lists  of  the  names  of  the  electors  elected."  They  must 
determine  who  are  the  parties  elected.  In  Florida  the  returning-board 
was  given  the  power  to  determine  the  result  and  required  to  report  to 
the  office  of  the  secretary  of  state  of  Florida  all  the  votes  taken,  giving 
a  specific  account  of  those  they  deemed  proper  in  the  exercise  of  their 
questionable  jurisdiction  to  throw  out,  as  well  as  all  others.  All  the 
votes  sent  to  them  were  to  be  returned  or  lists  of  all  the  votes  sent  to 
them  were  to  be  returned ;  but  this  tribunal  held  that  the  power  of  deter 
mination  was  in  that  board.  Now,  although  the  word  "  determine  n  is  not 
in  the  section  quoted  from  the  law  of  Oregon,  yet  the  act  which  the  sec 
tion  requires  to  be  performed  is  an  act  which  cannot  be  performed  unless 
preceded  by  a  determination.  The  lists  are  to  be  lists  of  the  electors 
elected.  The  canvass  is  to  be  conducted  as  is  the  canvass  for  members 
of  Congress,  and  provision  is  made  for  certificates.  The  act  as  to  the 
canvass  for  members  of  Congress  is  as  follows : 

And  it  shall  be  the  duty  of  the  secretary  of  state,  in  the  presence  of  the  governor,  to 
proceed  within  thirty  days  after  the  election,  and  sooner  if  the  returns  be  all  received, 
to  canvass  the  votes  given  for  secretary  and  treasurer  of  state,  State  printer,  justices 
of  the  supreme  court,  member  of  Congress,  and  district  attorneys ;  and  the  governor 
shall  grant  a  certificate  of  election  to  the  person  having  the  highest  number  of  votes, 
and  shall  also  issue  a  proclamation  declaring  the  election  of  such  person. 

In  the  case  of  members  of  Congress  and  certain  State  officers  the  pro 
vision  is  that  the  governor  shall  grant  a  certificate  or  a  commission  to 
the  person  having  the  highest  number  of  votes.  The  section  that  relates 
to  electors,  though  it  refers  to  the  section  relating  to  members  of  Con 
gress,  requires  the  canvass  to  be  conducted  in  the  same  manner  in  which 
the  canvass  required  by  that  section  is  conducted,  yet  omits— and  omit 
ting  in  the  presence  of  the  thing  omitted  shows  that  it  was  before  their 
minds — omits  the  requirement  in  the  section  in  reference  to  mem 
bers  of  Congress  to  the  effect  that  the  executive  should  perform  simply 
the  ministerial  office  of  giving  the  commission  to  the  party  who,  by  the 
enumeration  to  be  made  by  the  secretary  of  state,  should  be  shown  to 
have  the  greatest  number  of  votes. 

I  submit,  in  this  connection,  that  to  withhold  the  commission  or  to 
withhold  the  certificate  from  a  party  deemed  by  the  governor  to  be  in 
eligible  to  the  office,  is  the  legitimate  performance  of  a  constitutional 
and  proper  executive  trust.  This  Commission  has  told  us  that  the  State 
cannot  interfere  with  an  elector,  whether  he  be  eligible  or  ineligible, 
whether  his  election  be  secured  by  fair  means  or  foul  means,  after  the 
time  when  he  has  cast  his  vote.  You  have  further  told  us  that  he  can 
not  be  interfered  with  except  between  the  time  of  the  conclusion  of  the 
returning-board  and  the  time  of  his  voting,  swhich  in  Florida  was,  I 
believe,  some  six  hours,  and  in  Louisiana  some  four  or  five.  The  State 
of  Oregon,  seeking  to  perform  her  duty,  and  its  much-abused  executive 
seeking  to  protect  that  State  from  the  odium  of  having  wantonly  violated 
the  Constitution  of  the  United  States,  when  the  subject  of  the  election 
of  these  electors  came  before  him,  entered  upon  the  consideration  of  the 
matter  which  he  and  he  alone  could  consider  and  determine,  and  the 
State  by  the  only  power  at  her  command  at  that  time — the  time  to 
which  she  was  limited  by  your  decision — has  solemnly  determined  that 
one  who  claimed  to  be  elected  an  elector  was  not  elected. 

I  beg  to  refer  you,  gentlemen  of  the  Commission,  upon  the  subject  of 
the  executive  duty  in  that  regard,  to  the  thirty -ninth  volume  of  Missouri 


ELECTORAL    COUNT    OF    1877  629 

Keports,  page  399.  I  shall  not  have  an  opportunity  of  reading  largely 
from  these  authorities;  but,  as  the  President  of  the  Commission  re 
marked  yesterday,  the  members  of  the  Commission  have  no  opportunity 
to  examine  them  after  the  argument,  and  they  must  therefore  rely  upon 
counsel  for  whatever  information  they  have  in  regard  to  them,  I  feel 
compelled  to  read  a  few  pertinent  extracts.  The  case  is  that  of  Bartiey 
vs.  Fletcher,  governor: 

The  governor  is  bound  to  see  that  the  laws  are  faithfully  executed,  and  he  has  taken 
an  oath  to  support  the  Constitution. 

By  the  laws  of  Oregon,  which  my  brother  Hoadly  hands  me  to  read 
to  the  Commission,  I  find  a  more  careful  provision  than  is  to  be  found 
in  the  laws  of  most  of  the  States  of  the  Union: 

The  organic  law  is  the  Constitution  of  the  United  States  and  of  this  State,  and  is 
altogether  written.  Other  written  laws  are  denominated  statutes.  The  written  law 
of  this  State  is,  therefore,  contained  in  its  constitution  and  statutes  and  in  the  Consti 
tution  and  statutes  of  the  United  States. — Section  712,  page  253. 

Oregon,  therefore,  in  her  reverence  for  the  supreme  law  of  the  United 
States,  has  not  allowed  her  obligation  to  the  Constitution  of  the  United 
States  to  rest  only  on  its  authority  as  the  Constitution  of  the  Federal 
Government,  but  she  has  incorporated  it  into  her  own  laws  and  made  it 
a  part  of  her  State  system  of  laws;  and  the  governor,  having  taken 
his  oath  to  take  care  that  the  laws  be  faithfully  executed,  as  required 
by  her  constitution,  when  a  candidate  for  elector  comes  before  him 
demanding  a  certificate  of  the  fact  that  he  is  an  elector  under  the  broad 
seal  of  that  State,  having  due  regard  to  his  oath  and  reverence  for  the 
Constitution  of  the  United  States,  and  being  satisfactorily  informed 
that  such  applicant  is  by  the  Constitution  of  the  United  States  inhibited 
from  holding  the  appointment  or  being  appointed,  is  compelled  to  refuse 
to  certify  to  a  statement  which  would  be  a  falsehood,  and  therefore  in 
direct  violation  of  both  the  Constitution  of  the  United  States  and  the 
constitution  of  Oregon  and  his  oath  as  governor  of  Oregon. 

Gentlemen  talk  about  simulated  virtue,  and  the  learned  counsel  went 
on  to  speak  of  our  simulating  virtue,  and  severely  condemned  the  gov 
ernor  of  Oregon,  and,  I  may  remark,  went  further,  and  I  regretted  to 
hear  him  as  he  proceeded.  There  are  few  men  in  the  profession  for 
whom  I  have  a  higher  respect,  and  it  pained  me  to  hear  his  unbecoming 
intimations  of  conspiracies  in  Gramercy  Park,  and  various  telegrams 
between  Oregon  and  New  York.  He  stated  that  no  such  evidence  had 
been  offered ;  but,  with  significant  insinuations,  indicated  what  he 
might  have  done  if  such  evidence  had  been  in  the  case  or  if  he  had 
offered  it.  Had  you  offered  it,  gentlemen,  we  should  have  interposed 
no  objection  to  its  introduction.  We  should  have  welcomed  it  and  re 
joiced  at  it.  We  have  been  seeking  for  the  truth  and  nothing  but  the 
truth,  and  begged  for  evidence  from  the  beginning,  and  you  well  knew 
that  any  offer  you  might  have  made  would  have  been  met  otherwise 
than  by  technical  objections.  A  fling  at  us  and  those  we  represent, 
made  under  the  pretexts  of  testimony  not  even  offered,  hardly  reaches 
the  dignified  plane  of  professional  honor  upon  which  we  supposed  we 
all  stood  in  the  conduct  of  this  great  debate. 

The  governor  of  Oregon  could  not  have  given  the  certificate  to  an 
ineligible  candidate  without  violating  his  oath  and  being  guilty  of  an 
infraction  of  the  Federal  Constitution.  Let  me  read  further  from  the 
case  in  39  Missouri  Reports  : 

In  the  correct  and  legitimate  performance  of  his  duty  he  must  inevitably  have  a 
discretion  in  regard  to  granting  commissions ;  for  should  a  person  be  elected  or 
appointed  who  was  constitutionally  ineligible  to  hold  any  office  of  profit  or  trust, 


630  ELECTORAL    COUNT    OF    1877. 

would  the  executive  be  bound  to  commission  him  when  his  ineligibility  was  clearly 
and  positively  proven  ?  If  he  is  denied  the  exercise  of  any  discretion  in  such  case,  he 
is  made  the  violator  of  the  constitution,  not  its  guardian.  Of  what  avail,  then,  is  his 
oath  of  office  ? 

Need  I  pursue  this  inquiry  further  ?  Need  I  go  on  to  the  subsequent 
decisions  of  that  State  and  show  to  this  Commission  that  that  opinion 
stands  as  the  unreversed  law  of  that  State  to-day!  Although  the 
counsel  on  the  other  side  referred  to  an  opinion  as  tending  to  change 
and  modify  the  ruling  I  have  read,  I  would,  had  I  time  left  me,  analyze 
it  and  show  to  the  Commission  that  the  case  referred  to  in  no  way 
changes  the  law  as  pronounced  in  the  opinion  read,  and  that  this  law  is 
to-day  the  law  of  Missouri ;  it  is  the  law  of  Indiana ;  it  is  the  law  o± 
Massachusetts;  and  the  governor  of  that  State,  in  the  exercise  of  his 
functions,  may  withhold  a  certificate  and  refuse  to  fix  the  broad  seal  of 
the  State  when  the  party  claiming  it  is  not  capable  of  being  appointed 
to  the  office  title  to  which  it  would  evidence. 

Now,  suppose  that  the  governor  issues  his  certificate,  what  is  the 
effect  of  that  certificate  when  issued?  When  he  has  exercised  his 
power,  and  issued  his  certificate,  and  affixed  the  seal  of  the  State  to  the 
certificate,  that  certificate  so  accompanied  by  the  seal  is  conclusive  evi 
dence  of  the  title  and  cannot  be  questioned  except  in  a  regular  legal 
proceeding  for  the  purpose  of  invalidating  the  commission.  As  the 
counsel  on  the  other  side  correctly  said,  when  we  entered  into  this 
inquiry  and  commenced  this  investigation,  we  asked  that  this  tribunal 
should  proceed  as  though  exercising  the  powers  of  a  court  under  a  qua 
warranto,  and  search  all  the  facts  to  the  very  bottom.  But  he  was  in 
error  when  he  said  that  the  argument  of  inconvenience  came  from  our 
side,  and  that  Mr.  O'Conor  had  stated  that  we  could  stop  at  a  certain 
convenient  point,  and  suggested  that  it  would  be  prudent  and  wise  in 
your  discretion  to  stop  at  a  certain  period  of  the  investigation.  The 
argument  of  inconvenience,  in  order  that  you  might  thereby  be  induced 
not  to  make  the  inquiries  the  people  hoped  and  desired  you  would  make, 
came  from  my  learned  friend  who  now  sits  upon  my  right,  [Mr.  Evarts,] 
and  was  pressed  with  all  his  great  powers  of  logic  and  eloquence ;  and 
to  meet  that  argument  we  replied  that,  if  you  found  it  so  inconvenient 
that  you  could  not  investigate  all  the  facts,  there  was  a  discretionary 
power  in  the  exercise  of  which  you  could  limit  the  scope  of  the  inquiry 
when  you  had  reached  a  point  at  which  you  became  satisfied  that  you 
had  found  the  truth. 

This  certificate  when  issued  is  conclusive  evidence  of  the  title,  only 
to  be  impeached  by  a  judicial  proceeding,  as  I  have  indicated.  Such 
was  the  decision  of  the  court  of  last  resort  in  Massachusetts  upon  ques 
tions  submitted  to  it  by  the  executive  department  of  the  government. 
Other  authorities  to  the  same  effect  will  be  found  in  the  brief  which  has 
been  handed  to  you ;  and  I  am  constrained,  I  regret  to  say,  from  the 
quick  passage  of  my  time,  to  leave  that  subject  thus  superficially  con 
sidered. 

Mr.  Commissioner  HOAE.  Mr.  Merrick,  is  there  a  Massachusetts- 
decision  of  the  supreme  court  on  that  question  I  Was  not  that  in 
Maine  I 

Mr.  MEEEICK.    There  is  one  in  Massachusetts  as  well  as  in  Maine. 

Mr.  Commissioner  HOAE.  I  remember  now;  there  is  one  in  117 
Massachusetts. 

Mr.  MEEEICK.  One  hundred  and  seventeen  Massachusetts.  Shall 
I  pass  it  to  the  Commissioner? 

Mr.  Commissioner  HOAE.  I  remember  it  very  well.  I  have  read  it. 
I  thought  you  alluded  to  another  one. 


ELECTORAL    COUNT    OF    1877.  631 

Mr.  MERRICK.     The  language  is : 

The  nature  of  the  duties  thus  imposed  and  the  very  terms  of  the  statute  show  that 
they  are  to  be  performed  without  unnecessary  delay,  and  the  certificate  issued  by  the 
governor  to  any  person  appearing  upon  such  examination  to  be  elected  is  the' final  and 
conclusive  evidence  of  the  determination  of  the  governor  and  council  as  to  his  election. 

The  learned  counsel  upon  the  other  side,  in  order  to  derogate  from  the 
effect  of  the  certificate  and  the  seal,  refers  the  Commission  to  the  case 
of  the  United  States  vs.  Le  Baron,  in  19  Howard,  from  which  he  quoted 
a  single  sentence.  I  looked  at  the  book  and  found  it  to  be  an  authority 
in  direct  opposition  to  the  point  for  which  it  had  been  referred  to : 

When  a  person  has  been  nominated  to  an  office  by  the  President,  confirmed  by  the 
Senate,  and  his  commission  has  been  signed  by  the  President,  and  the  seal  of  the  United, 
States  affixed  thereto,  his  appointment  to  that  office  is  complete. 

The  sentence  quoted  by  the  counsel  on  the  other  side  was  this : 

The  transmission  of  the  commission  to  the  officer  is  not  essential  to  his  investiture  of 
the  office. 

We  were  left  to  infer  that  the  word  "transmission"  included  every 
thing  that  appertained  to  the  execution  and  the  issuing  of  the  commis 
sion.  The  following  sentence  is: 

If  by  any  inadvertence  or  accident  it  should  fail  to  reach  him,  his  possession  of  the 
office  is  as  lawful  as  if  it  were  in  his  custody. 

The  PRESIDENT.    Who  gave  the  opinion  ? 

Mr.  MERRICK.    Mr.  Justice  Curtis  gave  the  opinion. 

It  is  but  evidence  of  those  acts  of  appointment  and  qualification  which  constitute  his 
title,  and  which  may  be  proved  by  other  evidence,  where  the  rule  of  law  requiring  the 
best  evidence  does  not  prevent. 

The  governor  issued  his  certificate  to  Cronin  and  two  others,  so-called 
Hayes  electors.  Cronin  held  his  certificate,  and  by  virtue  of  that  cer 
tificate,  whether  rightfully  or  wrongfully  issued,  I  respectfully  submit 
that  he  was  an  officer  de  facto;  and  I  was  gratified  to  hear  the  reply  of 
the  counsel  on  the  other  side  to  the  question  submitted  by  Mr.  Commis 
sioner  Morton,  I  think,  as  to  whether  or  not,  if  there  was  an  officer  de 
facto  in  the  actual  possession  of  the  office,  there  could  be  a  vacancy  f 
Counsel  replied  promptly  there  could  not.  Who,  then,  was  the  incum 
bent  of  this  office  ?  Who  had  the  office  on  the  day  that  the  electors 
voted,  Cronin  or  Watts  1  Cronin  held  the  certificate  with  the  broad  seal 
of  the  State  attached  to  it.  He  had  the  muniment  of  title  to  the  office, 
that  which  by  the  act  of  Congress  is  made  the  muniment  of  title  or 
evidence  and  that  which  is  made  evidence  or  a  muniment  of  title  by  the 
law  of  the  State.  What  had  Watts  I  Says  the  learned  counsel  on  the 
other  side  in  considering  the  evidence  of  title,  Watts  had  a  certificate 
from  the  secretary  of  state  as  to  the  canvass  of  the  votes.  What  is  it! 
Concede  for  a  moment  that  there  is  in  this  certificate  No.  1  a  duly-cer 
tified  copy  of  some  record  in  the  office  of  the  secretary  of  state,  what 
does  it  purport  to  be  ?  It  is  headed : 

Abstract  of  votes  cast  at  the  presidential  election  held  in  the  State  of  Oregon  No-r 
vember  7,  1876,  for  presidential  electors. 

"Abstract  of  votes,"  not  the  canvass  of  the  votes.  The  learned  coun 
sel,  in  order  to  make  it  appear  that  u  abstract"  and  u canvass"  were 
synonymous  terms,  referred  back  to  the  statutes  of  Oregon  which  re 
quired  the  clerks  at  the  voting-precincts  to  make  out  certain  abstracts 
and  send  them  up  to  the  secretary  of  state.  This  is  the  result  of  those 
abstracts  so  sent  up  by  the  clerks,  and  of  which  abstracts  the  law  of 
Oregon  is  speaking  when  it  requires  the  secretary  of  state  and  the  gov- 


632  ELECTORAL    COUNT    OF    1877. 

ernor  to  canvass.  When  they  have  canvassed  these  abstracts  their 
canvass  makes  another  paper,  which  should  be  a  paper  of  record  in  that 
office,  and  which  is  not  here  in  this  certificate. 

I  hereby  certify  that  the  foregoing  tabulated  statement  is  the  result  of  the  vote  cast 
for  presidential  electors. 

"  Is  the  result  of  the  vote  cast."  He  certifies  to  results,  not  that  it  is 
a  paper  on  file  purporting  to  reflect  the  canvass  as  made,  but  that  it  is 
the  result  of  the  vote  cast  for  presidential  electors  at  a  general  election. 
Again : 

I,  S.  F.  Chadwick,  secretary  of  the  State  of  Oregon,  do  hereby  certify  that  I  am  the 
custodian  of  the  great  seal  of  the  State  of  Oregon  ;  that  the  foregoing  copy  of  the  ab- 

•  stract  of  votes  cast  at  the  presidential  election  held  in  the  State  of  Oregon,  November 
7,  1876,  for  presidential  electors,  has  been  by  me  compared  with  the  original  abstract 

-of  votes  cast  for  presidential  electors. 

What  "abstract  of  votes'7?  The  abstract  of  votes  that  my  learned 
brother  found  called  for  by  a  preceding  section  of  the  law  anterior  to 
that  which  refers  to  the  secretary  of  state,  namely,  the  abstract  that  is 
to  be  sent  up  by  the  clerks  who  officiate  in  that  capacity  at  the  election- 
precincts  ;  not  the  canvass  of  the  votes  which  the  law  requires  to  be 
made  by  the  secretary  of  state  in  the  presence  of  the  governor. 

Mr.  Commissioner  MILLER.  Mr.  Merrick,  let  me  ask  you  whether, 
if  that  paper  contains  all  the  abstracts  of  votes  sent  up  by  the  clerk  of 
each  county,  it  is  not  all  that  the  secretary  had  before  him,  and  all  that 
he  could  compare?  What  other  paper  could  he  make ? 

Mr.  MERRICK.  May  it  please  your  honor,  in  my  experience  in  these 
cases  I  have  found  that  officers  discharging  duties  corresponding  to  that 
imposed  by  the  statutes  of  Oregon  upon  the  secretary  of  state  could 
make  other  and  very  remarkable  papers. 

Mr.  Commissioner  HOAR.  I  should  like  to  ask  you  one  question,  if 
you  please,  in  that  connection,  Mr.  Merrick.  When  they  opened  and 
canvassed  the  vote,  what  else  would  their  conclusion  be  but  a  result  ? 
What  would  be  worked  out  by  the  canvass  ?  Then  is  not  the  word  "  re 
sult"  a  correct  expression  used  to  express  the  legal  conclusion  or  deter 
mination  or  whatever  the  canvass  brings  them  to  ?  When  they  certify 
that  this  is  the  result,  do  they  not  certify  that  this  is  the  conclusion  to 
which  this  canvassing-board  have  come? 

Mr.  MERRICK.  I  do  not  so  understand.  1  understand  there  is  great 
force  in  the  suggestion  of  Mr.  Commissioner  Hoar,  as  there  is  force  in 
all  that  he  says,  but  I  do  not  understand  that  we  can  substitute  in  such 
papers  as  these  one  word  for  another,  and  put  in  some  expression  that 
may  enable  us  to  give  to  them  an  easy  and  satisfactory  construction.  I 
understand  that  we  must  take  the  language  as  we  find  it,  and  tbat  as 
the  statutes  of  Oregon  use  the  word  "  canvass"  when  speaking  of  the 
secretary  of  state,  and  use  the  term  "  abstract  of  votes"  when  speaking 
of  clerks  officiating  at  the  precinct  elections,  the  u  canvass"  is  something 
different  from  the  u  abstract,"  and  that  he  ought  to  certify  if  he  has 
made  a  canvass,  and  you  want  to  use  that  paper  in  evidence  "  that  this 
is  the  canvass  I  made,"  and  not  say  "  this  is  some  result  I  may  have 
reached." 

Mr.  Commissioner  BRADLEY.    Is  not  the  canvass  an  act  ? 

Mr.  MERRICK.    A  canvass  is  an  act. 

Mr.  Commissioner  BRADLEY.  You  cannot  have  that  certified  on 
paper. 

Mr.  MERRICK.  You  cannot  have  the  exact  act,  but  you  may  have 
the  record  of  it,  the  evidence  of  it. 


ELECTORAL    COUNT    OF    1877.  633 

Mr.  Commissioner  BKADLEY.  Is  not  that  what  is  meant  in  this 
certificate  ? 

Mr.  MEEEICK.  I  think  not.  If  it  had  been  what  he  meant,  he  would 
have  said  "  this  is  the  canvass  of  the  votes  as  made."  As  Mr.  Justice 
Miller  suggests,  it  is  probably  true  that  we  have  before  us  here  what 
the  secretary  had  before  him ;  but  that  is  not  what  this  tribunal  wants. 

Mr.  Commissioner  MILLEE.  Mr.  Merrick,  if  there  is  anything  in  that 
idea,  I  want  you  to  tell  me  what  you  mean  by  a  canvass  ? 

Mr.  MEEEICK.     I  mean  a  sifting  of  the  votes. 

Mr.  Commissioner  MILLEE.  That  is  the  act  to  be  done;  but  what 
record  on  earth  ever  would  be  made  of  it  but  the  putting  in  of  the  votes 
that  were  canvassed  and  showing  the  result  ?  Explain  what  other  thing- 
there  could  be  about  it. 

Mr.  MEEEICK.  I  will  explain  it  if  I  can.  I  am  required  to  canvass 
certain  abstracts  of  votes  that  you  give  me.  When  I  have  sifted  those 
votes  that  you  have  given  me,  I  make  a  record  of  what  I  have  done  with 
them.  Here  are  the  votes  you  gave  me  to  canvass,  and  here  is  the 
record  of  my  act. 

Mr.  Commissioner  EDMUNDS.  Mr.  Merrick,  you  will  notice  at  the 
top  it  is  called  an  abstract  and  at  the  foot  it  is  said : 

I  hereby  certify  that  the  foregoing  tabulated  statement  is  the  result  of  the  vote 
cast  *  *  *  as  opened  and  canvassed  in  the  presence  of  his  excellency  L.  F.  Grover, 
governor. 

Mr.  MEEEICK.     It  is  "  the  result  of  the  vote."    It  is  not  the  canvass. 

Mr.  Commissioner  EDMUNDS.  The  inquiry  I  wish  to  put  is  this : 
It  is  stated  at  the  bottom  that  the  foregoing  is  a  statement.  Now  what 
I  wish  to  ask  you  is,  whether  you  consider  that  that  paper,  called  at  the 
top  an  abstract  and  at  the  bottom  a  statement,  is  a  paper  that  the  secre 
tary  made,  or  a  paper  that  came  from  the  county  clerks? 

Mr.  MEEEICK.     It  is  the  result  of  the  votes,  not  of  the  canvass. 

Mr.  Commissioner  EDMUNDS.  But  who  do  you  understand  made 
that  thing  ?  Did  the  secretary  of  state  make  it,  or  did  the  county  clerks, 
as  you  understand  ? 

Mr.  MEEEICK.    I  presume  the  secretary  of  state  reached  the  result. 

Mr.  Commissioner  THUEMAN.  Mr.  Merrick,  let  me  ask  you  whether 
the  real  question  is  or  is  not  what  by  the  laws  of  Oregon  is  the  conclu 
sive  evidence  of  the  canvass  ? 

Mr.  Commissioner  EDMUNDS.     That  is  another  question. 

Mr.  MEEEICK.  I  have  dwelt  longer  with  this  subject  than  I  had 
intended,  and  have  been  induced  to  do  so  by  some  inquiries  made  from 
the  Commission  during  the  progress  of  the  argument  on  the  other  side. 
The  real  question  at  issue,  as  suggested  by  Senator  Thurman,  is  what 
is  made  by  the  laws  of  Oregon  the  conclusive  evidence  of  the  canvass. 
Can  you  go  into  the  secretary  of  state's  office  and  get  out  a  paper  and 
have  it  certified,  however  sofernnly,  and  set  it  up  against  the  certificate 
issued  by  the  governor  and  secretary  of  state  with  the  seal  of  the  State 
attached  I 

The  counsel  on  the  other  side  have  complained  that  the  certificate 
issued  to  Cronin  and  his  associates  as  appears  in  certificate  No.  2  is 
not  the  certificate  required  by  the  law  of  Oregon,  and  I  beg  to  ask  the 
gentlemen  of  the  Commission  to  look  at  the  law  of  Oregon  as  it  bears 
on  this  certificate. 

The  secretary  of  state  shall  prepare  two  lists  of  the  names  of  the  electors  elected— 

Here  are  the  lists — 
and  affix  the  seal  of  the  State  to  the  same. 


634  ELECTORAL    COUNT    OF    1&77. 

Here  is  the  broad  seal  of  the  State. 

Such  lists  shall  be  signed  by  the  governor  and  secretary. 

Here  is  the  list  signed  by  the  governor  and  by  the  secretary  attesting 
the  fact  that  the  governor  signed  it.  The  secretary  made  it  out ;  the 
governor  signed  it ;  and  the  secretary  affixed  the  broad  seal  of  the  State 
to  it ;  and  I  submit  to  the  Commission  that  this  is  the  final  and  conclu 
sive  evidence  of  the  canvass,  or  the  result  of  the  canvass,  or  the  result 
of  the  votes  ;  the  final  and  conclusive  evidence  as  to  who  was  entitled 
to  exercise  and  perform  the  office  of  elector,  if  you  call  it  an  office. 

Secondly,  I  submit  that  whether  rightly  done  or  wrongly  done,  as 
Cronin  held  that  certificate  with  the  seal  attached,  and  entered. upon 
that  office,  as  the  certificate  here  shows  he  did,  the  office  was  not  vacant, 
and  the  act  of  the  de  jure  officer  even  at  the  same  time,  he  not  having 
the  muniment  of  title,  could  not  countervail  and  nullify  his  act. 

But  I  must  pass  to  another  question.  It  is  adniitted^on  the  other  side 
that  the  original  title  held  by  Watts  was  not  a  valid  title.  Some  sug 
gestions  were  made  a  few  days  since  in  the  argument  of  a  previous  case 
by  Mr.  Evarts,  that  this  provision  of  the  Constitution  of  the  United 
States  was  not  self:executing,  and  some  similar  suggestions  have  been 
made  to-day  in  reference  to  the  same  point.  I  had  supposed  that  all 
reasonable  persons  had  settled  down  to  the  conviction  that  this  provis 
ion  of  the  Federal  Constitution  was  self-executing.  But  as  the  matter 
is  again  brought  forward  I  beg  to  refer  the  Commission  to  the  case  of 
Morgan  vs.  Vance,  in  4  Bush's  (Kentucky)  Reports,  which  is  to  the  foK 
lowing  effect : 

So  far  as  the  Constitution  requires  of  all  officers  to  take  the  prescribed  oath,  and  so 
far  as  it  provides  disqualifications  upon  acts,  and  not.  upon  judgment  of  conviction, 
the  Constitution,  as  the  supreme  law  of  the  land,  executes  itself  without  any  extrane 
ous  aid  by  way  of  legislation,  nor  can  its  requirements  be  so  defeated. 

Mr.  Commissioner  EDMUNDS.     How  did  the  case  arise  ? 

Mr.  MERRICK.  My  time  presses  and  I  must  pass  from  it ;  I  will 
hand  it  to  your  honor.  I  will  also  refer  the  Commission  to  Tanej  7s  Cir 
cuit  Court  Decisions,  published  by  Mr.  Campbell,  page  235.  There  was 
a  provision  in  the  constitution  of  Maryland  that  no  person  should  charge 
more  than  six  per  cent,  interest  upon  money,  and  that  the  legislature 
should  make  appropriate  enactments  for  carrying  that  provision  into 
effect.  Chief-Justice  Taney  said :  f,, . 

The  constitution  itself  makes  the  prohibition,  and  all  future  legislation  must  be  sub 
ordinate  and  conformable  to  this  provision  :  "  Whoever  takes  or  demands  more  than 
six  per  cent,  while  this  constitution  is  in  force,  does  an  unlawful  act  ;  an  act  forbidden 
by  the  constitution  of  the  State." 

And  without  legislation  he  declared  the  contract  to  be  void. 

Upon  the  subject  of  vacancy  my  time  will  not  allow  me  the  opportu 
nity  of  much  discussion,  if  any,  and' I  regret  it,  for  this  is  a  subject  that 
I  should  like  to  have  considered  by  the  Commission  with  some  degree 
of  deliberation,  and  I  intended  to  address  your  honors'  attention  to  the 
various  authorities  that  have  reference  to  it.  I  respectfully  submit  that 
unless  an  office  has  been  once  filled  there  can  be  no  vacancy,  and 
unless  it  has  been  once  filled  there  can  be  no  resignation  of  the 
office.  The  Commission  will  bear  in  mind  that  the  vacancy  claimed  to 
be  filled  by  these  electors  was  a  vacancy  created,  not  by  Cronin's  ab 
sence,  but  created  by  Watts's  resignation.  If  they  had  the  power  to  fill 
a  vacancy  at  all,  they  executed  that  power  by  filling  a  vacancy  created 
by  a  resignation  from  Watts,  and  not  a  vacancy  created  by  the  non- 
action  of  Cronin.  Now,  if  Watts  never  held  the  office,  Cronin  having 
been  the  party  who  received  the  commission,  and  therefore  the  officer 


ELECTORAL    COUNT    OF    1877.  635 

de  facto,  having  received  conclusive  evidence  of  his  title  from  the  State, 
the  resignation  of  Watts  was  unavailing  for  any  purpose.  I  refer  the 
Commission  to  The  People  vs.  Tilton,  37  California  Reports,  617  ;  Miller 
vs.  The  Supervisors  of  Sacramento,  25  California  Reports,  93 ;  Broom 
vs.  Hanley,  9  Pennsylvania  State  Reports,  and  to  the  authorities  upon 
page  20  of  the  brief,  and  to  the  Corliss  case. 

The  United  States  statutes,  I  must  remark  in  this  connection,  provide 
for  two  contingencies :  first,  the  contingency  of  a  vacancy,  and  second, 
the  contingency  of  a  non-election.  And  the  statutes  of  Oregon  have 
provided  only  for  the  contingency  of  a  vacancy,  and  not  for  the  contin 
gency  of  a  non-election.  But,  say  the  learned  counsel  on  the  other  side, 
the  word  "  otherwise "  implies  all  vacancies,  and  they  repudiate  the 
maxim  noscitur  a  sociis  in  reference  to  the  construction  of  language. 
Now,  what  is  the  language  of  the  statute  of  Oregon  I 

Any  vacancy  occasioned  by  death,  resignation,  failure  to  act,  or  otherwise. 

Vacancy  u  occasioned  ;"  not  any  vacancy  existing,  but  a  vacancy  "  oc 
casioned."  What  is  the  meaning  of  the  word  u  occasioned  V  "  To  occa 
sion  "  signifies  to  produce.  Non-filling  of  an  office  at  the  election  cannot 
occasion  a  vacancy  if  it  was  vacant  before  the  election  took  place.  That 
could  not  be  occasioned  which  already  existed.  But  that  which  already 
existed  could  be  occasioned.  There  must  have  been  an  existing  condi 
tion  upon  which  some  cause  operated  to  produce  the  effect  before  you 
can  say  that  such  effect  was  occasioned.  If  no  change  is  made  in  the 
existing  condition,  there  is  no  room  for  the  use  of  the  word  "  occasioned  '7 
and  nothing  to  which  it  can  apply.  To  occasion  signifies  to  produce  an 
effect  incidentally.  It  is  even  more  limited  than  the  word  "  cause."  To 
cause  is  to  produce  an  effect  in  the  ordinary  operations  of  human  affairs. 
To  occasion  is  to  produce  an  effect  by  some  incidental  circumstance. 
When  the  statute  of  Oregon  spoke  of  a  vacancy  occasioned  by  certain 
causes,  it  meant  a  vacancy  effected  by  something  that  had  become  op 
erative  since  the  day  of  election,  not  in  the  ordinary  course  of  things, 
and  which  produced  a  condition  different  from  that  which  existed  prior 
to  the  commencement  of  its  operation. 

The  PRESIDENT.  .  The  time  allowed  has  expired. 

Mr.  Commissioner  GARFIELD.  I  move,  in  view  of  the  interrup 
tions,  that  ten  minutes  more  be  granted. 

The  motion  was  agreed  to. 

Mr.  MERRICK.  I  beg  to  'extend  my  sincere  thanks  to  the  gentle 
man  for  the  courtesy,  and  it  will  enable  me  to  refer  to  one  or  two  author 
ities  which  I  will  do  very  briefly.  An  authority  was  referred  to  on  the 
other  side  from  the  State  of  Maine,  in  the  thirty-eighth  volume  of  Maine 
Reports,  for  the  purpose  of  showing  to  the  Commission  that  a  failure  to 
elect  according  to  the  laws  of  Maine  would  create  a  vacancy,  and  it  was 
either  stated  or  left  to  be  inferred  that  the  statutes  of  Maine  in  refer 
ence  to  that  subject  were  similar  in  their  provisions  to  the  statutes  of 
Oregon.  The  case  is  in  38  Maine,  at  page  598 : 

The  fourth  question  asked  was,  in  case  the  second  and  third  questions  should  he 
answered  in  the  negative  is  not  there  a  vacancy  in  said  office. 

There  had  been  in  that  case  a  failure  to  elect,  and  in  answering  that 
question  propounded  the  court  stated : 

The  undersigned,  therefore,  answer  the  first,  second,  and  third  questions  in  the  neg 
ative,  and  the  fourth  in  the  affirmative. 

The  answers  declared  that  there  was  a  vacancy  in  the  office.  But 
when  I  look  back  to  the  statute  law  of  Maine,  I  find  this  provision  under 
which  that  decision  was  given  : 

In  all  cases  of  election  under  the  act  to  which  this  is  additional,  when  no  choice 
shall  have  been  effected  or  a  vacancy  shall  happen  hy  death,  resignation,  or  otherwise., 


636  ELECTORAL    COUNT    OF    1877. 

such  vacancy  shall  be  filled  by  the  governor  and  council. — Session  Laws  of  1844,  page 

This  is  the  authority  upon  which  the  counsel  on  the  other  side  relied 
for  his  position  that  a  non-election  created  a  vacancy  and  he  brought  it 
to  his  support  in  this  behalf.  Looking  back  to  the  law  it  is  apparent 
that  the  authority  is  directly  adverse  to  the  position  which  the  learned 
counsel  used  it  to  maintain. 

My  associate  suggests  that  I  should  give  the  Commission  a  reference 
to  the  post-office  law.  Ic  is  in  the  Eevised  Statutes,  section  3836,  pro 
viding  for  the  supplying  of  vacancies  as  they  occur  in  the  office  of  post 
master. 

I  can  enter  upon  no  new  point  of  the  case  at  this  late  period  of  the 
argument,  though  there  are  two  or  three  I  much  desire  to  elaborate. 

Mr.  President  and  gentlemen  of  the  Commission,  I  must  submit  the 
case  upon  what  has  already  been  said.  In  closing  this  argument  I  re 
spectfully  submit  that  I  claim,  and  I  claim  most  earnestly,  that  you  give 
to  Oregon  the  benefit  of  your  rulings  in  Louisiana  and  Florida.  I  desire 
that  in  this  case  you  should  adhere  to  the  spirit  and  principles  of  the 
decisions  you  have  rendered  in  the  cases  already  tried  and  decided.  It 
is  quite  unessential,  quite  immaterial,  whether  they  conform  to  my 
opinions  on  the  subject  of  constitutional  law  or  not,  and  quite  immate 
rial  whether  they  conform  to  the  opinions  of  any  one  else  upon  those 
subjects.  They  have  been  rendered  by  this  tribunal,  recorded  upon  the 
journals  of  both  Houses  of  Congress,  passed  into  the  history  of  the 
country,  and  are  in  operative  effect  in  the  process  now  going  on  of  de 
termining  who  shall  be  the  Chief  Magistrate  of  the  republic. 

These  opinions  will  be  accepted  or  rejected  by  the  people  of  the 
United  States  according  to  their  estimate  of  their"  wisdom  and  sound 
ness  ;  but  this  people  will  not  pass  beyond  the  scrutiny  of  their  char 
acter  and  their  merits  unless  they  are"  first  challenged  by  the  men  by 
whom  they  were  pronounced.  Consistent  adhesion  to  the  solemn  con 
clusions  reached  by  those  great  men  to  whom  the  people  have  com 
mitted  the  settlement  of  their  rights  is  essential  to  the  preservation  of 
loyal  respect  for  authority  and  character;  and  while  mitigating  the 
pangs  of  disappointment  often  secure  an  acquiescence  in  judgments 
seemingly  the  harshest  and  the  most  unjust.  But  when  these  judgments 
antagonize  one  another,  and  in  their  very  conflict  and  antagonism  are 
combined  in  operative  effect  to  accomplish  one  and  the  same  result, 
and  that  result  is  one  with  which  individual  sympathies  are  closely  and 
warmly  connected,  unpleasant  thoughts  will  stir  within  the  public  mind, 
and  angry  emotions  will  swell  the  popular  heart. 

The  Supreme  Court  of  the  United  States  is  one  of  the  idols  of  the  peo 
ple.  They  have  in  their  estimate  of  its  character  invested  it  with  a 
sanctity  and  a  dignity  beyond  that  of  any  other  tribunal  on  the  face  of 
the  earth.  They  believe  that  all  other  Departments  of  the  Government 
are  liable  to  deterioration  and  possible  defilement ;  but  they  look  to  the 
Supreme  Court  as  lifted  above  those  currents  of  impure  air  that  float 
upon  the  surface  of  the  world,  and  as  still  imbued  with  the  virtues  and 
speaking  with  the  wisdom  of  the  fathers  of  the  republic.  When  this 
faith  is  destroyed,  the  night  will  have  come. 

Mr.  EVAKTS.  Will  your  honors  allow  me  to  ask  attention  to  a  case 
in  53  Missouri,  page  111,  as  the  cases  in  that  State  are  so  much  insisted 
upon  ? 

Mr.  HOADLY.    The  State  vs.  Vail.    That  case  was  cited  before. 

Mr.  MEEEICK.  It  was  cited,  and  I  referred  to  it  myself  as  not  in 
any  way  reversing — although  explaining — the  case  in  Missouri  that  I 
read  from. 


ELECTORAL   COUNT   OF    1877.  637 

Mr.  EVARTS.    So  I  understood  the  learned  counsel. 

Mr.  MEKRICK.    If  there  is  to  be  a  reply,  very  well. 

Mr.  EVARTS.  The  one  hundred  and  eleventh  page  is  on  this  pre 
cise  question  of  executive  authority  to  give  a  certificate  to  a  minority 
candidate  on  the  ground  that  the  majority  candidate  is  ineligible,  and 
it  denies  the  right. 

Mr.  HOADLY.  Excuse  me ;  it  denies  the  right  except  in  cases  which 
are  patent,  upon  which  it  expressly  withholds  an  opinion  in  so  many 
words,  denies  the  right  in  cases  of  disqualification  personal  to  the  can 
didate,  and  latent. 

Mr.  MERRICK.  And  it  refers  to  the  case  in  14  Indiana,  Gulick  vs. 
New,  with  approval,  upon  which  we  rest. 

Mr.  EVAETS.  The  section  referred  to  just  now  in  the  Eevised  Stat 
utes  is  section  3836,  page  756. 

Mr.  Commissioner  EDMUNDS.    We  have  a  reference  to  it. 

Mr.  EVAETS.  The  tribunal  will  see  that  it  has  no  bearing  on  the 
question  whether  the  office  of  postmaster  was  vacant  or  not.  It  ex 
pressly  provides  that  if  it  is  vacant  the  sureties  may  remain  bound  for 
a  certain  time  afterward. 

Mr.  Commissioner  GAEFIELD.  Mr.  President,  I  move  that  the 
public  session  of  the  Commission  be  closed,  and  that  we  go  into  con 
sultation. 

The  motion  was  agreed  to. 

Mr.  Commissioner  THURMAN.  I  suggest  that,  in  order  to  get  the 
room  in  good  condition  and  purify  the  air,  we  had  better  take  a  recess. 
I  move  a  recess  for  half  an  hour. 

The  motion  was  agreed  to  at  four  o'clock  and  thirty  minutes  p.  m. 

The  recess  having  expired,  the  Commission  re-assembled  at  five  o'clock 
p.  m.  with  closed  doors. 

After  debate, 

Mr.  Commissioner  EDMUNDS  offered  the  following  resolution  : 

Resolved,  That  the  certificate  signed  by  E.  A.  Cronin,  J.  N.  T.  Miller,  and  John  Parker, 
purporting  to  cast  the  electoral  votes  of  the  State  of  Oregon,  does  not  contain  or  certify 
the  constitutional  votes  to  which  said  State  is  entitled. 

Pending  which, 

On  motion  of  Mr.  Commissioner  ABBOTT,  it  was 

Ordered,  That  the  vote  on  the  matter  now  pending  be  taken  at  four  o'clock  p.  m. 
:  to  morrow. 

On  motion  of  Mr.  Commissioner  HUNTON,  at  seven  o'clock  and 
twenty-five  minutes,  the  Commission  adjourned  until  to-morrow  at  half 
past  ten  o'clock  a.  m. 

FRIDAY,  February  23,  1877. 

The  Commission  met  at  ten  o'clock  and  thirty  minutes  a.  m.,  pursu 
ant  to  adjournment,  all  the  members  being  present  except  Mr.  Com 
missioner  Thurman. 

The  Journal  of  yesterday  was  read  and  approved. 

The  Commission  resumed  its  deliberation  on  the  matter  of  the  elec 
toral  vote  of  the  State  of  Oregon,  the  question  being  on  the  resolution 
submitted  by  Mr.  Commissioner  Edmunds  yesterday. 

At  two  o'clock  and  twenty  minutes  p.  in.,  Mr.  Commissioner  Bayard 
presented  the  following  communication  j  which  was  read: 
Hon.  T.  F.  BAYARD  : 

DEAR  SIR  :  Mr.  Thurman  has  been  in  bed  all  morning,  and  is  now  suffering  from  such 
intense  pain  that  it  will  be  impossible  for  him  to  meet  the  Commission  to-day. 
Respectfully, 

M.  A.  THURMAN. 

FRIDAY,  February  23,  1877. 


638  ELECTORAL    COUls'T    OF    1877. 

Mr.  Commissioner  HOAE  submitted  the  following  resolution  : 

Resolved,  That  Senators  Bayard  and  Freliughuysen  be  a  committee  to  call  at  once  on 
Mr.  Thurman  to  learn  if  he  will  consent  that  the  Commission  adjourn  to  his  house  for 
the  purpose  of  receiving  his  vote  on  the  questions  relating  to  Oregon. 

The  question  being  on  the  adoption  of  the  resolution,  it  was  deter 
mined  in  the  affirmative : 

Yeas 13 

Kays : . .     1 

Those  who  voted  in  the  affirmative  were :  Messrs.  Abbott,  Bayard, 
Bradley,  Clifford,  Edmunds,  Field,  Frelinghuysen,  Garfield,  Hoar,  Hun- 
ton,  Miller,  Payne,  and  Strong — 13. 

Mr.  Morton  voted  in  the  negative. 

On  motion  of  Mr.  Commissioner  STROXG,  at  three  o'clock  p.  m.,  the 
Commission  took  a  recess  for  half  an  hour. 

At  three  o'clock  and  forty-seven  minutes  p.  m.,  the  Commission  hav 
ing  resumed  its  session,  the  committee  appointed  to  wait  on  Mr.  Com 
missioner  Thurman  returned,  and  reported  that  he  would  receive  the 
Commission  at  his  house. 

Whereupon, 

On  motion  of  Mr.  Commissioner  HOAE,  it  was 

Ordered,  That  the  Commission  now  proceed  to  the  house  of  Mr.  Commissioner  Thur 
man,  there  to  go  on  with  the  case  now  before  it. 

The  Commission  accordingly  proceeded  to  the  residence  of  Mr. 
Commissioner  Thurman,  on  Fourteenth  street,  all  the  members  being 
present. 

The  Commission  was  there  called  to  order  by  the  President. 

The  question  being  on  the  resolution  of  Mr.  Commissioner  Edmunds, 

Mr.  Commissioner  FIELD  offered  the  following  as  a  substitute  : 

Whereas  J.  W.  Watts,  designated  in  certificate  No.  1  as  an  elector  of  the  State  of 
Oregon  for  President  and  Vice-President,  on  the  day  of  election,  namely,  the  7th  of  No 
vember,  1876,  held  an  office  of  trust  and  profit  under  the  United  States :  Therefore, 

Resolved,  That  the  said  J.  W.  Watts  was  then  ineligible  to  the  office  of  elector  within 
the  express  terms  of  the  Constitution. 

The  question  being  on  the  adoption  of  the  substitute,  it  was  deter 
mined  in  the 'negative:  ''.. 

Yeas 7 

Nays 8 

Those  who  voted  in  the  affirmative  were :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurman — 7. 

Those  who  voted  in  the  negative  were :  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

Mr.  Commissioner  FIELD  offered  the  following  substitute  for  the  res 
olution  : 

Whereas  at  the  election  held  on  the  7th  of  November,  1876,  in  the  State  of  Oregon, 
for  electors  of  President  and  Vice-Presideat,  W.  H.  Odell,  J.  W.  Watts,  and  John  C. 
Cartwright  received  the  highest  number  of  votes  cast  for  electors,  but  the  said  Watts 
then  holding  an  office  of  trust  and  profit  under  the  United  States,  was  ineligible  to  the 
office  of  elector :  Therefore, 

Resolved,  That  the  said  Odell  and  Cartwright  were  the  only  persons  duly  elected  at 
said  election,  and  there  was  a  failure  on  the  part  of  the  State  to  appoint  a  third  elector. 

The  question  being  on  the  adoption  of  this  substitute,  it  was  deter 
mined  in  the  negative : 

Yeas 7 

Nays 8 


ELECTORAL    COUNT    OF    1877.  639 

Those  who  voted  in  the  affirmative  were :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurinan — 7. 

Those  who  voted  in  the  negative  were :  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

Mr.  Commissioner  FIELD  offered  the  following  as  a  substitute  for 
the  resolution  : 

Whereas  the  legislature  of  Oregon  has  rnade  no  provision  for  the  appointment  of  an 
elector  under  the  act  of  Congress  where  there  was  a  failure  to  make  a  choice  on  the  day 
prescribed  by  law :  Therefore, 

Resolved,  That  the  attempted  election  of  a  third  elector  by  the  two  persons  chosen 
was  inoperative  and  void. 

The  question  being  on  the  adoption  of  this  substitute,  it  was  decided 
in  the  negative : 

Yeas 7 

N  ay  s 8 

Those  who  voted  in  the  affirmative  were :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurinan — 7. 

Those  who  voted  in  the  negative  were :  Messrs.  Bradley,  Edmunds, 
Freliughuyseu,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

Mr.  Commissioner  BAYARD  offered  the  following  as  a  substitute : 

Resolved,  That  the  vote  of  W.  H.  Odell  and  the  vote  of  J.  C.  Cartwright,  cast  for 
Rutherford  B.  Hayes,  of  Ohio,  for  President  of  the  United  States,  and  for  William  A. 
Wheeler,  of  New  York,  for  Vice-President  of  the  United  States,  are  the  votes  provided 
for  by  the  Constitution  of  the  United  States,  and  that  the  aforesaid  Odell  and  Cart- 
wright,  and  they  only,  were  the  persons  duly  appointed  electors  in  the  State  of  Oregon 
at  the  election  held" November  7,  A.  D.  1876,  there  having  been  a  failure  at  the  said 
election  to  appoint  a  third  elector  in  accordance  with  the  Constitution  and  laws  of  the 
United  States  and  the  laws  of  the  State  of  Oregon  ;  and  that  the  two  votes  aforesaid 
should  be  counted,  and  none  other,  from  the  State  of  Oregon. 

The  question  being  on  the  adoption  of  this  substitute,  it  was  decided 
in  the  negative : 

Yeas 7 

Kays 8 

Those  who  voted  in  the  affirmative  were :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Huntou,  Payne,  and  Thurman — 7. 

Those  who  voted  in  the  negative  were  :  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

The  question  recurring  on  the  original  resolution  offered  by  Mr.  Com 
missioner  Edmunds,  as  follows : 

Eesolved,  That  the  certificate  signed  by  E.  A.  Cronin,  J.  N.  T.  Miller,  and  John  Parker, 
purporting  to  cast  the  electoral  votes  of  the  State  of  Oregon,  doea  not  contain  or  certify 
the  constitutional  votes  to  which  said  State  is  entitled — 

It  was  determined  in  the  affirmatire : 

Yeas c .  „  - » «  15 

Kays 0 

Those  who  voted  in  the  affirmative  were :  Messrs.  Abbott,  Bayard, 
Bradley,  Clifford,  Edmunds,  Field,  Frelinghuysen,  Garfield,  Hoar,  Hun- 
ton,  Miller,  Morton,  Payne,  Strong,  and  Thurman. 
Mr.  Commissioner  MORTON  offered  the  following  resolution  : 
Resolved,  That  W.  H.  Odell,  John  C.  Cartwright.  and  John  W.  Watts,  the  persons 
named  as  electors  in  certificate  No.  1,  were  the  lawful  electors  of  the  State  of  Oregon, 
and  that  their  votes  are  the  votes  provided  for  by  the  Constitution  of  the  United  States, 
and  should  be  counted  for  President  and  Vice-President  of  the  United  States. 

Mr.  Commissioner  HUNTON  moved  to  amend  the  resolution  by  strik 
ing  out  the  name  of  John  W.  Watts;  and  the  question  being  on  this 
amendment,  it  was  decided  in  the  negative  : 

Yeas 7 

Kays .,  .8 


640  ELECTORAL    COUNT    OF    1877. 

Those  who  voted  in  the  affirmative  were :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurnian — 7. 

Those  who  voted  in  the  negative  were :  Messrs.  Bradley,  Edmunds, 
Frelinglmysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

The  question  recurring  on  the  resolution  of  Mr.  Commissioner  Mor 
ton,  it  was  decided  in  the  affirmative  : 

Yeas „  8 

Nays 7 

Those  who  voted  in  the  affirmative  were  :  Messrs.  Bradley,  Edmunds? 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

Those  who  voted  in  the  negative  were :  Messrs.  Abbott,  Bayard,  Clif 
ford,  Field,  Hunton,  Payne,  and  Thurman — 7. 

Mr.  Commissioner  EDMUNDS  submitted  the  following: 

Ordered,  That  the  following  be  adopted  as  the  final  decision  and  report  in  the  mat 
ters  submitted  to  the  Commission  as  to  the  electoral  vote  of  the  State  of  0  regon  : 

ELECTORAL  COMMISSION, 
Washington,  D.  C.,  February  23,  A.  D.  1877. 
To  the  President  of  the  Senate  of  the  United  States,  presiding  in  the  meeting  of  the 

two  Houses  of  Congress,  under  the  act  of  Congress  entitled  "An  act  to  provide  for 

and  regulate  the  counting  of  votes  for  President  and  Vice-President,and  the  decision 

of  questions  arising  thereon,  for  the  term  commencing  March  4,  A.  D.  1877,"  approved 

January  29,  A.  D.  1877  : 

The  Electoral  Commission  mentioned  in  said  act  having  received  certain  certificates 
and  papers  purporting  to  be  certificates,  and  papers  accompanying  the  same,  of  the 
electoral  votes  from  the  State  of  Oregon,  and  the  objections  thereto,  submitted  to  it 
under  said  act,  now  report  that  it  has  duly  considered  the  same,  pursuant  to  said  act, 
and  has  by  a  majority  of  votes  decided,  and  does  hereby  decide,  that  the  votes  of  W.  H. 
Odell,  J.  C.  Cartwright,  and  J.  W.  Watts,  named  in  the  certificate  of  said  persons  and 
in  the  papers  accompanying  the  same,  which  votes  are  certified  by  said  persons,  as  ap 
pears  by  the  certificates  submitted  to  the  Commission  as  aforesaid  and  marked  "  No.  1, 
N.  C."  by  said  Commission,  and  herewith  returned,  are  the  votes  provided  for  by  the 
Constitution  of  the  United  States,  and  that  the  same  are  lawfully  to  be  counted  as 
therein  certified,  namely  :  three  votes  for  Rutherford  B.  Hayes,  of  the  State  of  Ohio, 
for  President,  and  three  votes  for  William  A.  Wheeler,  of  the  State  of  New  York,  for 
Vice-President. 

The  Commission  has  by  a  majority  of  votes  also  decided,  and  does  hereby  decide, 
and  report,  that  the  three  persons  first  above  named  were  duly  appointed  electors  in 
and  by  the  State  of  Oregon. 

The  brief  ground  of  this  decision  is  that  it  appears,  upon  such  evidence  as  by  the  Con 
stitution  and  the  law  named  in  said  act  of  Congress  is  competent  and  pertinent  to  the 
consideration  of  the  subject,  that  the  before-mentioned  electors  appear  to  have  been 
lawfully  appointed  such  electors  of  President  and  Vice-President  of  the  United  States 
for  the  term  beginning  March  4,  A.  D.  1877,  of  the  State  of  Oregon,  and  that  they  voted 
as  such  at  the  time  and  in  the  manner  provided  for  by  the  Constitution  of  the  United 
States  and  the  law. 

And  we  are  further  of  opinion — 

That  by  the  laws  of  the  State  of  Oregon  the  duty  of  canvassing  the  returns  of  all  the 
votes  given  at  an  election  for  electors  of  President  and  Vice  President  was  imposed 
upon  the  secretary  of  state,  and  upon  no  one  else. 

That  the  secretary  of  state  did  canvass  the  returns  in  the  case  before  us,  and  thereby 
ascertained  that  J.  C.  Cartwright,  W.  H.  Odell,  and  J.  W.  Watts  had  a  majority  of  all 
the  votes  given  for  electors,  and  had  the  highest  number  of  votes  for  that  office,  and 
by  the  express  language  of  the  statute  those  persons  are  u  deemed  elected." 

That  in  obedience  to  his  duty  the  secretary  made  a  canvass  and  tabulated  statement 
of  the  votes  showing  this  result,  which,  according  to  law,  he  placed  on  file  in  his  office 
on  the  4th  day  of  December,  A.  D.  1876.  All  this  appears  by  an  official  certificate 
under  the  seal  of  the  State  and  signed  by  him,  and  delivered  by  him  to  the  electors 
and  forwarded  by  them  to  the  President  of  the  Senate  with  their  votes. 

That  the  refusal  or  failure  of  the  governor  of  Oregon  to  sign  the  certificate  of  the 
election  of  the  persons  so  elected  does  not  have  the  effect  of  defeating  their  appoint 
ment  as  such  electors. 

That  the  act  of  the  governor  of  Oregon  in  giving  to  E.  A.  Cronin  a  certificate  of  his 
election,  though  he  received  a  thousand  votes  less  than  Watts,  on  the  ground  that  the 
latter  was  ineligible,  was  without  authority  of  law  and  is  therefore  void. 

That  although  the  evidence  shows  that  Watts  was  a  postmaster  at  the  time  of  his 


ELECTORAL    COUNT    OF    1877.  641 

election,  that  fact  is  rendered  immaterial  by  his  resignation  both  as  postmaster  and 
elector,  and  his  subsequent  appointment,  to  fill  the  vacancy  so  made,  by  the  electoral 
college* 

The  Commission  has  also  decided,  and  does  hereby  decide,  by  a  majority  of  votes, 
and  report,  that,  as  a  consequence  of  the  foregoing  and  upon  the  grounds  before  stated, 
the  paper  purporting  to  be  a  certificate  of  the  electoral  vote  of  said  State  of  Oregon, 
signed  by  E.  A.  Cronin,  J.  N.T.  Miller,  and  John  Parker,  marked  ".No.  2,  N.  C."  by  the 
Commission,  and  herewith  returned,  is  not  the  certificate  of  the  votes  provided  for  by 
the  Constitution  of  the  United  States,  and  that  they  ought  not  to  be  counted  as  such. 

Done  at  Washington,  D.  C.,  the  day  and  year  first  above  written. 

The  question  being  on  the  adoption  of  the  order,  it  was  decided  in  the 
affirmative : 

Yeas., 7 .-...,-..  8 

JSTays . . . .  7 

Those  who  voted  in  the  affirmative  were :  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

Those  who  voted  in  the  negative  were:  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurman — 7. 

So  the  report  of  the  committee  was  adopted ;  and  said  decision  and 
report  were  thereupon  signed  by  the  members  agreeing  therein,  as  fol 
lows  : 

SAM.  F.  MILLER. 

W.  STRONG. 

JOSEPH  P.  BRADLEY. 

GEO.  F.  EDMUNDS. 

O.  P.  MORTON. 

FRED'K  T.  FRELINGHUYSEN. 

JAMES  A.  GARFIELD. 

GEORGE  F.  HOAR. 

Mr.  Commissioner  EDMUNDS  offered  the  following : 

Ordered,  That  the  President  of  the  Commission  transmit  a  letter  to  the  President  of 
the  Senate  in  the  following  words : 

"  WASHINGTON,  D.  C.,  February  23,  A.  D.  1877. 

"SiR:  I  am  directed  by  the  Electoral  Commission  to  inform  the  Senate  that  it  has 
considered  and  decided  upon  the  matters  submitted  to  it  under  the  act  of  Congress 
concerning  the  same,  touching  the  electoral  votes  from  the  State  of  Oregon,  and  here 
with,  by  direction  of  said  Commission,  I  transmit  to  you  the  said  decision,  in  writing, 
signed  by  the  members  agreeing  therein,  to  be  read  at  the  meeting  of  the  two  Houses, 
according  to  said  act.  All  the  certificates  and  papers  sent  to  the  Commission  by  the 
President  of  the  Senate  are  herewith  returned. 

"  Hon.  THOMAS  W.  FERRY, 

"President  of  the  Senate." 

The  question  being  on  the  adoption  of  the  order,  it  was  determined  in 
the  affirmative  5  and  the  letter  was  accordingly  signed,  as  follows : 

"NATHAN  CLIFFORD, 

"President  of  the  Commission." 

Mr.  Commissioner  EDMUNDS  offered  the  following: 

Ordered,  That  the  President  of  the  Commission  transmit  to  the  Speaker  of  the  House 
of  Representatives  a  letter  in  the  following  words  : 

"  WASHINGTON,  D.  C.,  February  23,  1877. 

"  SIR  :  I  am  directed  by  the  Electoral  Commission  to  inform  the  House  of  Repre 
sentatives  that  it  has  considered  and  decided  upon  the  matters  submitted  to  it  under 
the  act  of  Congress  concerning  the  same,  touching  the  electoral  votes  from  the  State 
of  Oregon,  and  has  transmitted  said  decision  to  the  President  of  the  Senate,  to  be  read 
at  the  meeting  of  the  two  Houses,  according  to  said  act. 

"  Hon.  SAMUEL  J.  RANDALL, 

"Speaker  of  the  House  of  Representatives." 

The  question  being  on  the  adoption  of  the  order,  it  was  decided  in  the 
affirmative ;  and  the  letter  was  accordingly  signed  as  follows : 

"NATHAN  CLIFFORD, 

"President  of  the  Commission." 
41  E  C 


642  ELECTORAL    COUNT    OF    1877. 

On  motion  of  Mr.  Commissioner  MORTON,  it  was 

Ordered,  That  the  injunction  of  secrecy  imposed  on  the  acts  and  proceedings  of  the 
Commission  be  removed. 

On  motion  of  Mr.  Commissioner  GARFIELD,  (at  five  o'clock  p.  m.,) 
the  Commission  adjourned  until  twelve  o'clock  noon  to-morrow,  to  meet 
in  the  Supreme  Court  room. 

PROCEEDINGS  OF  THE  TWO  HOUSES. 

IN  SENATE,  Saturday,  February  24,  1877. 

The  Senate  resumed  its  session,  on  the  expiration  of  the  recess  taken 
from  the  previous  day,  at  ten  o'clock  a.  m.,  Saturday,  February  24. 

The  PRESIDENT  pro  tempore  laid  before  the  Senate  the  following 
communication 5  which  was  read: 

WASHINGTON,  D.  C.,  February  23,  1877. 

SIR  :  I  ana  directed  by  the  Electoral  Commission  to  inform  the  Senate  that  it  has  con 
sidered  and  decided  upon  the  matters  submitted  to  it  under  the  act  of  Congress  con 
cerning  the  same,  touching  the  electoral  votes  from  the  State  of  Oregon,  and  herewith, 
by  direction  of  said  Commission,  I  transmit  to  you  the  said  decision,  in  writing,  signed 
by  the  members  agreeing  therein,  to  be  read  at  the  meeting  of  the  two  Houses,  accord 
ing  to  said  act.  All  the  certificates  and  papers  sent  to  the  Commission  by  the  President 
of  the  Senate  are  herewith  returned. 

NATHAN  CLIFFORD, 
President  of  the  Commission. 
Hon.  THOMAS  W.  FERRY, 

President  of  the  Senate. 

On  motion  of  Mr.  Senator  LOGAN,  it  was 

Ordered,  That  the  Secretary  be  directed  to  inform  the  House  of  Representatives  that 
the  President  of  the  Electoral  Commission  has  notified  the  Senate  that  the  Commission, 
has  arrived  at  a  decision  of  the  questions  submitted  to  it  in  relation  to  the  electoral 
votes  of  Oregon,  and  that  the  Senate  is  now  ready  to  meet  the  House  for  the  purpose  of 
laying  before  the  two  Houses  the  report  of  the  said  decision,  and  to  proceed  with  the 
count  of  the  electoral  votes  for  President  and  Vice-President. 

The  Senate,  on  being  notified,  at  eleven  o'clock  and  fifty  minutes,  a.  m., 
that  the  House  of  Representatives  was  prepared  to  meet  it  in  joint 
meeting  to  proceed  with  the  electoral  count,  repaired  to  the  hall  of  the 
House. 

IN  THE  HOUSE  OF  REPRESENTATIVES, 

Saturday,  February  24,  1877. 

The  House  resumed  its  session  at  ten  o'clock  a.  m.,  on  the  expiration 
of  the  recess  taken  from  the  previous  day. 

After  the  transaction  of  various  items  of  business, 
Mr.  George  C.  Gorham,  Secretary  of  the  Senate,  appeared  and  de 
livered  the  following  message: 

Mr.  Speaker :  I  am  directed  by  the  Senate  to  inform  the  House  of  Representatives 
that  the  president  of  the  Electoral  Commission  has  notified  the  Senate  that  the  Com 
mission  has  arrived  at  a  decision  of  the  questions  submitted  to  it  in  relation  to  the 
electoral  votes  of  Oregon,  and  also  that  the  Senate  is  ready  to  meet  the  House  for  the 
purpose  of  laying  before  the  two  Houses  the  report  of  the  Commission,  and  to  proceed 
with  the  count  of  the  electoral  vote  for  President  and  Vice-President. 

After  the  transaction  of  business,  by  unanimous  consent, 
The  SPEAKER  laid  before  the  House  the  following  communication ; 
which  was  read : 

WASHINGTON,  D.  C.,  February  23,  1877. 

SIR  :  I  am  directed  by  the  Electoral  Commission  to  inform  the  House  of  Representa 
tives  that  it  has  considered  and  decided  upon  the  matters  submitted  to  it  under  the  act 
of  Congress  concerning  the  same,  touching  the  electoral  votes  from  the  State  of  Oregon, 


ELECTORAL    COUNT    OF    1877.  643 

and  has  transmitted  its  decision  to  the  President  of  the  Senate,  to  be  read  at  the  meet 
ing  of  the  two  Houses,  according  to  said  act. 

NATHAN  CLIFFORD, 

President  of  the  Commission 
Hon.  SAMUEL  J.  RANDALL, 

Speaker  of  the  House  of  Representatives. 

Mr.  Representative  McMAHON  thereupon  submitted  the  following 
resolution,  and  demanded  the  previous  question  thereon : 

Resolved,  That  the  Senate  be  notified  that  the  House  of  Representatives  will  be 
ready  to  meet  the  Senate  in  joint  convention  at  one  o'clock  p.  m.  this  day,  for  the  pur 
pose  of  continuing  the  count  of  the  electoral  vote. 

Mr.  Representative  HALE  made  the  point  of  order  that,  under  the 
electoral  law,  nothing  was  now  in  order  except  to  inform  the  Senate 
that  the  House  was  ready  to  proceed  at  once  with  the  electoral  count  j 
but  yielded  to — 

Mr.  Eepresentative  WILSON,  of  Iowa,  who  submitted  the  following 
resolution,  and  claimed  that  nothing  else  was  in  order  under  the  law, 
viz : 

Resolved,  That  the  Clerk  of  the  House  notify  the  Senate  that  the  House  is  now  ready 
to  meet  them  in  joint  meeting  of  the  two  Houses  to  count  the  vote  for  President  and 
Vice-President. 

The  SPEAKER  overruled  the  point  of  order,  and  treating  the  resolu 
tion  of  Mr.  Representative  Wilson,  of  Iowa,  as  an  amendment  by  way 
of  substitute  for  that  offered  by  Mr.  Representative  McMahon,  the 
amendment  was  agreed  to  by  a  vote  of  yeas  146,  nays  87,  and  the  reso 
lution  as.  thus  amended  was  agreed  to  by  a  vote  of  yeas  156,  nays  89  5 
and  the  Senate  was  at  once  notified  accordingly. 

JOINT  MEETING. 

SATURDAY,  February  24, 1877. 

The  Senate  entered  the  House  hall  at  eleven  o'clock  and  fifty-five 
minutes  a.  m.,  in  the  usual  manner. 

The  PRESIDENT  pro  tempore  of  the  Senate  took  his  seat  as  Presid 
ing  Officer  of  the  joint  meeting  of  the  two  Houses,  the  Speaker  of  the 
House  occupying  a  chair  upon  his  left. 

The  PRESIDING  OFFICER.  The  joint  meeting  of  Congress  for 
counting  the  electoral  vote  resumes  its  session.  The  two  Houses,  hav 
ing  separated  pending  submission  to  the  Commission  of  objections  to 
the  certificate  of  the  State  of  Oregon,  have  re-assembled  to  receive  and 
to  coincide,  or  otherwise,  with  the  decision  of  that  tribunal.  The  de 
cision,  which  is  in  writing,  by  a  majority  of  the  Commission,  and  signed 
by  the  members  agreeing  therein,  will  now  be  read  by  the  Secretary  of 
the  Senate  and  be  entered  in  the  Journal  of  each  House. 

The  Secretary  of  the  Senate  read  as  follows : 

ELECTORAL  COMMISSION, 
Washington,  D.  C.,  February  23,  A.  D.  1877. 

To  the  President  of  the  Senate  of  the  United  States,  presiding  in  the  meeting  of  the 
two  Houses  of  Congress,  under  the  act  of  Congress  entitled  "An  act  to  provide 
for  and  regulate  the  counting  of  votes  for  President  and  Vice-President,  and  the 
decision  of  questions  arising  thereon,  for  the  term  commencing  March  4,  A.  D.  1877," 
approved  January  29,  A.  D.  1877. 

The  Electoral  Commission. mentioned  in  said  act  having  received  certain  certificates, 
and  papers  purporting  to  be  certificates,  and  papers  accompanying  the  same,  of  the 
electoral  votes  from  the  State  of  Oregon,  and  the  objections  thereto,  submitted  to  it 
under  said  act,  now  report  that  it  has  duly  considered  the  same,  pursuant  to  said  act; 
and  has  by  a  majority  of  votes  decided,  and  does  hereby  decide,  that  the  votes  of  W. 
H.  Odell,  J.  C.  Cartwright,  and  J.  W.  Watts,  named  in  the  certificate  of  said  persons 


644  ELECTORAL    COUNT    OF    1877. 


for  by  the  Constitution  of  the  United  States,  and  that  the  same  are  lawfully  to  be 
counted  as  therein  certified,  namely  : 

Three  (3)  votes  for  Rutherford  B.  Hayes,  of  the  State  of  Ohio,  for  President ;  and 

Three  (3)  votes  for  William  A.  Wheeler,  of  the  State  of  New  York,  for  Vice-President . 

The  Commission  has  by  a  majority  of  votes  also  decided,  and  does  hereby  decide  and 
report,  that  the  three  persons  above  named  were  duly  appointed  electors  in  and  by  the 
State  of  Oregon. 

The  brief  ground  of  this  de'cision  is  that  it  appears,  upon  such  evidence  as  by  the 
Constitution  and  the  law  named  in  said  act  of  Congress  is  competent  and  pertinent  to 
the  consideration  of  the  subject,  that  the  before-mentioned  electors  appear  to  have  been 
lawfully  appointed  such  electors  of  President  and  Vice-President  of  the  United  States 
for  the  term  beginning  March  4,  A.  D.  1877,  of  the  State  of  Oregon,  and  that  they  voted 
as  such  at  the  time  and  in  the  manner  provided  for  by  the  Constitution  of  the  United 
States  and  the  law. 

And  we  are  further  of  opinion — 

That  by  the  laws  of  the  State  of  Oregon  the  duty  of  canvassing  the  returns  of  all 
the  votes  given  at  an  election  for  electors  of  President  and  Yice-President  was  imposed 
upon  the  secretary  of  state,  and  upon  no  one  else. 

That  the  secretary  of  state  did  canvass  the  returns  in  the  case  before  us,  and  thereby 
ascertained  that  J.  C.  Cartwright,  W.  H.  Odell,  and  J.  W.  Watts  had  a  majority  of  all 
the  votes  given  for  electors,  and  had  the  highest  number  of  votes  for  that  office,  and  by 
the  express  language  of  the  statute  those  persons  are  deemed  elected. 

That  in  obedience  to  his  duty  the  secretary  made  a  canvass  and  tabulated  statement 
of  the  votes  showing  this  result,  which,  according  to  law,  he  placed  on  file  in  his  office 
on  the  4th  day  of  December,  A.  D.  1876.  All  this  appears  by  an  official  certificate  under 
the  seal  of  the  State  and  signed  by  him,  and  delivered  by  him  to  the  electors  and  for 
warded  by  them  to  the  President  of  the  Senate  with  their  votes. 

That  the  refusal  or  failure  of  the  governor  of  Oregon  to  sign  the  certificate  of  the 
election  of  the  persons  so  elected  does  not  have  the  effect  of  defeating  their  appoint 
ment  as  such  electors. 

That  the  act  of  the  governor  of  Oregon  in  giving  to  E.  A.  Cronin  a  certificate  of  his 
election,  though  he  received  a  thousand  votes  less  than  Watts,  on  the  ground  that  the 
latter  was  ineligible,  was  without  authority  of  law  and  is  therefore  void. 

That  although  the  evidence  shows  that  Watts  was  a  postmaster  at  the  time  of  his 
election,  that  fact  is  rendered  immaterial  by  his  resignation  both  as  postmaster  and 
elector,  and  his  subsequent  appointment,  to  fill  the  vacancy  so  made,  by  the  electoral 
college. 

The  Commission  has  also  decided,  and  does  hereby  decide,  by  a  majority  of  votes, 
and  report,  that,  as  a  consequence  of  the  foregoing,  and  upon  the  grounds  before  stated, 
the  paper  purporting  to  be  a  certificate  of  the  electoral  vote  of  said  State  of  Oregon, 
signed  by  E.  A.  'Cronin,  J.  N.  T.  Miller,  and  John  Parker,  marked  "  No.  2,  N.  C.';  by  the 
Commission,  and  herewith  returned,  is  not  the  certificate  of  the  votes  provided  for  by 
the  Constitution  of  the  United  States,  and  that  they  ought  not  to  be  counted  as  such. 

Done  a,t  Washington,  D.  C.,  the  day  and  year  first  above  written. 

SAM.  F.  MILLER. 

W.  STRONG. 

JOSEPH  P.  BRADLEY. 

GEO.  F.  EDMUNDS. 

O.  P.  MORTON. 

FRED'K  T.  FRELINGHUYSEN. 

JAMES  A.  GARFIELD. 

GEORGE  F.  HOAR. 

The  PRESIDING  OFFICER.  Are  there  any  objections  to  the  decis 
ion  of  the  Commission? 

Mr.  Senator  KELLY.  I  have  the  honor  to  file  certain  objections  to 
this  decision,  signed  by  Senators  and  Representatives. 

The  PRESIDING  OFFICER.  The  Senator  from  Oregon  having  sub 
mitted  an  objection  to  this  decision,  it  will  be  read  by  the  Clerk  of  the 
House. 

The  Clerk  of  the  House  read  as  follows : 

The  undersigned,  Senators  and  Members  of  the  House  of  Representatives  of  the 
United  States,  object  to  the  decision  of  the  Joint  Commission  directing  the  counting 
of  the  vote  of  John  W.  Watts,  an  alleged  elector  for  the  State  of  Oregon,  as  given  for 
Rutherford  B.  Hayes  for  President  of  the  United  States,  and  for  William  A.  Wheeler,  of 


ELECTORAL    COUNT    OF    1877.  645 

New  York,  for  Vice-President,  and  rejecting  the  vote  of  E.  A.  Cronin  as  cast  for  Samuel 
J.  Tilden,  of  New  York,  for  President,  and  Thomas  A.  Heudricks,  of  Indiana,  for  Vice- 
President,  on  the  following  grounds : 

1.  John  W.  Watts  was  not  elected  a  presidential  elector  for  Oregon. 

2.  He  (J.  W.  Watts)  was  not  legally  appointed  as  a  presidential  elector. 

3.  He  (Watts)  was  disqualified  to  receive  any  appointment  as  presidential  elector  or 
to  vote  as  such,  in  that  he  held  an  office  of  trust  and  profit  under  the  United  States. 

4.  E.  A.  Crouin  was  elected  a  presidential  elector  for  the  State  of  Oregon,  and  in 
accordance  with  law,  as  such,  cast  a  legal  vote  as  an  elector  for  Samuel  J.  Tildeu  for 
President  and  Thomas  A.  Heridricks  for  Vice-President,  and  the  vote  so  cast  should  be 
counted. 

JAMES  K.  KELLY, 
WM.  PINKNEY  WHYTE, 
HENRY  COOPER, 

j.  E.  MCDONALD, 

T.  M.  NORWOOD, 
FRANK  HEREFORD, 

/Senators. 

LA  FAYETTE  LANE, 
E.  F.  POPPLETON, 
G.  A.  JENKS, 

JOHN  L.  VANCE,  of  Ohio, 
J.  W.  THROCKMORTON, 
SCOTT  WIKE, 
P.  D.  WIGGINTON, 
J.  K.  LUTTRELL, 

Representatives. 

The  PRESIDING  OFFICER.  Are  there  further  objections  to  the 
decision  of  the  Commission?  [A  pause.]  There  being  none,  the  Sen 
ate  will  withdraw  to  its  chamber,  that  the  Houses  separately  may  con 
sider  and  determine  the  objection. 

Accordingly,  at  twelve  o'clock  and  ten  minutes  p.  in.,  the  Senate  with 
drew. 

IN  SENATE,  Saturday,  February  24,  1877. 

The  Senate  having  returned  from  the  joint  meeting  at  twelve  o'clock 
and  twelve  minutes  p.  m.,  the  President  pro  lempore  resumed  the  chair, 
and  laid  before  the  Senate  the  objection  to  the  decision  of  the  Com 
mission  in  regard  to  the  electoral  votes  of  the  State  of  Oregon. 

Mr.  Senator  SARGENT  submitted  the  following  resoluton,  which 
(after  debate  and  the  rejection  of  an  amendment)  was  adopted  by  a  vote 
of  yeas  41,  nays  24,  viz : 

Resolved,  That  the  decision  of  the  Commission  upon  the  electoral  vote  of  the  State  of 
Oregon  stand  as  the  judgment  of  the  Senate,  the  objections  made  thereto  to  the  con 
trary  notwithstanding. 

On  motion  of  Mr.  Senator  SARGENT  it  was 

Resolved,  That  the  House  of  Representatives  be  notified  that  the  Senate  has  deter 
mined  upon  the  objections  to  the  decision  of  the  Commission  upon  the  electoral  vote 
of  Oregon,  and  is  prepared  to  meet  the  House  to  proceed  with  the  count  of  the  electoral 
votes. 

At  three  o'clock  and  fifty  minutes  p.  m.  a  message  was  received  an 
nouncing  the  action  of  the  House  of  Representatives  on  the  objection  to 
the  decision,  whereupon  the  Senate  at  once  repaired  to  the  Hall  of  the 
House  to  proceed  with  the  electoral  count. 

IN  THE  HOUSE  OF  REPRESENTATIVES, 

Saturday,  February  24, 1877. 

The  Senate  having  retired  from  the  joint  meeting  at  twelve  o'clock 
and  ten  minutes  p.  m.,  the  House  of  Representatives  resumed  its  ses 
sion. 


646  ELECTORAL   COUNT    OF   1877. 

Mr.  Eepresentative  CLYMER  submitted  the  following  resolution : 

Resolved,  That  for  the  more  careful  consideration  of  the  objections  to  the  report  of 
the  Electoral  Commission  in  the  Oregon  case,  the  House  now  take  a  recess  until  ten 
o'clock  on  Monday  morning. 

Mr.  Eepresentative  HANCOCK  made  the  point  of  order  that,  under 
the  fifth  section  of  the  electoral  act,  a  recess  was  not  now  in  order. 

The  SPEAKER  overruled  the  point  of  order,  on  the  grounds  heretofore 
stated  by  him  when  the  same  point  of  order  was  presented,  and  held  the 
motion  for  a  recess  as  made  to  be  in  order. 

The  question  being  on  the  resolution  offered  by  Mr.  Representative 
Clymer,  it  was  rejected — yeas,  112  ;  nays,  158. 

Mr.  Representative  LANE  thereupon  moved  that  the  House  take  a  re 
cess  until  nine  o'clock  and  thirty  minutes  a.  m.  Monday,  February  26. 

Mr.  Representative  HALE  made  the  point  of  order  that  the  privilege 
of  the  House  to  take  a  recess  had  been  exhausted  by  the  vote  just  taken 
on  a  motion  for  a  recess;  that  the  motion  of  Mr.  Representative  Lane 
was  a  dilatory  one ;  that  the  regular  order  was  the  consideration  of  the 
objections  to  the  decision  of  the  Commission  in  the  Oregon  case,  and 
that  the  call  for  the  regular  order,  which  he  now  made,  must  bring  the 
said  objections  before  the  House  for  present  consideration. 

The  SPEAKER  sustained  the  point  of  order,  and  held  the  motion  to 
be  not  in  order. 

Whereupon, 

Mr.  Representative  HALE  submitted  the  following  order  : 

Ordered,  That  the  count  of  the  electoral  vote  of  the  State  of  Oregon  shall  proceed  in 
conformity  with  the  decision  of  the  Electoral  Commission. 

Mr.  Representative  LANE  submitted  the  following  order  as  an  amend 
ment  in  the  nature  of  a  substitute,  viz  : 

Ordered,  That  the  vote  purporting  to  be  an  electoral  vote  for  President  and  Yice- 
President,  and  which  was  given  by  one  J.  W.  Watts,  claiming  to  be  an  elector  for  the 
State  of  Oregon,  be  not  counted. 

After  debate, 

The  amendment  was  agreed  to  by  a  vote  of  yeas  151,  nays  106  ;  and 
the  resolution  as  amended  was  adopted  without  a  division. 

During  the  roll-call  on  the  amendment,  a  message  was  received  from 
the  Senate  announcing  its  action  on  the  objection  and  its  readiness  to 
proceed  with  the  count. 

On  motion  of  Mr.  Representative  CLYMER,  it  was 

Ordered,  That  the  Senate  be  informed  of  the  action  of  this  House  on  the  electoral 
vote  of  the  State  of  Oregon,  and  that  the  House  of  Representatives  is  now  ready  to 
meet  them  in  joint  convention  in  its  hall. 

JOINT  MEETING. 

SATURDAY,  February  24,  1877. 

At  three  o'clock  and  fifty -five  minutes  p.  m.  the  Senate  entered  the 
House  hall  in  the  usual  manner. 

The  PRESIDENT  pro  tempore  of  the  Senate  took  his  seat  as  presid 
ing  officer  of  the  joint  meeting  of  the  two  Houses,  the  Speaker  of  the 
House  occupying  a  chair  upon  his  left. 

The  PRESIDING  OFFICER.  The  joint  meeting  of  Congress  for 
counting  the  electoral  vote  resumes  its  session.  The  two  Houses  hav 
ing  separately  determined  upon  the  objections  to  the  decision  of  the 
Commission  on  the  certificates  from  the  State  of  Oregon,  the  Secretary 
of  the  Senate  will  read  the  resolution  adopted  by  the  Senate. 

The  Secretary  of  the  Senate  read  as  follows : 

Resolved,  That  the  decision  of  the  Commission  upon  the  electoral  vote  of  the  State  of 


ELECTORAL    COONT    OF    1877.  647 

Oregon  stand  as  the  judgment  of  the  Senate,  the  objections  made  thereto  to  the  con 
trary  notwithstanding. 

The  PRESIDING  OFFICER.  The  Clerk  of  the  House  of  Represent 
atives  will  now  read  the  resolution  adopted  by  the  House  of  Represent 
atives. 

The  Clerk  of  the  House  of  Representatives  read  as  follows : 

Ordered,  That  the  vote  purporting  to  be  the  electoral  vote  for  President  and  Vice- 
President,  and  which  was  given  by  one  J.  W.  Watts,  claiming  to  be  an  elector  for  the 
State  of  Oregon,  be  not  counted. 

The  PRESIDING  OFFICER.  The  two  Houses  not  concurring  oth 
erwise,  the  decision  of  the  Commission  will  stand  uiireversed,  and  the 
counting  of  the  vote  will  proceed  in  conformity  therewith.  The  tell 
ers  will  announce  the  vote  of  Oregon. 

Mr.  Senator  ING  ALLS,  (one  of  the  tellers.)  Oregon  casts  3  votes  for 
Rutherford  B.  Hayes,  of  Ohio,  for  President,  and  3  votes  for  William 
A.  Wheeler,  of  New  York,  for  Vice-President,  of  the  United  States. 

PENNSYLVANIA. 

The  PRESIDING  OFFICER.  Having  opened  the  certificate  from 
the  State  of  Pennsylvania  received  by  messenger,  the  Chair  hands  it  to 
the  tellers,  and  it  will  be  read  in  the  presence  ,aud  hearing  of  the  two 
Houses. 

Mr.  Senator  ALLISON  (one  of  the  tellers)  read  the  certificate. 

The  PRESIDING  OFFICER.  Are  there  objections  to  the  certificate 
from  the  State  of  Pennsylvania? 

Mr.  Representative  STENGER.  I  submit  on  behalf  of  myself  and 
others  the  objection  which  I  send  to  the  desk. 

The  PRESIDING  OFFICER.  The  Clerk  of  the  House  will  read  the 
objection. 

The  Clerk  of  the  House  read  as  follows : 

The  undersigned  Senators  and  Representatives  object  to  the  counting  of  the  vote  of 
Henry  A.  Boggs  as  an  elector  for  the  State  of  Pennsylvania,  on  the  grounds  following, 
namely  : 

That  a  certain  Daniel  J.  Morrell  was  a  candidate  for  the  post  of  elector  for  the  State 
of  Pennsylvania  at  the  election  for  electors  of  President  and  Vice-President  on  the  7th 
day  of  November,  1876,  and  was  declared  by  the  governor  of  the  State  of  Pennsylva 
nia  to  have  been  duly  elected  an  elector  at  said  election. 

And  the  undersigned  aver  that  the  said  Daniel  J.  Morrell  was  not  duly  elected  an 
elector  for  the  State  of  Pennsylvania,  because,  for  a  long  period  before,  and  on  the 
said  7th  day  of  November,  1876,  and  for  a  long  period  subsequent  thereto,  the  said 
Morrell  held  an  office  of  trust  and  profit  under  the  United  States,  that  is  to  say,  the 
office  of  commissioner  under  the  act  of  Congress,  approved  March  3,  1871,  en 
titled  "An  act  to  provide  for  celebrating  the  one  hundredth  anniversary  of  American 
Independence  by  holding  an  international  exhibition  of  arts,  manufactures,  and  prod 
ucts  of  the  soil  and  mine,  in  the  city  of  Philadelphia  and  State  of  Pennsylvania,  in  the 
year  1876,"  to  which  he  was  appointed  by  the  President  of  the  United  States  under  the 
provisions  of  said  act. 

Wherefore  the  undersigned  aver  that  the  said  Morrell  could  not  be  constitutionally 
appointed  an  elector  for  the  State  of  Pennsylvania  on  the  said  7th  day  of  November, 
1876,  under  the  Constitution  of  the  United  States. 

And  the  undersigned  further  state  that  on  the  6th  day  of  December,  1876,  the  said 
Morrell  did  not  attend  the  meeting  of  the  electors  of  the  State  of  Pennsylvania,  and 
that  he  was  not,  according  to  the  laws  of  Pennsylvania  and  under  the  Constitution  of 
the  United  States,  duly  elected  an  elector  of  said  State,  and  could  not  be  constitu 
tionally  and  legally  declared  duly  elected  as  such  elector,  and  had  no  legal  right  to 
attend  the  said  meeting  of  electors. 

And  the  undersigned  further  state  that  the  college  of  electors  had  power  under  the 
law  of  Pennsylvania  to  fill  vacancies  in  the  office  of  elector  under  and  by  virtue  of 
the  law  of  Pennsylvania,  which  is  in  the  words  following,  and  by  none  other  what 
soever,  namely : 

"  If  any  such  elector  shall  die,  or  from  any  cause  fail  to  attend  at  the  seat  of  govern- 


648  ELECTORAL    COUNT    OF    1877. 

ment  at  the  time  appointed  by  law,  the  electors  present  shall  proceed  to  choose  viva 
voce  a  person  to  fill  the  vacancy  occasioned  thereby,  and  immediately  after  such  choice 
the  name  of  the  person  so  chosen  shall  be  transmitted  by  the  presiding  officer  of  the 
college  to  the  governor,  whose  duty  it  shall  be  forthwith  to  cause  notice  in  writing  to 
be  given  to  such  person  of  his  election,  and  the  person  so  elected  [and  not  the  person 
in  whose  place  he  shall  have  been  chosen]  shall  be  an  elector,  and  shall,  with  the  other 
electors,  perform  the  duties  enjoined  on  them  as  aforesaid." 

And  the  undersigned  further  state  that  under  said  law  the  electors  present  had  no 
authority  to  appoint  the  said  Henry  A.  Boggs  to  fill  the  vacancy  of  th^  said  Daniel  J. 
Morrell  or  on  any  other  grounds  whatever,  and  that  said  supposed  appointment  of 
said  Henry  A.  Boggs  was  wholly  without  authority  of  law,  and  was  and  is  null  and 
void. 

Wherefore  the  undersigned  aver  that  the  said  Henry  A.  Boggs  was  not  duly  ap 
pointed  by  the  State  of  Pennsylvania  in  the  manner  that  its  legislature  directed,  and 
that  he  was  not  entitled  to  cast  his  vote  as  elector  for  said  State,  and  that  his  vote  as 
such  should  not  be,  because  it  cannot  be  constitutionally,  counted. 

And  the  undersigned  hereto  annex  the  evidence  to"  sustain  the  above  objections, 
•which  has  been  taken  before  the  committee  of  the  House  of  Representatives  on  the 
powers,  privileges,  and  duties  of  the  House. 

WILLIAM  A.  WALLACE,  Pennsylvania, 

M.  W.  RANSOM, 

WM.  PINKNEY  WHITE, 

Senators. 

W.  S.  STENGER,  Pennsylvania, 
J.  R.  TUCKER,  Virginia, 
CHARLES  B.  ROBERTS,  Maryland, 

F.  D.  COLLINS,  Pennsylvania, 
JAC.  TURNEY,  Pennsylvania, 
W.  F.  SLEMONS,  Arkansas, 
WM.  MUTCHLER,  Pennsylvania, 
ALEX.  G.  COCHRANE,  Pennsylvania. 
JOHN  L.  VANCE,  Ohio, 

G.  A.  JENKS,  of  Pennsylvania, 

Representatives. 

UNITED  STATES  OF  AMERICA,  DEPARTMENT  OF  STATE. 
To  all  to  whom  these  presents  shall  come,  greeting : 

I  certify  that  the  document  hereto  annexed  is  a  true  copy  of  the  original  now  on  file 
in  this  Department. 

In  testimony  whereof  I,  Hamilton  Fish,  Secretary  of  State  of  the  United  States,  have 
hereunto  subscribed  my  name  and  caused  the  seal  of  the  Department  of  State  to  be 
affixed. 

Done  at  the  city  of  Washington  this  23d  day  of  February,  A.  D.  1877,  and  of  the 
Independence  of  the  United  States  of  America  the  one  hundred  and  first. 

[SEAL.]  HAMILTON  FISH. 

EXECUTIVE  CHAMBER, 
Harrishurghj  Pennsylvania,  March  10,  1871. 

DEAR  SIR  :  I  have  the  honor  to  inform  you  that,  in  conformity  with  the  recent  act  of 
Congress  "  to  provide  for  celebrating  the  one  hundredth  anniversary  of  American  Inde 
pendence,"  &c.,  I  have  made  the  following  appointments,  which  I  submit  for  your 
approval : 

Hon.  Daniel  J.  Morrell,  Johnstown,  Cambria  County,  Pennsylvania,  to  be  United 
States  commissioner  for  Pennsylvania,  in  accordance  with  the  provisions  of  the  second 
section  of  the  act. 

Hon.  Asa  Packer,  Mauch  Chunk,  Carbon  County,  Pennsylvania,  to  be  the  alternate 
United  States  commissioner  for  Pennsylvania,  in  accordance  with  the  fourth  section  of 
the  same  act. 

With  assurances  of  my  kindest  regards,  I  am,  general,  very  respectfully  and  truly, 
yours, 

JNO.  W.  GEARY. 
General  U.  S.  GRANT, 

President  of  the  United  States,  Washington,  D.  C. 

WASHINGTON,  D.  C.,  February  22, 1877. 

JOHN  REILLY,  a  member  of  the  House  from  the  State  of  Pennsylvania,  sworn  and 
examined. 

By  Mr.  FIELD  : 
Question.  Do  you  know  Daniel  J.  Morrell,  of  Pennsylvania  ?— Answer.  I  do. 


ELECTORAL    COUNT    OF    1877.  649 

Q.  How  long  have  you  known  him  ? — A.  I  suppose  fifteen  or  eighteen  years. 

Q.  Where  does  he  reside  ? — A.  In  Johnstown,  Cambria  County,  Pennsylvania. 

Q.  Was  he  one  of  the  centennial  commissioners  appointed  by  the  President  ? — A. 
Yes,  sir. 

Q.  Is  he  still  such  ? — A.  I  believe  he  is ;  he  was  at  the  close  of  the  exhibition  ;  I  have 
not  heard  of  him  in  connection  with  it  since. 

Q.  How  near  to  him  do  you  live  ? — A.  I  live  within  thirty-eight  miles  of  him. 

Q.  Do  you  know  him  very  well  ? — A.  Yes,  sir. 

Q.  Is  he  the  same  gentleman  who  was  appointed  one  of  the  presidential  electors  in 
the  State  of  Pennsylvania  ?— A.  Yes,  sir. 

Q.  On  the  republican  ticket  ? — A.  Yes  sir. 

By  Mr.  BURCHARD  : 

Q.  Did  you  serve  with  him  on  the  Centennial  Commission? — A.  No,  sir. 

Q.  Did  yon  vote  for  him  ? — A.  I  did  not. 

Q.  You  have  no  personal  knowledge  as  to  what  you  have  testified  to,  have  you? — 
A.  I  have  seen  Mr.  Morrell  at  the  Centennial  Exhibition  in  the  discharge  of  his 
duties. 

Q.  What  duties  did  you  see  him  perform  at  the  exhibition  ? — A.  I  saw  him  around 
there.  I  don't  know  that  I  can  state  specifically  that  I  saw  him  perform  any  particu 
lar  act. 

Q.  Did  you  not  see  twenty  thousand  other  individuals  about  there  at  the  same 
time? — A.  I  saw  a  great  many  more  than  that. 

Q.  One  hundred  thousand? — A.  Perhaps  two  hundred  thousand. 

Q.  Walking  about  the  grounds  ? — A.  Yes,  sir. 

Q.  Can  you  mention  any  particular  thing  you  saw  Mr.  Morrell  do  at  that  time  ? — A. 
No,  sir ;  but  it  is  a  well-known  fact  that  he  was  a  centennial  commissioner. 

Q.  It  is  rumor  and  general  information  that  you  have  on  the  subject? — A.  I  may 
state  that  I  had  from  Mr.  Morrell  himself,  directly,  a  statement  that  he  had  paired 
with  a  man  on  the  day  of  the  election  for  the  purpose  of  attending  to  his  duties  as 
centennial  commissioner. 

By  Mr.  FIELD  : 

Q.  You  saw  him  at  the  Centennial  Exhibition  in  the  apparent  discharge  of  his 
duties  ? — A.  Yes,  sir. 

Q.  And  you  heard  him  speak  of  his  duties  as  centennial  commissioner? — A.  Yes, 
sir. 

Q.  Is  he  universally  reported  to  be  a  centennial  commissioner  ? — A.  Yes,  sir.  He  was 
formerly  a  member  of  Congress. 

Q.  Do  you  know  that  he  was  the  candidate  for  presidential  elector  ? — A.  Yes,  sir. 

Q.  Do  you  know  that  it  was  the  same  person  ? — A.  Yes,  sir. 

By  Mr.  BURCHARD  : 

Q.  Do  you  know  that  from  him  ? — A.  I  do  not  know  that  I  ever  heard  him  speak  of 
it  himself  directly. 

By  Mr.  FIELD  : 

Q.  But  it  was  well  understood  among  the  people  in  Pennsylvania  that  Daniel  .1. 
Morrell,  who  was  centennial  commissioner,  was  also  a  candidate  for  presidential 
elector  on  the  republican  ticket  ? — A.  It  was  generally  understood  in  that  district.  I 
cannot  speak  as  to  the  whole  State. 

WASHINGTON,  D.  C.,  February  23, 1877. 
JOHN  WELSH  sworn  and  examined. 

By  Mr.  TUCKER  : 

Question.  Where  do  you  reside  ? — Answer.  I  reside  in  Philadelphia,  Pennsylvania. 

Q.  Were  you  a  candidate  for  the  position  of  presidential  elector  at  the  late  presi 
dential  election,  and  were  you  certified  as  one  of  the  electors  for  the  State  of  Pennsyl 
vania  ? — A.  I  was,  from  the  first  district. 

Q.  Did  you  attend  the  college  of  electors  ? — A.  I  did. 

Q.  And  cast  your  vote  ? — A.  Yes  sir. 

Q.  Do  you  hold  any  office  of  honor,  trust,  or  profit  under  the  United  States? — A.  Noy 
sir. 

Q.  What  is  your  connection  with  the  Centennial  Exhibition  ? — A.  I  am  a  director 
and  also  president  of  the  Centennial  Board  of  Finance,  which  was  chartered  by  the 
United  States  on  the  1st  of  June,  1872.  It  is  a  stock  company.  I  was  elected  a  director 
in  April,  1873,  and  every  year  since  then,  by  the  stockholders,  and  have  been  chosen 
president  every  year  by  the  directors. 

Q.  Were  you  president  of  that  corporation  on  the  7th  of  November,  1876?— A.  I 
was. 


650  ELECTORAL    COUNT   OF    1877. 

Q.  And  on  the  6th  of  December,  1876  ? — A.  Yes,  sir ;  and  am  still. 

Q.  You  are  a  stockholder  in  the  corporation? — A.  I  am  a  stockholder  in  the  corpora 
tion. 

Q.  And  have  been  since  1873  ?— A.  Yes,  sir. 

Q.  You  held  no  position  as  centennial  commissioner  ? — A.  No,  sir. 

Q.  Do  you  know  Mr.  Daniel  ,T.  Morrell? — A.  I  do. 

Q.  Was  he  a  centennial  commissioner  under  appointment  of  the  President  ? — A.  He 
was  and  is. 

Q.  He  was  acting  as  such  on  the  7th  of  November,  1876,  and  on  the  6th  of  December 
1876  ?— A.  Yes,  sir. 

Q.  Is  he  the  same  gentleman  who  was  elected  one  of  the  presidential  electors  for  the 
State  of  Pennsylvania  ? — A.  He  is. 

Q.  Did  he  appear  at  the  meeting  of  the  electors  ? — A.  He  did  not. 

Q.  Did  he  assign  any  reason  for  not  appearing  ? — A.  He  was  not  present.  I  cannot 
say  that  he  ever  assigned  any  reason  for  his  absence. 

Q.  Did  he  send  a  letter? — A.  No.  I  think  he  was  absent  and  that  his  place  was 
supplied. 

Q.  Who  was  appointed  in  his  place  ? — A.  If  I  recollect  right,  it  was  Mr.  Boggs,  of 
Cambria  County,  the  same  county  that  Mr.  Morrell  lives  in. 

Q.  Who  appointed  Mr.  Boggs  ? — A.  He  was  appointed  by  the  electoral  college. 

Q.  Did  he  hold  any  Federal  office  ? — A.  I  think  not. 

Q.  His  title  as  an  elector  for  the  State  of  Pennsylvania  was  due  to  an  appointment 
by  the  college  of  electors  ?— A.  Entirely. 

Q.  To  fill  the  place  of  Mr.  Morrell  ?— A.  Yes,  sir. 

By  Mr.  LAWRENCE  : 

Q.  The  corporation  was  a  mere  private  stock  corporation  ? — A.  Yes,  sir. 

Q.  You  had  no  appointment  from  the  President  of  the  United  States  ?— A.  No,  sir. 

Q.  There  is  no  salary  fixed  by  law  to  the  office  of  director  or  president  ?— A.  The  law 
allows  a  salary  to  be  paid  to  the  president  and  the  treasurer,  but  I  have  never  received 
any  salary.  I  declined  to  receive  it. 

Q.  The  law  does  not  fix  any  salary  ? — A.  No,  sir. 

By  Mr.  BURCHARD  : 

Q.  The  salary  would  have  been  paid  by  the  corporation  ? — A.  Yes;  it  would  have 
been  paid  by  the  corporation. 

Q.  And  your  relation  to  the  Centennial  Exhibition  was  simply  that  of  stockholder 
in  this  corporation  and  of  an  officer  elected  by  the  stockholders? — A.  I  was  elected  a 
director  by  the  stockholders  and  president  by  the  board  of  directors. 

By  Mr.  LAWRENCE  : 

Q.  You  are  no  more  an  officer  of  the  Government  of  the  United  States  than  would 
be  a  director  of  a  railroad  company  incorporated  by  Congress? — A.  No,  sir.  I  have 
never  held  any  office  under  the  United  States. 

By  Mr.  TUCKER  : 

Q.  Did  you  give  any  bond  as  president  of  the  board  of  finance  to  the  United 
States? — A.  Yes,  sir;  not  as  president  of  the  board  of  finance.  Congress  appropriated 
$1,500,000,  and  there  was  a  provision  in  the  appropriation  bill  that  the  presideut  and 
treasurer  should  give  a  bond  in  $500,000.  That  bond  was  given  by  us,  signed  by  one 
hundred  citizens  of  Philadelphia. 

Q.  You  executed  that  bond  ? — A.  Yes,  sir. 

Q.  To  whom  was  the  bond  given  ?— A.  I  suppose  the  Secretary  of  the  Treasury. 
The  bond  was  conditioned  on  our  applying  the  money  to  the  purpose  stated,  namely, 
having  the  building  open  on  the  10th  of  May,  free  of  debt.  The  bond  was  filed,  and 
vouchers  to  the  amount  of  $1,727,000  were  sent  voluntarily  by  us. 

Q.  Is  this  the  provision  of  law  on  the  subject  ?     [Reading.] — A.  Yes,  sir ;  that  is  it. 

Q.  You  say  that  you  presented  vouchers  ? — A.  Yes,  sir. 

Q.  When  ? — A.  In  the  course  of  the  season  we  sent  to  the  Treasury  Department 
vouchers  for  $1,727,000.  They  were  sent  -at  various  periods  during  the  summer. 

Q.  Did  you  send  them  all  to  the  Treasury  before  the  presidential  election  ? — A.  Long 
before. 

Q.  Did  you  get  an  acquittance  or  discharge  of  the  bond? — A.  No,  sir;  we  got  no 
acquittance  or  discharge. 

Q.  The  bond,  therefore,  is  still  outstanding  as  an  obligation  ? — A.  Yes,  sir ;  I  do  not 
know  whether  the  Government  ever  gives  up  a  bond. 

Q.  It  gave  you  no  acquittance?— A.  No,  sir. 

Q.  Was  there  any  provision  for  returning  this  money  to  the  Government  ? — A.  I  have 
no  opinion  to  ofler  on  that  subject.  There  is  a  difference  of  opinion  on  the  subject  be 
tween  gentlemen  skilled  in  the  law.  My  own  reading  of  it  is  that  there  is  no  provis 
ion  for  the  return  of  the  money  to  the  Government  until  after  the  stockholders  shall 


ELECTORAL   COUNT    OF    1877.  651 

be  paid,  unless  there  be  a  profit,  but  I  pretend  to  express  no  opinion  on  the  subject. 
It  was  submitted  to  the  court,  and  the  circuit  court  has  determined  that  there  is  no 
such  provision  in  the  law ;  in  other  words,  that  the  money  which  we  have  on  hand 
belongs  to  the  stockholders ;  but  an  appeal  has  been  taken  to  the  Supreme  Court  of 
the  United  States,  and  it  will  be  argued  there. 

Q.  Then  the  question  was  whether  there  was  any  money  to  be  paid  to  the  Govern 
ment  in  any  event  ? — A.  The  question  was  whether  any  money  was  to  be  paid  to  the 
Government  out  of  the  capital  or  out  of  the  profits.  The  construction  of  the  court  is 
that  it  was  to  come  out  of  the  profits. 

Q.  Then  the  court  has  decided  that  there  is  an  obligation  to  refund  the  money  to  the 
Government  if  there  should  be  a  profit  sufficient  for  that  purpose  ? — A.  Yes,  sir. 

Q.  Do  you  hold  any  fund  in  your  hands  now  awaiting  the  decision  of  that  case? — 
A.  We  do.  We  placed  before  the  court  a  statement  that  we  have  about  $2,000,000  on 
hand  for  which  there  are  two  claimants. 

Q.  Who  are  the  two  claimants  ? — A.  The  stockholders  and  the  Government.  We 
asked  the  court  to  instruct  us  what  to  do  with  the  money. 

By  Mr.  B  ORCHARD  : 

Q.  You  were  the  president  of  a  board  of  directors,  elected  by  the  stockholders  under 
sections  4  and  5  of  the  act  of  1872  ? — A.  Yes,  sir. 

Q.  There  has  been  no  change  in  the  law,  to  your  knowledge,  in  reference  to  the 
duration  of  your  term  of  office  or  your  duties  in  regard  to  the  Government  ? — A.  No, 
sir ;  no  change. 

Q.  That  law  provides  that  the  president,  two  vice-presidents,  treasurer,  and  secre 
tary,  and  such  other  officers  as  may  be  required  to  carry  out  the  purpose  of  the  cor 
poration,  shall  hold  their  respective  offices  during  the  pleasure  of  the  board,  and  the 
board  adopts  by-laws  for  its  own  government  ? — A.  Yes. 

Q.  And  you  are  in  no  way  represented  as  an  officer  of  the  United  States  ? — A.  'No, 
sir. 

Q.  You  had  no  power  to  incur  any  liability  to  be  charged  to  the  United  States  ? — A. 
No,  sir.  Each  of  the  acts  of  Congress  has  had  specific  provisions  in  that  respect — that 
no  debt  or  responsibility  should  be  incurred  on  behalf  of  the  United  States. 

Q.  And  your  relation  to  this  money  which  was  appropriated  by  Congress  was  simply 
that  of  applying  it  as  the  law  required? — A.  Yes,  sir. 

Q.  But  it  was  appropriated  to  the  corporation  ? — A.  Entirely. 

Q.  For  the  purpose  of  the  exposition  ? — A.  Yes. 

Q.  And  the  act  required  the  president  of  the  board  and  the  treasurer  to  give  bond 
to  the  United  States  ?— A.  Yes. 

Q.  You  had  no  special  custody  of  the  funds? — A.  The  treasurer  had  custody  of  the 
funds,  but  a  Loud  was  required  from  the  president  as  well  as  the  treasurer. 

Q.  Your  only  relation  to  it  was  simply  that  of  giving  a  bond  ? — A.  Yes.  The  fund 
was  under  the  control  of  the  board  of  directors,  to  be  disposed  of  by  them.  *I  was  their 
servant.  The  funds  were  all  applied  in  exact  accordance  with  the  memorial  sent  to 
Congress  and  signed  by  me,  and  it  is  a  very  curious  fact  that  the  $1,500,000  asked  for 
was  precisely  the  amount  that  was  required. 

Q.  You  hold  no  office  of  profit  or  trust  under  the  United  States  unless  the  giving  of 
a  bond  created  you  an  officer  ? — A.  No,  sir.  If  so,  I  am  an  officer  of  the  United  States 
in  a  great  many  instances,  for  I  am  on  a  good  many  custom-house  bonds  for  the  last 
fifty  years. 

By  Mr.  TUCKER  : 

Q.  You  say  that  $1,500,000  was  just  enough? — A.  Just  enough  to  enable  us  to  open 
the  exhibition. 

Q.  How  much  money  have  you  on  hand  now  interpleaded  between  the  Government 
of  the  United  States  and  the  stockholders? — A.  Something  rising  $2,000,000.  We  can 
not  yet  determine  definitely  the  amount,  because  there  are  certain  large  claims  which 
may  or  may  not  be  allowed.  If  the  Government  is  to  be  refunded  the  $1,500,000,  then 
we  shall  pay  25  per  cent,  to  the  stockholders,  and  in  the  other  case  we  shall  have 
probably  85  per  cent,  to  pay  to  the  stockholders. 

WASHINGTON,  D.  C.,  February  24,  1877. 
DANIEL  J.  MORRELL  sworn  and  examined. 

By  Mr.  TUCKER  : 

Question.  Where  do  you  reside  ? — Answer.  Johnstown,  Pennsylvania. 

Q.  Are  you  or  have  you  been  a  centennial  commissioner  by  appointment  of  the  Pres 
ident  of  the  United  States  ?— A.  Yes,  sir. 

Q.  What  was  the  date  of  your  appointment,  and  up  to  what  time  did  you  hold  the 
office  ? — A.  I  don't  remember  the  exact  date,  but  I  think  it  was  in  1871  or  1872. 

Q.  You  were  appointed  by  commission  by  the  President? — A.  I  was  nominated  by 
the  governor  of  Pennsylvania  and  commissioned  by  the  President  of  the  United  States. 


652  ELECTORAL    COUNT    OF    1877. 

Q.  Are  you  still  a  centennial  commissioner? — A.  Yes,  sir. 

Q.  And  yon  have  continued  to  be  such  from  the  time  of  your  appointment  until  the 
present  time? — A.  Yes,  sir. 

Q.  Were  you  a  candidate  for  the  position  of  elector  at  the  late  presidential  election 
held  on  November  7,  1876  ? — A.  I  was  nominated  and  voted  for  as  an  elector. 

Q.  Was  your  election  certified  to  you  by  the  governor  of  the  State? — A.  Yes,  sir. 

Q.  Did  you  attend  the  meeting  of  the  college  of  electors  ?— A.  No,  sir. 

Q.  Did  you  resign  the  position  ? — A.  No,  sir  ;  I  did  not.  I  was  advised  that  it  was 
not  necessary  that  I  should  resign,  but  that  I  should  not  attend ;  that  I  was  not 
eligible. 

Q.  Not  eligible  by  reason  of  your  being  a  centennial  commissioner  ? — A.  Yes,  sir. 

Q.  You  absented  yourself  on  that  account  I — A.  I  did. 

Q.  Who  was  appointed  in  your  place  ? — A.  Henry  A.  Boggs. 

Q.  Henry,  not  Harry  ? — A.  I  have  always  understood  that  his  name  was  Henry  ;  he 
is  called  Harry  generally,  however. 

Q.  He  was  appointed  in  your  place? — A.  That  was  my  understanding.  I  was  not 
present  at  the  meeting  of  the  electors. 

By  Mr.  BURCHARD  : 

Q.  Are  you  paid  any  compensation  out  of  the  Treasury  of  the  United  States  as  cen 
tennial  commissioner  ? — A.  No  compensation  whatever  from  any  source. 

Q.  The  position  you  hold  is  under  the  act  creating  the  centennial  commissioners  ? — 
A.  Yes  sir. 

The  PRESIDING  OFFICER.  Are  there  further  objections  to  the 
certificate  from  the  State  of  Pennsylvania?  [A  pause.]  If  there  be 
none,  the  Senate  will  now  withdraw,  that  the  two  Houses  separately 
may  consider  and  determine  on  the  objection. 

The  Senate  then  (at  four  o'clock  and  twenty  minutes  p.  in.)  withdrew. 

IN  SENATE,  Saturday,  February '24, 1877. 

The  Senate  having  returned  from  the  joint  meeting  at  four  o'clock  and 
twenty-two  minutes  p.  m.  the  President  pro  tempore  resumed  the  chair, 
and  laid  before  the  Senate  the  objection  submitted  to  counting  the  vote 
of  Henry  A.  Boggs  as  an  elector  for  the  State  of  Pennsylvania,  which 
was  read. 

Mr.  Senator  CAMERON  of  Pennsylvania  submitted  the  following 
resolution;  which,  after  debate,  was  agreed  to  without  a  division: 

Resolved,  That  the  vote  of  Henry  A.  Boggs  be  counted  with  the  other  votes  of  the 
electors  of  Pennsylvania,  notwithstanding  the  objections  made  thereto. 

On  motion  of  Mr.  Senator  SARGENT,  it  was 

Ordered,  That  the  Secretary  notify  the  House  of  Representatives  thereof,  and  that 
the  Senate  is  now  ready  to  meet  the  House  to  proceed  with  the  count  of  the  electoral 
votes  for  President  and  Vice-President. 

On  motion  of  Mr.  Senator  WLNDOM,  the  Senate  (at  six  o'clock  p.  m.) 
took  a  recess  until  Monday,  February  26,  at  ten  o'clock  a.  m. 

IN  THE  HOUSE  OF  REPRESENTATIVES, 

Saturday,  February  24,  1877. 

The  Senate  having  retired  from  the  joint  meeting,  at  four  o'clock  and 
twenty  minutes  p.  m.,  the  House  of  Representatives  resumed  its  session. 
On  motion  of  Mr.  Representative  VANCE,  of  Ohio,  the  House  took  a 
recess  (at  four  o'clock  and  fifty-two  minutes  p.  m.)  until  Monday,  Feb 
ruary  26,  at  ten  o'clock  a.  m.,  the  vote  on  the  motion  being  yeas  133, 
nays  122. 

ELECTORAL  COMMISSION. 

SATURDAY,  February  24,  1877. 

The  Commission  met  at  twelve  o'clock  m.,  pursuant  to  adjournment. 
Present:  The  President  and  Messrs.  Commissioners  Field,  Bradley, 
Edmunds,  Frelinghuysen,  Bayard,  Payne,  Hunton,  and  Hoar. 


ELECTORAL    COUNT    OF    1877.  653 

The  Journal  of  yesterday  was  read,  corrected,  and  approved. 

There  being  no  business  before  the  Commission,  on  motion  of  Mr. 
Commissioner  EDMUNDS,  a  recess  was  taken  until  three  o'clock  p.  m., 
at  which  time  a  further  recess  was  taken  till  four  o'clock  p.  m.,  which 
was  again  extended  till  five  o'clock  p.  m. ;  when,  on  motion  of  Mr. 
Commissioner  EDMUNDS,  the  Commission  adjourned  till  Monday  next 
at  ten  o'clock  a.  m. 

FILLING  OF  VACANCY  IN   COMMISSION. 

MONDAY,  February  26. 1877. 

The  Commission  met  at  ten  o'clock  a.  m.,  and,  there  being  no  business 
before  the  Commission,  it  took  a  recess  until  one  o'clock  p.  m. 

At  one  o'clock  p.  m.  the  Commission  re-assembled. 

The  PKESIDENT  laid  before  the  Commission  the  following  communi 
cation  : 

1017  FOURTEENTH  STREET,  WASHINGTON,  D.  C., 

February  26,  1877. 
Hon  NATHAN  CLIFFORD, 

President  of  the  Electoral  Commission  : 

SIR  :  Continued  ill-health  has  confined  me  to  my  room,  and  for  several  days  past  to 
my  bed,  from  which,  by  order  of  my  physician,  I  cannot  be  removed  to-day  ;  nor  have 
I  any  assurance  that  I  will  be  able  to  get  out  for  some  days  to  come. 

Under  these  circumstances  of  physical  disability  I  am  compelled  to  notify  the  Com 
mission  that  I  am  not  able  to  attend  its  sessions,  and  ask  that  the  vacancy  caused  by 
my  absence  may  be  filled  as  provided  by  law. 
Yours,  respectfully, 

A.  G.  THUKMAN. 

On  motion  of  Mr.  Commissioner  EDMUNDS,  the  communication  was 
ordered  to  be  placed  on  the  files  of  the  Commission. 
Mr.  Commissioner  EDMUNDS  offered  the  following  resolution  : 

Whereas  Hon.  Allen  G.  Thurman,  a  member  of  this  Commission  on  the  part  of  the 
Senate  of  the  United  States,  has  now  communicated  to  the  Commission,  by  a  letter  in 
writing,  the  fact  that  he  has  become  physically  unable  to  perform  the  duties  required 
by  the  act  of  Congress  establishing  said  Commission  ;  and  whereas  the  said  Thurman 
has  in  fact  become  physically  unable  to  perform  the  said  duties  :  Therefore, 

Resolved,  That  the  President  of  the  Commission  forthwith  communicate  said  fact  to 
the  Senate  of  the  United  States,  as  required  by  said  act,  in  order  that  the  vacancy  so 
created  in  said  Commission  may  be  lawfully  filled. 

The  question  being  on  the  adoption  of  the  resolution,  it  was  decided 
in  the  affirmative. 

On  motion  of  Mr.  Commissioner  EDMUNDS,  it  was 

Ordered,  That  the  President  of  the  Commission  transmit  a  letter  to  the  President  of 
the  Senate,  in  the  following  words  :] 

"  ELECTORAL  COMMISSION, 

"  Washington,  February  26,  1877. 
"  To  the  President  of  the  Senate  of  the  United  States  :j 

"  SIR  :  I  am  directed  by  the  Electoral  Commission,  formed  under  the  act  of]  Congress 
approved  January  29,  A.  D.  1877,  entitled  "An  act  to  provide  for  and  regulate  the 
counting  of  votes  for  President  and  Vice-President,  and  the  decision  of  questions  aris 
ing  thereon,  for  the  term  commencing  March  4,  A.  D.  1877,"  to  communicate  to  the 
Senate  a  copy  of  a  resolution  of  the  Commission,  this  day  adopted,  touching  a  vacancy 
therein,  occasioned  by  the  physical  inability  of  Hon.  Allen  G.  Thurman,  a  Senator,  and 
member  of  said  Commission,  to  proceed  with  its  duties. 
"  Respectfully,  yours." 

And  the  communication  was  thereupon  signed  accordingly  by 

"  NATHAN  CLIFFORD, 

"  President  of  the  Commission." 

On  motion  of  Mr.  Commissioner  HOAK,  the  Commission  took  a  re 
cess  until  four  o'clock  p.  m. 


654  ELECTORAL    COUNT    OF    1877. 

IN  SENATE,  Monday,  February  26, 1877. 

The  recess  taken  on  Saturday,  February  24,  having  expired,  the  Sen 
ate  resumed  its  session  on  Monday,  February  26,  at  ten  o'clock  a,  m., 
transacting  no  business  till  one  o'clock  and  twenty  minutes  p.  m.,  when 
the  President  pro  tempore  laid  before  the  Senate  a  communication, 
which  was  read,  as  follows  : 

ELECTORAL  COMMISSION, 
Washington,  D.  C.,  February  26,  1877. 

SIR  :  I  am  directed  by  the  Electoral  Commission,  formed  under  the  act  of  Congress 
approved  January  29,  A.  D.  1877,  entitled  "An  act  to  provide  for  and  regulate  the 
counting  of  votes  for  President  and  Vice-President,  and  the  decision  of  questions 
arising  thereon,  for  the  term  commencing  March  4,  A.  D.  1877,"  to  communicate  to  the 
Senate  a  copy  of  a  resolution  of  the  Commission  this  day  adopted,  touching  a  vacancy 
therein,  occasioned  by  the  physical  inability  of  the  Hon.  Allen  G.  Thurman,  a  Senator, 
and  member  of  said  Commission,  to  proceed  with  its  duties. 
Respectfully,  yours, 

NATHAN  CLIFFORD, 

President  of  the  Commission. 
To  the  PRESIDENT 

Of  the  Senate  of  the  United  States. 

ELECTORAL  COMMISSION, 
Washington,  D.  C.,  February  26,  1877. 

Whereas  Hon.  Allen  G.  Thurman,  a  member  of  this  Commission   on  the  part  of 
the  Senate  of  the  United  States,  has  now  communicated  to  the  Commission,  by  a  letter 
in  writing,  the  fact  that  he  has  become  physically  unable  to  perform  the  duties  re 
quired  by  the  act  of  Congress  establishing  said  Commission ;  and  whereas  the  said 
Thurman  has  in  fact  become  physically  unable  to  perform  the  said  duties  :  Therefore, 
Resolved,  That  the  president  of  the  Commission  forthwith  communicate  said  fact  to 
the  Senate  of  the  United  States,  as  required  by  said  act,  in  order  that  the  vacancy  so 
created  in  said  Commission  may  be  lawfully  filled. 
A  true  copy. 
Attest : 

JAS.  H.  McKENNEY, 

Secretary. 

The  PEESIDENT  pro  tempore.  In  compliance  with  the  act  the 
Senate  will  now  proceed  by  viva  voce  vote  to  elect  a  Senator  to  fill  the 
vacancy. 

Mr.  Senator  McDONALD.    I  offer  the  following  resolution  : 

Whereas  the  Electoral  Commission  created  under  the  act  of  Congress  approved  Jan 
uary  29,  1877,  entitled  "An  act  to  provide  for  and  regulate  the  counting  of  votes  for 
President  and  Vice-President,  and  the  decision  of  questions  arising  thereon,  for  the 
term  commencing  March  4,  A.  D.  1877,"  has  according  to  said  act  communicated  to 
the  Senate  the  fact  of  the  physical  inability  of  Senator  Allen  G.  Thurman,  a  member 
of  said  Commission,  to  perform  the  duties  required  by  said  act :  Therefore, 

Resolved,  That  Francis  Kernan,  a  Senator  from  the  State  of  New  York,  be,  and  he 
hereby  is,  appointed  a  member  of  said  Commission,  to  fill  the  place  so  made  vacant  by 
said  physical  inability  of  said  Thurman,  as  required  by  said  act. 

The  PRESIDENT  pro  tempore.  The  Secretary  will  call  the  roll  of 
the  Senate. 

The  roll  having  been  called,  the  vote  was  yeas  46,  nays  none. 

The  PEESIDENT  pro  tempore.  The  resolution  is  agreed  to,  and  the 
Senator  from  New  York  (Mr.  Kernan)  is  unanimously  elected.  The 
Commission  will  be  notified  of  the  election. 

ELECTORAL  COMMISSION, 
Monday,  February  26,  1877 — 4  p.  m. 

The  recess  having  expired,  the  Commission  resumed  its  session  at  four 
o'clock  p.  m. 
The  PEESIDENT  read  the  following  communication  : 

IN  SENATE  OF  THE  UNITED  STATES, 

February  26,  1877. 
SIR:  I  have  the  honor  to  communicate  to  you,  to  be  laid  before  the  Electoral 


ELECTORAL    COUNT    OF    1377.  655 

Commission,  the  proceedings  of  the  Senate  upon  the  submission  of  your  communica 
tion  this  day  announcing  the  inability  of  Hon.  Allen  G.  Thurman,  a  member  of  the 
Commission,  to  perform  the  duties  required  by  the  act  creating  the  said  Commission. 
I  have  the  honor  to  be,  sir,  respectfully,  your  obedient  servant, 

T.  W.  FERRY, 
President  pro  tempore. 
Hon.  NATHAN  CLIFFORD, 

President  of  the  Electoral  Commission. 


IN  THE  SENATE  OF  THE  UNITED  STATES, 

February  26,  1877. 

The  PRESIDENT  pro  tempore  laid  before  the  Senate  a  communication  from  the  Pres 
ident  of  the  Electoral  Commission,  announcing  that  Hon.  Allen  G.  Thurman,  a  mem 
ber  of  said  Commission  on  the  part  of  the  Senate,  had  become  physically  unable  to 
perform  the  duties  required  by  the  act  of  Congress  establishing  the  said  Commission. 
The  Senate  thereupon  proceeded,  as  required  by  the  act  of  Congress  creating  the 
said  Commission,  to  elect,  by  a  viva  voce  vote,  a  member  of  the  Senate  to  fill  the 
vacancy  in  the  said  Commission  created  by  the  inability  of  Hon.  Allen  G.  Thurman. 

And,  on  counting  the  votes,  it  appeared  that  Hon.  Francis  Kernan  was  unanimously 
elected  by  the  Senate  to  fill  the  vacancy  in  the  Commission. 
Attest :  GEORGE  C.  GORHAM, 

Secretary. 

The  oath  prescribed  by  law  was  administered  by  the  President  to  Mr. 
KERNAN,  and  subscribed  by  him  $  whereupon  he  took  his  seat  as  a  mem 
ber  of  the  Commission. 

On  motion  of  Mr.  Commissioner  EDMUNDS,  the  Commission  took  a 
recess  until  six  o'clock,  unless  sooner  called  together  by  direction  of  the 
President. 

PEOCEEDINGS  OF  THE  TWO  HOUSES. 
PENNSYLVANIA. 

IN  THE  HOUSE  OF  EEPRESENTATIVES, 

Monday,  February  26,  1877. 

The  recess  taken  on  Saturday,  February  24,  having  expired,  the  House 
resumed  its  session  at  ten  o'clock  a.  m.  Monday,  February  26. 

A  message  from  the  Senate  was  received  announcing  its  action  on  the 
objection  to  the  vote  of  Henry  A.  Boggs  as  one  of  the  electors  for  the 
State  of  Pennsylvania,  and  its  readiness  to  meet  the  House  in  order  to 
proceed  with  the  counting  of  the  electoral  votes. 

Mr.  Eepresentative  CLYMEE  raised  the  point  of  order  that  there  was 
not  a  quorum  present,  and  moved  a  call  of  the  House. 

No  quorum  voting  on  this  motion,  the  SPEAKEE  directed  the  roll  to 
be  called. 

The  calling  of  the  roll  developing  the  presence  of  a  quorum,  all  further 
proceedings  under  the  call  were  dispensed  with. 

Mr.  Eepresentative  KELLE Y  submitted  the  following  resolution : 

Resolved,  That  the  vote  of  Henry  A.  Boggs  be  counted  as  an  elector  for  the  State  of 
Pennsylvania,  the  objections  to  the  contrary  notwithstanding. 

Mr.  Eepresentative  STENGEE  moved  to  amend  the  resolution  by  sub 
stituting  therefor  the  following : 

Resolved,  That  the  vote  of  Henry  A.  Boggs,  as  an  elector  for  the  State  of  Pennsyl 
vania,  should  not  be  counted,  because  the  said  Boggs  was  not  appointed  an  elector  for 
said  State  in  such  manner  as  its  legislature  directed. 

After  debate,  the  amendment  was  agreed  to  by  a  vote  of  yeas  135, 


656  ELECTORAL    COUNT    OF    1877. 

nays  119;  and  the  resolution  as  amended  was  agreed  to  without  a  divi 
sion  ;  and  the  Clerk  was  directed  to  inform  the  Senate  of  this  action  and 
of  the  readiness  of  the  House  to  receive  the  Senate  in  order  to  proceed 
with  the  count. 

IN  SENATE,  Monday,  February  26, 1877. 

The  Senate  at  three  o'clock  and  thirteen  minutes  p.  in.  was  notified  of 
the  action  of  the  House  of  Representatives  in  regard  to  the  vote  of 
Henry  A.  Boggs  as  an  elector  for  the  State  of  Pennsylvania,  and  imme 
diately  proceeded  to  the  Hall  of  the  House. 

JOINT  MEETING. 

MONDAY,  February  26, 1877. 

The  Senate  entered  the  House-hall  at  three  o'clock  and  fifteen  minutes 
p.  m.  in  the  usual  manner. 

The  PRESIDENT  pro  tempore  of  the  Senate  took  his  seat  as  presid 
ing  officer  of  the  joint  meeting  of  the  two  Houses,  the  Speaker  of  the 
House  occupying  a  chair  upon  his  left. 

The  PRESIDING  OFFICER.  The  joint  meeting  of  Congress  for 
counting  the  electoral  vote  resumes  its  session.  The  two  Houses  acting 
separately  have  considered  and  determined  on  the  objection  to  the  cer 
tificate  from  the  State  of  Pennsylvania ;  the  Secretary  of  the  Senate 
will  read  the  resolution  of  the  Senate. 

The  Secretary  of  the  Senate  read  as  follows : 

Resolved,  That  the  vote  of  Henry  A.  Boggs  be  counted  with  the  other  votes  of  the 
electors  of  Pennsylvania,  notwithstanding  the  objection  thereto. 

The  PRESIDING  OFFICER.  The  Clerk  of  the  House  of  Represent 
atives  will  now  read  the  resolution  adopted  by  the  House  of  Representa 
tives. 

The  Clerk  of  the  House  of  Representatives  read  as  follows  : 

Resolved,  That  the  vote  of  Henry  A.  Boggs  as  an  elector  for  the  State  of  Pennsylvania 
should  not  be  counted,  because  said  Boggs  was  not  appointed  an  elector  for  said  State 
in  such  manner  as  its  legislature  directed.  *  .  •  • 

The  PRESIDING  OFFICER.  The  two  Houses  not  concurring  in  an 
affirmative  vote  to  reject,  the  vote  of  the  State  of  Pennsylvania  will  be 
counted.  The  tellers  will  announce  the  vote  of  the  State  of  Pennsylvania. 

Mr.  Senator  ALLISON,  (one  of  the  tellers.)  The  State  of  Pennsyl 
vania  casts  29  votes  for  Rutherford  B.  Hayes,  of  Ohio,  for  President,  and 
29  votes  for  William  A,  Wheeler,  of  New  York,  for  Vice-President. 

KHODE  ISLAND. 

The  PRESIDING  OFFICER.  Having  opened  the  certificate  re 
ceived  by  messenger  from  the  State  of  Rhode  Island,  the  Chair  hands 
to  the  tellers  the  same  to  be  read  in  the  presence  arid  hearing  of  the  two 
Houses  5  also  the  corresponding  certificate  by  mail  is  handed  to  the 
tellers. 

Mr.  Representative  STCNE  (one  of  the  tellers)  read  the  certificate 
from  the  State  of  Rhode  Island. 

The  PRESIDING  OFFICER.  Are  there  any  objections  to  the  cer 
tificate  from  the  State  of  Rhode  Island  I 

Mr.  Representative  O'BRIEN.  On  behalf  of  myself  and  other  signers, 
Senators  and  Representatives,  I  send  up  objections  to  one  of  the  votes 
from  the  State  of  Rhode  Island. 


ELECTORAL    COUNT    OF    1877.  657 

The  PRESIDING  OFFICER,  The  member  from  Maryland  having 
submitted  an  objection  to  the  certificate  from  the  State  of  Rhode  Island, 
the  Clerk  of  the  House  will  read  the  same. 

The  Clerk  of  the  House  read  as  follows  : 

The  undersigned,  Senators  and  Representatives,  do  hereby  object  to  counting  the 
vote  of  William  S.  Slater,  alleged  elector  of  the  State  of  Rhode  Island,  and  as  reasons 
therefor  assign  the  following: 

First.  That  the  said  William  S.  Slater  was  not  duly  appointed  elector  by  the  State 
of  Rhode  Island  at  the  election  in  said  State  on  the  7th  day  of  November,  Ib76. 

Second.  That  George  H.  Corliss,  according  to  the  decision  of  the  Electoral  Commis 
sion  rendered  in  the  counting  of  the  vote  of  John  W.  Watts,  as  elector  of  the  State  of 
Oregon,  if  said  decision  be  law,  was  duly  appointed  elector  by  the  State  of  Rhode 
Island,  and  the  substitution  for  him  of  the  said  Slater  was  illegal  and  unconstitutional. 
Third.  If  in  any  event  it  was  competent  to  complete  the  electoral  college  of  Rhode 
Island  by  adding  another  elector  thereto,  it  could  only  have  been  done  under  the  law 
as  announced  by  the  said  Electoral  Commission,  if  said  decision  be  law,  and  pursuant 
to  the  laws  of  said  State  by  act  of  the  majority  of  the  members  of  said  college,  and 
not  by  the  legislature  of  said  State.  " 

JAMES  K.  KELLY, 
J.  B.  GORDON, 

Senators. 

WM.  J.  O'BRIEN, 
R.  Q.  MILLS, 
G.  A.  JENKS, 
L.  A.  MACKEY, 
A.  V.  RICE, 
J.  L.  VANCE, 
FRANK  H.  HURD, 
JAMES  J.  FINLEY, 
A.  T.  WALLING, 
E.  F.  POPPLETON, 
M.  I.  SOUTHARD, 
E.  J    HENKLE, 
JOHN  K.  LUTTRELL, 
A.  M.  WAD  DELL, 
WM.  P.  LYNDE, 

Representatives. 

The  PRESIDING  OFFICER.  Are  there  further  objections  to  the 
certificate  from  the  State  of  Rhode  Island  ?  [A  pause.]  If  there  be 
none,  the  Senate  will  now  withdraw  to  its  Chamber,  that  the  two  Houses 
may  separately  consider  and  determine  on  the  objection. 

Accordingly  (at  three  o'clock  and  twenty-eight  minutes  p.  m.)  the 
Senate  withdrew. 

IN  SENATE,  Monday,  February  26,  1877. 

The  Senate  having  returned  from  the  joint  meeting,  at  three  o'clock 
thirty  minutes  p.  m.  the  President  pro  tempore  resumed  the  chair  and' 
submitted  to  the  Senate  the  objection  made  to  counting  the  vote  of 
William  S.  Slater  as  an  elector  for  the  State  of  Rhode  Island,  which  was 
read. 

Mr.  Senator  BURNSIDE  thereupon  submitted  the  following  resolu 
tion,  which,  after  debate,  was  agreed  to  by  a  vote  of  yeas  57,  nays  none, 
viz : 

Resolved,  That  the  vote  of  William  S.  Slater  be  counted  with  the  other  votes  of  the 
electors  of  Rhode  Island,  notwithstanding  the  objections  made  thereto. 

On  motion  of  Mr.  Senator  ANTHONY,  it  was 

Ordered,  That  the  Secretary  notify  the  House  of  Representatives  thereof,  and  that 
the  Senate  is  now  ready  to  meet  the  Hot^e  to  continue  thecouut  of  the  electoral  votes 
for  President  and  Vice- President. 

At  five  o'clock  and  fifty-five  minutes  p.  m.  a  message  was  received  from 
Ihe  House  of  Representatives  announcing  its  action  on  the  object  on  to 
42  EC 


658  ELECTORAL    COUNT   OF    1877. 

the  vote  of  William  S.  Slater  as  an  elector  for  the  State  of  Rhode  Island 
and  its  readiness  to  receive  the  (Senate  to  proceed  with,  the  electoral 
count  ;  and  the  Senate  immediately  proceeded  to  the  Hall  of  the  House. 

IN  THE  HOUSE  OF  REPRESENTATIVES, 

Monday^  February  26,  1877. 

The  Senate  having*  retired  from  the  joint  meeting,  at  three  o'clock  and 
twenty-eight  minutes  p.  m.  the  House  of  Representatives  resumed  its 
session. 

Mr.  Representative  POPPLETON  moved  that  the  House  take  a,  re 
cess  until  Tuesday,  February  27,  at  ten  o'clock  a.  in. ;  which  motion  was 
disagreed  to — yeas  84,  nays  178. 

Mr.  Representative  WOOD,  of  New  York,  moved  to  reconsider  the 
vote  just  taken  refusing  a  recess,  and  also  moved  that  the  motion  tore- 
consider  be  laid  on  the  table. 

Mr.  Representative  O'BRIEN  raised  the  point  of  order  that  the  mo 
tions  of  Mr.  Representative  Wood,  of  New  York,  were  not  in  order. 

The  SPEAKER  overruled  the  point  of  order. 

The  motion  to  lay  on  the  table  the  motion  to  reconsider  was  agreed 
to — yeas  182,  nays  67. 

A  message  was  received  from  the  Senate  announcing  its  action  on  the 
objection  to  the  vote  of  William  S.  Slater  as  an  elector  for  the  State  of 
Rhode  Island  and  its  readiness  to  proceed  with  the  electoral  count. 

Mr.  Representative  O'BRIEN  submitted  the  following  resolution  : 

Resolved,  That  the  vote  of  William  S.  Slater  as  elector  for  the  State  of  Rhode  Island 
should  not  be  counted  because  said  Slater  was  not  appointed  or  elected  elector  for  said 
State  in  such  manner  as  its  legislature  had  directed. 

Mr  Representative  EAMES  moved  to  amend  the  resolution  by  sub 
stituting  therefor  the  following: 

Resolved,  That  the  vote  of  William  S.  Slater  as  an  elector  for  the  State  of  Rhode 
Island  be  counted,  the  objections  thereto  to  the  contrary  notwithstanding. 

After  debate,  the  amendment  was  agreed  to,  and  the  resolution  as 
amended  was  agreed  to  without  a  division. 

Mr.  Representative  WJLSON,  of  Iowa,  moved  that  the  Senate  be 
notified  by  the  Clerk  of  the  action  of  the  House  in  regard  to  the  elect 
oral  vote  of  Rhode  Island,  and  that  the  House  was  ready  to  meet  the 
Senate  at  once  and  continue  the  counting  of  the  electoral  votes  for  Presi 
dent  and  Vice-President. 

Mr.  Representative  KNOTT  submitted  as  a  substitute  for  the  motion 
the  following : 

Ordered,  That  the  Clerk  of  this  House  notify  the  Senate  of  the  decision  of  the  House 
in  the  case  of  the  State  of  Rhode  Island,  and  that  the  House  of  Representatives  will 
meet  the  Senate  in  this  hall  at  ten  o'clock  to-morrow  morning  to  proceed  with  the 
counting  of  the  electoral  vote  for  President  and  Vice-President  of  the  United  States. 

Mr.  Representative  McCRARY  made  the  point  of  order  that  the  elect 
oral  act  (section  1)  requires  that  when  the  two  Houses  have  voted 
upon  objections,  they  shall  immediately  again  meet  and  the  presiding 
officer  shall  then  announce  the  decision  of  the  question  submitted. 

The  SPEAKER  sustained  the  point  of  order  and  ruled  out  the  amend 
ment. 

The  motion  of  Mr.  Representative  WILSON,  of  Iowa,  was  adopted ; 
and  the  Senate  was  notified. 

JOINT  MEETING. 

MONDAY,  February  26,  1877. 

The  Senate  entered  the  House  hall  at  six  o'clock  p.  m.,  in  the  usual 
manner. 


ELECTORAL    COUNT    OF    1877.  659 

The  PRESIDENT  pro  tempore  of  the  Senate  took  his  seat  as  Presid 
ing  Officer  of  the  joint  meeting  of  the  two  Houses,  the  Speaker  of  the 
House  occupying  a  chair  upon  his  left. 

The  PRESIDING  OFFICER.  The  joint  meeting  of  Congress  for 
counting  the  electoral  vote  resumes  its  session.  The  two  Houses  hav 
ing  separately  determined  upon  the  objection  to  the  certificate  from  the 
State  of  Rhode  Island,  the  Secretary  of  the  Senate  will  read  the  reso 
lution  adopted  by  the  Senate. 

The  Secretary  of  the  Senate  read  as  follows : 

Resolved,  That  the  vote  of  William  S.  Slater  be  counted  with  the  other  votes  of  the 
electors  of  Rhode  Island,  notwithstanding  the  objections  made  thereto. 

The  PRESIDING  OFFICER.  The  Clerk  of  the  House  of  Repre 
sentatives  will  now  read  the  resolution  adopted  by  the  House  of  Rep 
resentatives. 

The  Clerk  of  the  House  of  Representatives  read  as  follows : 

Resolved,  That  the  vote  of  William  S.  Slater  as  an  elector  of  the  State  of  Rhode 
Island  be  counted,  the  objections  thereto  to  the  contrary  notwithstanding. 

The  PRESIDING  OFFICER.  The  two  Houses  having  concurred  in. 
an  affirmative  vote  not  to  reject  the  vote  of  Rhode  Island,  that  vote 
will  be  counted.  The  tellers  will  announce  the  vote  of  Rhode  Island. 

Mr.  Representative  STONE,  (one  of  the  tellers.)  The  State  of  Rhode 
Island  casts  four  votes  for  Rutherford  B.  Hayes,  of  the  State  of  Ohio, 
for  President,  and  four  votes  for  William  A.  Wheeler,  of  the  State  of 
New  York,  for  Vice-President  of  the  United  States. 

SOUTH  CAROLINA. 

The  PRESIDING  OFFICER.  Having  opened  the  certificate  from 
the  State  of  South  Carolina,  received  by  messenger,  the  Chair  hands  it 
to  the  tellers  to  be  read  in  the  presence  and  hearing  of  the  two  Houses. 
The  Chair  also  hands  to  the  tellers  the  corresponding  certificate  received 
by  mail. 

Mr.  Senator  ALLISON  (one  of  the  tellers)  read  as  follows : 

CERTIFICATE  No.  1. 

.  •>•<>  i 

!  STATE  OF  SOUTH  CAROLINA.  : 

Pursuant  to  the  laws  of  the  United  States,  I,  D.  H.  Chamberlain,  governor  of  the 
State  of  South  Carolina,  do  hereby  certify  that  C.  C.  Bowen,  John  Winsmith,  Thomas 
B.  Johnston,  Timothy  Hurley,  W.  B.  Nash,  Wilson  Cook,  and  W.  F.  Myers  have  been 
chosen  electors  of  President  and  Vice-President  of  the  United  States  on  the  part  of 
this  State,  agreeably  to  the  provisions  of  the  laws  of  the  said  State  and  in  conformity 
to  the  Constitution  of  the  United  States  of  America,  for  the  purpose  of  giving  in  their 
votes  for  President  and  Vice-President  of  the  United  States  for  the  term  prescribed  by 
the  Constitution  of  said  United  States,  to  begin  on  the  4th  day  of  March,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  seventy-seven. 

Given  under  my  hand  and  seal  of  the  State  of  South  Carolina,  at  Columbia,  this 
twenty-second  day  of  November,  A.  D.  one  thousand  eight  hundred  and  seventv-six. 

D.  H.  CHAMBERLAIN, 

Governor. 
By  the  governor : 
[SEAL.]  H.  E.  HAYNE, 

Secretary  of  State. 


660  ELECTORAL    COUNT    OF    1877. 

List  of  persons  voted  for  as  President  of  the  United  States  of  America  for  the  term 
prescribed  by  the  Constitution  of  the  United  States  to  begin  on  the  fourth  day  of 
March,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and  seventy-seven,  by 
the  electoral  college  of  the  State  of  South  Carolina,  on  the  first  Wednesday  in  De 
cember,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and  seventy-six,  at 
Columbia,  the  capital  of  said  State  of  South  Carolina,  with  the  number  of  votes  for 
each,  to  wit: 
Rutherford  B.  Hayes,  of  Ohio,  received  seven  (7)  votes. 

C.  C.  BOWEN. 

J.  WIN  SMITH. 

THOMAS  B.  JOHNSTON. 

TIMOTHY  HURLEY. 

W.  B.  NASH. 

WILSON  COOK. 

W.  F.  MYERS. 

We,  the  undersigned,  electors  of  President  and  Vice-President  of  the  United  States 
of  America,  appointed  by  the  State  of  South  Carolina  at  the  general  election  held  on 
the  seventh  day  of  November,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  seventy-six,  do  certify  that  the  foregoing  list  is  correct. 

In  witness  whereof  we  have  hereunto  set  our  hands  this  sixth  day  of  December,  in 
the  year  of  our  Lord  one  thousand  eight  hundred  and  seventy-six,  and  in  the  one  hun 
dred  and  first  year  of  the  Independence  of  the  United  States  of  America. 

C.  C.  BOWEN. 

J.  WINSMITH. 

THOMAS  B.  JOHNSTON. 

TIMOTHY  HURLEY. 

W.  B.  NASH. 

WILSON  COOK. 

W.  F.  MYERS. 

List  of  persons  voted  for  as  Vice-President  of  the  United  States  of  America  for  the 
term  prescribed  by  the  Constitution  of  the  United  States  of  America  to  begin  on  the 
fourth  day  of  March,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and  seventy- 
seven,  by  the  electoral  college  of  the  State  of  South  Carolina,  on  the  first  Wednesday 
in  December,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and  seventy-six, 
at  Columbia,  the  capital  of  said  State  of  South  Carolina,  with  the  number  of  votes 
for  each,  to  wit : 
William  A.  Wheeler,  of  New  York,  received  seven  (7)  votes. 

C.  C.  BOWEN, 

J.  WINSMITH. 

THOMAS  B.  JOHNSTON. 

TIMOTHY  HURLEY. 

W.  B.  NASH. 

WILSON  COOK. 

W.  F.  MYERS. 

We,  the  undersigned,  electors  of  President  and  Vice-President  of  the  United  States 
of  America,  appointed  by  the  State  of  South  Carolina  at  the  general  election  held  on 
the  7th  day  of  November,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
seventy-six,  do  certify  that  the  foregoing  list  is  correct. 

In  witness  whereof  we  have  hereunto  set  our  hands  this  6th  day  of  December,  in 
the  year  of  our  Lord  one  thousand  eight  hundred  and  seventy-six,  and  in  the  one 
hundred  and  first  year  of  the  Independence  of  the  United  States  of  America. 

C.  C.  BOWEN. 

J.  WINSMITH. 

THOMAS  B.  JOHNSTON. 

TIMOTHY  HURLEY. 

W.  B.  NASH. 

WILSON  COOK. 

W.  F.  MYERS. 

The  PRESIDING  OFFICER.  Another  certificate  from  the  State  of 
South  Carolina  has  been  received  by  messenger,  and  also  by  mail.  The 
Chair  ham1,  it  to  the  tellers  to  be  read  in  the  presence  and  hearing  of 
the  two  Houses. 

Mr.  Representative  STONE  (one  of  the  tellers)  read  as  follows : 


ELECTORAL    COUNT    OF    1877. 


661 


CERTIFICATE  No.  2. 

STATE  OF  SOUTH  CAROLINA,  ss  : 

We,  the  undersigned,  electors  of  President  and  Vice-President  of  the  United  States 
of  America  for  the  next  ensuing  regular  term  of  the  respective  offices  thereof,  being 
electors  duly  and  legally  appointed  by  and  for  the  State  of  South  Carolina,  as  will 
hereinafter  appear,  having  met  and  convened  in  the  city  of  Columbia,  at  the  capitoi 
of  the  State,  in  pursuance  of  the  direction  of  the  legislature  of  the  State  of  South 
Carolina,  on  the  first  Wednesday,  the  sixth  day,  of  December,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  seventy-six,  do  hereby  certify  that,  being  so  assem 
bled,  duly  qualified  according  to  the  provisions  of  the  constiution  of  said  State  by  tak 
ing  and  subscribing  the  proper  oath  of  office  therein  prescribed,  and  organized,  we 
proceeded  to  vote  by  ballot,  and  balloted  first  for  such  President  and  then  for  such 
Vice-President,  by  distinct  ballots.  -- 

The  listof  the  names  of  the  electors,  signed  by  the  governor,  with  the  seal  of  the  State 
affixed  thereto,  as  required  by  law,  is  not  attached,  and  its  absence  is  explained  by  the 
following  statement  : 

First.  We  claim  to  have  been  duly  appointed  electors  by  the  State  of  South  Carolina 
in  the  manner  directed  by  the  legislature  thereof,  and  to  have  been  elected  by  general 
ticket,  and  to  have  received  the  highest  number  of  votes  at  the  election  for  President 
and  Vice-President,  held  on  the  7th  day  of  November,  A.  D.  1876,  and  that  such  elec 
tion  will  appear  by  a  proper  examination  of  the  legal  returns  of  the  managers 
of  election  for  the  different  precincts  in  the  counties  of  the  State,  made  to  their  re 
spective  boards  of  county  canvassers,  which  do  not  sustain,  but  are  directly  opposed 
to,  the  statements  of  votes  given  for  electors  in  the  several  counties  forwarded  and 
certified  to  the  State  board  of  canvassers  by  the  commissioners  of  election  or  boards 
of  canvassers  in  such  counties. 

Second.  The  board  of  State  canvassers,  after  a  pretended  canvass  of  the  returns  of 
the  election,  made  an  erroneous,  imperfect,  and  false  statement  of  the  result  of  said 
election,  and  illegally  declare  the  result  to  be  as  follows: 


Theodore  G.  Barker 90,  896 

Samuel  McGowan 90, 737 

J.  W.  Harrington 90,895 

J.  I.  Ingram.., 90,798 

William  Wallace 90,905 

John  B.  Erwin 90,906 

Robert  Aldrich 90,860 


C.  C.  Bowen 91,786 

John  Winsmith 91,870 

Thomas  B.Johnston 91,854 

Timothy  Hurley 91,136 

William  B.  Nash 91,804 

Wilson  Cook. 91,434 

W.  F.Myers.... 91,830 


Third.  In  this  illegal  and  invalid  canvass  of  the  votes  given  for  the  electors  of  Presi 
dent  and  Vice-President,  the  board  of  State  canvassers,  after  canvassing  the  votes  of 
six  of  the  counties  of  the  State,  by  comparing  the  statements  of  the  county  boards  of 
canvassers  with  the  returns  of  the  precinct  managers  in  said  counties,  and  after  dis 
covering  serious  discrepancies  between  such  statements  and  such  returns,  showing  er 
rors  in  the  statements  of  the  county  canvassers,  refused  to  continue  such  comparison 
and  verification  as  to  the  remaining  twenty-six  counties  in  the  State,  also  refused  to 
allow  copies  of  such  returns  to  be  made,  and  confined  their  canvass  and  count  to  the 
aggregation  of  the  erroneous  returns  of  county  canvassers,  and  upon  such  count  de 
clared  the  above  erroneous  and  false  result. 

Fourth.  The  undersigned,  who  claim  that  they  are  duly  elected  electors,  filed  in 
the  supreme  court  of  South  Carolina  a  suggestion  for  writ  of  mandamus  to  require 
the  board  of  State  canvassers  to  correct  the  count  according  to  the  true  vote  of  the 
people  as  cast  at  said  election,  but  pending  that  proceeding,  of  which  the  board  had 
due  notice,  the  board  determined  and  certified  the  persons  elected  upon  the  above  er 
roneous  count,  and  after  making  a  return  to  the  court,  and  before  the  decision  thereof, 
secretly  and  unlawfully  adjourned  in  defiance  and  contempt  of  the  authority  of  the 
supreme  court.  The  secretary  of  state,  upon  such  erroneous  statement  and  illegal  de 
termination,  unlawfully  certified  to  him,  caused  a  copy  of  the  certified  determination 
of  the  board  of  State  canvassers  to  be  delivered  to  each  of  the  persons  therein  declared 
to  be  elected,  viz,  Christopher  C.  Bowen,  John  Winsmith,  Thomas  B.  Johnston,  Tim 
othy  Hurley,  William  B.  Nash,  Wilson  Cook,  and  W.  F.  Myers. 

The  undersigned  thereupon  filed  in  the  supreme  court  of  the  State  their  suggestion 
for  a  writ  of  quo  warranto,  disputing  the  election  of  said  persons  and  the  validity  of 
their  legal  title  to  the  offices  of  electors,  which  proceeding  also  is  now  pending  in 
said  court. 

Fifth.  The  undersigned,  as  electors  duly  appointed,  made  demand  upon  the  secre- 
retary  of  state  for  the  lists  required  by  law,  and  he  refused  to  deliver  the  same  ;  and 
we  further  certify  that  the  following  a*re  two  distinct  lists,  one  of  the  votes  for  Presi 
dent  and  the  other  of  the  votes  for  Vice-Presideiit : 


662  ELECTORAL    COUNT    OF    1877 

List  of  all  persons  voted  for  as  President,  with  the  number  of  votes  for  each. 

Names  of  persons  voted  for.                                                                                    Number  of  votes. 
Samuel  J.  Tilden,  of  the  State  of  New  York seven  (7.) 

List  of  all  persons  voted  for  as  Vice-President^  ivith  the  number  of  votes  for  each. 

Names  of  persons  voted  for.                                                                                     Number  of  votes 
Thomas  A.  Heudricks,  of  the  State  of  Indiana seven,  (7.) 

In  witness  whereof  we  have  hereunto  set  our  hands. 

Done  at  No.  101  Kichardson  street,  in  the  city  of  Columbia  and  State  of  South  Car 
olina,  the  6th  day  of  December,  in  the  year  of  our  Lord  1876,  and  of  the  Independence 
of  the  United  States  of  America  the  101st, 

THEODORE  G.  BARKER. 

S.  McGOWAN. 

JNO.  W.  HARRINGTON. 

JNO.  ISAAC  INGRAM. 

WM.  WALLACE. 

JOHN  B.  ERWIN. 

ROBT.  ALDR1CH. 

The  PRESIDING  OFFICER.  Are  there  objections  to  the  certificates 
from  the  State  of  South  Carolina  ? 

Mr.  Representative  COCHRANE.  On  behalf  of  the  Senators  and 
Representatives  whose  names  are  thereto  attached,  I  submit  the  follow 
ing  objections  to  the  certificates  and  papers  purporting  to  be  certificates 
of  the  electoral  votes  of  the  State  of  South  Carolina  cast  by  C.  C.  Bo  wen 
and  others. 

The  PRESIDING  OFFICER.  The  Secretary  of  the  Senate  will  read 
the  objections. 

The  Secretary  of  the  Senate  read  as  follows : 

OBJECTION  No.  1. 

The  undersigned,  Senators  of  the  United  States  and  members  of  the  House  of  Repre 
sentatives,  object  to  the  certificates  and  papers  purporting  to  be  certificates  of  the  elect 
oral  votes  of  the  State  of  South  Carolina  cast  by  C.  C.  Bowen,  D.  Winsmith,  T.  B. 
Johnson,  Timothy  Hurley,  W.  B.  Nash,  Wilson  Cook,  and  W.  F.  Myers,  on  the  follow 
ing  grounds : 


1. 


For  that  no  legal  election  was  held  in  the  State  of  South  Carolina  for  presidential 
electors,  the  general  assembly  of  that  State  not  having  provided,  as  required  by  article 
8,  section  3,  of  the  constitution  thereof,  for  the  registration  of  persons  entitled  to  vote, 
without  which  registration  110  valid  or  legal  election  could  be  held. 

II. 

For  that  there  was  not  existing  in  the  State  of  South  Carolina  on  the  first  day  of 
January,  1876,  nor  at  any  time  thereafter,  up  to  and  including  the  10th  day  of  Decem 
ber,  1876,  a  republican  form  of  government  such  as  is  guaranteed  by  the  Constitution 
to  every  State  in  the  Union. 

III. 

For  that  the  Federal  Government  prior  to  and  during  the  election  on  the  7th  day  of 
November,  1876,  without  authority  of  law,  stationed  in  various  parts  of  the  said  State 
of  South  Carolina,  at  or  near  the  polling-places,  detachments  of  the  Army  of  the  United 
States,  by  whose  presence  the  full  exercise  of  the  right  of  suffrage  was  prevented,  aud 
by  reason  whereof  no  legal  or  free  election  was  or  could  be  had. 

IV. 

For  that  at  the  several  polling-places  in  the  said  State  there  were  stationed  deputy 
marshals  of  the  United  States,  appointed  under  the  provisions  of  sections  20'21  and 
SiUSsi  of  the  Revised  Statutes  of  the  United  States,  which  provisions  were  uncoustittt- 


ELECTORAL    COUNT    OF    1677.  663 

tional  and  void.  That  the  said  deputy  marshals,  exceeding  over  one  thousand  in  num 
ber,  by  their  unlawful  and  arbitrary  action,  in  obedience  to  the  improper  and  illegal 
instructions  received  by  them  from  the  Department  of  Justice,  so  interfered  with  the 
full  and  free  exercise  of  the  right  of  suffrage  by  the  duly-qualified  voters  of  the  said 
State  of  South  Carolina  that  a  fair  election  could  not  be  and  was  not  held  in  the  said 
State  of  South  Carolina  on  the  said  7th  day  of  November,  1876. 

V. 

For  that  there  was  not  from  the  1st  day  of  January,  1876,  up  to  and  including  the 
10th  day  of  December,  1876,  at  any  time  a  State  government  in  the  State  of  South 
Carolina,  except  a  pretended  government  set  up  in  violation  of  law  and  of  the  Consti 
tution  of  the  United  States  by  Federal  authority,  and  sustained  by  Federal  troops. 

JOHN  W.  JOHNSTON,  CHARLES  B.  ROBERTS, 

United  States  Senator,  Virginia.  F.  D.  COLLINS. 

W.  H.  BARNUM,  JAG.  TURNEY, 

United  States  Senator,  Connecticut.        A.  V.  RICE,  of  Ohio, 

ALEX.  G.  COCHRANE,  of  Pennsylvania,        B.  F.  FRANKLIN,  of  Missouri, 

M.  I.  SOUTHARD,  CHARLES  P.  THOMPSON, 

FERNANDO  WOOD,  JNO.  F.  PHILIPS,  of  Missouri, 

J.  A.  McMAHON,  WM.  S.  HOLMAN,  of  Indiana, 

W.  S.  STENGER,  G.  A.  JENKS,  of  Pennsylvania, 

WM.  MUTCHLER,  of  Pennsylvania,  J.  M.  BRIGHT,  of  Tennessee, 

GEO.  C.  CABELL,  of  Virginia,  S.  S.  COX,  of  New  York, 

JAMES  SHEAKLEY,  JNO.  B.  CLARK,  JR., 

LEVI  MAISH,  of  Pennsylvania,  G.  C.  WALKER, 

WM.  WALSH,  R.  A.  DE  BOLT, 

WM.  M.  ROB  BINS,  of  North  Carolina,  JOHN  R.  EDEN, 

WM.  A.  J.  SPARKS,  J.  R.  TUCKER,  of  Virginia, 

E.  F.  POPPLETON,  J.  B.  CLARKE,  of  Kentucky, 

A.  T.  WALLING,  of  Ohio,  THOS.  L.  JONES,  of  Kentucky, 

THOS.  S.  ASHE,  J.  PROCTOR  KNOTT, 
A.  M.  SCALES,  Representatives. 

The  PRESIDING  OFFICER.  Are  there  further  objections  to  the 
certificates  from  the  State  of  South  Carolina? 

Mr.  Senator  PATTERSON.  I  submit,  on  behalf  of  th><Senators  and 
Representatives  whose  names  are  attached  thereto,  the  following  objec 
tions  to  the  certificates  and  papers  purporting  to  be  certificates  of  the 
electoral  votes  of  South  Carolina  cast  by  Theodore  G.  Barker  and 
others. 

The  PRESIDING  OFFICER.  The  Clerk  of  the  House  will  read  the 
objections. 

The  Clerk  of  the  House  read  as  follows : 

OBJECTION  No.  2. 

The  undersigned,  Senators  and  members  of  the  House  of  Representatives  of  the 
United  States,  object  to  the  certificates  and  papers  purporting  to  be  certificates  of  the 
electoral  votes  of  the  State  of  South  Carolina  cast  by  Theodore  G.  Barker,  Samuel 
McGowan,  John  W.  Harrington,  John  I.  Ingram,  William  Wallace,  John  B.  Erwin, 
and  Robert  Aldrich,  and  by  each  of  them,  and  to  the  list  of  votes  by  them  and  each  of 
them  signed  and  certified  as  given  for  President  of  the  United  States  and  for  Vice- 
President  of  the  United  States,  for  the  following  reasons : 

I. 

The  said  Theodore  G.  Barker,  Samuel  McGowan,  John  W.  Harrington,  John  I. 
Ingram,  William  Wallace,  John  B.  Ervviu,  and  Robert  Aldrich  were  not,  nor  was  either 
of  them,  appointed  an  elector  of  President  and  Vice-Presidenfc  of  the  United  States  for 
the  State  of  South  Carolina. 

II. 

The  said  papers  have  not  annexed  to  them  a  certificate  of  the  governor  of  South 
Carolina  as  required  to  be  made  and  annexed  by  sections  136  and  13d  of  the  Revised 
Statutes  of  the  United  States. 


664  ELECTORAL    COUNT    OF    1877. 

III. 

The  said  papers  have  not  annexed  to  them  a  list  of  the  names  of  the  said  Theodore 
G.  Barker,  Samuel  McGowan,  John  W.  Harrington,  John  I.  Ingram,  William  Wallace, 
John  B.  Erwin,  and  Robert  Aldrich,  as  electors,  to  which  the  seal  of  the  State  of  South 
Carolina  was  affixed  by  the  secretary  of  state,  and  signed  by  the  governor  and  secre 
tary,  as  required  by  the  general  laws  of  South  Carolina. 

IV. 

For  that  C.  C.  Bowen,  John  Winsmith,  Thomas  B.  Johnston,  Timothy  Hurley,  Will 
iam  B.  Nash,  Wilson  Cook,  and  William  F.  Myers  were  duly  appointed  electors  of 
President  and  Vice-Presideut  of  the  United  States  for  the  State  of  South  Carolina,  and 
as  such  electors,  at  the  time  and  place  prescribed  by  law,  cast  their  votes  for  Ruther 
ford  B.  Hayes  for  President  of  the  United  States  and  for  William  A.  Wheeler  for  Vice- 
President  of  the  United  States,  and  the  lists  of  votes  signed,  certified,  and  transmitted 
by  such  electors  to  the  President  of  the  Senate  are  the  only  true  and  lawful  lists  of 
votes  for  President  and  Vice-President  of  the  United  States. 

V. 

That  the  said  C.  C.  Bowen,  John  Winsmith,  Thomas  B.  Johnston,  Timothy  Hurley, 
William  B.  Nash,  Wilson  Cook,  and  William  F.  Myers  received  the  highest  number  of 
all  the  votes  cast  for  electors  of  President  and  Vice-President  of  the  United  States  by 
the  qualified  voters  of  the  Sta.te  of  South  Carolina  at  the  election  held  in  said  State  on 
the  7th  day  of  November,  A.  D.  1876,  and  the  proper  officers  of  the  State  of  South 
Carolina  duly  canvassed  said  votes,  and  made  and  certified  according  to  law  and  under 
the  great  seal  of  the  State  of  South  Carolina,  and  delivered  to  said  C.  C.  Bowen,  John 
Winsmith,  Thomas  B.  Johnston,  Timothy  Hurley,  William  B.  Nash,  Wilson  Cook,  and 
William  F  Myers  lists  of  the  electors  of  President  and  Vice-Preeident  of  the  United 
States  elected  by  the  qualified  voters  of  said  State  at  said  election,  and  showing  that 
said  C.  C.  Bowen,  John  Winsmith,  Thomas  B.  Johnston,  Timothy  Hurley,  William  B. 
Nash,  Wilson  Cook,  and  \Villiam  F.  Myers  were  the  persons  having  the  highest  num 
ber  of  votes  of  said  qualified  voters  at  such  election,  and  were  elected,  which  certificate 
is  dated  the  6th  day  of  December,  A.  D.  1876,  and  which  has  been  read  before  the  two 
Houses  of  Congress;  by  reason  of  all  which  said  Bowen,  Winsmith,  Johnston,  Hurley, 
Nash,  Cook,  and  Myers  were  the  lawful  electors  of  President  and  Vice-President  of  the 
United  States  for  the  State  of  South  Carolina. 

VI. 

That  the  lists  of  votes  cast  by  the  said  C.  C.  Bowen,  John  Winsmith,  Thomas  B. 
Johnston,  Timothy  Hurley,  William  B.  Nash,  Wilson  Cook,  and  William  F.  Myers  for 
President  of  the  United  States  and  for  Vice-President  of  the  United  States,  have 
annexed  to  them  a  certificate  of  the  governor  of  the  State  of  South  Carolina,  required 
to  be  made  by  sections  136  and  138  of  the  Revised  Statutes  of  the  United  States. 

VII. 

That  said  lists  of  votes  have  annexed  to  them  a  list  of  the  names  of  the  said  C.  C. 
Bowen,  John  Winsmith,  Thomas  B.  Johnston,  Timothy  Hurley,  William  B.  Nash,  Wil- 
8on  Cook,  and  William  F.  Myers  as  electors,  to  which  the  seal  of  the  State  of  South 
Carolina  was  affixed  by  the  secretary  of  state,  and  signed  by  the  governor  and  secre 
tary  as  required  by  the  general  laws  of  South  Carolina. 

JNO.  J.  PATTERSON, 
ANGUS  CAMERON, 
I.  P.  CHRISTIANCY, 

Senators. 

WILLIAM  LAWRENCE, 
E.  G.  LAPHAM, 
N.  P.  BANKS, 
ROBERT  SMALLS, 
S.  L.  HOGE, 
J.  H.  RAINEY, 

Eeprescniatives. 

The  PRESIDING  OFFICER.    Are  there  farther  objections  to  the 
certificates  of  the  State  of  South  Carolina  ? 
There  were  no  further  objections. 


ELECTORAL    COUNT    OF    1877.  665 

The  PRESIDING  OFFICER.  The  certificates  objected  to,  together 
with  the  objections,  will  be  submitted  to  the  Commission  for  its  judgment 
and  decision.  The  Senate  will  now  retire  to  its  chamber. 

The  Senate  accordingly  retired,  at  six  o'clock  and  thirty  minutes  p.  m 

ELECTORAL  COMMISSION. 

MONDAY,  February  26, 1877. 

Its  recess  having  expired,  the  Commission  re-assembled  at  six  o'clock 
p.  in. 

The  Journal  of  Saturday  last  was  read  and  approved. 

At  six  o'clock  and  thirty-five  minutes  p.  m.,  Mr.  Gorhara,  Secretary  of 
the  Senate,  appeared  and  presented  the  following  communication  5  'which 
was  read : 

HALL  OF  THE  HOUSE  OF  REPRESENTATIVES, 

February  26,  1876. 
To  the  President  of  the  Commission : 

More  than  one  return,  or  paper  purporting  to  be  a  return,  or  certificate  of  the  elect 
oral  votes  of  the  State  of  South  Carolina  having  been  received  and  this  day  opened  in 
the  presence  of  the  two  Houses  of  Congress,  and  objections  thereto  having  been  made, 
the  said  returns,  with  all  accompanying  papers,  and  also  the  objections  thereto,  are 
herewith  submitted  to  the  judgment  and  decision  of  the  Commission,  as  provided  by 
law. 

T.  W.  FERRY, 
President  of  the  Senate. 

Mr.  Commissioner  EDMUNDS.  I  think  the  certificates  had  better 
be  read,  it'  they  are  not  too  long. 

The  PRESIDENT.    The  certificates  will  be  read. 

Mr.  Commissioner  PAYNE.  Would  it  not  be  in  order  to  have  them 
printed  ? 

The  PRESIDENT.  Certainly ;  but  their  reading  is  asked  for.  They 
will  be  read. 

The  Secretary  read  the  certificates. 

The  PRESIDENT.  I  desire  to  inquire  who  represent  the  objectors 
to  certificate  No.  1,  under  the  fourth  rule  ? 

Mr.  Representative  HURD.  Mr.  Cochrane,  a  Representative  from 
Pennsylvania,  and  myself. 

The  PRESIDENT.    Who  represent  the  objectors  to  certificate  No.  2  ? 

Mr.  Representative  LAWRENCE.  I  have  the  honor  to  represent  the 
objectors  on  the  part  of  the  House,  and  Senator  Christiancy,  I  under 
stand,  represents  the  objectors  on  the  part  of  the  Senate. 

Mr.  Senator  CHRISTIANCY.  Mr.  President,  I  wish  to  state,  on  be 
half  of  the  objectors  on  the  part  of  the  Senate,  that,  beyond  the  inter 
position  of  the  objections,  we  do  not  propose  to  argue  them,  but  leave 
them  to  be  argued  by  counsel,  if  they  see  fit,  within  the  time  provided 
by  your  rules. 

Mr.  Commissioner  HTJNTON.  I  move  that  the  papers  referred  to  the 
Commission  by  the  joint  session,  be  printed. 

Mr.  Commissioner  EDMUNDS.  By  that  you  mean  the  papers  trans 
mitted  by  the  President  of  the  Senate  ? 

Mr.  Commissioner  HUNTON.     Yes,  sir. 

Mr.  Commissioner  HOAR.  Before  we  proceed  to  any  other  matter,  I 
inquire  whether  it  would  not  be  well  to  ascertain  what  counsel  represent 
the  two  sides  ? 

The  PRESIDENT.  We  have  usually  made  that  inquiry  after  the  ob 
jectors  have  been  heard;  but  I  can  make  the  inquiry  now.  Who  are  the 
counsel  that  represent  the  objectors  to  certificate  No.  1  ? 


668  ELECTORAL    COUNT    OF    1877. 

Mr.  Representative  HURD.  I  am  unable  to  state  their  names  this 
evening,  bat  I  will  report  to  the  Commission  to-morrow,  if  that  will 
answer  the  purpose. 

The  PRESIDENT.  I  make  the  same  inquiry  now  of  the  other  side, 
if  it  be  convenient  for  them  to  answer. 

Mr.  MATTHEWS.  The  objections  to  certificate  No.  2  will  be  repre 
sented,  so  far  as  counsel  are  concerned,  by  Mr.  Shellabarger  and  myself. 

The  PRESIDENT.  The  question  now  is  on  the  motion  of  Mr.  Com 
missioner  Hunton  that  the  papers  be  printed. 

The  motion  was  agreed  to. 

Mr.  Commissioner  HUNTON".  I  move  that  the  Commission  adjourn 
until  ten  o'clock  to-morrow  morning. 

Mr.  Commissioner  GARFIELD.  I  ask  the  gentleman  to  withdraw 
that  motion  for  a  moment,  to  enable  me  to  make  a  suggestion. 

Mr.  Commissioner  HUNTON.     Certainly. 

Mr.  Commissioner  GARFIELD.  I  do  not  rise  to  make  a  motion  ;  but 
I  wish  to  suggest  that  the  Commission  ought  to  determine  the  amount 
of  time  to  be  allowed  in  this  case.  It  has  seemed  to  me  that  there  might 
be  a  reduction  of  time. 

The  PRESIDENT.  In  the  absence  of  any  application,  the  rules  de 
termine  it. 

Mr.  Commissioner  GARFIELD.  I  know  that;  but  I  am  speaking 
now,  not  in  favor  of  an  extension,  but  a  reduction  of  time. 

Mr.  Commissioner  EDMUNDS.  We  had  better  wait  until  counsel 
come  in. 

Mr.  Commissioner  GARFIELD.  It  has  already  been  announced  on 
the  part  of  the  Senate  that  they  do  not  wish  to  occupy  time. 

The  PRESIDENT.  Excuse  me,  General  Garfield.  On  one  side  the 
counsel  are  not  present. 

Mr.  Commissioner  GARFIELD.  No ;  but  I  am  speaking  of  the  whole 
subject  of  time,  for  objectors  as  well  as  counsel. 

Mr.  Commissioner  FRELINGHUYSEN.  I  think  that  had  better  go 
off  until  to-morrow  morning. 

Mr.  Commissioner  GARFIELD.  Very  well ;  I  will  call  it  up  to-mor- 
roxv  morning. 

Mr.  Commissioner  HUNTON.     I  renew  my  motion. 

The  PRESIDENT.  It  is  moved  that  the  Commission  adjourn  until 
to-morrow  at  ten  o'clock. 

The  motion  was  agreed  to  ;  and  (at  six  o'clock  and  forty-five  minutes 
p.  in.)  the  Commission  adjourned. 

TUESDAY,  February  27,  1877. 

The  Commission  met  at  ten  o'clock  a.  rn.,  pursuant  to  adjournment. 
Present :  The  President  and  Messrs.  Commissioners  Miller,  Strong, 
Field,  Bradley,  Edmunds,  Morton,  Frelinghuysen,  Bayard,  Kernan, 
Payne,  Hunton,  Abbott,  Garfield,  and  Hoar. 

The  respective  objectors  and  Messrs.  Stanley  Matthews  and  Samuel 
Shellabarger,  counsel  representing  the  objections  to  the  South  Carolina 
certificate  No.  2.  were  also  present. 

The  PRESIDENT.  It  was  said  that  the  counsel  on  the  part  of  the 
objectors  to  certificate  No.  1  would  be  named  this  morning. 

Mr.  Representative  HURD.  No  counsel  will  appear  on  behalf  of  the 
objectors  to  certificate  No.  1,  as  we  are  afc  present  advised. 

The  PRESIDENT.  We  are  ready  to  hear  the  objectors  to  certificate 
No.  1. 

Mr.  Representative  HURD.    Mr.  President  and  gentlemen  of  the 


ELECTORAL    COUNT    OF    1877.  667 

Commission,  I  shall  as  briefly  anil  as  rapidly  as  I  can  submit  to  your 
consideration  the  reasons  which  in  my  judgment  require  the  refusal  on 
your  part  to  count  the  vote  of  the  State  of  South  Carolina.  In  the  dis 
cussion  I  shall  endeavor  not  to  go  over  any  of  the  ground  which  has 
already  been  traversed.  I  shall  not  antagonize  any  of  the  propositions 
which  I  understand  to  havTe  already  been  decided  by  the  Commission. 
I  shall  submit,  as  I  regard  them,  new  propositions  as  to  which  the  opin 
ion  of  this  Commission  has  not  as  yet  been  asked. 

The  first  proposition  is  that  the  vote  of  South  Carolina  should  not 
be  counted,  because  at  the  time  the  election  was  held  there  was  not  a 
republican  form  of  government  in  that  State.  I  do  not  propose  in  dis 
cussing  this  proposition  to  refer  to  the  history  of  the  reconstruction 
measures  by  which  South  Carolina  was  restored  to  the  Federal  Union, 
nor  to  point  out  the  anti-republican  policies  by  which  that  result  was 
brought  about ;  nor  do  I  intend  to  refer  to  the  policies  of  legislation 
which  have  since  followed  its  admission  to  the  Union,  policies  by  which 
the  sovereignty  of  the  State  has  practically  been  overthrown  and  by 
which  the  republican  nature  of  its  institutions  has  been  destroyed.  Nor 
yet  do  I  intend  to  refer  to  the  usurpations  of  those  who  have  held  po 
litical  office  in  South  Carolina,  by  which  more  markedly  still  has  the 
nature  of  the  government  of  that  commonwealth  been  changed.  I  sim 
ply  intend  to  refer  to  the  condition  of  things  which  existed  in  South 
Carolina  for  a  few  weeks  prior  to  the  election,  on  the  day  of  election, 
and  for  a  few  weeks  following  it.  I  apprehend  that  no  person  will  dis 
pute  the  proposition  that,  if  in  the  State  of  South  Carolina  there  was 
not  a  republican  form  of  government  at  that  time,  its  electoral  vote 
should  not  be  counted. 

This  seems  to  follow  from  two  propositions,  the  first  of  which  is  that 
the  Constitution  of  the  United  States  guarantees  to  each  State  a  repub 
lican  form  of  government.  This  implies  the  duty  on  the  part  of  the 
State  to  maintain  a  republican  form  of  government,  and  a  duty  on  the 
part  of  the  United  States  to  make  the  inquiry,  whenever  it  is  necessary, 
as  to  whether  a  republican  form  of  government  at  that  time  may  exist. 
The  second  is  that  this  is  a  Union  of  republics,  and,  if  it  were  permitted 
that  a  State  without  a  republican  form  of  government  could  cast  its 
electoral  vote  and  thus  choose  a  President  of  the  United  States,  the 
other  republics  of  the  Union  would  be  bound  by  the  act  of  a  State 
which  might  be  with  a  government  monarchical  in  its  form,  or,  as  in 
the  case  of  South  Carolina,  without,  in  substance,  any  government 
at  all. 

What  is  meant  by  u  a  republican  form  of  government"?  This  phrase 
is  used  in  the  Constitution  of  the  United  States.  It  does  not  mean 
merely  the  form  of  a  government;  it  means  the  essence  and  substance 
of  the  government.  It  does  not  mean  that  the  constitution  shall  be 
republican  in  its  form,  because  there  is  nothing  which  requires  that  a 
State  shall  have  a  constitution,  and  many  States  have  been  admitted 
into  the  Union  without  a  constitution  as  that  term  is  ordinarily  under 
stood  by  the  American  people.  It  does  not  mean,  either,  merely  that 
the  legislation  shall  be  of  a  republican  nature  ;  but  it  does  mean  that 
the  constitution  and  the  legislation  and  the  administration  shall  all  be 
republican  in  their  form  and  in  their  nature,  that  they  shall  together 
constitute  a  government  based  upon  republican  principles,  which  gives 
to  the  people  the  right  and  the  opportunity  to  determine  their  own 
rulers  freely  and  without  intervention. 

In  order  that  it  shall  be  a  republican  form  of  government,  there  must 
be  nothing  in  the  State,  at  the  time  that  it  is  objected  that  there  is  not 


668  ELECTORAL    COUNT    OF    1877. 

a  republican  form  of  government,  which  interferes  with  a  free  and  fair 
election,  with  the  free  and  fair  arid  honest  ascertainment  of  the  popular 
will.  Whatever  does  interfere  with  that,  whatever  does  thwart  the 
will  of  the  people  as  it  is  attempted  to  be  ascertained  at  the  polls,  inter 
feres  with,  and  to  that  extent  destroys,  a  republic  and  a  republican  gov 
ernment. 

Mr.  Commissioner  MILLER.  If  I  do  not  interrupt  you  may  I  ask 
you  a  question,  Mr.  Hurd  !  This  constitutional  provision  has  been  very 
much  discussed,  you  know,  of  late  years;  and  really  tor  my  own  infor 
mation  I  should  like  to  get  your  views  very  clearly.  What  importance 
do  you  attach  to  the  word  "  form"  in  that  phrase!  It  must  have  some 
significance.  Is  the  expression  the  same  as  "  republican  government" 
without  the  word  "form,"  or  does  the  word  "form"  have  reference  to 
the  division  of  powers! 

Mr.  Representative  HURD.  I  regard  the  phrase  as  amounting  to 
this,  that  each  State  in  the  Union  must  be  a  republic. 

Mr.  Commissioner  MILLER.     What  is  a  republic! 

Mr.  Representative  HURD.  -That  is  just  the  proposition  I  was  about 
to  discuss. 

Mr.  Commissioner  HOAR.  Allow  me  to  inquire,  is  not  your  propo 
sition  that  it  must  be  a  form  in  force  as  a  government ! 

Mr.  Representative  HURD.     So  I  said. 

Mr.  Commissioner  HOAR.     I  so  understood  you. 

Mr.  Representative  HURD.  As  I  maintained  a  moment  ago,  it  must 
be  republican  in  its  constitution,  republican  in  its  measures  of  legisla 
tion,  republican  in  its  administration ;  that  is,  it  must  be  a  government 
actually  existing,  possessing  all  the  requisites  of  a  republican  form  of 
government,  whatever  they  may  be;  and  the  essence  of  that  (and  that 
is  the  only  point  necessary  for  me  to  consider  in  this  discussion)  is  that 
the  people  shall  have  a  i'ree  and  fair  opportunity  of  expressing  their 
will  in  the  selection  of  their  own  rulers  and  in  the  management  of  their 
own  elections. 

Mr.  Commissioner  MILLER.  May  not  the  form  of  the  government 
be  essentially  republican  and  its  administration  be  very  tyrannical! 

Mr.  Representative  HURD.  Possibly  it  might  be.  There  may  be 
tyranny  under  a  republican  form  of  government,  I  concede ;  but  when 
the  form  of  government  as  administered,  when  the  administration  of 
the  government,  becomes  such  as  to  take  out  of  the  form  the  substance, 
the  essence,  and  leave  there  a  government  not  a  republic,  then  that 
is  not  such  a  form  of  government  as  is  contemplated  by  the  Constitu 
tion. 

As  I  was  about  to  remark,  whatever  prevents  a  free  expression  of 
the  popular  will  at  the  polls,  whatever  prevents  a  fair  ascertainment  of 
the  wishes  of  the  people  in  the  choice  of  their  rulers,  interferes,  and,  to 
the  extent  that  it  operates,  destroys  a  republican  form  of  government. 
It  is  plain  that  if  a  monarchy  were  established  in  substance,  although 
in  form  the  government  might  be  republican,  that  is  the  destruction  of 
a  republic,  and  no  republican  form  of  government  exists,  because  a 
monarchy  is  the  antipodes  of  the  idea  of  a  republic;  and  it  is  just  as 
true  that  anarchy,  so  far  as  it  may  be  effective,  destroys  the  republic ; 
for  the  literal  signification  of  the  word  is  "without  government."  An 
archy  means  no  form  of  government  at  all,  either  republican  or  anything 
else.  If  lawlessness  prevail  so  that  it  is  impossible  that  there  should 
be  a  lawful  election  ;  if  violence  be  practiced  so  that  men  are  not  able 
freely  to  go  to  the  polls ;  if  intimidation  be  practiced  so  that  large 
numbers  of  men  who  would  otherwise  vote  do  not  go  near  the  polls,  or 


ELECTORAL    COUNT    OF    18T7.  669 

if  they  do  go  to  the  polls,  are  compelled  to  vote  against  their  will, 
then  an  election  held  under  such  circumstances  is  held  in  a  condition  of 
anarchy,  in  which  a  republic  is  a  mere  myth  and  a  fiction. 

In  this  case,  if  your  honors  please,  we  propose  to  show  by  proof 
which  has  been  taken  by  the  various  committees  and  which  we  regard 
as  competent  for  the  House  of  Representatives  or  the  Senate  to  con 
sider,  that  in  the  greater  part  of  South  Carolina  on  the  day  of  the  choice  , 
of  the  electors  for  President  and  Vice-President,  there  was  a  state  of 
anarchy.  The  proof  that  was  taken  by  the  majority  of  the  House  com 
mittee  shows  that  in  the  counties  which  gave  large  republican  majorities 
intimidation  was  practiced  by  colored  men  upon  their  colored  friends 
who  desired  to  vote  the  democratic  ticket ;  that  men  in  the  city  of 
Charleston  and  in  many  of  the  counties  outside  of  Charleston  and  in 
the  islands  near  by  were  whipped  and  brutally  abused  at  the  polls  for 
no  other  offense  than  that  of  proposing  to  vote  the  democratic  ticket ; 
that  men  who  came  to  the  polls  with  democratic  tickets  in  their  hands 
had  them  taken  out  of  their  hands  and  were  compelled  in  the  presence 
of  a  mob,  in  the  presence  of  violence  and  riot  and  at  the  peril  of  their 
lives,  to  vote  the  ticket  of  the  opposing  party.  We  propose  to  show 
by  the  testimony  which  was  taken  by  the  minority  of  the  same  com 
mittee,  that  in  the  counties  which  gave  large  democratic  majorities  the 
democratic  leaders  and  managers  interfered  with  the  freedom  of  the 
election  by  practicing  intimidation  upon  their  black  employes  and  those 
who  might  happen  to  live  within  their  districts.  We  propose  to  show 
that  rifle  clubs  were  organized  which  were  not  disbanded  in  accordance 
with  the  proclamation  of  the  President  of  the  United  States,  and  that 
under  the  effect  of  these  rifle-clubs  and  of  the  intimidation  that  was 
practiced  in  that  method  large  numbers  of  negroes  who  otherwise  would 
have  voted  the  republican  ticket  voted  the  democratic  ticket. 

These  propositions  I  submit  with  the  testimony  which  has  been  taken 
by  the  committee  of  the  House  of  Representatives.  The  testimony 
taken  by  the  subcommittee  of  which  iny  friend  Judge  Lawrence  was 
the  chairman,  or  taken  under  his  direction,  showed  very  largely  the 
facts  as  to  the  democratic  intimidation.  The  testimony  which  was 
taken  by  the  majority  of  the  committee  showed  very  largely  the  facts 
as  to  republican  intimidation.  We  propose  to  put  in  evidence  the  proc 
lamation  of  the  President  of  the  United  States,  which  declared  weeks 
before  the  election  that  there  was  a  state  of  insurrection  in  South  Caro 
lina  ;  a  state  of  insurrection  which  demanded  the  presence  of  United 
States  troops,  a  state  of  insurrection  which  could  not  have  been  over 
come  before  the  day  of  election  ;  for  there  were  on  the  day  of  election 
more  troops  in  South  Carolina  than  there  were  at  any  time  before,  after 
the  proclamation  was  issued — thirty-two  companies  of  the  United  States 
Army. 

With  this  practice  of  intimidation  as  shown  by  this  testimony,  with 
this  lawlessness  at  the  polls,  with  this  violence  practiced  upon  the 
voters,  with  this  practical  anarchy  everywhere,  with  this  state  of  insur 
rection  as  declared  by  the  President  of  the  United  States,  with  the 
presence  of  thirty-two  companies  of  the  Army  of  the  United  States 
there  at  his  order,  I  submit  that  it  was  not  possible  that  a  fair  and  free 
election  could  be  held  in  which  the  true  announcement  of  the  result 
could  be  made.  I  undertake  to  say  that  no  person  can  read  the  history 
of  the  events  in  South  Carolina  and  can  read  the  testimony  which  has 
been  taken  before  these  committees  and  rise  from  the  perusal  without 
the  conviction  that  he  cannot  tell  what  is  the  truth  as  to  the  vote  of 
the  State. 


670  ELECTORAL    COUNT    OF    1877. 

Will  the  Com  mission  bear  this  proof  which  we  tender?  The  proof 
goes  directly  to  the  question  whether  there  is  a  republican  form  of  gov 
ernment  in  the  State  of  South  Carolina  or  not ;  as  to  whether  anarchy 
did  not  in  fact  exist  in  this  State  on  the  day  of  the  election,  destroying 
the  republic.  It  is  not  the  question  that  has  been  submitted  to  the 
tribunal  before,  as  to  how  the  officers  of  the  State  have  discharged 
their  trust ;  it  is  not  a  question  of  going  behind  the  returns  which  have 
been  sent  to  the  President  of  the  Senate  to  be  opened ;  it  does  not 
relate  to  the  manner  of  conducting  the  State  elections ;  it  does  not 
relate  to  the  honesty  of  State  officials ;  but  it  goes  to  the  question  of 
whether  there  is  a  State  government  there  at  all  or  not.  Will  anybody 
dispute  that  the  Congress  of  the  United  States  has  the  power  to  inquire 
as  to  the  character  of  the  State  government  when  it  is  said  that  it  is 
not  republican  in  form  and  is  asked  to  perform  its  constitutional  obli 
gation  of  guaranteeing  to  it  a  republican  form  of  government?  Will 
anybody  dispute  that  when  the  proposition  is  submitted  to  Congress 
for  its  consideration  fairly,  when  the  question  fairly  comes  up  for  its 
action,  it  is  bound  to  make  inquiry  as  to  the  nature  and  character  of 
the  government  to  determine  whether  it  be  republican  in  form  or  not? 

If  it  be  true,  then,  that  Congress  has  the  right  to  make  this  inquiry 
at  any  time,  it  certainly  is  true  that  it  has  the  right  to  make  it  now, 
when  the  question  is  as  to  the  counting  of  the  vote  of  a  State,  for  the 
question  then  is  whether  it  is  a  State  that  has  voted ;  and  in  deter 
mining  that  question  all  testimony  which  tends  to  show  the  condition 
of  affairs  in  the  State  at  that  time  is  competent.  It  must  be  competent, 
else  it  would  be  impossible  that  the  two  Houses  should  intelligently  de 
termine  the  question  as  to  whether  there  was  a  republican  form  ot  gov 
ernment  at  the  time  of  the  election. 

This  question  has  been  settled,  so  far  as  precedents  can  settle  it,  by 
the  objections  that  have  been  made  to  counts  and  by  the  action  of  the 
two  Houses  heretofore.  When  Missouri  and  Indiana  came  into  the 
Union,  and  electors  had  been  chosen  before'  the  law  had  been  passed 
by  Congress  admitting  the  States,  it  was  objected  at  the  counting  that 
their  votes  should  not  be  counted,  because  when  given  they  were  not 
States  in  the  Union.  Nobody  disputed  at  that  time  that  that  was  a 
perfectly  fair  ground  of  objection.  It  was  within  the  province  of  the 
two  Houses  then  counting  the  vote  to  determine  whether  the  State  had 
been  admitted  into  the  Union  or  not  5  and  if  in  that  case  they  had  the 
power  to  determine  whether  it  had  been  admitted  into  the  Union  or  not, 
whether,  in  other  words,  it  was  a  State,  have  they  not  the  power  to 
determine  whether  by  adopting  a  government  not  republican  in  its 
form  it  has  gone  out  of  the  Union?  It  is  the  same  question  in  both 
cases,  whether  there  is  a  State  there  under  the  Constitution  that  has 
cast  the  vote,  the  only  difference  being  in  the  form  in  which  the  ques 
tions  are  presented  to  the  two  Houses. 

When  the  Southern  States  were  in  rebellion  it  was  decided  that  their 
votes  should  not  be  counted,  and  during  the  process  of  reconstruction 
it  was  decided  that  they  should  not  be  counted  because  there  were  not 
governments  there  republican  in  form.  Congress  undertook  to  decide 
the  question  as  to  the  character  of  the  government  when  it  counted  the 
electoral  vote,  the  very  question  I  ask  this  Commission  now  to  decide 
by  inquiring  as  to  the  condition  of  the  government  of  South  Carolina, 
hearing  testimony  which  we  offer  to  submit  to  your  consideration,  in 
order  that  you  may  ascertain  whether  there  is  in  fact  a  State  in  this 
Union  purporting  to  be  the  State  of  South  Carolina  which  has  cast  an 
electoral  vote. 


ELECTORAL    COUNT    OF    1877.  671 

But  admitting  that  the  State  of  South  Carolina  is  a  republic,  that  it 
has  a  republican  form  of  government,  I  submit  that  no  election  has 
been  held  as  required  by  the  constitution  of  the  State  of  South  Carolina 
and  by  the  Constitution  of  the  United  States.  The  Constitution  of  the 
United  States  requires  that  the  electors  shall  be  chosen  as  the  legisla 
ture  of  the  State  may  direct.  The  constitution  of  the  State  of  South 
Carolina  requires  that  the  legislature  shall  from  time  to  time  adopt  laws 
of  registration. 

Mr.  Commissioner  BEAD  LEY.  Can  you  tell  me  the  date  of  the 
adoption  of  the  constitution  of  South  Carolina? 

Mr.  Representative  HURD.    The  language  is: 

It  shall  be  the  duty  of  the  general  assembly  to  provide  from  time  to  time  for  the 
registration  of  all  electors. 

My  friend  Mr.  Shellabarger  will  give  you  the  date.  I  believe  it  was 
18G8. 

Mr.  Commissioner  ABBOTT.  Before  you  pass  from  this  other  matter, 
Mr.  Hurd,  do  I  understand  your  claim  to  be  substantially  this :  that, 
passing  the  question  whether  there  is  a  republican  form  merely,  such 
was  the  condition  of  things  in  South  Carolina,  from  the  interference  of 
the  military  and  the  violence  on  the  one  side  arid  on  the  other  side,  that 
there  was  not  a  free  election  which  should  certainly  undertake  to  deter 
mine  the  election  of  electors? 

Mr.  Representative  HURD.  To  that  point  I  will  address  myself' 
directly.  I  have  simply,  as  far  as  I  have  gone,  undertaken  to  say  that 
by  reason  of  the  existence  of  anarchy  in  the  State  of  South  Carolina 
there  was  no  government  at  all,  and  could  not,  therefore,  be  a  repub 
lican  form  of  government,  whether  in  the  constitution  or  in  the  law  a 
republican  form  might  have  been  established  or  not. 

This  provision  of  the  constitution  of  South  Carolina  adopted  in  1868, 
article  8,  section  3,  I  regard  as  mandatory.  I  will  not  refer  to  the  many 
distinctions  made  between  statutes  that  are  directory  and  statutes  that 
are  imperative,  but  simply  to  this,  that  wherever  a  statute  or  a  provision 
of  the  constitution  treats  of  that  which  is  of  the  essence  of  the  thing, 
then  it  shall  be  regarded  as  imperative  upon  those  who  are  required  to 
obey  its  provisions.  In  this  case  the  object  was  to  secure  a  fair  and 
honest  election  in  the  State  of  South  Carolina.  Registration  was 
required  as  a  means  to  that  end.  It  became,  therefore,  of  the  essence, 
in  the  opinion  of  the  franlers  of  the  constitution,  that  registration 
should  be  made  in  order  to  secure  this  fairness  of  election.  Most  of  the 
States  of  the  Union  have  adopted  registration  laws  upon  the  same 
theory. 

Mr!  Commissioner  BRADLEY.  Has  there  never  been  a  registration 
law  in  South  Carolina? 

Mr.  Representative  HURD.  There  has  been  no  registration  law 
passed  which  affects  or  relates  to  the  choosing  of  electors,  and  by  which, 
in  the  important  matter  of  the  representation  of  the  State  in  the  elect 
oral  college,  this  provision  of  the  constitution  is  to  be  alone  complied 
with. 

I  insist,  as  I  was  about  to  remark,  that  not  only  have  they  not  passed 
a  law  upon  this  subject  with  reference  to  registration,  but  they  have 
passed  a  law  which  defeats  the  very  object  in  view  in  the  putting  of  the 
provision  into  the  constitution.  They  have  enacted  a  law  which  has 
divided  the  State  of  South  Carolina  into  four  hundred  and  ninety-two 
precincts,  with  only  thirty-two  counties,  a  number  of  precincts  in  each 
county,  and  they  have  provided  that  every  voter  may  vote  at  any  pre 
cinct  in  the  county  that  he  chooses.  The  consequence  is  that  not  only 


672  ELECTORAL    COUNT    OF    1877. 

is  there  no  limitation  upon  the  power  of  the  voter,  so  far  as  registration 
is  concerned,  but  his  power  to  vote,  if  he  be  a  dishonest  man,  is  limited 
only  by  the  boundaries  of  his  county  and  the  number  of  precincts  that 
may  be  established  in  it.  The  consequence  is  that  the  object  intended 
to  be  accomplished  by  the  constitution  of  the  State  of  South  Carolina 
has  entirely  been  defeated,  and  a  larger  vote  in  proportion  to  the  popula 
tion  is  polled  this  day  in  the  State  of  South  Carolina  than  in  any  other 
State  in  the  Union. 

It  has  been  held,  over  and  over  again,  that  where  the  law  requires 
a  registration,  and  an  election  is  held  without  a  registration,  the  elec 
tion  is  void.  I  read  from  McCrary  on  Elections,  page  12  : 

It  being  conceded  that  the  power  to  enact  a  registry  law  is  within  the  power  to  reg 
ulate  the  exercise  of  the  elective  franchise  and  preserve  the  purity  of  the  ballot,  it  fol 
lows  that  an  election  held  in  disregard  of  the  provisions  of  a  registry  law  must  be  held 
void. 

The  authorities  cited  for  the  support  of  the  provision  are  from  Mis 
souri  and  Wisconsin,  authorities  which  fully  sustain  the  text.  If  that  be 
the  effect  of  a  provision  of  statute,  what  shall  be  said  of  the  effect  of  the 
provision  of  the  constitution  of  the  State  which  has  been  referred  to1? 

It  may  be  suggested  that  .the  legislature  has  the  power  under  the 
Constitution  of  the  United  States  to  provide  for  the  choosing  of  the 
electors,  and  that  the  constitution  of  the  State  was  not  authorized  to 
determine  it.  But  the  legislature  of  the  State  is  organized  under  the 
constitution  of  the  State ;  it  has  no  power  excepting  that  which  the 
constitution  confers,  and  in  these  matters  of  election  it  is  determined 
that  there  can  be  no  election  unless  there  shall  have  been  a  registration. 
Here  then  there  has  been  a  refusal  to  regard  the  fundamental  law,  a  re 
fusal  by  the  legislature  to  regard  the  very  life  of  its  being,  the  conse 
quence  of  which  must  be  to  render  as  void  the  election  as  though  there 
had  been  on  the  part  of  the  ministerial  officers  only  a  disregard  of  a 
•statutory  provision. 

But  supposing  that  it  shall  be  held  that  there  was  a  republican  form 
of  government  in  South  Carolina ;  supposing  that  it  shall  be  held  that 
the  election  was  regularly  and  constitutionally  conducted,  then  I  say  that 
the  testimony  which  we  propose  to  offer  in  this  case  shows  that  the  in 
tervention  of  the  military  authority  and  the  lawlessness  at  the  polls 
prevented  any  execution  of  the  ordinary  functions  of  government  and 
destroyed  the  freedom  of  election.  We  propose  to  show  that  on  the 
17th  day  of  October  the  President  of  the  United  States  issued  his  proc 
lamation  declaring  that  a  state  of  insurrection  existed  in  the  State  of 
South  Carolina,  in  these  words : 

A  proclamation  by  the  President  of  the  United  States  of  America. 

Whereas  it  has  been  satisfactorily  shown  to  me  that  insurrection  and  domestic  vio 
lence  exist  in  several  counties  of  the  State  of  South  Carolina,  and  that  certain  com 
binations  of  men  against  law  exist  in  many  counties  of  said  State,  known  as  "rifle- 
clubs/'  who  ride  up  and  down  by  day  and  night  in  arms,  murdering  some  peaceable 
citizens  and  intimidating  others,  which  combinations,  though  forbidden  by  the  laws 
of  the  State,  cannot  be  controlled  or  suppressed  by  the  ordinary  course  of  justice  ; 

And  whereas  it  is  provided  in  the  Constitution  of  the  United  States  that  the  United 
States  shall  protect  every  State  in  this  Union,  on  application  of  the  legislature,  or 
of  the  executive  when  the  legislature  cannot  be  convened,  against  domestic  violence; 

And  whereas  by  laws  in  pursuance  of  the  above  it  is  provided  (in  the  laws  of  the 
United  States)  that,  in  all  cases  of  insurrection  in  any  State,  (or  of  obstruction  to  the 
laws  thereof,)  it  shall  be  lawful  for  the  President  of  the  United  States,  on  application 
of  the  legislature  of  such  State,  or  of  the  executive  when  the  legislature  cannot  be 
convened,  to  call  forth  the  militia  of  any  other  State  or  States,  or  to  employ  such  part 
of  the  land  and  naval  forces  as  shall  be  judged  necessary  for  the  purpose  of  suppress 
ing  such  insurrection  or  causing  the  laws  to  be  duly  executed  ; 

And  whereas  the  legislature  of  said  State  is  not  now  in  session  and  cannot  be  con- 


ELECTORAL    COUNT    OF    1877.  673 

vened  in  time  to  meet  the  present  emergency,  and  the  executive  of  said  State,  under 
section  4  of  article  4  of  the  Constitution  of  the  United  States  and  the  laws  passed  in 
pursuance  thereof,  has  therefore  made  due  application  to  me  in  the  premises  for  such 
part  of  the  military  force  of  the  United  States  as  maybe  necessary  and  adequate  to 
protect  said  State  and  the  citizens  thereof  against  domestic  violence  and  to  enforce  the 
due  execution  of  the  law  ; 

And  whereas  it  is  required  that,  whenever  it  may  be  necessary  in  the  judgment  of 
the  President  to  use  the  military  force  for  the  purpose  aforesaid,  he  shall  forthwith, 
by  proclamation,  command  such  insurgents  to  disperse  and  retire  peaceably  to  their 
respective  homes  within  a  limited  time  : 

Now,  therefore,  I,  Ulysses  S.  Grant,  President  of  the  United  States,  do  hereby  make 
proclamation  and  command  all  persons  engaged  in  said  unlawful  and  insurrectionary 
proceedings  to  disperse  and  retire  peaceably  to  their  respective  abodes  within  three 
days  from  this  date,  and  hereafter  abandon  said  combinations  and  submit  themselves 
to  the  laws  and  constituted  authorities  of  said  State. 

And  I  invoke  the  aid  and  co-operation  of  all  good  citizens  thereof  to  uphold  the 
laws  and  preserve  the  public  peace. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  caused  the  seal  of  the  United 
States  to  be  affixed. 

Done  at  the  city  of  Washington,  this  17th  day  of  October,  in  the  year  of  our  Lord 
1876,  and  of  the  Independence  of  the  United  States  of  America  the  one  hundred  and 
first. 

[L.  s.]  U.  S.  &RANT. 

By  the  President : 

JOHN  L.  CADWALADER, 

Acting  Secretary  of  State. 

This  proclamation  evidently  was  issued  in  attempted  pursuance  of  a 
provision  of  the  Constitution,  part  of  which  I  have  already  considered. 
Its  language  is  that — 

The  United  States  shall  guarantee  to  every  State  in  this  Union  a  republican  form  of 
government,  and  shall  protect  each  of  them  against  invasion,  and  on  application  of 
the  legislature,  or  of  the  executive  when  the  legislature  cannot  be  convened,  against 
domestic  violence. 

The  phraseology  of  this  article  of  the  Constitution  will  be  noticed  ;  it 
is  protection  against  domestic  violence ;  that  is,  protection  against 
that  violence  which  occurs  within  the  limits  of  the  State  and  as  against 
State  authority,  as  contradistinguished  from  such  violence  as  amounts 
to  a  rebellion  against  the  authority  of  the  United  States;  be 
cause  where  it  amounts  to  a  rebellion  against  the  authority  of  the 
United  States  the  power  to  suppress  it  arises  from  another  section  of 
the  Constitution.  It  must  be  upon  the  demand  of  the  legislature, 
excepting  in  those  cases  where  the  legislature  cannot  be  convened. 
What  is  the  meaning  of  that  provision"?  It  occurs  to  me  that  its 
true  sense  is  that  where  by  reason  of  domestic  violence  it  is  im 
possible  that  the  legislature  of  the  State  can  be  convened,  then  the  ex 
ecutive  may  make  his  demand  upon  the  United  States  that  there  be 
protection  given.  As  suggested  already  in  what  I  have  said,  the  vio 
lence  must  be  directed  against  the  authority  of  the  State.  It  is  the 
State  that  is  protected  against  domestic  violence;  it  is  not  the  individ 
uals  within  the  State  ;  it  is  not  the  citizens  of  the  State  ;  it  must  be  such 
domestic  violence,  therefore,  as  threatens  the  existence  of  the  govern 
ment,  as  is  directed  against  the  government,  such  domestic  violence  as 
amounts  to  insurrection.  In  1795  a  law  was  passed  in  these  words, 
found  in  the  Revised  Statutes  as  section  5297 : 

In  case  of  an  insurrection  in  any  State  against  the  government  thereof,  it  shall  be 
lawful  for  the  President,  on  application  of  the  legislature  of  such  State,  or  of  the  exec 
utive  when  the  legislature  cannot  be  convened,  to  call  forth  such  number  of  the  militia 
of  any  other  State  or  States,  which  may  be  applied  for,  as  he  deems  sufficient  to  sup 
press  such  insurrection  ;  or,  on  like  application,  to  employ,  for  the  same  purposes,  such 
part  of  the  land  or  naval  forces  of  the  United  States  as  he  deems  necessary. 

Section  5298  provides  for  those  cases  of  insurrection  which  occur 
43  E  c 


674  ELECTORAL    COUNT    OF    1877. 

against  the  Government  of  the  United  States,  where  the  President  of 
the  United  States  has  the  power  himself  directly  to  interfere  without 
the  request  of  the  State  authorities.  Section  5299,  which  was  passed 
in  1871,  provides  as  to  power  to  suppress  insurrection  in  violation  of 
civil  rights,  and  it  provides  that  where  insurrection  or  domestic  vio 
lence,  &c.,  occurs— 

Such  facts  shall  be  deemed  a  denial  by  such  State  of  the  equal  protection  of  the  laws 
to  which  they  are  entitled  under  the  Constitution  of  the  United  States ;  and  in  all  such 
cases,  or  whenever  any  such  insurrection,  violence,  unlawful  combination,  or  conspiracy 
opposes  or  obstructs  the  laws  of  the  United  States  or  the  due  execution  thereof,  or  im 
pedes  or  obstructs  the  due  course  of  justice  under  the  same,  it  shall  be  lawful  for  the 
President,  and  it  shall  be  his  duty,  to  take  such  measures,  by  the  employment  of  the 
militia  or  the  land  and  naval  forces  of  the  United  States,  or  of  either,  or  by  other 
means,  as  he  may  deem  necessary,  for  the  suppression  of  such  insurrection,  domestic 
violence,  or  combinations. 

The  President  was  acting  evidently  under  section  5297;  because,  un 
der  section  5298  and  section  5299,  it  would  be  perfectly  competent  for 
him  to  proceed  to  issue  his  proclamation  and  to  call  upon  the  troops 
without  any  demand  being  made  on  him  by  the  executive  of  the  State 
or  by  the  legislature  of  the  State.  Therefore,  it  was  not  an  insurrection 
against  the  Government  of  the  United  States,  nor  was  it  an  interference 
with  the  equal  rights  or  the  civil  rights  of  citizens  under  the  law  that 
the  President  was  attempting  to  suppress ;  it  was  an  insurrection 
against  the  government  of  the  State.  Who  is  to  determine  whether  an 
insurrection  existed  in  the  State  at  the  time  this  demand  was  made  ? 
The  governor  of  the  State  in  this  case  made  his  demand  on  the  Presi 
dent  of  the  United  States.  But  his  decision  that  there  was  an  insur 
rection  in  his  State  was  not  final,  because  he  was  not  the  final  judge. 
It  was  the  President  of  the  United  States  who  was  to  determine  whether 
an  insurrection  existed  there  or  not.  Now,  let  us  see  what  his  deter 
mination  was  upon  the  point.  If  he  had  simply  said  that  there  was  an 
insurrection  in  the  State,  possibly  we  might  not  have  been  permitted  to 
make  any  inquiry  on  the  subject-matter;  but  he  has  stated  what  the 
insurrection  consisted  in,  what  it  was.  It  was  that — 

Rifle-clubs  ride  up  and  down  by  day  and  night  in  arms,  murdering  some  peaceable 
citizens  and  intimidating  others,  which  combinations,  though  forbidden  by  the  laws  of 
the  State,  cannot  be  controlled  or  suppressed  by  the  ordinary  course  of  justice. 

I  submit  that  that  did  not  amount  to  an  insurrection  against  the  gov 
ernment  of  the  State  of  South  Carolina.  It  was  a  mere  case  of  viola 
tion  of  law,  a  case  in  which  the  courts,  as  he  said,  might  be  powerless 
to  protect  the  citizen,  but  not  a  case  in  which  there  is  any  evidence  that 
the  military  authority  of  the  State  would  not  have  been  sufficient  to 
protect  the  citizen.  The  demand  was  made  for  troops,  merely  upon 
that  statement,  and  it  is  upon  that  statement  that  the  proclamation  of 
the  President  of  the  United  States  rests.  I  say  that  it  does  not  show 
a  state  of  insurrection  which  justified  him  in  issuing  the  proclamation, 
and  we  propose  to  sustain  that  proposition  by  offers  of  testimony  that 
at  the  time  this  proclamation  was  issued,  while  there  may  have  been  in 
timidation  practiced  upon  voters,  while  there  may  have  been  excited 
efforts  to  carry  the  election  on  both  sides,  there  was  no  such  insurrection 
against  the  authority  of  the  government  of  the  State  as  required  the 
intervention  of  the  national  authority. 

We  say  with  reference  to  this,  therefore,  that  there  was  no  insurrec 
tion  which  either  under  the  Constitution  or  the  law  justified  the  inter 
ference  of  ttje  President  of  the  United  States.  We  say  that  the  author 
ity  of  the  government  of  the  State  of  South  Carolina  was  not  in  danger. 
We  say  that  the  demand  that  was  made  by  the  governor  of  the  State 


ELECTORAL    COUNT    OF    1677.  675 

was  made  when  he  had  abundant  power  and  authority  under  the  con 
stitution  to  call  the  legislature  together.  It  was  nearly  a  month  until 
the  election,  but  those  troops  were  kept  there  for  weeks  after  the  elec 
tion.  If  they  were  necessary  in  the  beginning  to  suppress  the  insurrec 
tion,  they  were  necessary  in  the  end,  and  in  that  state  of  case  there  was 
abundant  time  for  the  governor  of  the  State  of  South  Carolina  to  issue 
his  proclamation,  bring  his  legislature  together,  and  make  the  constitu 
tional  demand  upon  the  President  for  Federal  interference. 

But  I  say,  in  addition  to  this  proposition,  that  the  troops  of  the 
United  States  were  in  the  State  of  South  Carolina  unconstitutionally 
on  the  day  of  the  election ;  that,  when  they  were  there  so  unconsti 
tutionally,  they  violated  the  laws  of  the  United  States  which  gov 
erned  them  in  the  performance  of  their  duties  as  to  elections.  Sections 
2002  and  2003  of  the  Eevised  Statutes  provide  : 

No  military  or  naval  officer  or  other  person  engaged  in  the  civil,  military,  or  naval 
service  of  the  United  States  shall  order,  bring,  keep,  or  have  under  his  authority  or 
control  any  troops  or  armed  men  at  the  place  where  any  general  or  special  election  is 
held  in  any  State,  unless  it  be  necessary  to  repel  the  armed  enemies  of  the  United  States 
or  to  koep  the  peace  at  the  polls. 

No  officer  of  the  Army  or  Navy  of  the  United  States  shall  prescribe  or  fix,  or  attempt 
to  prescribe  or  fix,  by  proclamation,  order,  or  otherwise,  the  qualifications  of  voters  in 
any  State,  or  in  any  manner  interfere  with  the  freedom  of  any  election  in  any  State  or 
with  the  exercise  of  the  free  right  of  suffrage  in  any  State. 

These  troops  in  South  Carolina,  as  I  have  shown,  unconstitutionally, 
on  the  day  of  the  election,  violated  the  law  of  the  United  States.  They 
were  at  the  polls,  where  there  was  no  trouble  at  all,  not  for  the  purpose 
of  keeping  the  peace,  but  for  the  purpose  of  interfering  with  the  free 
dom  of  the  election  ;  and  we  propose  to  submit  to  the  consideration  of 
this  Commission  abundant  proof  to  show  that  the  elections  in  many 
precincts  of  the  State  of  South  Carolina  were  held  in  the  immediate 
presence  of  Federal  troops  ;  that  men  were  compelled,  in  some  cases, 
to  pass  through  files  of  Federal  soldiers  to  deposit  their  ballots.  We 
propose  to  show  that,  without  any  excuse,  the  deputy  marshals  of  the 
United  States  called  upon  armed  forces  to  interfere  and  to  aid  them  in 
making  arrests.  We  propose  to  show  that,  by  this  military  interference, 
intimidation  was  practiced  directly  under  the  authority  of  the  Federal 
Government,  and  that  a  result  was  reached  which  would  not  have  been 
reached  had  the  military  been  kept  out  of  the  State,  or,  if  in  the  State, 
had  been  kept  from  violating  the  duty  imposed  upon  them  by  the  law. 
Will  the  Commission  hear  proof  as  to  this  point  ? 

I  submit  that  this  question  has  not  been  passed  upon  by  this  Com 
mission  as  yet.  It  is  not  a  question  as  to  how  State  officers  have  per 
formed  their  duty  ;  it  is  not  a  question  as  to  the  effect  of  a  return  which 
may  have  been  made  by  a  returuiug-board ;  it  is  not  a  question  as  to 
the  powers  of  the  judiciary  to  interfere  with  the  action  of  the  board 
after  it  has  been  done  ;  but  it  is  a  question  of  vis  major  coming  to  con 
trol  the  ballot-box,  take  charge  of  the  elections,  manage  them,  and  give 
as  the  expression  of  the  will  of  the  people  that  which  is  not  the  express 
ion  of  the  people's  will  at  all. 

I  insist,  if  your  honors  please,  that  if  the  Federal  Government,  in 
violation  of  the  Constitution,  in  violation  of  the  law,  sends  its  troops  to 
a  State  and  prevents  a  free  election,  what  is  the  result  is  not  the  true 
voice  of  the  people  any  more  than  if  they  had  been  the  troops  of  Great 
Britain  or  France  that  had  interfered  in  the  State  and  prevented  the 
free  voice  of  the  people  from  being  expressed.  I  maintain,  therefore, 
that  no  decision  had  been  made  by  this  Commission  which  prevents 
proof  upon  this  subject.  We  offer  to  make  the  proof  that  the  troops  of 


676  ELECTORAL    COUNT    OF    1877. 

tbe  Federal  Government  were  there  unconstitutionally  ;  that  they  were 
there  on  the  day  of  election  in  violation  of  law  ;  and  that  by  their  pres 
ence  they  interfered  with  the  freedom  of  the  election  and  prevented  the 
real,  true  voice  of  the  State  of  South  Carolina  from  being  expressed. 

At  the  very  first  session,  or  nearly  the  first  session,  of  the  Congress  of 
the  United  States  a  member  sought  to  take  his  seat,  elected  from  one  of 
tbe  States  of  the  Union,  to  whom  objection  was  made  upon  the  ground 
that  he  had  been  chosen  when  the  military  power  was  present  at  the 
polls.  Our  fathers,  true  to  what  they  had  learned  from  their  ancestry, 
held  that  the  election  was  absolutely  void,  and  the  seat  was  refused  to 
him.  In  England,  from  1741  until  this  day,  there  has  never  been  such 
an  interference  with  the  freedom  of  elections  as  has  occurred  in  the  Slate 
of  South  Carolina  within  the  last  six  months.  From  the  time  that  the 
three  magistrates  were  compelled  to  kneel  before  the  Speaker  of  the 
Commons  and  receive  the  reprimand  of  the  Commons  until  this  day, 
military  interference  with  elections  seems  in  England  to  have  been 
unknown.  It  is  reserved  for  this  republic  to  permit  military  interfer 
ence  without  rebuke  and  without  opposition. 

Gentlemen  of  the  Commission,  there  are  two  propositions  which  should 
never  be  forgotten  in  a  republic :  First,  that  free  and  honest  elections 
are  essential  to  its  existence ;  and,  second,  that  the  civil  power  should  be 
superior  to  the  military  at  every  point  and  free  from  every  suggestion  of 
its  influence.  These  two  doctrines  are  the  very  soul  of  free  institutions. 
The  one  puts  the  breath  into  the  body-politic  and  the  other  preserves 
the  life  that  that  breath  imparts.  The  one  declares  the  will  of  the  peo 
ple,  the  other  sees  to  it  that  that  will  is  expressed  in  all  the  majesty  o'f 
its  power,  free  from  all  restraint  and  control  from  all  persons  whatsoever, 
excepting  as  it  may  have  imposed  restraints  voluntarily  upon  itself. 

These  propositions  have  been  defended  with  a  devotion  that  never 
flagged  and  with  a  watchfulness  that  never  slumbered,  wherever  repub 
lics  have  continued.  The  decay  of  a  republic  always  begins  in  the 
indifference  of  the  people  to  the  maintenance  of  these  doctrines.  In 
deed,  in  ail  history,  as  the  republic  has  receded  and  the  empire  has 
advanced,  the  infallible  test  by  which  to  mark  the  growth  of  the  one 
and  the  decay  of  the  other  has  been  the  regard  in  which  the  people  held 
the  freedom  of  their  elections  and  military  interference. 

May  this  republic  be  saved  from  the  end  to  which  the  unrebuked  and 
successful  interference  of  the  United  States  in  South  Carolina's  elec 
tions  will  inevitably  lead ! 

[During  the  argument  of  Mr.  Eepreseutative  Hurd,  Hon.  J.  S.  Black 
and  Hon.  Montgomery  Blair  entered  the  room  and  took  seats  at  the 
tables  provided  for  counsel.) 

Mr.  Representative  COCHRANE.  Mr.  President,  I  desire  to  say  that 
Judge  Black  and  Mr.  Blair  will  appear  as  counsel.  The  objectors  to 
certificate  No.  1  had  thought  that  counsel  would  not  be  able  to  attend, 
but  we  find  that  Judge  Black  and  Mr.  Blair  can  attend,  and  they  are 
here. 

The  PRESIDENT.  It  is  very  proper  to  notify  us  before  we  proceed 
further. 

Mr.  Eepresentative  COCHRANE.  Before  the  gentleman  objecting 
to  certificate  No.  2  is  heard,  I  desire  to  submit  certain  offers  of  evi 
dence. 

The  PRESIDENT.  Will  there  be  any  further  argument  on  behalf  of 
the  objectors  on  your  side  ? 

Mr.  Representative  COCHRANE.  No,  sir,  no  more  argument.  Mr. 
Hurd  has  covered  the  ground,  and  I  do  not  propose  to  argue  it;  but 


ELECTORAL    COUNT    OF    1877.  677 

I  propose  to  submit  certain  offers  of  evidence  which.  I  will  read  to  the 
Commission  and  ask  the  attention  of  the  Commission  to  them. 

"In  support  of  the  objections  to  certificate  2S"o.  1  it  is  proposed  to 
prove  by  competent  evidence  the  following  facts,  which  said  facts  are 
offered  separately  and  as  a  whole : 

"I.  That  by  reason  of  the  failure  and  refusal  of  the  legislature  of 
South  Carolina- to  provide  for  a  registration  of  electors,  as  required  by 
article  8,  section  3,  of  the  constitution  of  said  State,  and  by  reason  of 
the  acts  passed  by  said  legislature  in  violation  of  the  spirit  of  such  con 
stitution,  great  frauds  were  perpetrated  by  colored  republican  voters  ; 
that  at  least  three  thousand  illegal  votes  were  cast  for  the  Hayes  elect 
ors,  which  said  votes  being  excluded  would  give  a  majority  to  the 
Tilden  electors. 

"II.  That  immediately  after  the  adjournment  of  Congress,  to  wit,  in 
the  month  of  August,  A.  D.  1876,  a  large  number  of  the  United  States 
soldiers,  under  command  of  General  Euger,  were  sent  by  the  President 
into  said  State ;  that  on  October  16,  General  Ruger  telegraphed  to  the 
authorities  at  Washington  that  all  was  quiet,  that  there  was  no  need 
for  further  troops,  that  if  he  (Ruger)  deemed  further  force  necessary  he 
would  call  for  the  same ;  that  he  never  did  call  for  more  troops ;  but 
that  on  October  17  the  President  issued  a  proclamation  declaring  that 
the  people  of  said  State  were  in  a  condition  of  insurrection,  and  that 
immediately  thereafter  large  numbers  of  United  States  soldiers  were 
sent  into  said  State ;  that  at  no  time  prior  to  the  last-mentioned  date 
was  there  a  condition  of  violence  or  insurrection  which  the  authorities 
of  the  State  were  unable  to  control  5  that  at  no  time  during  the  year 
1876  did  such  a  state  of  affairs  exist  in  South  Carolina  as  justified  the 
intervention  of  the  Federal  Government. 

"III.  That  the  troops  were  sent  into  said  State  without  any  action 
of  the  legislature  thereof,  although  the  same  could  have  been  readily 
convened. 

"IV.  That  the  troops  were  sent  into  said  State,  not  for  the  purpose 
of  quelling  insurrection  and  preserving  peace  and  good  order,  but  for 
the  purpose  and  with  the  design  of  overawing  the  voters  of  said  State  5 
that  said  troops  were  stationed  at  and  near  the  polls  on  election  day, 
and  that  their  presence  before  and  at  the  day  of  the  election  did  obstruct 
and  interfere  with  an  expression  of  the  popular  will  and  prevent  a  free 
election. 

"V.  That  the  presence  of  said  troops  served  to  embolden  the  more 
desperate  of  the  negroes ;  being  assured  by  their  party  leaders  that  said 
troops  were  there  for  the  purpose  of  protecting  them  in  any  act  of  vio 
lence,  the  blacks  throughout  the  counties  of  Beaufort  and  Charleston 
inaugurated  a  condition  of  riot  and  lawlessness ;  that  the  republican 
officials  incited  them  to  the  commission  of  every  character  of  crime ; 
that  murder  was  committed,  and  the  perpetrators  allowed  to  escape 
punishment ;  that  justices  refused  to  issue  warrants  for  the  arrest  of 
criminals  charged  even  with  the  crime  of  murder,  and  sheriffs  refused  to 
execute  such  warrants  if  issued ;  that  the  police  force  of  the  city  of 
Charleston,  composed  almost  entirely  of  republican  negroes,  employed 
its  time  in  shooting  down  upon  the  public  streets  quiet  and  inoffensive 
white  men,  members  of  said  force  being  in  many  instances  leaders  in 
the  riots  which  occurred ;  that  upon  election  day  the  negroes  assembled 
at  the  polls,  and  with  rifles,  shot-guns,  and  other  weapons  prevented 
negroes  who  desired  so  to  do  from  voting  the  democratic  ticket  j  that 
the  State  militia,  composed  of  the  worst  element  of  the  negro  popu 
lation  and  supplied  with  State  arms,  was  also  at  the  polls  aiding  and 


678  ELECTORAL    COUNT    OF    1877. 

abetting  in  the  violation  of  law  and  in  the  intimidation  of  voters ;  that 
the  sheriff  of  Charleston  County,  one  of  the  republican  electors " — I 
refer  to  Mr.  C.  C.  Bowen — "without  warrant  or  authority  of  law  ap 
pointed  hundreds  of  so-called  deputy  sheriffs,  all  negroes  and  republi 
cans,  investing  them  with  the  power  to  make  arrests  at  their  pleasure ; 
that  these  deputy  sheriffs  swarmed  about  the  various  polls  on  election- 
day,  and  by  their  threats  of  violence  did  hinder  and  prevent  many  cit 
izens  from  voting,  and  did  arrest  and  imprison  without  information  or 
warrant  many  of  those  who  attempted  to  vote  the  democratic  ticket  5  that 
persons  styled  United  States  deputy  marshals  were  also  stationed  at 
the  polls  aiding  and  assisting  said  deputy  sheriffs ;  that  throughout  the 
State  the  negroes  believed  that  the  United  States  soldiers  had  been  sent 
to  shoot  them  if  they  did  not  vote  the  republican  ticket. 

"VI.  That  such  violence  and  lawlessness  existed  throughout  the 
counties  of  Charleston  and  Beaufort  shortly  before  and  on  the  day  of 
the  election,  which  said  lawlessness  was  primarily  attributable  to  the 
occupation  of  the  State  by  United  States  soldiers,  that  no  free  elec 
tion  could  be  or  was  held  in  said  counties ;  but  that  upon  the  contrary 
the  popular  will  found  no  expression  at  the  polls ;  that  by  reason  of  the 
lawlessness  which  existed  in  the  county  of  Charleston  .alone  the  repub 
lican  electors  secured  a  majority  of  about  7,000  votes.7' 

Very  few,  if  any,  of  the  republican  electors  in  the  State  had  a  ma 
jority  of  more  than  a  thousand  in  the  whole.  The  majority  in  the 
county  of  Charleston  alone,  rolled  up  by  means  of  these  terrible  frauds 
and  outrages  on  law  and  liberty,  was  7,000. 

In  this  connection  I  will  call  the  attention  of  the  Commission  to  one 
section  in  Blackstone  which  states  the  principle  more  tersely  than  I 
could.  I  refer  to  1  Blackstone's  Commentaries,  page  178 : 

And,  as  it  is  essential  to  the  very  being  of  Parliament  that  elections  should  be  abso 
lutely  free,  therefore  all  undue  influences  upon  the  electors  are  illegal  and  strongly 
prohibited,  for  Mr.  Locke  ranks  it  among  those  breaches  of  trust  in  the  executive  mag 
istrate  which,  according  to  his  notions,  amount  to  a  dissolution  of  the  government,  "  if 
he  employs  the  force,  treasure,  and  offices  of  the  society  to  corrupt  the  representatives, 
or  openly  to  pre-engage  the  electors  and  prescribe  what  manner  of  persons  shall  be 
chosen.  For  thus  to  regulate  candidates  and  electors,  and  new-model  the  ways  of  elec 
tion,  what  is  it  (says  he)  but  to  cut  up  the  government  by  the  roots,  and  poison  the 
very  fountain  of  public  security  ?  "  As  soon,  therefore,  as  the  time  and  place  of  elec 
tion,  either  in  counties  or  boroughs,  are  fixed,  all  soldiers  quartered  in  the  place  are 
to  remove,  at  least  one  day  before  the  election,  to  the  distance  of  two  miles  or  more, 
I  and  not  to  return  till  one  day  after  the  poll  is  ended.  Riots  likewise  have  been  fre 
quently  determined  to  make  an  election  void. 

The  PRESIDENT.  The  Commission  will  now  hear  the  objectors  to 
certificate  No.  2. 

Mr.  Representative  LAWRENCE.  Mr.  President  and  gentlemen  of 
the  Commission,  if  the  proceedings  of  this  Commission  and  its  decis 
ions  were  only  to  be  read  and  judged  of  by  learned  lawyers  familiar  with 
the  truth  of  history  in  all  that  pertains  to  the  electoral  vote  of  South 
Carolina,  I  would  not  deem  it  necessary  to  say  one  word  upon  the  ques 
tions  which  are  now  submitted  for  consideration.  But  they  are  to  be 
read  by  others  who  may  not  so  well  understand  them,  and  for  this  rea 
son  it  may  be  proper  to  submit  some  remarks.  If  I  had  not  ceased  to 
be  surprised  at  anything  that  might  be  urged  on  some  political  questions, 
however  unwarranted,  I  might  confess  to  astonishment  at  the  objections 
made  to  the  electoral  vote  of  this  State  as  cast  for  Rutherford  B.  Hayes 
for  President  and  William  A.  Wheeler  for  Vice-President. 

But  when  objections  are  made  upon  official  responsibility  they  must 
be  met  and  considered. 

Mr.  Representative  COCHRANE.  '  If  the  gentleman  will  excuse  me, 


ELECTORAL    COUNT    OF    1877.  679 

I  believe  it  is  customary  when  an  offer  of  proof  is  made  that  the  ob 
jector  upon  the  other  side  shall  determine  whether  he  objects  to  its  re 
ception.  I  would  therefore  ask  the  gentleman  to  say,  before  proceeding 
with  his  argument,  whether  he  objects  to  our  proving  the  facts  as  stated 
in  these  offers  of  proof? 

Mr.  Representative  LAWEE^STCE.  Mr.  President  and  gentlemen,  I 
suppose  this  Commission  would  not  receive  proofs  which  were  clearly 
incompetent,  however  much  I  might  undertake  to  consent. 

Mr.  Representative  COCHEANE.     But  do  you  object  I 

Mr.  Commissioner  HOAE.  Mr.  President,  I  understand  that  under 
the  rules  of  the  Commission  the  discretion  of  objecting  to  testimony  or 
consenting  to  its  admission  is  lodged  with  counsel,  on  the  ground  that 
they  are  to  have  the  management  of  the  cause,  and  that  question  I  sup 
pose  should  properly  be  addressed  to  counsel  on  that  side,  and  not  to 
Judge  Lawrence,  the  objector. 

The  PEESIDENT.  I  am  inclined  to  think  that  is  the  correct  view. 
It  is  the  office  of  counsel  to  object. 

Mr.  Representative  COCHEAKE.    Very  well,  sir. 

The  PEESIDENT.  And  also  for  counsel  to  offer,  usually.  I  will 
propound  the  question  in  due  season  to  counsel. 

Mr.  Eepresentative  LAWEEXCE.  To  this  I  can  only  add,  that  if 
the  counsel  who  represent  the  Hayes  electors  shall  deem  it  proper  to 
offer  proof,  and  if  this  Commission  shall  deem  it  lawful  to  hear  it,  we 
shall  by  abundant  testimony  be  able  to  disprove  every  material  allega 
tion  made  by  the  objectors  on  the  other  side.  We  shall  be  able  to  show 
that  by  reason  of  intimidation  and  violence  practiced  by  democratic 
politicians  and  organized  democratic  rifle-clubs  in  the  State  of  South 
Carolina,  many  thousands  of  republican  voters  were  driven  away  or 
kept  away  from  the  polls,  and  that  but  for  this  intimidation  and  vio 
lence  the  majority  for  the  so-called  Hayes  electors  would  have  been 
many  thousands  more  than  it  was. 

I  will  first  direct  the  attention  of  the  Commission  to  the  papers  pur 
porting  to  be  certificates  of  electoral  votes  cast  for  Samuel  J.  Tilden  for 
President  and  for  Thomas  A.  Hendricks  for  Vice-President,  by  Theo 
dore  G.  Barker  and  others,  claiming  to  be  electors  for  South  Carolina. 

To  these  I  object — 

1.  Because  they  are  here  without  the  certificate  required  by  sections 
136  and  138  of  the  Eevised  Statutes  of  the  United  States. 

These  sections  require  that  there  shall  be  annexed  to  the  certificates 
of  the  votes  cast  by  electors  a  "  list  of  the  names  of  the  electors  *  * 
made,  *  *  *  certified,  and  *  *  *  furnished  to  them  by  direc 
tion  of  the  executive  of  the  State." 

2.  Because  they  are  here  without  the  certificate  required  by  the  stat 
ute  of  South  Carolina. 

By  chapter  IX  of  the  Eevised  Statutes  of  South  Carolina  of  1873, 
section  15,  it  is  provided  that  the  secretary  of  state  shall  prepare  lists — 

of  the  names  of  the  electors,  procure  to  the  same  the  signature  of  the  governor,  affix 
thereto  the  seal  of  the  State,  and  deliver  them  thus  signed  and  sealed  to  the  president 
of  the  college  of  electors. — Eevised  Statutes  South  Carolina,  page  36. 

The  certificate  thus  described  in  the  statute  is  that  which  is  re 
quired  by  the  sections  of  the  Revised  Statutes  to  which  I  have  re 
ferred.  The  record  of  these  so-called  electors  affirmatively  shows  that 
they  never  received  any  certificate,  so  that  there  is  no  room  to  make 
inquiry  as  to  any  presumption  to  support  their  authority. 

3.  The  assumed  authority  of  these  so-called  electors  is  overthrown  by 
the  fact  that  C.  C.  Bowen  and  others,  electors  of  President  and  Vice- 


680  ELECTORAL    COUNT    OF    3877. 

President  of  South  Carolina,  cast  tbeir  votes  for  Hayes  and  Wheeler, 
and  these  are  here  in  proper  form  and  with  a  certificate  under  the  great 
seal  of  the  State  duly  signed  by  the  governor  and  secretary  of  state  as 
evidence  of  the  authority  of  the  electors,  in  the  form  required  by  the 
act  of  Congress  and  the  statute  of  South  Carolina. 

The  assumed  authority  of  Barker  and  his  associates  as  electors  is  not 
only  without  evidence  to  support  it,  but  it  is  overthrown  by  evidence 
which  proves  in  due  form  of  law  the  authority  of  Bowen  and  his  asso 
ciates  who  voted  for  Hayes  and  Wheeler. 

The  "Tilden  electors,"  Barker  and  others,  were  therefore  not  "duly 
appointed  electors  in  "  South  Carolina^  and  the  votes  by  them  cast  are 
not  "the  votes  provided  for  by  the  Constitution." 

Mr.  Commissioner  ABBOTT.  I  do  not  understand  that  Mr.  Hurd  on. 
the  other  side  claimed  that  this  certificate  No.  2  should  be  counted,  but 
the  objection  was  to  counting  the  votes  of  the  electors  named  in  certifi 
cate  No.  1. 

Mr.  Representative  LAWRENCE.  Still  this  certificate  is  here  and 
we  have  made  objections  to  it ;  and  I  will  in  a  very  few  words  state  the 
reasons  why  it  should  not  be  counted.  It  is  that  certificate  that  sends 
the  case  here. 

Mr.  Commissioner  MILLER.  If  nobody  claims  that  it  ought  to  be 
counted,  I  hardly  think  that  it  is  worth. while  to  waste  time  upon  it. 

Mr.  Representative  LAWRENCE.  Very  well.  This  then  brings  us 
to  the  inquiry  as  to  the  legal  appointment  of  the  Hayes  electors,  Bowen 
and  others,  and  the  validity  of  the  votes  they  gave  for  President  and 
Vice-President.  From  the  evidence  tojwhich  I  have  already  referred,  it 
is  sufficiently  shown  that  they  were  duly  appointed  electors,  and  that 
the  votes  they  gave  for  Hayes  for  President  and  for  Wheeler  for  Vice- 
President  are  "  the  votes  provided  for  by  the  Constitution"  unless  some 
one  of  the  five  objections  made  to  them  shall  be  well  taken. 

These  several  objections  I  will  proceed  very  briefly  to  notice. 

The  first  objection  is : 

1.  That  no  legal  election  was  held  in  South  Carolina  for  presidential  electors,  the 
general  assembly  of  that  State  not  having  provided,  as  required  by  article  8,  section 
3,  of  the  constitution  thereof,  for  the  registration  of  persons  entitled  to  vote,  without 
which  registration  n®  valid  or  legal  election  could  be  held. 

The  constitution  of  South  Carolina  provides  that —  ..  v  • 

It  shall  be  the  duty  of  the  general  assembly  to  provide  from  time  to  time  for  the 
registration  of  all  electors. 

And  it  is  assumed  that  a  failure  to  provide  for  the  registration  will 
defeat  the  title  to  office  of  presidential  electors  chosen  by  popular  vote. 
In  reply  to  this,  it  is  proposed  now  to  show — 

1.  That  clause  of  the  constitution  as  to  registration  is  DIRECTORY,  and  a 
failure  to  comply  ivith  it  cannot  affect  the  result  of  an  election. 

2.  The  State  constitution  cannot  take  from  the  legislature  the  poiver  given 
to  it  ly  the  Constitution  of  the  United  States  to  provide  for  the  appointment 
of  electors  without  registration,  "in  such  manner  as  the  legislature  may 
direct." 

3.  The  legislature  HAS  COMPLIED  icith  the  constitutional  provision  re 
quiring  registration. 

To  each  of  these  points  I  will  briefly  call  the  attention  of  the  Com 
mission. 

I.  This  provision  of  the  constitution  is  DIRECTORY,  resting  for  its  exe 
cution  on  the  conscience  of  the  legislature  ;  and  a  failure  to  provide  for  reg 
istration  does  not  invalidate  or  affect  the  result  of  the  election. 


ELECTORAL    COUNT    OF    1877.  681 

This  position  may  be  illustrated  by  a  clause  in  the  constitution  of 
Ohio.  The  constitution  of  Ohio  provides  as  to  the  legislature  that — 

No  bill  shall  contain  more  than  one  subject,  which  shall  be  clearly  expressed  in  its 
title. 

But  the  supreme  court  has  said  this  provision — 

is  directory  only,  and  the  -supervision  of  its  observance  must  be  left  to  the  general 
assembly.  *  **  *  It  is  not  to  be  enforced  by  judicial  interposition.  '  It 

would  be  most  mischievous  in  practice  to  make  the  validity  of  every  law  to  depend  upon 
the  judgment  of  every  judicial  tribunal  as  to  whether  an  act  or  bill  contained  more 
than  one  subject.  *  *  *  The  only  safeguard  against  the  violation  of  these  rules 
of  the  houses  is  their  regard  for  and  thsir  oath  to  support  the  constitution. — 6  Ohio 
State  Reports,  176. 

Here  was  a  duty  imposed  by  the  constitution  on  the  legislature,  but 
a  neglect  of  this  duty  does  not  invalidate  laws  which  fail  to  conform  to 
the  constitutional  requisition. 

The  Constitution  of  the  United  States,  higher  than  any  State  consti 
tution,  requires  the  State  legislatures  to  provide  for  the  appointment  of 
electors.  A  failure  of  the  legislature  to  follow  all  the  directions  of  the 
State  constitution  as  to  the  registration  of  voters  cannot  defeat  the  duty 
imposed  on  the  State  by  the  "higher  law"  of  the  supreme  national 
Constitution  or  disfranchise  a  State  in  the  election  of  a  President. 

The  right  of  the  National  Government  to  have  each  State  participate 
in  a  presidential  election  cannot  be  defeated  by  the  wrong  of  the  legis 
lature  in  not  complying  with  the  directions  of  the  State  constitution. 
The  right  of  the  entire  people  of  the  United  States  to  have  all  the  States 
represented  in  the  choice  of  a  President  cannot  be  defeated  by  the 
wrong  stated. 

The  constitution  of  South  Carolina  requires  the  election  of  State  and 
county  officers  by  popular  vote.  To  say  that  an  election  is  void  with 
out  a  registration  law,  is  to  affirm  that  the  legislature  may  dissolve  the 
entire  State  and  local  government  and  produce  anarchy.  Certainly 
the  convention  which  made  the  constitution  never  intended  so  disas 
trous  a  result  to  follow  the  omission  to  enact  a  registry  law.  Yet  if  this 
omission  defeats  the  right  of  the  State  to  representation  in  the  electoral 
college,  it  would  legalize  a  fearful  anarchy  j  it  would  enable  a  State 
practically  to  withdraw  from  the  Union  ;  it  would  be  "  secession  made 
easy." 

The  statute  regulating  elections  in  this  State  provides  that — 

All  bar-rooms,  saloons,  and  other  places  for  the  sale  of  liquors  by  retail  shall  be 

until  six  o'clock  on  the 

the  sale  of  all  intoxicating  liquors  is  prohibited. 

And  a  penalty  is  provided  on  conviction.  If  the  State  can  be  deprived 
of  its  electoral  vote  for  want  of  a  registration  law.  it  might,  with  equal 
propriety,  be  so  deprived  by  the  non-enforcement  of  this  provision,  for 
it  is  a  part  of  the  election  machinery  prescribed  by  the  legislature  for 
the  appointment  of  electors. 

It  is  the  duty  of  the  legislatures  in  many  States  to  "  pass  laws  to 
preserve  the  purity  of  elections,"  but  a  failure  to  do  so  could  not  inval 
idate  the  elections  held  in  those  States. 

The  claim  now  set  up  would  invest  Congress  with  a  power  to  furnish 
pretexts  for  disfranchising  States  and  dictate  the  selection  of  a  Presi 
dent.  The  legislative  power  would  absorb  the  executive,  and  defeat 
the  purpose  of  the  Constitution.  This  is  a  danger  which  the  framers  of 
the  Constitution  never  intended  to  authorize.  It  has  been  forcibly  said 
that  "  if  there  was  no  check  upon  the  tyranny  of  legislative  majorities 
the  prospect  before  us  would  be  gloomy^in  the  extreme."  (1  Kent,  450, 


closed  at  six  o'clock  of  the  evening  preceding  the  day  of  election  and  remain  closed 
morning  of  the  day  thereafter;   and  during  the  time  aforesaid 


682  ELECTORAL    COUNT    OF    1877. 

note,  llth  ed.)  One  of  the  "checks"  provided  by  the  Constitution  is 
that  the  electoral  votes  forwarded  in  due  form  from  the  States  should 
not  be  rejected  by  "  the  tyranny  of  legislative  majorities,"  but  should, 
when  opened,  "then  be  counted." 

In  the  light  of  authority  and  reason,  it  seems  certain  the  omission  to 
enact  a  registration  law  cannot  affect  the  appointment  of  electors. 
Upon  this  whole  subject,  I  will  refer  the  Commission  to  authorities  as 
follows:  Pirn  vs.  Nicholson,  0  Ohio  St.  R.,  176  ;  Sedgwick  on  Statutes, 
377  5  570.  To  the  same  effect  is  Miller  vs.  State,  3  Ohio  St.,  475 ;  People 
vs.  Supervisors,  4  SeJden,  317  5  Washington  vs.  Murray,  4  Cal.,  388 ; 
Davis  vs.  State,  7  Maryland,  151 5  Battle  vs.  Howard,  13  Texas,  345. 
And  see  Hay  wood  on  County  Elections,  511 ;  Golden  vs.  Sharp,  Clarke 
&  Hall,  410;  Van  Rensselaer  vs.  Van  Allen,  Clarke  &  Hall,  73 ;  Arnold 
vs.  Lea,  Clarke  &  Hall,  601;  Lyon  vs.  Smith,  Clarke  &  Hall,  101;  Ork 
ney  &  Shetland,  Eraser,  360;  (see  Seaford,  Laders  III,  3;  Case  of 
David  Bard,  Clarke  &  Hall,  116 ;  Porterfield  vs.  McCoy,  Clarke  &  Hall, 
267;  Colchester,  Peckwell  I,  503-507;  Easton  vs.  Scott,  Clarke  &  Hall, 
272;  Mallary  vs.  Merrill,  Clarke  &  Hall,  328;  Draper  vs.  Johnston, 
Clarke  &  Hall,  703;  Spaulding  vs.  Mead,  Clarke  &  Hall,  157;  Standish, 
dishing,  S.  &  J.,  82;  Chatham,  Gushing,  S.  &  J.  423;  West  Boylston, 
Cushing,  S.  &  J.,  394;  Limerick,  Perry,  &  Kuapp,  355;  Cochrane  & 
Eowe,  288 ;  Warwick,  Cushing,  S.  &  J.,  401 ;  McCrary  on  Elections, 
sec.  123-130. 

I  now  proceed  to  show — 

2.  That  the  State  Constitution  cannot  take  from  the  legislature  the  right 
given  to  it  by  the  Constitution  of  the  United  States  to  appoint  electors  with 
out  a  registration  of  voters  "  in  such  manner  as  the  legislature  thereof  may 
direct." 

In  other  words,  if  the  State  constitution  requires  the  legislature  to 
enact  a  registry  law  for  the  jmrpose  of  choosing  electors,  it  is  uucousti 
tutional. 

The  Constitution  of  the  United  States  provides  that— 

Each  State  shall  appoint  [electors]  in  such  manner  as  the  legislature  thereof  may 
direct. 

In  every  State  the  legislature  has  provided  by  law  for  the  appoint 
ment  of  electors  by  popular  vote.  This  is  done  in  pursuance  of  author 
ity  given  to  the  legislature  by  the  Constitution  of  the  United  States. 

Mr.  Commissioner  ABBOTT.  Permit  me  to  ask  you  a  question.  Do 
you  mean  to  say  that  it  is  unconstitutional  for  a  State  constitution  to 
provide  that  elections  shall  take  place  by  a  registry  law  ? 

Mr.  Representative  LAWBENCE.  I  do.  I  mean  to  say  that  the 
manner  of  the  appointment  of  electors  of  President  and  Vice-President 
is  by  the  Constitution  of  the  United  States  intrusted  solely  to  the  dis 
cretion  of  the  State  legislature,  and  that  it  is  absolutely  uncontrollable 
by  any  provision  of  a  State  constitution.  That  is  precisely  what  I  mean 
to  say. 

This  legislative  authority  exists  not  by  force  of  any  State  constitu 
tion,  but  the  "  supreme  law  "  above  it.  As  the  power  is  derived  from 
the  Constitution  of  the  United  States,  and  is  given  in  plenary  and  unlim 
ited  terms,  the  State  legislature  is  made  the  exclusive  judge  of  the  man 
ner  in  which  popular  elections  shall  be  authorized,  regulated,  conducted, 
and  the  result  declared,  subject  only  to  the  obligations  of  the  amend 
ments  of  the  Constitution  in  relation  to  suffrage  and  such  regulations  as 
Congress  may  be  authorized  to  make. 

A  State  constitution  can  no  more  require  a  "  registration  law"  against 
the  judgment  of  the  legislature  than  it  can  impose  restraints  on  the  pow- 


ELECTORAL    COUNT    OF    1877.  683 

ers  given  by  the  national  Constitution  to  Congress.  The  provision  of 
the  South  Carolina  constitution  requiring  a  registration  law  is  itself 
unconstitutional  and  void  so  far  as  it  attempts  to  impose  a  duty  on  the 
legislature  to  require  registration  of  voters  authorized  to  participate  in 
the  appointment  of  electors. 

This  may  be  illustrated  by  other  provisions  of  the  Constitution  of  the 
United  States.  This  provides  that — 

The  times,  places,  and  manner  of  holding  elections  for  Senators  and  Representatives 
shall  be  prescribed  in  each  State  by  the  legislature  thereof ;  but  the  Congress  may  at 
any  time  by  law  make  or  alter  such  regulations,  &c. 

In  discussing  the  powers  of  State  constitutional  conventions,  Jame 
son,  a  law-writer  of  acknowledged  authority,  denies  in  emphatic  terms 
that  they  can  make  any  regulation  affecting  u  the  times,  places,  or  man 
ner  of  holding  elections  for  Kepresentatives  in  Congress."  He  says : 

The  rule  is  general,  that  it  is  the  State  legislatures  which  apportion  their  several 
States  for  congressional  electors.  (Jameson  on  Constitutional  Conventions.  West 
Virginia  contested-election  cases,  first  session  Forty-third  Congress  ;  Congressional 
Record,  35,  36,  38,  46,  816-819,  842-849,  875-880,  884-890,  931-937,  958-963 ;  Speer's 
speech,  Appendix,  34.) 

And  he  shows  that  the  exceptional  cases  in  which  constitutional  con 
ventions  have  provided  for  the  election  of  Kepresentatives,  upon  the  cre 
ation  of  a  neiv  State,  derive  their  validity  from  the  action  of  Congress 
in  ratifying  them.  His  language  is,  that  Congress — 

having  the  power  to  "  make  or  alter,"  Congressfdoubfcless  might  ratify  such  regulations, 
however  made;  or  if  a  State,  actual  or  inchoate,  were  in  such  a  condition  that  it  had 
no  lawful  legislature,  Congress  might  itself,  for  the  sake  of  convenience,  establish  them 
by  its  direct  action. 

The  great  American  commentator,  whose  researches  explored  every 
field  of  legal  learning  and  left  their  impress  on  all,  whose  emphatic 
words  I  commend  to  my  learned  friend  the  Commissioner  from  Massa 
chusetts,  [Mr.  Abbott,]  Mr.  Justice  Story,  in  the  Massachusetts  consti 
tutional  convention  of  1820,  in  discussing  this  subject,  said: 

The  question  then  was  whether  we  have  a  right  to  insert  in  our  constitution  a  pro 
vision  which  controls  or  destroys  a  discretion  which  may  be,  nay  must  be,  exercised  by 
the  legislature  in  virtue  of  powers  confided  to  it  by  the  Constitution  of  the  United  States. 

The  fourth  section  of  the  first  article  of  the  Constitution  of  the  United  States  de 
clares,  "  That  the  times,  places,  and  manner  of  holding  elections  for  Senators  and  Rep 
resentatives  shall  be  prescribed  in  each  State  by  the  legislature  thereof." 

Here  an  express  provision  was  made  for  the  manner  of  choosing  Representatives  by 
the  State  legislatures.  They  have  an  unlimited  discretion  on  the  subject.  They  may 
provide  for  an  election  in  single  districts,  in  districts  sending  more  than  one,  or  by 
general  ticket  for  the  whole  State.  Here  is  a  general  discretion,  a  power  of  choice. 
What  is  the  proposition  on  the  table  ?  It  is  to  limit  this  discretion,  to  leave  110  choice 
to  the  legislature,  to  compel  Representatives  to  be  chosen  in  districts  ;  in  other  words, 
to  compel  them  to  be  chosen  in  a  specific  manner,  excluding  all  others.  Was  not  this 
plainly  a  violation  of  the  Constitution  ?  Does  it  not  affect  to  control  the  legislature  in 
the  exercise  of  its  legitimate  powers?  Does  it  not  interfere  with  the  superintending 
authority  of  Congress  ?  *  *  *  *  It  assumes  a  control  over  the  legislature  which 
the  Constitution  of  the  United  States  does  not  justify.  It  is  bound  to  exercise  its  au 
thority  according  to  its  own  view  of  public  policy  and  principle  ;  and  yet  this  proposi 
tion  compels  it  to  surrender  all  discretion.  In  my  humble  judgment  '  it  is 
a  direct  and  palpable  infringement  of  the  constitutional  provisions  to  which  I  have 
referred. 

There  is  nothing  new  in  the  suggestion  that  a  State  constitution  may 
in  some  of  its  provisions  be  unconstitutional  and  void  because  in  conflict 
with  the  higher  Constitution  of  the  United  States. 

But  it  is  not  necessary  to  say  that  there  is  any  conflict  between  the 
national  and  State  constitutions.  By  a  well-known  rule  of  construc 
tion,  the  provisions  in  relation  to  registration  at  most  must  be  deemed 


684  ELECTORAL    COUNT    OF    1877. 

as  intended  only  to  apply  to  registration  for  elections  exclusively  under 


143  ;  11  Peters,  598.) 

It  seems  certain,  then,  that  the  legislature  of  South  Carolina  has  been 
guilty  of  no  omission  of  duty  in  relation  to  registration. 

I  proceed  to  show — 

3.  That  the  legislature  has  complied  ivith  the  constitutional  provision  re 
quiring  registration. 

The  election-law  provides  as  to  each  voting-precinct  that — 

Each  clerk  of  the  poll  shall  keep  a  poll-list,  which  shall  contain  one  column  headed 
"  names  of  voters,"  and  the  name  of  each  elector  voting  shall  be  entered  by  the  clerk 
in  such  column. 

These  are  public  records,  which  in  each  county  belong  to  the  files  of 
the  county  commissioners  of  election.  This  is  a  substantial  compliance 
with  the  constitutional  provision  requiring  a  u  registration  of  all  elect 
ors." 

Besides  this,  the  revised  statutes  of  1873  require  a  complete  census 
to  be  taken  on  or  before  April  15,  1875,  and  every  tenth  year  there 
after,  and  the  census  for  each  county  is  to  be  deposited  with' the  county 
auditor.  The  law,  or  rather  I  should  say  the  official  instructions  tinder 
it,  require  the  census  returns  to  show  the  names  of  all  male  persons 
over  twenty-one  years  of  age,  and  these  are  voters.  This  gives  a  com 
plete  registration  of  all  voters,  and  is  a  substantial  compliance  with  the 
constitutional  provision  requiring  registration.  This  law  has  been 
faithfully  executed  and  furnishes  the  means  of  detecting  illegal  voters. 

As  to  municipal  elections  there  is  a  registry  law.  The  revised  stat 
utes  of  1873,  chapter  11,  page  39,  require  every  voter  to  be  u  registered 
in  the  ward  or  precinct  in  which  he  offers  to  vote." 

The  second  objection  to  the  "  Hayes  electoral  vote  "  is  : 

2.  That  there  was  not  existing  in  the  State  of  South  Carolina  on  the  1st  of  Janu 
ary,  1876,  nor  at  any  time  thereafter,  up  to  and  including  the  10th  of  December,  1876, 
a  republican  form  of  government,  such  as  is  guaranteed  by  the  Constitution  to  every 
State  in  the  Union. 

It  is  a  sufficient  answer  to  this  to  say  that  South  Carolina  was  duly 
represented  in  the  Senate  and  House  of  Representatives  of  the  United 
States  during  all  this  time,  and  this  is  conclusive  evidence  in  every  par 
ticular  against  the  objection  which  has  been  made.  In  the  case  of 
Luther  vs.  Borden,  7  Howard,  42,  Chief- Justice  Taney  said : 

It  rests  with  Congress  to  decide  what  government  is  the  established  one  in  a  State. 
For,  as  the  United  States  guarantee  to  each  State  a  republican  form  of  government, 
Congress  must  necessarily  decide  what  government  is  established  in  the  State,  before 
it  can  determine  whether  it  is  republican  or  not ;  and  when  the  Senators  and  Representa 
tives  of  a  State  are  admitted  into  the  councils  of  the  Union,  the  authority  of  the  government 
under  wliich  they  are  appointed,  as  well  as  its  republican  character,  is  recognized  by  the  proper 
constitutional  authority,  and  its  decision  is  binding  on  every  other  department  of  the  Govern 
ment,  andcouldnot  be  questioned  in  a  judicial  tribunal. 

And  see  Ex  parte  Coupland,  26  Texas,  434;  Federalist  Xo.  21,  page 
112;  Calder  vs.  Bull,  3  Dallas,  38G;  Wyuehamer  vs.  The  People,  13  .New 
York,  (3  Kernan,)  392. 

Mr.  Representative  HURD.  This  Commission  has  the  powers  of  the 
two  Houses  of  Congress. 

Mr.  Representative  LAWRENCE.  The  powers  of  Congress  are 
powers  to  be  exercised  by  law  and  with  the  approval  of  the  President, 


ELECTORAL    COUNT    OF    1877.  685 

and  this  tribunal  cannot  annul  what  Congress  has  done  with  the  ap 
proval  of  the  President  in  the  form  of  law.     Greenleaf  says  : 


Courts  will  judicially  take  notice  of  the  political  constitution  or  frame  of  the  gov 
ernment  of  their  own  country,  its  essential  political  agents  or  officers,  and  its  essential 
ordinary  and  regular  operations.  The  great  seal  of  the  State  and  the  seals  of  its  judi 
cial  tribunals  require  no  proof. 

The  constitution  of  South  Carolina  of  1868  is  before  the  Commission. 
It  is  entirely  republican  in  "form."  The  government  organized  under 
it  is  republican  in  "form."  It  is  so  in  fact.  But  the  Constitution  of 
the  United  States  does  not  undertake  to  guarantee  at  all  times  a  State 
government  strictly  republican  in  its  administration  or  in  fact.  Its  lan 
guage  is  :  "  The  United  States  shall  guarantee  to  every  State  *  *  a 
republican  form  of  government." 

The  guaranty  of  a  republican  form  of  government  is  to  be  executed 
by  the  United  States  as  an  independent  sovereign  act,  and  not  collat 
erally  or  incidentally  Avhen  the  Houses  are  engaged  in  counting  the 
electoral  vote,  and  therefore  the  consideration  of  the  question  is  not 
within  the  jurisdiction  of  this  Commission. 

The  admission  or  restoration  of  the  State  of  South  Carolina  into  the 
Union  under  the  so-called  "  reconstruction  acts"  was  the  act  of  the 
United  States,  being  the  act  of  the  two  Houses  of  Congress  with  the 
approval  of  the  President,  and  that  act  binds  all,  the  two  Houses  of 
Congress  as  well  as  others,  and  therefore  binds  this  Commission.  That 
act  was  a  recognition  of  the  government  of  South  Carolina  as  republican 
in  form,  and  that  act  remains  in  force  to  the  present  time. 

The  third  objection  is  : 

That  the  Federal  Government  prior  to  and  during  the  ejection  on  the  7th  day  of  Novem 
ber,  1876,  without  authority  of  law,  stationed  in  various  parts  of  the  said  State  of  South 
Carolina  at  or  near  the  polling-places  detachments  of  the  Army  of  the  United  States, 
by  whose  presence  the  fall  exercise  of  the  right  of  suffrage  was  prevented  and  by 
reason  whereof  no  legal  or  free  election  was  or  could  be  had. 

It  is  a  sufficient  answer  to  this  to  say  there  is  no  proof  to  support  it. 
Still  more,  it  is  not  competent  for  this  tribunal  to  hear  evidence  in  sup 
port  of  it  or  to  make  the  inquiry.  This  was  decided  in  principle  by  the 
determination  of  this  Commission  as  to  the  Florida  electors,  as  to  whom 
it  was  held  — 

That  it  is  not  competent  under  the  Constitution  and  the  law,  as  it  existed  at  the  date 
of  the  passage  of  said  act,  to  go  into  evidence  aliunde  the  papers  opened  by  the  Presi 
dent  of  the  Senate  in  the  presence  of  the  two  Houses,  to  prove  that  other  persons  than 
those  regularly  certified  to  by  the  governor  of  the  State  of  Florida,  in  and  according 
to  the  determination  and  declaration  of  their  appointment  by  the  board  of  State  can 
vassers  of  said  State  prior  to  the  time  required  for  the  performance  of  their  duties,  had 
been  appointed  electors,  or  by  counter-proof  to  show  that  they  had  not,  and  that  all 
proceedings  of  the  courts,  or  acts  of  the  legislature,  or  of  the  executive  of  Florida, 
subsequent  to.  the  casting  of  the  votes  of  the  electors  on  the  prescribed  day,  are  inad 
missible  for  any  such  purpose. 

But  if  the  Commission  could  make  the  inquiry,  the  Government  of 
the  United  States  had  authority  to  place  troops  in  South  Carolina,  and 
when  so  placed  it  must  be  presumed  to  have  been  properly  done,  on 
sufficient  authority,  and  for  sufficient  reasons. 

The  Constitution  and  laws  have  regarded  the  elective  franchise  of 
such  inestimable  value  as  to  deserve  in  those  extreme  cases  where  ne 
cessity  requires  it  military  protection  from  the  National  Government. 
This  will  be  clear  from  a  brief  statement.  Congress,  as  already  shown, 
has  power  to  make  all  proper  regulations  as  to  the  elections  of  Repre 
sentatives  in  Congress,  and  authorize  all  acts  "necessary  and  proper 
for  that  purpose."  The  Constitution  also  declares  that  the  President 


686  ELECTORAL    COUNT    OF    1877. 

"  shall  take  care  that  the  laws  be  faithfully  executed?    This  he  can  only 
do  by  the  defensive  means  placed  by  law  in  his  hands. 
The  act  of  Congress  provides  that — 

No  '  *  *  officer  or  person  *  *  *  in  the  military  *  *  *  service  *  *  * 
shall  have  *  *  *  any  troops  *  *  *  at  the  place  where  any  *  *  election 

is  held  in  any  State,  unless  it  be  necessary  to  repel  the  armed  enemies  of  the  United  States  <y 
to  Iceep  tlie  peace  at  the  polls.  (Revised  Statutes,  section  2002.  For  the  statute  of  Eng 
land  on  this  subject  see  Congressional  Record  of  January  17,  1877,  Johnston's  speech.) 

From  this  an  unequivocal  inference  arises,  which  is  positive  law, 
that  the  President,  in  executing  the  Constitution  and  those  laws  which 
give  security  to  the  right  of  voting  for  Representatives  in  Congress, 
may  require  the  presence  of  troops  u  at  the  place  where  an  election 
is  held,"  in  two  cases,  (1)  when  "necessary  to  repel  the  armed  enemies 
of  the  United  States  ;"  and  (2)  "  to  keep  the  peace  at  the  polls."  By 
statute,  also,  the  President  is  authorized  to  employ  the  military  power 
for  the  protection  of  the  civil  rights  of  citizens.  (Revised  Statutes, 
section  1989.) 

Here,  then,  is  AUTHORITY,  under  the  Constitution  and  laics  of  the  United 
States,  for  the  use  of  troops  to  protect  citizens  in  exercising  the  right  of  suf 
frage  as  stated. 

There  is  also  a  duty  to  use  military  power  in  still  other  cases. 

The  Constitution  provides  that — 

The  United  States  shall  guarantee  to  every  State  in  this  Union  a  republican  form  of 
government,  and  shall  protect  each  of  them  against  invasion;  and  on  application  of 
the  legislature,  or  of  the  executive  (when  the  legislature  cannot  be  convened)  against 
domestic  violence. 

Here  is  a  covenant  for  a  duty  which  cannot  in  good  faith  be  omitted. 
Whenever  there  is  "  domestic  violence,"  within  the  meaning  of  the  Con 
stitution,  and  the  proper  demand  is  made  by  the  governor  of  a  State  on 
the  President  for  military  aid,  it  cannot  be  refused.  The  character  of 
the  violence  which  justifies  military  interposition  is  well  understood. 
'  Here,  then,  is  AUTHORITY  under  the  Constitution  for  the  employment  of 
troops  of  the  United  States  on  certain  contingencies  in  a  State. 

Now,  I  respectfully  submit,  it  must  be  presumed  that  the  officers  of 
the  Government  have  observed  these  laws  in  the  performance  of  their 
duties,  as  the  truth  undoubtedly  is,  and  this  is  a  sufficient  answer  to  the 
objection  taken. 

It  would  be  a  monstrous  proposition  to  say  that  a  State  should  be 
disfranchised  in  the  electoral  college  because  troops  were  in  the  State, 
when  their  presence  did  not  change  the  result  of  the  election.  It  would 
be  equally  monstrous  to  say  that  if  the  troops,  used  in  pursuance  of  law, 
only  gave  protection  to  voters  and  aided  in  securing  their  just  rights,  a 
lawful  result  should  be  set  aside  because  the  Government  performed  its 
duty. 

The  fourth  objection  is : 

That  at  the  several  polling  places  in  the  said  State  there  were  stationed  deputy 
marshals  of  the  United  States,  appointed  under  the  provisions  of  sections  2021  and  2022 
of  the  Revised  Statutes  of  the  United  States,  which  provisions  were  unconstitutional 
and  void.  That  the  said  deputy  marshals,  exceeding  over  one  thousand  in  number,  by 
their  unlawful  and  arbitrary  action,  in  obedience  to  the  improper  and  illegal  instruc 
tions  received  by  them  from  the  Department  of  Justice,  so  interfered  with  the  full  and 
free  exercise  of  the  right  of  suffrage  by  the  duly-qualified  voters  of  the  said  State  of 
South  Carolina  that  a  fair  election  could  not  be  and  was  not  held  in  the  said  State  of 
South  Carolina  on  the  said  7th  day  of  November,  1876. 

It  is  a  sufficient  answer  to  this  that  it  is  unsupported  by  evidence, 
that  it  is  not  competent  to  receive  proof  in  support  of  it,  and  the  legal 
presumption  is  that  the  deputy  United  States  marshals  performed  their 


ELECTORAL    COUNT    OF    1877.  687 

duties  properly.  If  it  were  competent  to  make  the  inquiry,  the  evidence 
would  abundantly  prove  the  necessity  for  these  officers  and  that  they 
did  not  interfere  with  the  free  exercise  of  the  right  of  suffrage  by  any 
qualified  voter.  But  as  no  such  evidence  is  competent,  no  question  of 
the  constitutionality  of  the  law  authorizing  deputy  marshals  arises,  and 
if  it  could,  the  power  of  Congress  is  ample  under  the  authority  "to  en 
force  by  appropriate  legislation"  the  Constitution,  including  the  amend 
ments  thereto. 

Upon  this  subject  I  invite  especially  the  attention  of  the  Commission 
to  a  report  or  views  which  I  will  submit  to  the  House  of  Representatives, 
as  a  part  of  House  Miscellaneous  Document  No.  31,  part  1,  second  ses 
sion  Forty-fourth  Congress,  being  evidence,  &c.,  relating  to  the  South 
Carolina  election,  and  which  in  a  day  or  two  I  will  submit  to  the  House 
to  go  into  the  Congressional  Eecord. 

The  fifth  and  last  objection  is  : 

That  there  was  not  from  the  1st  day  of  January,  1876,  up  to  and  including  the  10th 
day  of  December,  1876,  at  any  time,  a  State  government  in  the  State  of  South  Carolina, 
except  a  pretended  government  set  up  in  violation  of  law  and  of  the  Constitution  of 
the  United  States  by  Federal  authority  aud  sustained  by  Federal  troops. 

It  is  a  sufficient  answer  to  this  to  say  it  is  unsupported  by  evidence  ; 
it  is  utterly  unfounded  in  fact ;  it  is  contradicted  by  the  truth  of  history, 
and  is  overthrown  by  the  authority  of  Luther  vs.  Borden,  7  Howard,  42. 

The  legal  validity  of  the  government  of  South  Carolina  during  the 
year  1876  is  a  well-authenticated  fact  in  history.  This  tribunal,  as  a 
question  of  law,  is  bound  to  know  and  recognize  the  fact  without  proof, 
and  it  has  never  been  doubted  or  questioned  until  now,  and  the  u  truth 
of  history  "  is,  that  troops  of  the  United  States  were  used  only  as  the 
Constitution  and  laws  authorize,  to  suppress  "  domestic  violence  n  or  to 
"  keep  the  peace  at  the  polls." 

Here  then  I  close,  and  in  doing  so  I  indulge  the  hope  that  upon  the 
questions  submitted  to  this  Commission  there  may  be  a  decision  which 
will  command  the  unanimous  vote  of  all  its  members.  Let  it  be  such 
that  no  State  shall  ever  be  disfranchised  by  the  Houses  of  Congress  or 
practically  expelled  from  the  Union  of  our  fathers. 

Mr.  Commissioner  HUNTON.  Judge  Lawrence,  let  me  call  your  at 
tention  to  a  point  in  the  ease  which  I  have  not  heard  discussed. 

Mr.  Representative  LAWRENCE.     Certainly. 

Mr.  Commissioner  HUNTON.  The  twelfth  article  of  the  amendments 
to  the  Constitution  provides  that — 

The  electors  shall  meet  in  their  respective  States  and  vote  by  ballot  for  President 
and  Vice-President,  one  of  whom,  at  least,  shall  not  be  an  inhabitant  of  the  same  State 
with  themselves;  they  shall  name  in  their  ballots  the  person  voted  for  as  President, 
and  in  distinct  ballots  the  person  voted  for  as  Vice-President. 

Now  in  the  examination  of  this  certificate  No.  1,  I  find  no  evidence 
that  this  provision  of  the  Constitution  has  been  complied  with  in  voting 
by  ballot. 

Mr.  Representative  LAWRENCE.  It  will  undoubtedly  be  presumed, 
in  the  absence  of  an  allegation  to  the  contrary,  that  the  officers  have 
performed  their  duty.  I  think  that  familiar  legal  principle,  known  to 
every  lawyer,  is  a  complete  answer  to  the  point  suggested  by  my  friend 
from  Virginia.  There  is  no  law  which  requires  that  the  certificate  shall 
state  that  the  electors  voted  by  ballot ;  but  if  as  a  matter  of  fact  the 
votes  were  otherwise,  viva  voce,  the  provision  directing  tbat  the  electors 
shall  vote  by  ballot,  at  most,  is  only  directory,  and  a  failure  to  observe 
that  provision  of  the  Constitution  would  not  affect  the  validity  of  the 
votes. 


688  ELECTORAL    COUNT    OF    1877. 

Mr.  Commissioner  HUNTON.  Has  there  not  been  a  case  before  the 
two  Houses  of  Congress  of  that  character  ? 

Mr.  Representative  LA  WHENCE.    Not  to  niy  knowledge. 

Mr.  Commissioner  HUNTON.  Objections  on  account  of  the  fact  not 
appearing  that  the  vote  was  by  ballot  ?  I  am  not  distinct  in  my  recol 
lection,  but  rny  impression  is  that  there  has  been  a  case  of  that  sort 
before  the  two  Houses  of  Congress  in  counting  the  electoral  votes. 

Mr.  Representative  LAWRENCE.  I  have  no  recollection  of  any  such 
case  as  that,  but  there  may  be. 

Mr.  Commissioner  HUNTON.  I  only  desired  to  call  your  attention 
to  it  so  that  it  might  not  escape  notice  in  the  discussion/ 

Mr.  Representative  LAWRENCE.  Then  the  two  answers  which  I 
have  made  seem  to  me  entirely  to  meet  the  case:  First,  that  in  the  ab 
sence  of  any  allegation  in  the  record  to  show  that  the  vote  was  not  by 
ballot,  it  must  be  presumed  th^t  officers  have  done  their  duty  and  that 
the  votes  were  by  ballot.  Second,  that  if  in  fact  the  electors  failed  to 
observe  the  direction  of  the  Constitution  in  that  respect,  the  provision 
itself  is  merely  directory,  and  a  failure  to  comply  with  it  cannot  invali 
date  the  vote. 

Besides  that,  as  I  am  reminded  by  my  friend  with  whom  I  was  asso 
ciated  as  a  member  of  the  committee  of  the  House  of  Representatives 
which  investigated  the  South  Carolina  election,  [Mr.  Laphain,]  no  such 
objection  is  made  by  the  objectors  to  the  vote  of  that  State. 

The  PRESIDENT.  Do  I  understand  you  to  have  closed  on  the  part 
of  the  objectors? 

Mr.  Representative  LAWRENCE.     Yes,  sir. 

The  PRESIDENT.     There  are  no  other  objectors  to  be  heard  ? 

Mr.  Representative  LAWRENCE.  No  other.  Senator  Christiancy 
waives  the  right,  as  I  understand,  to  argue  the  objections. 

The  PRESIDENT.  Before  calling  upon  the  counsel  who  support  the 
objections  to  certificate  No.  1,  I  inquire  of  the  counsel  on  the  other  side 
if  they  object  to  the  offers  of  proof? 

Mr.  MATTHEWS.  I  was  not  in  at  the  time  the  offer  was  made,  but 
of  course  we  object  to  any  proof  being  offered. 

The  PRESIDENT.  Counsel  in  favor  of  the  objections  to  certificate 
No.  1  will  now  be  heard.  One  of  the  counsel  will  open  and  the  other 
will  have  the  close, 

Mr.  BLAIR.    Mr.  President 

The  PRESIDENT.  This  question  is  upon  the  admissibility  of  the 
evidence  and  its  effect. 

Mr.  BLAIR.  Mr.  President  and  gentlemen  of  the  Commission,  coun 
sel  for  the  objectors  to  certificate  No.  1  propose  to  prove,  in  addition  to 
what  has  already  been  offered,  that  owing  to  the  violence  and  in 
timidation  existing  in  South  Carolina  on  the  election-day  of  November, 
1876,  and  then  practiced  toward  voters,  and  owing  to  the  presence  of 
troops  of  the  United  States  overawing  voters,  there  was  no  free  election 
on  the  part  of  the  people  for  electors  of  President  and  Vice-President. 
Evidence  will  also  be  given  to  support  specifically  the  third  and  fourth 
objections  to  certificate  No.  1,  as  to  the  means  by  which  a  free  and  fair 
election  was  prevented. 

The  first  ground  upon  which  I  shall  lay  any  stress  in  objecting  to  the 
counting  of  certificate  No.  1  is  that  there  was  no  registration  of  voters 
in  the  State  of  South  Carolina  as  required  by  the  constitution  of  that 
State.  The  constitution  of  South  Carolina  is  imperative  :  "it  shall  be 
the  duty  of  the  general  assembly  to  provide  from  time  to  time  for  the 
registration  of  all  electors."  It  is  admitted  on  the  part  of  the  supporters 


ELECTORAL    COUNT    OF    1877.  689 

of  the  Hayes  electors  that  there  was  in  fact  no  such  registration  as  the 
constitution  requires.  All  that  is  contended  on  their  part  is  that  there 
was  a  poll-list  made  at  the  election  by  one  of  the  clerks,  and  that  there 
was  a  census  taken  which  enumerated  the  male  inhabitants  of  the  differ 
ent  counties  in  the  State,  without  naming  them.  That  was  done  in  com 
pliance  with  the  constitution. 

I  am  not  prepared  to  show  by  authorities  what  a  registration  is  or 
ought  to  be.  That  cannot  be  necessary.  I  shall  take  it  for  granted  that 
every  member  of  this  tribunal  knows  that  neither  a  poll-list  taken  by  the 
clerk  at  the  time  of  voting  nor  a  census  is  a  registration. 

I  dismiss,  therefore,  at  once  and  without  comment,  the  attempt  to 
show  a  compliance  with  the  constitution  of  the  State  of  South  Carolina, 
and  proceed  to  notice  the  argument  upon  which  my  learned  friend  [Mr. 
Lawrence]  evidently  depends  to  sustain  this  certificate ;  which  is,  that 
as  the  Constitution  of  the  United  States  provides  that  each  State  shall 
appoint  electors  in  such  manner  as  the  legislature  thereof  shall  direct, 
any  provision  interfering  with  the  discretion  of  that  body  as  to  the  man 
ner  of  appointment  is  a  violation  of  the  Constitution  of  the  United  States. 
The  case  of  certificate  No.  1  rests  only  upon  that  proposition.  I  do  not 
perceive  the  application  of  Mr.  Justice  Story's  opinion  on  the  proposed 
constitutional  provisions  respecting  congressional  districts  in  Massa 
chusetts. 

The  requirement  of  a  registration  of  voters  does  not  interfere  in  any 
respect  with  the  provision  in  the  Constitution  of  the  United  States  au 
thorizing  the  legislature  to  direct  the  manner  of  appointing  the  electors. 
There  can  be  no  conflict  in  fact  between  a  requirement  and  the  full  exer 
cise  of  the  power  by  the  legislature.  For  the  purpose  of  appointing  an 
elector  the  legislature  of  the  State  is  an  agency  of  the  United  States ; 
but  it  is  an  agency  created  by  the  State,  and  must  exercise  its  agency  in 
accordance  with  the  power  which  creates  it.  And,  therefore,  in  the 
exercise  of  the  authority  conferred  by  the  Constitution,  it  will  not  be 
assumed  that  the  Constitution  of  the  United  States  empowers  the  legis 
lature  to  disregard  the  State  constitution,  and  especially  in  a  matter 
which  is  essential  to  the  well-being  of  society. 

The  provision  in  question  is  indispensable  to  secure  fair  elections. 
The  secret-ballot  system  without  registration  is  simply  an  unlimited 
power  of  repeating,  thus  invited  and  facilitated  by  the  laws  of  South 
Carolina,  whereby  multitudes  of  small  electoral  precincts  have  been 
created  in  order  that  the  negro  voters,  many  of  whom  are  not  easily 
identified,  may  repeat  their  votes  indefinitely.  How  indispensable  and 
necessary  to  a  due  ordering  of  society  in  such  a  condition  is  it  that  there 
should  be  a  registration  of  voters  to  prevent  repeating. 

This  tribunal  will  take  notice  of  the  constitution  and  laws  of  South 
Carolina,  and  it  therefore  is  informed  of  the  failure  to  execute  a  provis 
ion  which  the  constitution  itself  by  the  mandatory  terms  in  which  it 
imposes  the  duty  of  registration  declares  to  be  indispensable  to  a  fair 
election.  Will  this  tribunal,  when  the  State  constitution  itself  thus 
pronounces  the  election  fraudulent,  permit  the  irresponsible  persons 
held  in  power  in  South  Carolina  only  by  the  aid  of  United  States  sol 
diers,  to  decide  a  great  presidential  contest  ? 

Mr.  Commissioner  GABFIELD.  I  wish  to  inquire,  if  the  failure  on 
the  part  of  the  legislature  to  pass  a  registry  law  in  obedience  to  the  con 
stitution  has  rendered  invalid  the  appointment  of  electors,  has  it  also 
rendered  invalid  the  appointment  of  all  their  State  officers  and  their 
State  government  during  the  last  eight  years,  during  which  that  neg 
lect  has  lasted  ? 
44  E  c 


690  ELECTORAL    COUNT   OF    1877. 

Mr.  BLAIR.  If  no  question  has  been  made  on  the  subject  in  the 
State,  the  maxim  communls  error  facit  jus  might  apply,  or  acquiescence 
on  the  part  of  the  people  of  the  State  would  make  a  de  facto,  and  as  a 
de  facto  a  legal,  government  5  but  with  respect  to  the  electors  the 
question  is  one  with  which  the  whole  country  is  concerned,  and  has  not 
been  waived  or  permitted  to  pass  sub  silentio,  but  is  now  here  presented 
for  decision,  as  one  arising  upon  the  law.  And  we  insist  that  the  law 
makes  the  election  void  and  that  the  vote  of  South  Carolina  ought  not 
to  be  counted.  It  is  not  necessary  to  prove  that  the  election  was  fraud 
ulent  in  fact.  The  law  itself  declares  it  to  be  so.  And  this  tribunal  as 
a  political  body  knows  as  a  fact  in  the  history  of  the  times  that  the 
requirement  of  the  constitution  of  South  Carolina  was  disregarded  to 
enable  the  men  in  charge  of  its  affairs  to  perpetuate  their  power  and 
dispose  of  its  electoral  vote  at  their  pleasure.  You  cannot,  therefore, 
shut  your  eyes  to  the  fact  that  here  is  a  palpable,  gross,  persistent  vio 
lation  of  law,  the  only  effect  of  which  could  be  to  facilitate  fraud. 

Every  honest  and  patriotic  citizen  must  feel  indignant  at  the  condi 
tion  to  which  the  criminals  who  have  by  military  force  held  South  Caro 
lina  in  thraldom  have  reduced  that  State  and  be  inclined  to  resolve  any 
doubt  against  them  and  in  favor  of  the  people  who  hold  all  the  property, 
possess  all  the  intelligence,  and  represent  the  civilization  of  the  State. 

And  will  this  tribunal,  instead  of  eagerly  availing  itself  of  its  viola 
tions  of  law  to  strike  down  and  crush  out  the  irresponsible  power  foisted 
on  those  people,  industriously  hunt  for  quibbles  of  law  and  study  how 
to  let  fraud  triumph  I 

I  pass  now  to  the  objection  founded  upon  the  intrusion  of  the  military 
power  of  the  United  States  into  the  State  for  the  purpose  of  controlling 
the  election  that  is  claimed,  and  I  think  with  just  reason,  to  be  an  all- 
sufficient  ground  to  invalidate  the  election;  and  that  also  is  a  matter 
which  does  not  depend  upon  proof.  It  is  shown  by  the  proclamation  of 
the  President,  which  is  a  matter  of  which  all  public  tribunals  can  take 
notice. 

This  transaction  was  made  known  to  the  public  by  the  proclamations 
and  published  orders  of  the  President,  to  which  the  attention  of  this 
tribunal  has  been  called  by  the  honorable  gentleman  who  opened  the 
case,  the  obvious  purpose  of  which  was  to  control  the  election  in  the 
interest  of  the  party  which  here  claims  the  benefit  of  this  illegal  and 
unwarranted  interference. 

The  argument  of  my  learned  friend  [Mr.  Lawrence]  is,  that  inasmuch 
as  these  proceedings  were  by  the  authority  of  the  President  of  the 
United  States,  we  are  concluded ;  that  his  judgment  is  final.  Is  that 
so?  Is  that  conclusive  upon  the  Congress  of  the  United  States  that 
you  here  represent  ?  Is  the  judgment  of  the  President  of  the  United 
States,  acting,  as  he  publicly  declares,  as  the  representative  of  a  party, 
decisive  against  the  opposing  party  ?  That  seems  to  me  to  beg  the 
question.  We  charge  that  the  party  organization  that  possessed  itself 
of  power  by  the  war  has  made  use  of  the  power  thus  obtained  to  per 
petuate  it  against  the  will  of  the  people ;  and  when,  therefore,  you  are 
sitting  here  in  the  stead  and  place  of  the  grand  inquest  of  the  nation, 
must  you  shut  your  eyes  to  the  true  nature  of  the  transaction  and  allow 
an  organization  to  perpetuate  its  power  in  defiance  of  the  will  of  the 
people  because  it  is  done  by  color  of  office  I 

This  policy  was  initiated  by  what  are  known  as  the  reconstruction 
measures  adopted  on  the  close  of  the  war.  Mr.  Stevens,  who  presented 
them,  admitted  in  his  place  that  they  were  outside  of  the  Constitution. 
In  virtue  of  these  confessedly  unconstitutional  measures  electors  were 


ELECTORAL   COUNT   OP    1377.  691 

openly  made  by  the  military  power,  and  the  halls  of  Congress  were 
filled  with  camp-followers  from  the  transformed  States.  When  these 
measures  produced  their  natural  effect  of  endangering  the  hold  of  the 
organization  upon  the  great  Northern  States,  it  became  necessary  to 
fortify  themselves  then  by  another  amendment  of  the  Constitution 
spreading  negro  suffrage  all  over  the  United  States ;  and  this  was  done 
in  known  defiance  of  the  public  will,  and  after  they  had  expressly  dis 
claimed  by  resolutions  in  a  national  convention  that  they  entertained 
any  such  purpose.  But,  notwithstanding  the  vast  forces  thus  added, 
their  strength  wanes.  The  tide  of  intelligent  opinion  grows  steadily 
against  them.  Notwithstanding  their  frantic  appeal  to  sectional  hate 
in  the  North,  they  feel  that  they  are  losing  ground  there. 

Notwithstanding  the  indignation  that  the  previous  military  seizures 
had  aroused,  they  could  not  save  themselves  by  again  employing  the 
military  power  to  hold  the  votes  of  the  States  when  they  still  held  the 
machinery  to  call  for  its  interposition.  This  is  the  transaction,  as  seen 
of  all  men.  It  is  impossible  for  any  observant  man  to  fail  to  see  it  in 
this  light.  And  I  say  you  will  be  derelict  to  your  duty  if  you  sanction 
it  and  allow  its  creatures  to  triumph. 

What  I  have  stated  is  proved  by  proclamations  and  orders,  all  of  a 
public  nature,  of  which  you  can,  as  representing  Congress,  take  notice, 
and  by  considering  which  the  vote  of  South  Carolina  may  be  rejected 
without  reversing  any  decision  heretofore  made.  I  do  not  combat  what 
has  been  decided.  I  would  not  waste  the  time  of  this  tribunal  or  my 
own  in  attempting  to  get  it  to  reverse  its  decision.  But  Congress  has 
itself  established  a  precedent  by  taking  notice  of  a  similar  condition  of 
things  in  these  States,  and  you  as  the  representatives  of  Congress  ought 
to  follow  the  precedents  it  has  established.  Upon  just  such  considera 
tions  as  now  I  am  addressing  to  you,  Congress  excluded  the  whole  south 
ern  section  of  country  from  participating  in  the  presidential  election. 

If  Congress  has  refused  to  allow  the  votes  of  States  to  be  counted 
because  they  were  incapacitated  from  sharing  in  the  privileges  of  the 
Government,  is  it  not  equally  within  the  power  of  this  Commission, 
when  it  is  a  matter  of  general  notoriety  that  a  like  condition  exists,  and 
especially  when  that  condition  is  produced  by  the  action  of  a  party  in 
power  and  exercising  for  the  time  being,  and  exercising  wrongly,  the 
powers  of  the  Government  ?  It  is  enough  that  it  appears  that  such  a 
condition  exists  as  to  prevent  any  legitimate  exercise  of  the  franchise, 
to  make  the  analogy  complete. 

The  general  principle  is  familiar  that,  where  there  is  disorder  in  a 
precinct,  where  the  police  have  to  interfere,  where  the  people  are  driven 
from  the  polls,  where  there  is  such  oppression  as  that  the  polls  do  not 
represent  fairly  the  voice  of  the  people,  they  are  excluded. 

But  here  is  a  grand  national  case  in  which  you  cannot  fail  to  take 
notice  of  the  proclamation  of  the  President  and  the  governor  declaring 
the  State  in  a  state  of  insurrection,  of  the  march  of  troops  there,  of  the 
action  of  the  parties  who  used  the  troops  and  who  called  them  there  to 
put  down  insurrection.  It  was  because  of  the  insurrectionary  character 
that  existed  prior  to  1865  that  the  Southern  States  were  not  allowed  to 
vote,  and  here  is  a  proclamation  in  all  respects  corresponding  with  the 
proclamation  declaring  an  insurrection  to  exist  there.  What  is  the  dif 
ference  in  manner  or  in  effect  f  You  would  not  allow  the  rebels  to  vote 
because  they  put  the  States  under  military  duress  by  force  of  arms ; 
and  now  will  you  allow  these  people  to  vote  when  they  are,  under  mili 
tary  duress,  compelled  to  vote  on  the  other  side  1 


692  ELECTORAL    COUNT    OF    1877. 

Mr.  Commissioner  EDMUNDS.  That  was  done  by  an  act  of  Cou- 
.gress,  was  it  not  ? 

Mr.  BLAIE.    The  exclusion  ? 

Mr.  Commissioner  EDMUNDS.  In  1865,  or  whatever  the  time  was, 
\vhen  the  act  passed  over  the  veto  of  President  Johnson. 

Mr.  BLAIR.  If  I  recollect  aright  about  the  rule  on  that  subject,  a 
joint  resolution  was  passed  which  was  presented  to  Mr.  Lincoln  for  his 
approval,  and  he  said  he  had  nothing  to  do  with  it. 

Mr.  Commissioner  EDMUNDS.    But  he  signed  it. 

Mr.  BLAIR.  He  signed  it,  but  disclaimed  having  any  authority  in 
the  premises,  insisting  that  it  belonged  to  Congress,  that  is,  to  the  two 
Houses  exclusively. 

Mr.  Commissioner  EDMUNDS.  Was  there  not  a  later  act  in  Presi 
dent  Johnson's  time  which  he  vetoed,  and  which  Congress  passed  over 
his  veto  ? 

Mr.  BLAIE.  There  was  a  series  of  acts  passed  over  Mr.  Johnson's 
veto. 

Mr.  Commissioner  EDMUNDS.  I  mean  on  that  precise  point  of 
excluding  States  from  electoral  representation. 

Mr.  BLAIE.  There  may  have  been ;  but  the  act  which  was  approved 
by  Mr.  Lincoln  and  with  his  assenting  to  the  power  of  Congress  to  throw 
out  votes  as  they  pleased,  excluded  votes.  Mr.  Lincoln  asserted,  and 
without  contradiction  from  anybody  as  I  remember,  that  this  was  a 
matter  entirely  with  Congress ;  and  the  subsequent  passage  of  a  law  I 
do  not  think  adds  anything  to  the  power  of  Congress  on  the  subject. 
That  is  the  view  I  take  of  it,  and  I  submit  it  with  great  deference  to 
your  better  judgment. 

Mr.  Commissioner  EDMUNDS.  The  point  was,  Mr.  Blair,  whether 
there  was  any  distinction  between  this  exercise  of  political  power  ac 
cording  to  the  position  the  State  is  in,  whether  exercised  by  Congress 
in  the  constitutional  way,  or  whether  it  is  also  competent  to  exercise  it 
in  the  act  of  counting  in  the  presence  of  the  two  Houses.  That  is  the 
point  I  should  like  to  hear  you  upon.  You  ask  us  to  exercise  now  this 
same  power  and  upon  the  same  ground  that  hitherto  has  been  exercised 
by  acts  of  legislative  will  in  the  form  of  law. 

Mr.  BLAIE.  Yes,  sir ;  I  suppose  myself  that  the  act  of  1792  itself, 
as  well  as  all  acts  subsequent  to  that,  was  passed  in  furtherance  of 
the  power  of  Congress  to  count.  I  do  not  know  any  other  clause 
in  the  Constitution  that  gives  them  any  power  over  the  subject. 
They  have  the  power  to  count;  and  in  pursuance  of  that  power,  and  to 
facilitate  it,  theyjrequired  that  the  executive  officers  of  the  several  States 
should  send  them  certificates  as  evidence  by  which  they  were prima  facie, 
as  I  always  understood  until  the  late  decisions  here,  to  determine  who 
were  the  proper  names  to  count  in  the  electoral  college.  That  was  aii 
exercise  of  power  by  Congress.  There  is  no  other  clause  in  the  Constitu 
tion  which  gives  it  to  them  that  my  attention  has  ever  been  called  to. 

But  that  did  not  exhaust  the  power  of  Congress,  because  Congress  in 
the  exercise  of  the  same  power  has  subsequently  thrown  out  votes,  as 
3Ir.  Lincoln  said  rightly  as  I  always  understood,  and  as  the  joint  reso 
lution  of  1865  and  as  all  the  resolutions  and  acts  of  Congress  taking 
place  since  have  been,  as  Louisiana  has  been  excluded  up  to  this  timej 
for  her  vote  has  never  been  counted  since  the  war  until  the  other  day. 
All  this  was  simply  by  virtue  of  the  power  of  the  two  Houses,  doiuB 
without  any  law,  but  looking  at  the  condition  of  the  State,  purely  and 
simply,  Congress  excluded  her  as  being  not  in  that  condition  which 
made  it  proper  to  allow  her  to  participate  in  the  privileges  of  a  presi- 


ELECTORAL    COUNT   OF    1877.  693 

dential  election.  That  was  done  by  the  same  power,  the  whole  of  which 
is  vested  in  this  Commission,  the  power  to  look  into  the  state"  of  affairs 
there  to  see  for  yourselves  that  they  are  not  exercising  a  perfectly  free 
will. 

A  Senator  of  the  very  highest  authority  reported  in  regard  to  Mis 
sissippi  last  year  that  it  was  competent  for  Congress  to  decide  whether 
the  vote  of  that  State  should  be  excluded  because  of  the  exercise  of  ille 
gal  and  improper  power  there  in  the  control  of  elections.  It  was  deemed 
perfectly  competent  by  gentlemen  of  the  party  with  whom  I  am  not  now 
acting,  and  seemed  to  be  a  general  expression  of  feeling  upon  that  subject, 
that  it  was  perfectly  competent  to  exclude  States  where  there  was  no 
interference  of  the  military,  no  call  by  the  legislature  or  governor,  but 
in  the  discretion  of  the  two  Houses  to  exclude  States  from  their  own 
knowledge  as  legislative  bodies  that  the  condition  of  affairs  there  was 
not  such  as  to  authorize  the  votes  to  be  counted. 

But  in  this  case  evidence  is  such  as  must  be  taken  notice  of  upon  the 
very  strictest  rules.  The  proclamation  declaring  an  insurrection  to 
exist  in  South  Carolina  puts  the  case  strictly  in  the  category  of  the  States 
which  were  excluded  by  Congress. 

My  learned  friend  [Mr.  Lawrence]  referred  to  the  deputy  marshals  and 
the  troops  that  were  sent  there  and  the  Attorney- G-eneraPs  circular. 
That  strongly  enforces  our  argument.  Can  it  possibly  be  a  free  State 
authorized  to  vote  and  decide  a  presidential  election  when  the  State  is 
covered  with  deputy  marshals  and  troops,  and  voters  have  to  pass 
through  files  of  armed  men  to  the  polls  ?  Now  I  assert  that  we  shall  be 
able  to  show  you  they  had  a  deputy  marshal  for  every  ten  negroes,  with 
labels  on  their  shoulders,  and  marched  their  squads  of  ton  up  before  the 
soldiery  and  swore  them  to  vote  the  whole  republican  ticket,  then 
marched  them  to  the  polls  and  stood  by  them  till  they  voted.  The  in 
structions  to  these  deputy  marshals  were  in  the  public  press. 

When  such  means  are  resorted  to  to  carry  a  State,  and  it  is  carried  by 
less  than  a  thousand  majority,  can  you  justify  yourselves  in  counting 
that  vote  ?  Is  there  any  essential  difference  in  such  a  case  more  than  if 
the  rebels  in  South  Carolina  had  carried  the  State  by  1,100  votes,  and 
had  asked  to  cast  them  against  Mr.  Lincoln  in  1864  !  Could  there  possibly 
have  been  an  election  in  any  proper  sense  of  the  word,  with  all  this  para 
phernalia  of  United  States  troops,  United  States  deputy  marshals,  and 
armed  negro  militia,  a  proclamation  of  insurrection,  and  disorder  exist 
ing  everywhere? 

You  can  legally  take  notice  of  all  this,  and  if  you  will  let  us  we  will 
show  it  all  up  in  Umine.  But  that  is  not  required.  You  cannot  refuse 
to  see  what  Congress  has  seen  in  similar  cases,  and  has  acted  upon. 
You  cannot  shut  your  eyes  to  these  public  documents,  which  I  need  not 
read  because  they  are  a  part  of  the  statute-book,  and  every  judicial 
functionary  and  every  legislative  functionary  is  obliged  to  take  notice 
of  them. 

I  omitted  in  the  consideration  of  the  first  point  to  call  the  attention 
of  the  tribunal  to  an  authority  on  the  subject  of  the  registration  ques 
tion.  You  will  find  in  the  ninth  section  of  the  American  "  Law  of  Elec 
tions,"  by  McCrary,  a  citation  which  he  adopts  as  the  law.  I  have  the 
original  case  here,  but  will  not  read  it,  contenting  myself  with  calling 
the  attention  of  the  tribunal  to  the  ninth  section  of  the  book : 

It  being  conceded  that  the  power  to  enact  a  registry  law  is  within  the  power  to  regu 
late  the  exercise  of  the  elective  franchise  and  preserve  the  purity  of  the  ballot,  it  fol 
lows  that  an  election  held  in  disregard  of  the  provisions  of  a  registry  law  must  be  held 
void.  In  Ensworth  vs.  Albin  ct  al.,  44  Missouri,  347,  an  election  was  set  aside  upon  the 


694  ELECTORAL    COUNT    OF    1877. 

ground  that  there  was  no  registration  whatever,  although  the  statute  required  regis 
tration  as  an  indispensable  prerequisite  to  an  election.  It  has  been  suggested  that 
this  doctrine  puts  it  in  the  power  of  the  board  of  registration  to  defeat  an  election  by 
failing  to  meet  and  refusing  altogether  to  discharge  their  official  duties.  But  it  is 
hardly  safe  to  attempt  to  test  the  validity  of  a  statute  by  presupposing  a  case  so  ex 
treme  and  so  improbable  as  the  refusal  of  a  sworn  officer  of  the  law  to  act. 

Contrary  to  the  author's  supposition  of  what  was  possible,  we  have 
here  the  extreme  case.  The  case  referred  in  the  text  occurred  in  Mis 
souri,  where  the  officers  of  the  county  which  was  there  in  question  did 
refuse  to  make  the  registry  required  by  the  statute,  which  was  not  a 
particle  more  mandatory  than  the  constitution  of  South  Carolina. 

Mr.  Commissioner  EDMUNDS.  You  cite  that,  then,  as  authority  to 
prove  that  this  election  was  void  because  the  legislature  had  made  no 
law  providing  for  any  registration. 

Mr.  BLAIR.     Exactly. 

Mr.  Commissioner  EDMUNDS.  The  constitution  making  a  general 
requirement  that  the  legislature  should  enact  such  a  law  "? 

Mr.  BLAIR.  Making  the  positive  requirement,  just  as  the  statute 
law  of  Missouri  did. 

Mr.  Commissioner  EDMUNDS.  On  the  same  principle  would  you 
hold  on  another  section  of  the  constitution  of  South  Carolina,  which 
says  that  the  legislature  shall  make  laws  for  preserving  the  purity  of 
elections,  that,  if  the  legislature  had  not  made  any  law  punishing  false 
voting,  therefore  the  election  would  be  void  ? 

Mr.  BLAIR  No,  sir.  I  think  there  is  a  very  broad  distinction  be 
tween  the  two  cases. 

Mr.  Commissioner  EDMUNDS.    What  is  the  distinction  "? 

Mr.  BLAIR.    The  purity  of  election  is  nomen  genemlissimum. 

Mr.  Commissioner  EDMUNDS.     A  very  important  thing,  is  it  not  ? 

Mr.  BLAIR.  It  is  very  important,  to  be  sure ;  but  it  is  not  mandatory. 
It  is  general.  But  here  is  a  specific  thing  that  is  required.  There  is 
manifestly  a  very  broad  distinction  between  an  act,  even  if  it  be  manda 
tory  in  its  nature,  which  such  acts  generally  are  not,  that  legislation 
shall  be  taken  for  the  preservation  of  the  purity  of  elections,  and  a  man 
datory  requirement  in  the  constitution  requiring  specifically  a  particular 
thing  to  be  done.  The  distinction  is  recognized  all  through  the  books. 
For  example,  it  has  been  held  that  where  elections  were  required  to  be 
held  by  ballot  and  were  not  so  held,  that  was  a  violation  of  law.  Here 
is  an  election  required  to  be  held  by  registry.  The  registry  is  a  prelim 
inary  indispensable  to  the  election  by  the  express  order  of  the  constitu 
tion  and  its  manifest  intent. 

Mr.  Commissioner  ABBOTT.  Do  you  find  any  case  where  a  refusal 
to  carry  out  the  mandate  of  the  constitution  requiring  registry  has  ever 
been  sufficient  to  set  aside  the  election  ?  Are  not  the  cases  all  confined 
to  the  case  of  a  statute  being  made  in  reference  to  a  particular  election 
and  that  not  being  complied  with  ? 

Mr.  BLAJR.  There  is  not  a  case  to  be  found  in  the  books  where  the 
constitutional  requirement  of  a  registry  has  ever  been  defied  except  iu 
the  case  of  South  Carolina. 

I  thank  the  Commission  for  allowing  me  to  trespass  upon  them  so 
long. 

The  PRESIDENT.  We  will  now  hear  from  the  counsel  on  the  other 
side. 

Mr.  SHELLABARGER.  Counsel  on  the  other  side  have  decided  that 
they  will  not  ask  the. Commission  to  be  heard.  In  view  of  the  value  of 
the  time  that  is  now  left  to  complete  this  count,  we  deem  that  it  is  our 
duty  to  omit  to  consume  any  part  of  that  time  by  discussion,  and  there 
fore  on  our  part  we  submit  the  case  without  argument.  • 


ELECTORAL    COUNT    OF    1877.  695 

The  PEESIDENT.  Counsel  for  objectors  to  certificate  No.  2  submit 
the  case.  It  now  belongs  to  counsel  on  the  other  side. 

Mr.  Commissioner  BAYAED.  The  offers  of  proof  are  not  printed. 
The  Commission  might  desire  to  consider  them.  I  suggest  that  an  order 
for  their  printing  be  made.  I  understand  they  can  be  furnished  us  in 
the  course  of  an  hour  or  so. 

The  PEESIDEM:.    Do  you  submit  the  motion  that  they  be  printed? 

Mr.  Commissioner  BAYAED.  I  submit  the  motion  that  the  offers  of 
proof  submitted  by  Mr.  Cochrane  be  printed. 

The  motion  was  agreed  to. 

Mr.  BLACK.  Mr.  President  and  gentlemen,  I  had  not  and  have  not 
now  any  intention  to  argue  this  case.  I  never  heard  the  objections  nor 
knew  what  they  were  until  they  were  read  in  your  presence  this  morn 
ing.  It  would  be  presumption  in  me  to  attempt  an  argument  before  a 
tribunal  like  this  on  such  a  case  as  this,  having  had  no  previous  oppor 
tunity  to  consider  it  which  might  put  me  in  a  condition  better  than  the 
judges  themselves.  You  have  heard  as  much  of  this  case  and  know  as 
much  about  it  as  I  do. 

My  idea  of  the  duty  which  a  counselor  owes  to  a  court  or  to  any  other 
tribunal,  judicial  or  quasi-judicial,  is  that  he  should  never  open  his 
mouth  except  for  the  purpose  of  assisting  the  judges  in  coming  to  a 
correct  conclusion ;  and  if  he  is  not  in  a  situation  to  do  that,  he  ought  to 
keep  silence. 

Besides  that,  I  am,  I  suppose,  the  very  last  man  in  this  whole  nation 
who  should  be  called  upon  to  speak  here  and  now.  Everybody  has 
suffered  more  or  less  by  events  and  proceedings  of  the  recent  past, 
some  by  wear  and  tear  of  conscience,  and  some  by  a  deep  sense  of  op 
pression  and  wrong.  But  perhaps  I,  more  than  most  others,  have  felt 
the  consciousness  that  I  have  lost  the  dignity  of  an  American  citizen. 
I,  in  common  with  the  rest,  am  degraded  and  humiliated.  This  nation 
has  got  her  great  big  foot  in  a  trap.  It  is  vain  to  struggle  for  her  ex 
trication. 

I  am  so  fallen  from  the  proud  estate  of  a  free  citizen,  you  have  so  ab- 
jected  me,  that  I  am  fit  for  nothing  on  earth  but  to  represent  the  poor, 
defrauded,  broken-hearted  democracy.  And  because  I  suffer  more,  they 
think  me  more  good  for  nothing  than  the  rest,  and  conclude  to  send  me 
out  on  this  forlorn  hope,  judging,  no  doubt  truly,  that  it  matters  nothing 
what  becomes  of  me.  I  ought  to  go  gladly  if  anything  which  I  can  do 
or  say  might  have  the  effect  of  mitigating  the  horrible  calamity  with 
which  the  country  is  threatened  :  a  President  deriving  his  title  irom  a 
shameless  swindle,  not  merely  a  fraud,  but  a  fraud  detected  and  ex 
posed.  I  know  not  how  I  would  feel  if  called  upon  to  suffer  death  for 
my  country  ;  I  am  not  the  stuff  that  martyrs  are  made  of;  but  if  my  life 
could  redeem  this  nation  from  the  infamy  with  which  she  is  clothed,  I 
ought  to  go  to  the  grave  as  freely  as  I  ever  went  to  my  bed.  I  see,  how 
ever,  no  practical  good  that  I  can  do,  and  it  is  mere  weakness  to  com 
plain. 

We  have  certain  objections  to  the  counting  of  this  Hayes  vote  from 
South  Carolina  which  look  to  me  insuperable,  but  I  cannot  hope  that 
they  will  wear  that  appearance  in  other  men's  eyes.  Perhaps  the  feel 
ing  which  I  in  common  with  millions  of  others  entertain  on  this  subject 
prevents  us  from  seeing  this  thing  in  its  true  light.  But  you  are  wise ; 
you  are  calm.  You  can  look  all  through  this  awful  business  with  a 
learned  spirit ;  no  passionate  hatred  of  this  great  fraud  can  cloud  your 
mental  vision  or  shake  the  even  balance  of  your  judgment.  You  do  not 
think  it  any  wrong  that  a  nation  should  be  cheated  by  false  election  re- 


696  ELECTORAL   COUNT   OF    1877. 

turns.  On  the  contrary,  it  is  rather  a  blessing  which  Heaven  has  sent 
us  in  this  strange  disguise.  When  the  omnipotent  lie  shall  be  throned 
and  sceptered  and  crowned,  you  think  we  ought  all  of  us  to  fall  down 
and  worship  it  as  the  hope  of  our  political  salvation.  You  will  teach  us 
and  perhaps  we  shall  learn  (perhaps  not)  that  under  such  a  rule  we  are 
better  off  than  if  truth  had  prevailed  and  justice  been  triumphant. 

Give,  then,  your  cool  consideration  to  these  objections,  and  try  them 
by  the  standard  of  the  law.  1  mean  the  law  as  it  was  before  the  organ 
ization  of  this  Commission.  I  admit  that  since  then  a  great  revolution 
has  taken  place  in  the  law.  It  is  not  now  what  it  used  to  be.  All  our 
notions  of  public  right  and  public  wrong  have  suffered  a  complete 
bouleversement. 

The  question  submitted  to  you  is  whether  the  persons  who  gave  these 
votes  were  u duly  appointed."  "Duly"  of  course  means  according  to 
law.  What  law?  The  Constitution  of  the  United  States,  the  acts  of 
Congress  passed  in  pursuance  thereof,  the  constitution  of  South  Caro 
lina,  and  the  authorized  acts  of  her  legislature — these  taken  all  together 
constitute  the  law  of  the  case  before  you. 

By  these  laws  the  right,  duty,  and  power  of  appointing  electors  is 
given  to  the  people  of  South  Carolina ;  that  is  to  say,  the  citizens  of  the 
State  qualified  to  vote  at  general  elections.  Who  are  they  ?  By  the 
constitution  of  the  State  in  order  to  qualify  them  as  voters  they  must  be 
registered.  The  registry  of  a  native  citizen  is  a  sine  qua  non  to  his  right 
of  voting  as  much  as  the  naturalization  of  a  foreigner, 

Now,  the  legislature  never,  passed  any  law  for  the  registration  of 
voters,  and  no  registration  of  them  was  ever  made.  No  doubt  has  been 
or  can  be  entertained  that  the  object  and  purpose  of  this  omission  was 
fraudulent  and  dishonest ;  for  the  legislature  as  well  as  the  executive 
department  of  that  government  has  been  in  the  hands  of  the  most  re- 
demptionless  rogues  on  the  face  of  the  earth.  But  whatever  may  have 
been  the  motive,  nobody  can  doubt  that  the  legal  effect  of  this  omission 
is  to  make  the  election  illegal. 

That  is  hardly  the  worst  of  it.  The  election  itself,  emancipated  from 
all  law  and  all  authority,  was  no  better  than  a  riot,  a  mob,  a  general 
saturnalia,  in  which  the  soldiers  of  the  United  States  Army  cut  the 
principal  as  well  as  the  decentest  figure.  We  offer  to  prove — the  offer 
will  go  upon  record,  and  there  it  will  scand  forever — that  every  poll  in 
Charleston  County,  where  they  rushed  into  the  ballot-box  7,000  majority, 
was  in  possession  of  the  soldiers. 

A  goverument  whose  elections  are  controlled  by  military  force  cannot 
be  republican  in  form  or  substance.  For  this  I  cite  the  authority  of  Lu 
ther  vs.  Borden,  if  perchance  the  old-time  law  has  yet  any  influence. 
Do  you  not  see  the  hideous  depth  of  national  degradation  into  which 
you  will  plunge  us  if  you  sanctify  this  mode  of  making  a  President? 
Brush  up  your  historical  memory  and  think  of  it  for  a  moment.  The 
man  whom  you  elect  in  this  way  is  as  purely  the  creature  of  the  military 
power  as  Caligula  or  Domitian,  for  whom  the  pretorian  guaids  controlled 
the  hustings  and  counted  the  votes. 

But  then  we  cannot  get  behind  the  returns,  forsooth  !  Not  we!  You 
will  not  let  us.  We  cannot  get  behind  them.  No.  That  is  the  law,  of 
course.  We  may  struggle  for  justice  ;  we  may  cry  for  mercy  ;  we  may 
go  down  on  our  knees,  and  beg  and  woo  for  some  little  recognition  of  our 
rights  as  American  citizens;  but  we  might  as  well  put  up  our  prayera 
to  Jupiter,  or  Mars,  as  bring  suit  in  the  court  where  Bhadamanthus 
presides.  There  is  not  a  god  on  Olympus  that  would  not  listen  to  us 
with  more  favor  than  we  shall  be  heard  by  our  adversaries.  We  are  at 


ELECTORAL   COUNT   OF   1877.  697 

their  mercy ;  it  is  only  to  them  that  we  can  appeal,  because  you  gentle 
men  unfortunately  cannot  help  us.  You  are  bound  by  the  new  law  which 
you  have  made.  You  are  of  course  addicted  like  other  people  to  the  vice 
of  consistency,  and  what  is  done  once  must  be  done  over  again. 

In  the  Louisiana  case  the  people  appointed  electors  in  favor  of  Til  den, 
recorded  their  act,  finished  it,  and  left  their  work  in  such  a  state  that 
nobody  could  misunderstand  it.  But  other  persons,  who  had  no  power 
to  appoint,  falsified  the  record  of  the  actual  appointment,  partly  by  plain 
forgery,  and  partly  by  fraud  which  was  as  corrupt  in  morals  and  as  void 
in  law  as  any  forgery  could  be.  You  thought  it  right  and  legal  and 
just  to  say  that  you  would  not  look  at  the  record  which  the  people  had 
made ;  the  forgery,  the  fraud,  and  the  corruption  were  too  sacred  to  be 
interfered  with ;  the  truth  must  not  be  allowed  to  come  in  conflict  with 
the  imposture,  lest  the  concussion  might  be  damaging. 

This  precedent  must  be  followed.  It  is  new  law,  to  be  sure,  but  we 
must  give  it  due  welcome  ;  and  the  new  lords  that  it  brings  into  power 
must  be  regarded  as  our  "  very  noble  and  approved  good  masters.77 
Having  decided  that  electors  were  duly  appointed  in  Louisiana  who 
were  known  not  to  be  appointed,  we  cannot  expect  you  to  take  notice  of 
any  fact  similar  or  kindred  to  it  in  South  Carolina. 

Then,  again,  the  question  of  "  duly  appointed  "  was  decided  in  the 
case  of  Levissee,  an  elector  who  was  an  officer  of  the  United  States 
Government  at  the  time  he  was  appointed  and  continued  to  be  after 
ward.  The  Federal  Constitution  says  that  no  man  shall  be  appointed 
who  is  in  that  relation  to  the  Federal  Government.  But  you  held,  ac 
cording  to  law,  mind  you,  that  he  was  a  lawful  elector  and  his  vote  a 
good  vote.  In  other  words,  a  thing  is  perfectly  constitutional  although 
it  is  known  to  be  in  the  very  teeth  of  a  constitutional  interdict ! 

Now,  you  see  why  we  are  hopeless.  The  present  state  of  the  law  is 
sadly  against  us.  The  friends  of  honest  elections  and  honest  govern 
ment  are  in  deep  despair.  We  once  thought  that  the  verifying  power 
of  the  two  Houses  of  Congress  ought  to  be  brought  always  into  requisi 
tion  for  the  purpose  of  seeing  whether  the  thing  that  is  brought  here  is 
a  forgery  and  a  fraud  on  the  one  hand,  or  whether  it  is  a  genuine  and 
true  certificate  on  the  other. 

But  while  we  cannot  ask  you  to  go  back  behind  this  certificate,  will 
you  just  please  to  go  to  it — only  to  it — not  step  behind.  If  you  do,  you 
will  find  that  it  is  no  certificate  at  all  such  as  is  required  by  law.  The 
electors  must  vote  by  ballot,  and  they  are  required  to  be  on  oath  before 
they  vote.  That  certificate  does  not  show  that  either  of  those  require 
ments  was  met,  and  where  a  party  is  exercising  a  special  authority  like 
this  he  must  keep  strictly  within  it,  and  you  are  not  to  presume  any 
thing  except  what  appears  on  the  face  of  the  act  to  be  done. 

If  anybody  will  cast  back  his  mind  a  little  into  the  history  of  pres 
idential  elections  or  look  at  the  debates  of  less  than  a  year  ago,  he  will 
remember  that  Mr.  Jefferson  was  charged  when  he  was  Yice-President 
of  the  United  States  with  having  elected  himself  by  means  of,  not  a 
fraudulent,  but  a  merely  informal  vote  sent  up  from  Georgia.  The  in 
formality  was  not  in  the  certificate  inside  of  the  envelope,  but  in  the 
outside  verification.  Mr.  Matthew  L.  Davis  in  1837  got  up  that  story. 
It  was  not  true,  but  it  was  believed  for  a  while,  and  it  cast  great  odium 
on  Mr.  Jefferson7s  memory.  It  was  not  an  informality  that  was  nearly 
as  important  as  this,  nothing  like  it.  But  one  of  the  Senators  now  on 
this  bench  referred  to  it  in  a  debate  only  a  short  time  ago,  and  de 
nounced  Mr.  Jefferson  as  having  elected  himself  by  fraud  because  he 
did  not  call  the  attention  of  the  Senate  and  House  of  Representatives 


£98  ELECTORAL    COUNT    OF    1877. 

to  that  fact.  If  Mr.  Jefferson's  memory  ought  to  be  sent  clown  to  pos 
terity  covered  with  infamy  because  he  in  his  own  case  allowed  a  vote  to 
be  counted  which  was  slightly  informal  on  the  outside  of  the  envelope, 
I  should  be  glad  to  know  what  ought  to  be  done  to  those  who  would 
count  this  vote  which  has  neither  form  nor  substance,  which  leaves  out 
all  the  essential  particulars  that  the  electors  are  required  to  certify  ? 

This  great  nation  still  struggles  for  justice;  a  million  majority  of 
white  people  send  up  their  cry,  and  a  majority  of  more  than  a  quarter 
of  a  million  of  all  colors  demand  it.  But  we  cannot  complain.  I  want 
you  to  understand  that  we  do  not  complain.  Usually  it  is  said  that 
u  the  fowler  setteth  not  forth  his  net  in  sight  of  the  bird/7  but  this  fowler 
set  the  net  in  sight  of  the  birds  that  went  into  it.  It  is  largely  our  own 
fault  that  we  were  caught. 

We  are  promised — and  I  hope  the  promise  will  be  kept — that  we  shall 
have  a  good  government,  fraudulent  though  it  be  5  that  the  rights  of 
the  States  shall  be  respected  and  individual  liberty  be  protected.  We 
are  promised  the  same  reformation  which  the  Turkish  government  is 
now  proposing  to  its  people.  The  Sultan  promises  that,  if  he  is  sus 
tained  in  his  present  contest,  he  will  establish  and  act  upon  certain  prin 
ciples  : 

First,  the  work  of  decentralization  shall  commence  immediately  and 
the  autonomy  of  the  provinces  shall  be  carefully  looked  after.  Secondly, 
the  people  shall  be  governed  by  their  natural  judges ;  they  will  not  send 
Mohammedans  nor  Christian  renegades  from  Constantinople  down  on 
them,  but  they  shall  be  governed  by  people  of  their  own  faith.  Thirdly, 
no  subordinate  officer  when  he  commits  an  illegal  act  shall  be  permitted 
to  plead  in  justification  the  orders  of  his  superior.  How  much  we  need 
exactly  that  kind  of  reform  in  this  country ;  and  how  glad  we  ought  to 
be  that  our  Government  is  going  to  be  as  good  hereafter  as  the  Turk's. 

They  offer  us  everything  now.  They  denounce  negro  supremacy  and 
carpet-bag  thieves.  Their  pet  policy  for  the  South  is  to  be  abandoned. 
They  offer  us  everything  but  one ;  but  on  that  subject  their  lips  are 
closely  sealed.  They  refuse  to  say  that  they  will  not  cheat  us  hereafter 
in  the  elections.  If  they  would  only  agree  to  that ;  if  they  would  only 
repent  of  their  election-frauds  and  make  restitution  of  the  votes  they 
have  stolen,  the  circle  of  our  felicities  would  be  full. 

If  this  thing  stands  accepted  and  the  law  you  have  made  for  this 
occasion  shall  be  the  law  for  all  occasions,  we  can  never  expect  such  a 
thing  as  an  honest  election  again.  If  you  want  to  know  who  will  be 
President  by  a  future  election,  do  not  inquire  how  the  people  of  the 
States  are  going  to  vote.  You  need  only  to  know  what  kind  of  scoun 
drels  constitute  the  returning- boards,  and  how  much  it  will  take  to  buy 
them. 

But  I  think  that  even  that  will  end  some  day.  At  present  you  have 
us  down  and  under  your  feet.  Never  had  you  a  better  right  to  rejoice. 
Well  may  you  say,  u  We  have  made  a  covenant  with  death,  and  with 
hell  are  we  at  agreement;  when  the  overflowing  scourge  shall  pass 
through,  it  shall  not  come  unto  us:  for  we  have  made  lies  our  refuge, 
and  under  falsehoods  have  we  hid  ourselves."  But  nevertheless  wait  a 
little  while.  The  waters  of  truth  will  rise  gradually,  and  slowly  but 
surely,  and  then  look  out  for  the  overflowing  scourge.  "The  refuge  of 
lies  shall  be  swept  away,  and  the  hiding-place  of  falsehood  shall  be  un 
covered."  This  mighty  and  puissant  nation  will  yet  raise  herself  up  like 
a  strong  man  after  sleep,  and  shake  her  invincible  locks  in  a  fashion 
you  little  think  of  now.  Wait;  retribution  will  come  in  due  time. 
Justice  travels  with  a  leaden  heel  but  strikes  with  an  iron  hand. 


ELECTORAL    COUNT    OF    1877.  699 

God's  mill  grinds  slow  but  dreadfully  fine.  Wait  till  the  flood- gate  is 
lifted  and  a  full  head  of  water  comes  rushing  on.  Wait,  and  you  will 
see  fine  grinding  then. 

Mr.  Representative  COCHRANE.  Mr.  President,  will  you  permit  me 
to  refer  the  Commission  to  one  or  two  authorities  which  I  neglected  to 
refer  to  before  ? 

The  PRESIDENT.    We  shall  allow  it. 

Mr.  Representative  COCHRANE.  I  must  ask  pardon  of  the  Com 
mission  for  the  irregularity.  I  desire  to  refer  you  to  section  30  of  article  8 
of  the  constitution  of  the  State  of  South  Carolina,  as  contained  in  the 
publication  of  the  Revised  Statutes  of  South  Carolina,  page  28 : 

Members  of  the  general  assembly  and  all  officers,  before  they  enter  upon  the  execu 
tion  of  the  duties  of  their  respective  offices,  shall  take  and  subscribe  the  fol] owing 
oath. 

Which  oath  is  provided  for.  Then  I  desire  to  call  your  honors'  atten 
tion  to  the  provision  of  the  Revised  Statutes  of  the  United  States  on 
page  22,  section  139 : 

The  electors  shall  seal  up  the  certificates  so  made  by  them,  and  certify  upon  each 
that  the  list  of  all  the  votes  of  such  State  given  for  President,  and  of  all  the  votes 
given  for  Vice-President,  are  contained  therein. 

It  is  hardly  necessary  for  me  to  refer  you  to  the  provision  of  the  Con 
stitution  requiring  the  voting  to  be  done  by  ballot,  but  I  simply  call  at 
tention  to  this  fact,  that  the  certificate  upon  the  envelopes  of  certificate 
JSTo.  1  is  not  in  accordance  with  this  provision  of  section  139.  It  does 
not  certify  that  the  envelope  contains  the  list  of  all  the  persons  voted 
for  for  President  and  Vice- President,  but  simply  that  it  contains  the 
names  of  the  persons  voting. 

Mr.  Commissioner  HUNTON.  Will  you  read  that  provision  referring 
to  the  oath  to  be  taken  ? 

Mr.  Reprssentative  COCHRANE.    Yes,  sir. 

Members  of  the  general  assembly  and  all  officers,  before  they  enter  upon  the  execu 
tion  of  the  duties  of  their  respective  offices,  shall  take  and  subscribe  the  following 
oath. 

Then  follows  the  oath.  The  certificate  upon  the  back  of  the  envelope 
is  as  follows : 

We  certify  that  this  sealed  envelope  contains  lists  of  the  votes  of  the  State  of  South 
Carolina  for  President  and  Vice-Presideut  of  the  United  States. 

And  that  is  all  that  it  says. 

Mr.  Commissioner  EDMUNDS.  Tour  point  is  that  it  does  not  say 
that  it  contains  all? 

Mr.  Representative  COCHRANE.  That  it  contains  all  the  votes  in 
this  certificate.  It  is  said  that  all  the  votes  were  cast  for  Mr.  Hayes  and 
Mr.  Wheeler,  and  that  there  were  no  other  votes  cast  except  those  which 
are  mentioned  in  this  certificate.  This  certificate  is  directly  opposite  in 
form  and  terms  to  the  certificates  in  the  cases  of  Florida,  Louisiana,  and 
Oregon. 

We  further  say  that  certificate  No.  2  contains  the  statement  of  all 
these  facts,  states  that  the  electors  were  duly  sworn  under  the  provisions 
of  the  constitution,  and  that  they  balloted  first  for  President  and  next 
for  Vice-President. 

The  PRESIDENT.  I  understand  that  the  argument  is  closed  on  both 
sides. 

Mr.  Representative  COCHRANE.  I  will  say  to  the  Commission  that 
if  the  Commission  shall  decide  to  admit  the  testimony  or  any  part  of  it 
offered,  the  objectors  and  counsel  will  be  prepared  to  "offer  it'at  once. 

Mr.  Commissioner  EDMUNDS.  I  move  that  the  public  proceedings 
of  the  Commission  be  considered  now  closed. 


700  ELECTORAL    COUNT    OF    1877. 

The  motion  was  agreed  to. 

Mr.  Commissioner  ABBOTT,  (at  one  o'clock  and  ten  minutes  p.  in.)  I 
move  that  a  recess  be  taken  until  one  o'clock  and  forty-five  minutes  p.  m. 

The  motion  was  agreed  to ;  and  the  Commission  accordingly  took  a 
recess  until  one  o'clock  and  forty-five  minutes  p.  m. 

After  the  recess  the  Commission  re-assembled  with  closed  doors  for 
deliberation  in  the  matter  of  the  electoral  vote  of  the  State  of  South 
Carolina. 

After  debate, 

Mr.  Commissioner  STEONG-  moved  (at  four  o'clock  and  twenty  min 
utes  p.  m.)  that  the  vote  be  taken  on  the  question  pending  in  one  hour 
from  that  time;  and,  after  remarks,  the  motion  was  withdrawn. 

On  motion  of  Mr.  Commissioner  EDMUNDS,  (at  five  o'clock  and 
seventeen  minutes  p.  m.,)  it  was,  by  a  vote  of  yeas  8,  nays  7, 

Ordered,  That  the  vote  on  the  pending  question  be  taken  by  six  o'clock  p.  m. 

The  time  allowed  for  debate  having  expired, 

Mr.  Commissioner  MORTON  offered  the  following  resolutions  : 

Resolved,  That  it  is  not  competent  for  the  two  Houses,  assembled  for  the  purpose 
of  counting  the  votes  for  President  and  Vice-President,  to  inquire  by  evidence  whether 
a  State  regularly  represented  in  the  two  Houses  of  Congress,  and  recognized  as  a  State 
of  the  United  States  by  the  other  Departments  of  the  Government,  has  a  government 
republican  in  form. 

Resolved,  That  while  the  existence  of  public  disturbance  and  anarchy  in  any  State, 
to  such  an  extent  as  to  make  it  impossible  for  the  State  to  exercise  its  right  to  appoint 
electors  of  President  and  Vice-President,  and  to  express  its  will  in  that  behalf,  is  suffi 
cient  cause  for  rejecting  any  electoral  votes  purporting  to  be  the  votes  of  electors 
appointed  thereby,  yet,  that  when  a  State  is  regularly  represented  as  a  State  in  the 
Congress  of  the  United  States,  and  is  recognized  as  a  State  by  the  other  Departments 
of  the  Government,  and  has  a  government  republican  in  form,  and  does  appoint  electors 
in  the  manner  prescribed  by  the  legislature  thereof,  evidence  cannot  be  received  by 
the  two  Houses  of  Congress  assembled  to  count  the  votes  for  President  and  Vice-Presi- 
dent  as  aforesaid  to  show  that  disturbances  existed  at  the  time  of  election  which  may 
have  interfered,  to  a  greater  or  less  extent,  with  the  freedom  of  election  at  the  polls 
in  said  State. 

Resolved,  That  it  is  not  competent  for  the  two  Houses  of  Congress  when  assembled 
to  count  the  votes  for  President  and  Vice-President,  by  taking  evidence,  to  inquire 
into  the  regularity  of  the  action  of  the  President  of  the  United  States  in  sending  a  mili 
tary  force  into  any  State  for  the  preservation  of  order  or  the  suppression  of  insurrec 
tion  and  domestic  violence,  in  order  by  such  proof  to  lay  a  ground  for  rejecting  the 
electoral  vote  of  said  State. 

Resolved,  That,  in  view  of  the  propositions  contained  in  the  three  foregoing  resolu 
tions,  the  evidence  offered  to  show  that  the  State  of  South  Carolina  at  the  late  election 
did  not  have  a  republican  form  of  government,  and  the  evidence  offered  on  the  subject 
of  disorder  and  violence  and  the  presence  of  troops  in  said  State  during  said  election, 
is  not  competent,  but  that  notwithstanding  the  offer  of  such  evidence  the  electoral 
votes  of  the  State  of  South  Carolina  ought  to  be  received  and  counted,  if  not  objection 
able  on  other  grounds. 

Resolved,  That  the  other  objections  to  certificate  No.  I  show  no  valid  cause  for  reject 
ing  the  same. 

Mr.  Commissioner  FIELD  offered  the  following  as  a  substitute 
therefor : 

Resolved,  That  evidence  is  admissible  to  show  that  prior  to  and  during  the  election 
on  the  7th  day  of  November,  1876,  in  the  State  of  South  Carolina,  there  were  unlaw 
fully  stationed  in  various  parts  of  the  State,  at  or  near  the  polling-places,  detachments 
of  troops  of  the  Army  of  the  United  States,  by  whose  presence  and  interference  quali 
fied  voters  of  the  State  were  deprived  of  the  right  of  suffrage,  and  a  free  choice  by  the 
people  of  presidential  electors  was  prevented. 

Resolved,  That  evidence  is  admissible  to  show  that  at  the  election  on  the  7th  day  of 
November,  1876,  in  South  Carolina,  there  were  stationed  at  the  several  polling-places 
in  the  State  deputy  marshals  of  the  United  States  exceeding  one  thousand  in  number, 
by  whose  unlawful  action  and  interference,  under  orders  from  the  Department  of 
Justice,  qualified  voters  of  the  State  were  deprived  of  the  right_of*suffrage,  and  a  free 
choice  by  the  people  of  presidential  electors  was  prevented. 


ELECTORAL    COUNT    OF    1877.  701 

The  question  being  on  the  adoption  of  the  substitute,  it  was  decided 
in  the  negative : 

Yeas i 7 

tfays 8 

Those  who  voted  in  the  affirmative  were :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Kernan,  and  Payne— 7. 

Those  who  voted  in  the  negative  were :  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

The  question  recurring  on  the  adoption  of  the  resolutions  offered  by 
Mr.  Commissioner  Morton,  it  was  decided  in  the  affirmative : 

Yeas 8 

Nays.. 7 

Those  who  voted  in  the  affirmative  were :  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

Those  who -voted  in  the  negative  were:  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Huuton,  Kernan,  and  Payne — 7. 

Mr.  Commissioner  FEELIXGHUYSEN  offered  the  following  reso 
lution-: 

Resolved,  That  Theodore  R.  Barker,  S.  McGowan,  John  W.  Harrington,  John  Isaac 
Ingram,  William  Wallace,  John  B.  Erwin,  and  Robert  Aldrich,  the  persons  named  as 
electors  in  certificate  No.  2,  were  not  the  lawful  electors  for  the  State  of  South  Caro 
lina,  and  that  their  votes  are  not  the  votes  provided  for  by  the  Constitution  of  the 
United  States,  and  should  not  be  counted. 

The  question  being  on  the  adoption  of  the  resolution,  it  was  decided 
in  the  affirmative : 

Yeas 15 

Nays 0 

Those  who  voted  in  the  affirmative  were:  Messrs.  Abbott,  Bayard, 
Bradley,  Clifford,  Edmunds,  Field,  Frelinghuysen,  Garfield,  Hoar, 
Hunton,  Kernan,  Miller,  Morton,  Payne,  and  Strong — 15. 

Mr.  Commissioner  MOETON  offered  the  following  resolution  : 

Resolved,  That  C.  C.  Bowen,  J.  Winsmith,  Thomas  B.  Johnston,  Timothy  Hurley, 
W.  B.  Nash,  Wilson  Cook,  and  W.  F.  Myers,  the  persons  named  as  electors  in  certifi 
cate  No.  1,  were  the  lawful  electors  for  the  State  of  South  Carolina,  and  that  their 
votes  are  the  votes  provided  for  by  the  Constitution  of  the  United  States,  and  should 
be  counted  for  President  and  Vice-President  of  the  United  States. 

The  question  being  on  the  adoption  of  the  resolution,  it  was  decided 
in  the  affirmative : 

Yeas , 8 

Nays 7 

Those  who  voted  in  the  affirmative  were:  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

Those  who  voted  in  the  negative  were :  Messrs.  Abbott,  Bayard,  Clif 
ford,  Field,  Huuton,  Kernan,  and  Payne — 7.  V. -:' 

Mr.  Commissioner  MILLER  offered  the  following : 

Ordered,  That  the  following  be  adopted  as  the  final  decision  and  report  in  the  mat 
ters  submitted  to  the  Commission  as  to  the  electoral  vote  of  the  State  of  South  Caro 
lina. 

ELECTORAL  COMMISSION, 
Washington,  D.  C.,  February  27,  A.  D.  1877. 

To  the  President  of  the  Senate  of  the  United  States,  presiding  in  the  meeting  of  the 
two  Houses  of  Congress  under  the  act  of  Congress  entitled  "An  act  to  provide  for 
and  regulate  the  counting  of  votes  for  President  and  Vice-President,  and  the  decision 
of  questions  arising  thereon,  for  the  term  commencing  March  4,  A.  D.  1877  "  approved 
January  29,  A.  D.  1877: 
The  Electoral  Commission  mentioned  in  said  act,  having  received  certain  certificates, 


702  ELECTORAL    COUNT    OF    1877. 

and  papers  purporting  to  be  certificates,  and  papers  accompanying  the  same,  of  the 
electoral  votes  from  the  State  of  South  Carolina,  and  the  objections  thereto,  submitted 
to  it  under  said  act,  now  report  that  it  has  duly  considered  the  same,  pursuant  to  said 
act,  and  has  by  a  majority  of  votes  decided,  and  does  hereby  decide,  that  the  votes  of 
C.  C.  Bowen,  j.  Winsinith,  Thomas  B.  Johnston,  Timothy  Hurley,  W.  B.  Nash,  Wilson 
Cook,  and  W.  F.  Myers,  named  in  the  certificate  of  D.  H.  Chamberlain,  governor  of 
said  State,  which  votes  are  certified  by  said  persons  as  appears  by  the  certificates  sub 
mitted  to  the  Commission  as  aforesaid,  and  marked  "  No.  1,  N.  C."  by  said  Commission, 
and  herewith  returned,  are  the  votes  provided  for  by  the  Constitution  of  the  United 
States,  and  that  the  same  are  lawfully  to  be  counted  as  therein  certified,  namely :  seven 
votes  for  Kntherford  B.  Hayes,  of  the  State  of  Ohio,  for  President,  and  seven  votes  for 
William  A.  Wheeler,  of  the  State  of  New  York,  for  Vice-Presideut. 

The  Commission  has  by  a  majority  of  votes  also  decided,  and  does  hereby  decide  and 
report,  that  the  seven  persons  first  above  named  were  duly  appointed  electors  in  and 
by  the  State  of  South  Carolina. 

The  brief  ground  of  this  decision  is,  that  it  appears,  upon  such  evidence  as  by  the 
Constitution  and  the  law  named  in  said  act  of  Congress  is  competent  and  pertinent  to 
the  consideration  of  the  subject,  that  thebeforementioned  electors  appear  to  have  been 
lawfully  appointed  such  electors  of  President  and  Vice-President  of  the  United  States 
for  the  term  beginning  March  4,  A.  D.  1877,  of  the  State  of  South  Carolina,  and  that 
they  voted  as  such  at  the  time  and  in  the  manner  provided  for  by  the  Constitution  of 
the  United  States  and  the  law. 

And  the  Commission,  as  further  grounds  for  their  decision,  are  of  opinion  that  the 
failure  of  the  legislature  to  provide  a  system  for  the  registration  of  persons  entitled  to 
vote,  does  not  render  nugatory  all  elections  held  under  laws  otherwise  sufficient,  though 
it  may  be  the  duty  of  the  legislature  to  enact  such  a  law.  If  it  were  otherwise,  all 
government  in  that  State  is  a  usurpation,  its  officers  without  authority,  and  the  social 
compact  in  that  State  is  at  an  end. 

That  this  Commission  must  take  notice  that  there  is  a  government  in  South  Carolina, 
republican  in  form,  since  its  constitution  provides  for  such  a  government,  and  it  is,  and 
was  on  the  day  of  appointing  electors,  so  recognized  by  the  Executive  and  by  both 
branches  of  the  legislative  department  of  the  Government  of  the  United  States. 

That  so  far  as  this  Commission  can  take  notice  of  the  presence  of  the  soldiers  of  the 
United  States  in  the  State  of  South  Carolina  during  the  election,  it  appears  that  they 
were  placed  there  by  the  President  of  the  United  States  to  suppress  insurrection,  at  the 
request  of  the  proper  authorities  of  the  State. 

And  we  are  also  of  opinion  that  from  the  papers  before  us  it  appears  that  the  gov 
ernor  and  secretary  of  state  having  certified  under  the  seal  of  the  State  that  the  elect 
ors  whose  votes  we  have  decided  to  be  the  lawful  electoral  votes  of  the  State,  were 
duly  appointed  electors,  which  certificate,  beth  by  presumption  of  law  and  by  the  cer 
tificate  of  the  rival  claimants  of  the  electoral  office,  was  based  upon  the  action  of  the 
State  canvassers,  there  exists  no  power  in  this  Commission,  as  there  exists  none  in  the 
two  Houses  of  Congress  in  counting  the  electoral  vote,  to  inquire  into  the  circum 
stances  under  which  the  primary  vote  for  electors  was  given. 

The  power  of  the  Congress  of  the  United  States  in  its  legislative  capacity  to  inquire 
into  the  matters  alleged,  and  to  act  upon  the  information  so  obtained,  is  a  very  differ 
ent  one  from  its  power  in  the  matter  of  counting  the  electoral  vote.  The  votes  to  be 
counted  are  those  presented  by  the  State,  and  when  ascertained  and  presented  by  the 
proper  authorities  of  the  States  they  must  be  counted. 

The  Commission  has  also  decided,  and  does  hereby  decide,  by  a  majority  of  votes,  and 
report,  that  as  a  consequence  of  the  foregoing,  and  upon  the  grounds  before  stated, 
the  paper  purporting  to  be  a  certificate  of  the  electoral  vote  of  said  State  of  South 
Carolina,  signed  by  Theodore  E.  Barker,  S.  McGowan,  Jno.  W.  Harrington,  Jno.  Isaac 
Ingram,  Win.  Wallace,  John  B.  Erwin,  and  Robt.  Aldrich,  marked  "  No.  2,  N.  C."  by  the 
Commission,  and  herewith  returned,  is  not  the  certificate  of  the  votes  provided  for  by 
the  Constitution  of  the  United  States,  and  that  they  ought  not  to  be  counted  as  such, 

Done  at  Washington,  D.  C.,  the  day  and  year  first  above  written. 

The  question  being  oil  the  adoption  of  the  order,  it  was  decided  in  the 
affirmative : 

Yeas £ 

Nays 7 

Those  who  voted  in  the  affirmative  were :  Messrs.  Bradley,  Edmunds,, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

Those  who  voted  in  the  negative  were :  Messrs.  Abbott,  Bayard,  Clif 
ford,  Field,  Hunton,  Kern  an,  and  Payne — 7. 

So  the  report  of  the  Commission  was  adopted  ;  and  said  decision  and 


ELECTORAL   COUNT   OF    1877.  703 

report  were  thereupon  signed  by  the  members  agreeing  therein,  as  fol 
lows:  '. 

SAM.  F.  MILLER. 

W.  STRONG. 

JOSEPH  P.  BRADLEY. 

GEO.  F.  EDMUNDS. 

O.  P.  MORTON. 

FRED'K  T.  FRELINGHUYSEN. 

JAMES  A.  GARFIELD. 

GEORGE  F.  HOAR. 

Mr.  Commissioner  MILLER  offered  the  following : 

Ordered,  That  the  President  of  the  Commission  transmit  a  letter  to  the  President  of 
the  Senate  in  the  following  words : 

"  WASHINGTON,  D.  C.,  February  27,  A.  D.  1877. 

"  SIR  :  I  am  directed  by  the  Electoral  Commission  to  inform  the  Senate  that  it  has 
considered  and  decided  upon  the  matters  submitted  to  it  under  the  act  of  Congress 
concerning  the  same,  touching  the  electoral  votes  from  the  State  of  South  Carolina, 
and  herewith,  by  direction  of  said  Commission,  I  transmit  to  you  the  said  decision,  in 
writing,  signed  by  the  members  agreeing  therein,  to  be  read  at  the  meeting  of  the  two 
Houses,  according  to  said  act.  All  the  certificates  and  papers  sent  to  the  Commission 
by  the  President  of  the  Senate  are  herewith  returned. 

"  Hon.  THOMAS  W.  FERRY, 

"President  of  the  Senate." 

The  question  being  on  the  adoption  of  the  order,  it  was  determined  in 
the  affirmative;  and  the  letter  was  accordingly  signed,  as  follows: 

"NATHAN  CLIFFORD, 

"President  of  the  Commission" 

Mr.  Commissioner  MILLEE  offered  the  following : 

Ordered,  That  the  President  of  the  Commission  transmit  to  the  Speaker  of  the  House 
of  Representatives  a  letter  in  the  following  words : 

"WASHINGTON,  D.  C.,  February  27,  A.  D.  1877. 

"  SIR  :  I  am  directed  by  the  Electoral  Commission  to  inform  the  House  of  Repre 
sentatives  that  it  has  considered  and  decided  upon  the  matters  submitted  to  it  under 
the  act  of  Congress  concerning  the  same,  touching  the  electoral  votes  from  the  State 
of  South  Carolina,  and  has  transmitted  said  decision  to  the  President  of  the  Senate,  to 
be  read  at  the  meeting  of  the  two  Houses,  according  to  said  act. 

"  Hon.  SAMUEL  J.  RANDALL, 

"  Speaker  of  the  House  of  Representatives." 

The  question  being  on  the  adoption  of  the  order,  it  was  decided  in  the 
affirmative;  and  the  letter  was  accordingly  signed,  as  follows : 

"NATHAN  CLIFFORD, 

"President  of  the  Commission" 

THANKS  TO  PRESIDENT. 

Mr.  MORTON  offered  the  following  resolution : 

Resolved,  That  the  thanks  of  this  Commission  are  due  to  Commissioner  Clifford  for 
the  ability,  impartiality,  and  urbanity  with  which  he  has  presided  over  its  delibera 
tions. 

And  the  same  was  adopted  by  a  unanimous  vote. 

OPINIONS   OF  COMMISSIONERS. 

Mr.  Commissioner  STRONG  moved  the  following  order : 

Ordered,  That  the  members  of  the  Commission  be  at  liberty  to  reduce  to  writing  the 
remarks  made  by  them  during  the  consultations  of  the  Commission,  and  cause  thetn  to 
be  published  in  the  printed  proceedings  on  or  before  the  15th  day  of  March  next.* 

*  The  remarks  referred  to,  as  thus  reduced  to  writing  by  the  members,  will  be  found 
in  the  Appendix  oi  Opinions. 


704  ELECTORAL    COUNT    OF    1677. 

The  question  being  on  the  adoption  of  the  order,  it  was  decided  in  the 
affirmative: 

Yeas , 10 

Kays 4 

Those  who  voted  in  the  affirmative  were :  Messrs.  Bayard,  Bradley, 
Clifford,  Edmunds,  Freliughuysen,  Garfield,  Hoar,  Miller,  Morton,  and 
Strong— 10. 

Those  who  voted  in  the  negative  were :  Messrs.  Abbott,  Field,  Hun- 
ton,  and  Payne — 4. 

REMOVAL  OF  SECRECY. 

On  motion  of  Mr.  Commissioner  MILLEE,  it  was 

Ordered,  That  the  injunction  of  secrecy  imposed  on  the  acts  and  proceedings  of  the 
Commission  be  removed. 

On  motion  of  Mr.  Commissioner  GAEFIELD,  (at  six  o'clock  and 
fifty- four  minutes  p.  m.,)  the  Commission  adjourned  until  eleven  o'clock 
a.  m.,  Friday,  March  2,  unless  sooner  called  together  by  the  President. 

PBOCEEDINGS  OF  THE  TWO  HOUSES. 

SOUTH  CAROLINA. 

IN  SENATE,  Wednesday,  February  28,  1877. 

The  recess  taken  on  the  previous  day  having  expired,  the  Senate  re 
sumed  its  session  at  ten  o'clock  a.  m.,  Wednesday,  February  28. 

The  PRESIDENT  pro  tempore  laid  before  the  Senate  the  following 
communication,  which  was  read : 

WASHINGTON,  D.  C.,  February  27,  A.  D.  1877. 

SIR  :  I  am  directed  by  the  Electoral  Commission  to  inform  the  Senate  that  it  has  con 
sidered  and  decided  npon  the  matters  submitted  to  it  under  the  act  of  Congress  con 
cerning  the  same,  touching  the  electoral  votes  from  the  State  of  South  Carolina,  and 
herewith,  by  direction  of  said  Commission,  I  transmit  to  you  the  said  decision,  in 
writing,  signed  by  the  members  agreeing  therein,  to  be  read  at  the  meeting  of  the  two 
Houses,  according  to  said  act.  All  the  certificates  and  papers  sent  to  the  Commission 
by  the  President  of  the  Senate  are  herewith  returned. 

NATHAN  CLIFFORD, 

President  of  the  Commission . 
Hon.  THOMAS  W.  FERRY, 

President  of  the  Senate. 

On  motion  of  Mr.  Senator  CRAGIN,  it  was 

Ordered,  That  the  Secretary  be  directed  to  inform  the  House  of  Representatives  that 
the  president  of  the  Electoral  Commission  has  notified  the  Senate  that  the  Commission 
has  arrived  at  a  decision  of  the  questions  submitted  to  it  in  relation  to  the  electoral 
votes  of  South  Carolina,  and  that  the  Senate  is  now  ready  to  meet  the  House  for  the 
purpose  of  laying  before  the  tv/o  Houses  the  report  of  the  said  decision,  and  to  pro 
ceed  with  the  count  of  the  electoral  votes  for  President  and  Vice-President. 

At  eleven  o'clock  a.  m.  a  message  was  received  from  the  House  of 
Eepresentatives  announcing  that  it  would  be  ready  to  receive  the  Sen 
ate  at  ten  minutes  past  twelve  o'clock  to  proceed  with  the  count  of  the 
electoral  votes ;  and  at  the  hour  named  the  Senate  proceeded  to  the 
hall  of  the  House. 

IN  THE  HOUSE  OF  EEPRESENTATIVES, 

Wednesday,  February  28,  1877. 

The  recess  taken  on  the  previous  day  having  expired,  the  House  re 
sumed  its  session  on  Wednesday,  February  28,  at  ten  o'clock  a.  m. 


ELECTORAL    COUNT    OF    1877.  705 

The  SPEAKER  laid  before  the  House  the  following  communication, 
which  was  read : 

WASHINGTON,  D.  C.,  February  27,  1877. 

SIR  :  I  am  directed  by  the  Electoral  Commission  to  inform  the  House  of  Representa 
tives  that  it  has  considered  and  decided  upon  the  matters  submitted  to  it  under  the  act 
of  Congress  concerning  the  same,  touching  the  electoral  votes  irom  the  State  of  South 
Carolina,  and  has  transmitted  its  decision  to  the  President  of  the  Senate,  to  be  read  at 
the  meeting  of  the  two  Houses,  according  to  said  act. 

NATHAN  CLIFFORD, 

President  of  the  Commission. 
Hon.  SAMUEL  J.  RANDALL, 

Speaker  of  the  House  of  Representatives. 

Mr.  Eepresentative  ATKINS  moved  a  call  of  the  House,  which  motion 
was  disagreed  to — yeas  76,  nays  156. 

A  message  was  received  from  the  Senate  announcing  its  readiness  to 
meet  the  House  for  the  purpose  of  proceeding  with  the  count. 

On  motion  of  Mr.  Representative  SAYLER,  the  Clerk  was  directed 
to  notify  the  Senate  that  the  House  would  be  ready  to  receive  it  at  ten 
minutes  past  twelve  o'clock  to  proceed  with  the  electoral  count;  where 
upon  the  House  proceeded  with  legislative  business  until  the  time  named. 

JOINT  MEETING. 

WEDNESDAY,  February  28,  1877. 

At  twelve  o'clock  and  ten  minutes  p.  m.  the  Senate  entered  the  Hall 
of  the  House  of  Representatives  in  the  usual  manner. 

The  PRESIDENT  pro  tempore  of  the  Senate  took  his  seat  as  Presiding 
Officer  of  the  joint  meeting  of  the  two  Houses,  the  Speaker  of  the  House 
occupying  a  chair  upon  his  left. 

The  PRESIDING  OFFICER.  The  joint  meeting  of  Congress  for 
counting  the  electoral  vote  resumes  its  session.  The  two  Houses,  hav 
ing  separated  upon  the  submission  to  the  Commission  of  the  objections 
to  the  certificate  from  the  State  of  South  Carolina,  have  reconvened  to 
consider  and  act  upon  the  decision  of  that  tribunal.  The  decision, 
which  is  in  writing,  by  a  majority  of  the  Commission,  and  signed  by  the 
members  agreeing  therein,  will  now  be  read  by  the  Secretary  of  the 
Senate  and  entered  in  the  Journal  of  each  House. 

The  Secretary  of  the  Senate  read  as  follows: 

ELECTORAL  COMMISSION, 
Washington,  D.  C.,  February  27,  A.  D.  1877. 

To  the  President  of  the  Senate  of  the  United  States  presiding  in  the  meeting  of  the  two 
Houses  of  Congress  under  the  act  of  Congress  entitled  "An  act  to  provide  for  and  reg 
ulate  the  counting  of  votes  for  President  and  Vice-President,  and  the  decision  of 
questions  arising  thereon,  for  the  term  commencing  March  4,  A.  D.  1877,"  approved 
January  29,  A.  D.  1877: 

The  Electoral  Commission  mentioned  in  said  act,  having  received  certain  certificates 
and  papers  purporting  to  be  certificates,  and  papers  accompanying  the  same,  of  the 
electoral  votes  from  the  State  of  South  Carolina,  and  the  objections  thereto  submitted 
to  it  under  said  act,  now  report  that  it  has  duly  considered  the  same  pursuant  to  said 
act,  and  has  by  a  majority  of  votes  decided,  and  does  hereby  decide,  that  the  votes  of 
C.  C.  Bowen,  j.  Wiusmith,  Thomas  B.  Johnston,  Timothy  Hurley,  W.  B.  Nash,  Wilson 
Cook,  and  W.  P.  Myers,  named  in  the  certificate  of  D.  H.  Chamberlain,  governor  of 
said  State,  which  votes  are  certified  by  said  persons,  as  appears  by  the  certificates  sub 
mitted  to  the  Commission  as  aforesaid,  and  marked  "  No.  1,  N.  C.,"  by  said  Commis 
sion,  and  herewith  returned,  are  the  votes  provided  for  by  the  Constitution  of  the 
United  States,  and  that  the  same  are  lawfully  to  be  counted  as  therein  certified, 
namely:  Seven  votes  for  Rutherford  B.  Hayes,  of  the  State  of  Ohio,  for  President,  and 
seven  votes  for  William  A.  Wheeler,  of  the  State  of  New  York,  for  Vice-President. 

The  Commission  has  by  a  majority  of  votes  also  decided,  and  does  hereby  decide  and 
report,  that  the  seven  persons  first  above  named  were  duly  appointed  electors  in  and 
by  the  State  of  South  Carolina. 
45  E  C 


706  ELECTORAL    COUNT    OF    1877. 

The  brief  ground  of  this  decision  is,  that  it  appears,  upon  such  evidence  as  by  the 
Constitution  and  the  law  named  in  said  act  of  Congress  is  competent  and  pertinent  to 
the  consideration  of  the  subject,  that  the  before-mentioned  electors  appear  to  have 
been  lawfully  appointed  such  electors  of  President,  and  Vice-President  of  the  United 
States  for  the  term  beginning  March  4,  A.  D.  1877,  of  the  State  of  South  Carolina,  and 
that  they  voted  as  such  at  the  time  and  in  the  manner  provided  for  by  the  Constitution 
of  the  United  States  and  the  law. 

And  the  Commission,  as  further  grounds  for  their  decision,  are  of  opinion  that  the 
failure  of  the  legislature  to  x>rovide  a  system  for  the  registration  of  persons  entitled  to 
vote  does  not  render  nugatory  all  elections  held  under  laws  otherwise  sufficient,  though 
it  may  be  the  duty  of  the  legislature  to  enact  such  a  law.  If  it  were  otherwise,  all 
government  in  that  State  is  a  usurpation,  its  officers  without  authority,  and  the  social 
compact  in  that  State  is  at  an  end. 

That  this  Commission  must  take  notice  that  there  is  a  government  in  South  Carolina, 
republican  in  form,  since  its  constitution  provides  for  such  a  government,  and  it  is  and 
was  on  the  day  of  appointing  electors  so  recognized  by  the  executive  and  by  both 
branches  of  the  legislative  department  of  the  Government  of  the  United  States. 

That  so  far  as  this  Commission  can  take  notice  of  the  presence  of  the  soldiers  of  the 
United  States  hi  the  State  of  South  Carolina  during  the  election,  it  appears  that  they 
were  placed  there  by  the  President  of  the  United  States  to  suppress  insurrection,  at 
the  request  of  the  proper  authorities  of  the  State. 

And  we  are  also  of  opinion  that,  from  the  papers  before  us,  it  appears  that  the  gov 
ernor  and  secretary  of  state  having  certified  under  the  seal  of  the  State  that  the  elect 
ors  whose  vote  we  have  decided  to  be  the  lawful  electoral  vote  of  the  State  were  duly 
appointed  electors — which  certificate,  both  by  presumption,  by  law,  and  by  the  certifi 
cate  of  the  rival  claimants  of  the  electoral  office,  was  based  upon  the  action  of  the 
State  canvassers — there  exists  no  power  in  this  Commission,  as  there  exists  none  in 
the  two  Houses  of  Congress  in  counting  the  electoral  vote,  to  inquire  into  the  circum 
stances  under  which  the  primary  vote  for  electors  was  given. 

The  power  of  the  Congress  of  the  United  States  in  its  legislative  capacity  to  inquire 
into  the  matters  alleged,  and  to  act  upon  the  information  so  obtained,  is  a  very  differ 
ent  one  from  its  power  in  the  matter  of  counting  the  electoral  votes.  The  votes  to  be 
counted  are  those  presented  by  the  State,  and  when  ascertained  and  presented  by  the 
proper  authorities  of  the  State  they  must  be  counted. 

The  Commission  has  also  decided,  and  does  hereby  decide  by  a  majority  of  votes  and 
report,  that,  as  a  consequence  of  the  foregoing,  and  upon  the  grounds  before  stated, 
the  paper  purporting  to  be  a  certificate  of  the  electoral  vote  of  said  State  of  South 
Carolina,  signed  by  Theodore  G.  Barker,  S.  McGowan,  JEO.  W.  Harrington,  Jno.  Isaac 
Ingram,  Win.  Wallace,  Jno.  B.  Erwin,  and  Robt.  Aldrich,  marked  "No.  2,  N.  C."  by 
the  Commission,  and  herewith  returned,  is  not  the  certificate  of  the  votes  provided  for 
by  the  Constitution  of  the  United  States,  and  that  they  ought  not  to  be  counted  as 
such. 

Done  at  Washington.  District  of  Columbia,  the  day  and  year  first  above  written. 

SAM.  F.  MILLER. 

W.  STRONG. 

JOSEPH  P.  BRADLEY. 

GEO.  F.  EDMUNDS. 

O.  P.  MORTON. 

FRED'K  T.  FRELINGHUYSEN. 

JAMES  A.  GARFIELD. 

GEORGE  F.  HOAR. 

The  PRESIDING  OFFICER.  Are  there  any  objections  to  the  de 
cision  of  the  Commission  ? 

Mr.  Representative  PHILIPS,  of  Missouri.  I  send  up  an  objection 
signed  by  Senators  and  Representatives,  and  along  with  it  I  present  the 
evidence  upon  which  the  objection  is  founded. 

The  PRESIDING  OFFICER.  The  member  from  Missouri  [Mr. 
Phillips]  having  presented  an  objection,  it  will  be  read  by  the  Clerk 
of  the  House. 

The  Clerk  of  the  House  read  as  follows : 

The  undersigned,  Senators  and  Representatives,  do  hereby  object  to  counting  the 
votes  cast  by  C.  C.  Bowen,  J.  Winsmith,  Thomas  B.  Johnston,  Timothy  Hurley,  W.  B. 
Nash,  Wilson  Cook,  and  W.  F.  Myers,  alleged  electors  of  the  State  of  South  Carolina, 
in  conformity  to  the  decision  of  the  Electoral  Commission,  and  as  reasons  therefor  as 
sign  the  following: 


ELECTORAL    COUNT    OF    1877.  707 

I. 

Because  no  legal  election  was  held  in  the  State  of  South  Carolina  on  the  7th  day  of 
November  last  past  for  presidential  electors  in  compliance  with  section  3,  article  8,  of 
the  constitution  thereof  requiring  a  registration  of  the  electors  of  the  State  as  a  quali 
fication  to  vote. 

II. 

Because  in  consequence  of  frauds  practiced  in  said  election,  and  the  interference  with 
and  intimidation  of  the  electors  in  said  State  by  the  Federal  Government  prior  to  and 
during  said  election,  stationing  in  various  parts  of  said  State  near  the  polling-places 
detachments  of  the  Army  of  the  United  States,  a  full  and  free  exercise  of  the  right  of 
suffrage  was  prevented,  in  consequence  of  which  there  was  no  lawful  election  had. 

III. 

Because  in  violation  of  the  Constitution  of  the  United  States  the  Federal  authori 
ties,  at  the  several  polling-places  in  said  State  on  the  day  of  election,  stationed  over 
one  thousand  deputy  marshals  of  the  United  States,  who  by  their  unlawful  and  arbi 
trary  action,  in  obedience  to  the  unauthorized  instructions  from  the  Department  of 
Justice,  so  interfered  with  the  full  and  free  exercise  of  the  right  of  suffrage  by  the 
voters  of  said  State  that  a  fair  election  could  not  be  and  was  not  held  in  said  State  on 
the  7th  day  of  November,  1876. 

IV. 

Because  the  certification  of  the  election  held  by  said  electors  on  the  6th  day  of  De 
cember,  1876,  was  not  made  by  the  lawfully  constituted  governor  of  said  State. 

V. 

Because  the  said  Electoral  Commission,  contrary  to  its  duty  and  the  authority  vested 
in  it  by  law,  neglected  and  refused  to  inquire  into  the  facts  and  allegations  aforesaid, 
and  their  said  decision  is  contrary  to  the  law  and  the  truth. 

VI. 

Because  at  the  time  of  the  pretended  appointment  of  the  said  electors  in  the  State 
of  South  Carolina,  it  was  under  duress  from  the  power  of  the  United  States  unlaw 
fully  exerted  upon  it,  and  said  pretended  appointments  were  made  under  such  duress. 

VII. 

Because  the  certificate  numbered  1  was  and  is  void. 

First.  For  irregularity  in  that  the  electors  were  not  sworn,  as  by  the  constitution  of 
the  State  of  South  Carolina  they  were  required  to  be. 

Second.  The  certificate  does  not  state  that  said  electors  voted  by  ballot,  as  required 
by  the  Constitution  of  the  United  States. 

Third.  The  certificate  upon  the  envelope  in  which  the  said  certificate  and  accompa 
nying  papers  were  inclosed  was  not  the  certificate  required  by  the  laws  of  the  United 
States. 

T.  M.  NORWOOD, 
JAMES  K.  KELLY, 
HENRY  COOPER, 
S.  B.  MAXEY, 
WM.  A.  WALLACE, 

Senators. 

.  J.  F.  PHILIPS, 
HIESTER  CLYMER, 
ERASTUS  WELLS, 
A.  T.  WALLING, 
A.  M.  WADDELL, 
JOHN  R.  EDEN, 
THOS.  L.  JONES, 
J.  R.  TUCKER, 

Representatives. 

The  PEESIDING  OFFICEE.    Are  there  further  objections  to  the 
decision  of  the  Commission  ? 


708  ELECTORAL    COUNT    OF    1877. 

Mr.  Eepresentative  SOUTHAED.  I  send  up  in  duplicate  an  objec 
tion,  signed  by  Senators  and  Representatives. 

The  PRESIDING  OFFICER.  The  member  from  Ohio  [Mr.  South 
ard]  submits  an  objection,  which  will  be  read  by  the  Secretary  of  the 
Senate. 

The  Secretary  of  the  Senate  read  as  follows  : 

The  undersigned  Senators  and  members  of  the  House  of  Representatives  object  to 
the  counting  of  the  electoral  vote  purporting  to  come  from  South  Carolina,  in  con 
formity  with  the  decision  of  the  majority  of  the  Electoral  Commission,  for  the  reason 
that  the  said  electoral  votes,  as  well  as  the  votes  of  the  people  of  said  State  at  the 
presidential  election  on  the  7th  day  of  November  last,  were  given  under  duress  caused 
by  the  unlawful  exercise  of  Federal  power. 

A.  S.  MERRIMON, 
GEO.  R.  DENNIS, 

j.  E.  MCDONALD, 

WM.  A.  WALLACE, 
C.  W.  JONES, 

Senators. 

DAVID  DUDLEY  FIELD, 
M.  I.  SOUTHARD, 
WM.  MUTCHLER, 
JOHN  GOODE,  JR., 
JESSE  J.  YEATES, 
JOHN  H.  CALDWELL, 
S.  S.  COX, 

R.  A.  DE  BOLT, 
JOHN  B.  CLARK:,  JR., 

Representatives. 

The  PRESIDING  OFFICER.  Are  there  further  objections  to  the 
decision  ?  [A  pause.]  If  there  be  none,  the  Senate  will  now  withdraw 
to  its  chamber,  that  the  two  Houses  separately  may  consider  and  de 
termine  the  objections. 

Accordingly  (at  twelve  o'clock  and  thirty  minutes  p.  in.)  the  Senate 
withdrew. 

IN  SENATE,  Wednesday,  February  28,  1877. 

The  Senate  having  retired  from  the  joint  meeting,  the  President 
pro  tempore  resumed  the  chair  at  twelve  o'clock  and  thirty-five  minutes 
p.  m.,  and  caused  to  be  read  the  objections  to  the  decision  of  the  Elect 
oral  Commission  as  to  the  electoral  votes  of  the  State  of  South  Carolina  j 
whereupon, 

Mr.  Senator  ROBERTSON  offered  the  following  resolution  : 

Resolved,  That  the  decision  of  the  Commission  upon  the  electoral  vote  of  the  State 
of  South  Carolina  stand  as  the  judgment  of  the  Senate,  the  objections  made  thereto 
to  the  contrary  notwithstanding. 

Mr.  Senator  MERRIMON"  submitted  the  following  resolution  : 

Eesolved,  That  it  is  competent  to  receive  testimony  to  sustain  the  several  exceptions 
above  specified. 

Mr.  Senator  EDMUNDS  raised  the  point  of  order  that,  the  two  Houses 
having  separated  to  consider  objections  made  to  the  decision  of  the 
Electoral  Commission  as  to  what  votes  returned  from  the  State  of 
South  Carolina  were  the  votes  provided  for  by  the  Constitution  of  the 
United  States,  it  was  not  competent  for  the  Senate,  under  the  provisions 
of  the  electoral  law,  to  consider  any  question  or  resolution  which  did 
not  order  a  concurrence  or  non-concurrence  with  such  decision,  and 
hence  the  resolution  of  Mr.  Senator  Merrimon  was  not  in  order. 

The  PRESIDENT  pro  tempore  submitted  to  the  Senate  the  question 
whether  Mr.  Senator  Merrimon's  resolution  was  in  order,  and  it  was 
decided  in  the  negative — yeas  18,  nays  43. 


ELECTORAL    COUNT    OF    It77.  709 

Mr.  Senator  BOGY  moved  that  the  testimony  submitted  with  the  ob 
jections  be  read,  which  motion  was  disagreed  to — yeas  21,  nays  41. 

The  question  recurring  on  the  resolution  of  Mr.  Senator  ROBERT 
SON,  after  debate,  it  was  agreed  to  by  a  vote  of  yeas  39,  nays  22. 

The  Secretary  was  ordered  to  notify  the  House  of  Representatives  of 
this  action  and  of  the  readiness  of  the  Senate  to  meet  the  House  to 
continue  the  counting  of  the  electoral  votes. 

At  six  o'clock  and  twelve  minutes  p.  m.,  a  message  was  received  from 
the  House  of  Representatives  announcing  its  action  on  the  objection  to  the 
decision  of  the  Electoral  Commission  upon  the  electoral  votes  of  South 
Carolina  and  its  readiness  to  receive  the  Senate  to  continue  the  count ; 
whereupon  the  Senate  proceeded  to  the  hall  of  the  House. 

IN  THE  HOUSE  OF  REPRESENTATIVES, 

Wednesday,  February  28,  1877. 

The  Senate  having  withdrawn  from  the  hall  of  the  House  of  Repre 
sentatives,  at  twelve  o'clock  and  thirty  minutes  p.  m.  the  House  re 
sumed  its  session. 

Mr.  Representative  SPRINGER  moved  that  the  House  take  a  recess 
till  Thursday,  March  1,  at  ten  o'clock  a.  m.,  which  motion  was  disagreed 
to — yeas  92,  nays  170. 

Mr.  Representative  SHEAKLEY  moved  that  the  House  take  a  recess 
until  7£  o'clock  p.  m.  this  day. 

Mr.  Representative  WOOD,  of  New  York,  raised  the  question  of  order 
that  the  motion  was  not  in  order  under  the  electoral  law. 

The  SPEAKER  sustained  the  point  of  order  and  declined  to  entertain 
the  motion. 

From  this  decision  Mr.  Representative  SHEAKLEY  appealed,  and, 
on  motion  of  Mr.  Representative  WOOD,  of  New  York,  the  appeal  was 
laid  on  the  table  by  a  vote  of  yeas  184, -nays  61. 

Mr.  Representative  SHEAKLEY  moved  that  the  House  take  a  recess 
until  to-morrow  (March  1)  at  ten  o'clock  a.  m. 

The  SPEAKER  ruled  the  motion  out  of  order  and  declined  to  enter 
tain  it. 

From  this  decision,  Mr.  Representative  SPRINGER  appealed. 

The  SPEAKER  declined  to  entertain  the  appeal,  and  stated  the  reg 
ular  order  of  business  to  be  the  consideration  of  the  objections  to  the 
decision  of  the  Commission  upon  the  electoral  certificates  from  the  State 
of  South  Carolina. 

A  message  was  received  from  the  Senate  announcing  its  resolution 
on  the  objection  to  the  decision  of  the  Commission  in  the  case  of  South 
Carolina  and  its  readiness  to  meet  the  House  to  proceed  with  the  count. 

Mr.  Representative  PHILIPS,  of  Missouri,  demanded  the  reading  of 
the  testimony  taken  by  the  Select  Committee  of  the  House  to  investi 
gate  the  recent  election  in  the  State  of  South  Carolina,  accompanying 
the  said  objections. 

Mr.  Representative  WOOD,  of  New  York,  objected  to  the  reading  of 
the  testimony  called  for. 

The  SPEAKER  submitted  to  the  House  the  question  whether  the 
testimony  should  be  read  j  and  it  was  decided  in  the  negative — yeas  87, 
nays  176. 

Mr.  Representative  WALLING  moved  to  reconsider  the  vote  by 
which  the  reading  of  the  testimony  was  refused. 

On  motion  of  Mr.  Representative  WOOD,  of  New  York,  the  motion  to 
reconsider  was  laid  on  the  table— yeas  177,  nays  73. 


710  ELECTORAL    COUNT    OF    J8/7. 

Mr.  Representative  VANCE,  of  Ohio,  moved  that  parts  one  and  two 
of  said  testimony  be  read. 

The  SPEAKER  held  that  the  motion  was  not  in  order,  the  House 
having  just  refused  to  order  the  reading  of  the  testimony. 

Mr.  Representative  COCHRANE  submitted  the  following  resolution, 
which  was  debated  for  the  two  hours  allowed  by  the  electoral  law,  viz  : 

Bcsolved,  That  the  objections  to  the  decision  of  the  Electoral  Commission  upon  the 
electoral  vote  of  South  Carolina  be  sustained  by  the  House,  and  that  said  votes  be  not 
counted. 

Mr.  Representative  WALLING  moved  to  amend  the  resolution  by 
adding  the  words  "  in  conformity  with  the  decision  of  said  Commission." 

Mr.  Representative  JONES,  of  Kentucky,  offered  the  following  as  a 
substitute  for  the  pending  propositions : 

Resolved,  That  the  decision  of  the  Electoral  Commission  upon  the  electoral  vote  of 
South  Carolina  be  not  concurred  in  by  this  House. 

Mr.  Representative  WOOD,  of  New  York,  demanded  the  previous 
question. 

Mr.  Representative  HALE  raised  the  point  of  order  that  as  the  elect 
oral  law  required  the  main  question  to  be  put  at  the  end  of  two  hours' 
debate,  it  was  not  necessary  that  the  ordinary  forms  of  seconding  the 
previous  question  and  ordering  the  main  question  should  be  observed. 

The  SPEAKER  overruled  the  point  of  order  and  held  that  "the  main 
question, "  as  used  in  the  electoral  law,  embraced  the  original  proposi 
tion,  an  amendment,  and  an  amendment  to  the  amendment. 

The  call  for  the  previous  question  was  seconded ;  and,  on  ordering 
the  main  question  to  be  put,  the  yeas  were  190,  the  nays  72. 

Mr.  Representative  WALLING  moved  to  reconsider  the  vote  by 
which  the  main  question  was  ordered. 

Mr.  Representative  WOOD,  of  New  York,  (unanimous  consent  being 
given  for  the  purpose,)  submitted  the  following  proposition  as  a  compro 
mise: 

The  amendment  to  be  withdrawn,  and  the  House  to  come  to  a  direct  vote  upon  the 
original  resolution  as  amended  by  Mr.  Walling;  the  Senate  then  to  be  invited  to 
meet  the  House  for  the  purpose  of  continuing  the  count ;  and  when  the  State  of  Ver 
mont  shall  be  reached  and  the  two  Houses  shall  separate,  then  the  House  to  take  a 
recess  until  to-morrow  at  ten  o'clock. 

The  proposition  was  unanimously  agreed  to. 

The  question  recurring  on  the  amendment  of  Mr.  Representative 
Walling  to  the  resolution  of  Mr.  Representative  Cochrane,  the  amend 
ment  was  agreed  to,  and  the  resolution,  as  amended,  was  adopted. 

On  motion  of  Mr.  Representative  WOOD,  of  New  York,  the  Clerk 
was  directed  to  notify  the  Senate  of  the  action  of  the  House  and  of  its 
readiness  to  receive  the  Senate  to  proceed  with  the  count  of  electoral 
votes. 

JOINT  MEETING. 

WEDNESDAY,  February  28,  1877. 

At  six  o'clock  and  eighteen  minutes  p.  in.,  the  Senate  entered  the 
House  Hall  in  the  usual  manner. 

The  PRESIDENT  pro  temporeof  the  Senate  took  his  seat  as  presid 
ing  officer  of  the-  joint  meeting  of  the  two  Houses,  the  Speaker  of  the 
House  occupying  a  chair  upon  his  left. 

The  PRESIDING  OFFICER,  The  joint  meeting  of  Congress  for 
counting  the  electoral  vote  resumes  its  session.  The  two  Houses  hav 
ing  separately  determined  upon  the  objections  to  the  decision  of  the 


ELECTORAL    COUNT    OF    1877.  711 

Commission  on  the  certificates  from  the  State  of  South  Carolina,  the 
Secretary  of  the  Senate  will  read  the  resolution  adopted  by  the  Senate. 
The  Secretary  of  the  Senate  read  as  follows : 

Resolved,  That  the  decision  of  the  Commission  upon  the  electoral  vote  of  the  State  of 
South  Carolina  stand  as  the  judgment  of  the  Senate,  the  objections  made  thereto  to 
the  contrary  notwithstanding. 

The  PRESIDING  OFFICER.  The  Clerk  of  the  House  of  Represent 
atives  will  now  read  the  resolution  adopted  by  the  House  of  Represent 
atives. 

Mr.  Representative  JONES,  of  Kentucky.  I  desire  to  inquire  if  there 
is  a  quorum  of  the  Senate  present.  The  law  under  which  we  are  acting 
and  the  Constitution  of  the  United  States  require  that  the  certificates 
shall  be  opened  in  the  presence  of  both  Houses.  If,  therefore,  there  is 
not  a  quorum  of  the  House  and  Senate  present,  I  imagine  that  this  pro 
ceeding  cannot  go  on. 

Mr.  Representative  BANKS.  That  is  not  a  question  for  the  conven 
tion  to  decide ;  the  Senate  must  decide  it  for  itself. 

The  PRESIDING  OFFICER.  The  Clerk  of  the  House  will  read  the 
resolution  of  the  House. 

Mr.  Representative  JONES,  of  Kentucky.  I  protest  that  this  pro 
ceeding  should  not  go  on. 

The  PRESIDING  OFFICER.     Debate  is  not  in  order. 

Mr.  Representative  JONES,  of  Kentucky.  My  protest  is  entered  and 
should  go  on  the  record. 

The  Clerk  of  the  House  read  as  follows: 

Resolved,  That  the  objections  to  the  decision  of  the  Electoral  Commission  upon  the 
electoral  vote  of  South  Carolina  be  sustained  by  the  House,  and  that  said  vote  be  not 
counted  in  conformity  with  the  decision  of  said  Commission. 

The  PRESIDING  OFFICER.  The  two  Bouses  not  concurring  in 
ordering  otherwise,  the  decision  of  the  Commission  stands  unreversed, 
and  the  vote  of  the  State  of  South  Carolina  will  be  counted  in  conform 
ity  therewith.  The  tellers  will  announce  the  vote  of  the  State  of  South 
Carolina. 

Mr.  Representative  STONE,  (one  of  the  tellers.)  South  Carolina  casts 
7  votes  for  Rutherford  B.  Hayes,  of  Ohio,  for  President  of  the  United 
States,  and  7  votes  for  William  A.  Wheeler,  of  New  York,  for  Vice- 
President  of  the  United  States. 

UNDISPUTED   STATES. 

The  count  then  proceeded,  the  certificates  from  the  State  of — 
Tennessee,  casting  12  votes  for  Tilden  and  Heudricks ;  and 
Texas,  casting  8  votes  for  Tilden  and  Heudricks — 

being  opened  by  the  Presiding  Officer  and  read  by  the  tellers,  and  the 

votes  thereof  counted  without  objection. 

VERMONT. 

The  PRESIDING  OFFICER.  Having  opened  the  certificate  received 
by  messenger  from  the  State  of  Vermont,  the  Chair  hands  the  same 
to  the  tellers,  to  be  read  in  the  presence  and  hearing  of  the  two  Houses, 
and  the  corresponding  one  received  by  mail  is  also  handed  to  the  tellers. 

Mr.  Representative  POPPLETON.  I  ask  that  the  certificate  from  the 
State  of  Vermont  be  read  at  length. 

The  PRESIDING  OFFICER.  The  certificate  in  full  will  be  read, 
objection  being  made  to  dispensing  with  reading  any  portion  of  it. 

Mr.  Senator  INGALLS  (one  of  the  tellers)  read  in  full  the  certificate 


712  ELECTORAL    COUNT    OF    1677. 

from  the  State  of  Vermont,  to  the  effect  that  that  State  had  cast  5  votes 
for  Eutherford  B.  Hayes,  of  Ohio,  for  President,  and  5  votes  for  William 
A.  Wheeler,  of  New  York,  for  Vice-President. 

The  PEESIDING  OFFICER.  Are  there  any  objections  to  the  cer 
tificate  from  the  State  of  Vermont? 

Mr.  ^Representative  POPPLETON.  I  desire  to  inquire  o*f  the  Presi 
dent  of  the  Senate  whether  there  have  been  other  returns,  or  papers 
purporting  to  be  returns,  received  from  the  State  of  Vermont. 

The  PRESIDING  OFFICER.  There  have  been  none  received  except 
the  one  submitted. 

Mr.  Representative  POPPLETON.  I  desire  to  say  that  I  have  pre 
pared  objections,  upon  information  by  telegraph  and  otherwise  that  there 
were  dual  returns  from  the  State  of  Vermont. 

Mr.  Eepresentative  HEWITT,  of  New  York.  I  desire  to  make  a 
statement. 

The  PEESIDING  OFFICER.  Is  there  objection  to  the  member  from 
New  York  [Mr.  Hewitt]  making  a  statement !  [A  pause.]  The  Chair 
hears  none. 

Mr.  Eepresentative  HEWITT,  of  New  York.  I  hold  in  my  hand  a 
package  which  purports  to  contain  electoral  votes  from  the  State  of 
Vermont.  This  package  was  delivered  to  me  by  express  about  the 
middle  of  December  las't,  and  with  it  came  a  letter  stating  that  a  similar 
package  had  been  forwarded  by  mail  to  the  Presiding  Officer  of  the 
Senate.  Being  informed  to-day  that  no  package  corresponding  to 
this  had  been  received  by  mail  by  the  Presiding  Officer  of  the  Senate, 
I  called  upon  him  and  inquired  whether  any  other  than  one  certifi 
cate  from  the  State  of  Vermont  had  been  received  by  him  by  mail, 
and  he  informed  me  that  there  had  been  no  other  received  by  him  than 
the  one  which  was  already  in  his  possession.  I  then  tendered  to  him 
this  package,  the  seals  of  which  are  unbroken  and  which  is  now  as  it 
came  into  my  possession.  He  declined  to  receive  it,  upon  the  ground 
that  he  had  no  authority  in  law  so  to  do.  Under  the  circumstances,  I 
now  tender  this  package  to  the  Presiding  Officer  of  the  Senate  as  pur 
porting  to  contain  electoral  votes  from  the  State  of  Vermont. 

Mr.  Eepreseutative  K  ASSON.  I  object  to  the  reception  of  the  pack 
age. 

Mr.  Eepresentative  SPEINGEE.     I  offer  the  following  resolution 

The  PEESIDING  OFFICEE.  The  Chair  stated  that  he  had  received 
but  one  set  of  certificates  from  the  State  of  Vermont.  He  also  states 
that  the  law  prohibits  him  from  receiving  any  after  the  first  Thursday 
in  February.  His  duty  is  to  receive  and  open  and  have  read  all  certifi 
cates  that  have  been  received  by  him  up  to  and  on  that  day. 

Mr.  Eepresentative  SPEINGEE.  I  understand  that  a  third  certifi 
cate  or  return  from  the  State  of  Florida  was  received  on  the  30th  day  of 
January,  and  was  laid  before  the  two  Houses  by  the  Presiding  Officer 
of  the  Senate  when  that  State  was  reached. 

Mr.  Eepresentative  KASSON.  This  is  in  the  nature  of  debate,  and  I 
must  object. 

The  PEESIDING  OFFICEE.  The  30th  of  January  is  not  the  first 
Thursday  in  February.  The  Chair  now  asks  if  there  are  any  objections 
to  the  certificate  from  the  State  of  Vermont. 

Mr.  Eepresentative  SPEINGEE.  I  submit  the  resolution  which  I 
send  up 

Mr.  Eepresentative  KASSON.     I  object. 

The  PEESIDING  OFFICEE.    If  it  is  an  objection  to  the  certificate 


ELECTORAL    COUNT    OF    1877  713 

from  the  State  of  Vermont,  the  Chair  will  entertain  it ;  but  if  it  is  a 
simple  resolution  the  Chair  cannot  entertain  it. 

Mr.  Eepresentative  SPRINGER.  I  ask  that  it  be  read.  It  is  in  ref 
erence  to  "  a  question  arising  under  the  electoral  act,"  which  is  pro 
vided  for  by  the  fourth  section  of  that  act,  to  which  1  call  the  attention 
of  the  Chair : 

That  when  the  two  Houses  separate  to  decide  upon  an  objection  that  may  have  been 
made  to  the  counting  of  any  electoral  vote  or  votes  from  any  State,  or  upon  objection 
to  a  report  of  said  Commission,  or  other  question  arising  undei*  this  act,  each  Senator  and 
Representative  may  speak  to  such  objection  or  question  ten  minutes,  and  not  oftener 
than  once. 

This  is  a  "question  arising  under  this  act,'7  and  I  offer  the  resolution 
as  such,  and  ask  that  it  be  read  at  the  Clerk's  desk. 

The  PRESIDING  OFFICER.  The  Chair  again  states  that  if  the 
member  from  Illinois  [Mr.  Springer]  submits  an  objection  to  the  certifi 
cate  from  the  State  of  Vermont,  the  Chair  will  entertain  it ;  but  the 
Chair  cannot  entertain  a  resolution. 

Mr.  Representative  SPRINGER.  I  submit  it  as  a  question  arising 
under  the  electoral  act. 

The  PRESIDING  OFFICER.    The  Chair  cannot  entertain  it. 

Mr.  Representative  SPRINGER.     I  ask  that  it  be  read. 

The  PRESIDING  OFFICER.  If  the  member  states  that  it  is  an  ob 
jection  to  the  certificate  from  the  State  of  Vermont,  the  Chair  will  direct 
it  to  be  read. 

Mr.  Representative  SPRINGER.  I  will  read  it  for  information.  [Cries 
of  "Object!"  "Object!"  and  "Order!"  "Order!"] 

The  PRESIDING  OFFICER.  It  is  out  of  order. 

Mr.  Representative  SPRINGER.  Gentlemen  may  as  well  hear  it 
read,  because  it  is  a  question  arising  under  the  electoral  act.  1  ask  that 
it  be  read. 

The  PRESIDING  OFFICER.  Objection  is  made. 

Mr.  Representative  SPRINGER.  I  ask  that  the  resolution  be  read  as 
a  question  arising  under  the  electoral  act.  The  question  is  this 

[Renewed  cries  of  "Order!"  "Order!"] 

The  PRESIDING  OFFICER.     Objection  is  made. 

Mr.  Representative  SPRINGER.  That  one  of  the  two  returns  from 
the  State  of  Vermont  has  not  been  laid  before  the  two  Houses. 

The  PRESIDING  OFFICER.  The  Chair  will  be  compelled  to  direct 
the  member  to  be  seated. 

Mr.  Representative  SPRINGER.  Mr.  President,  I  have  rights  upon 
this  floor  which  you  cannot  take  away  from  me,  rights  which  were  given 
me  by  the  people  I  have  the  honor  to  represent.  I  desire  to  submit  a 
"question  arising  under  the  electoral  act,"  and  now  ask  that  it  be 
entertained  by  the  Chair. 

The  PRESIDING  OFFICER.  The  Chair  has  decided  that  if  the  mem 
ber  states  that  ifc  is  an  objection  to  the  certificate  from  the  State  of 
Vermont,  with  the  signature  of  one  Senator  and  one  Representative,  it 
will  be  read  ;  but  if  not,  it  cannot  be  read. 

Mr.  Representative  SPRINGER.  It  is  a  question  arising  under  the 
electoral  act.  It  is  now  in  order,  and  I  ask  the  decision  of  the  Chair 
upon  it. 

The  PRESIDING  OFFICER.  The  Chair  decides  that  he  will  not 
entertain  anything  except  objections  to  the  certificate. 

Mr.  Representative  SPRINGER.  I  appeal  from  the  decision  of  the 
Chair. 

The  PRESIDING  OFFICER.  The  Chair  cannot  entertain  an  appeal. 
[Applause.]  The  Chair  requires  order. 


714  ELECTORAL    COUNT    OF    1877. 

Mr.  Representative  SPRINGER.  I  ask  that  the  question  be  put  on 
my  appeal. 

The  PRESIDING  OFFICER.  The  Chair  cannnot  entertain  any 
appeal. 

Mr.  Representative  SPRINGER.  This  objection  must'beread  ;  other- 
wise  the  count  cannot  be  proceeded  with  in  accordance  to  law.  [Cries 
of 'Order!"] 

The  PRESIDING  OFFICER.  The  member  from  Illinois  is  not  in 
order. 

Mr.  Representative  SPRINGER.  Will  the  Chair  allow  this  to  be 
stated  as  a  question  arising  under  the  act — as  an  objection  to  the 
counting  of  the  vote  ? 

The  PRESIDING  OFFICER.  The  Chair  has  stated,  and  will  state 
once  more,  that  if  the  gentleman  presents  an  objection  bearing  the  sig 
nature  of  a  Senator  and  a  Representative,  the  Chair  will  receive  it  and 
submit  it  to  the  joint  meeting. 

Mr.  Representative  SPRINGER.  Then  I  will  submit  this  as  an  objec 
tion  to  counting  the  vote,  on  the  ground  that  another  return  has  been 
sent  here  which  has  not  been  laid  before  the  two  Houses,  and  ask  time 
to  prepare  the  objection  in  due  form  and  present  it  with  the  signature 
of  a  Senator  and  a  Representative. 

The  PRESIDING  OFFICER.  When  the  member  submits  the  paper 
in  proper  form,  the  Chair  will  then  rule  upon  it. 

Mr.  Representative  POPPLETON.  I  send  up  an  obiection 

The  PRESIDING  OFFICER.  The  Chair  will  rule  upon  one  case  at 
a  time.  Let  order  be  restored  and  gentlemen  be  seated.  We  have  all 
night  before  us.  [A  pause,  during  which  Mr.  SPRINGER  was  preparing 
the  objection.]  The  member  from  Illinois  submits  an  objection  to  the 
certificate  from  the  State  of  Vermont.  Has  the  member  a  duplicate  ? 

Mr.  Representative  SPRINGER.  Not  now  5  it  will  be  prepared  here 
after. 

The  PRESIDING  OFFICER.  The  Clerk  of  the  House  will  report  the 
objection. 

The  Clerk  of  the  House  read  as  follows  : 

The  undersigned,  Senator  and  Members  of  the  House  of  Representatives,  object  to 
the  counting  of  the  vote  of  the  State  of  Vermont,  for  the  reason  that  two  returns,  or 
papers  purporting  to  be  returns,  of  the  electoral  vote  of  said  State  were  forwarded  to 
the  President  of  the  Senate,  and  that  only  one  of  said  returns  has  been  laid  before  the 
two  Houses,  the  President  of  the  Senate  having  stated  that  but  one  return  has  been 
received  by  him  from  said  State  ;  and  a  duplicate  copy  of  one  of  said  returns  is  herewith 
submitted  for  the  consideration  of  the  Senate  and  House  of  Representatives. 

A.  S.  MERRIMON, 

Senator* 

W.  M.  SPRINGER, 
A.  H.  HAMILTON, 
Members  of  the  Rouse  of  Representatives. 

The  PRESIDING  OFFICER.  Are  there  further  objections  to  the  cer 
tificate  of  the  State  of  Vermont  * 

Mr.  Representative  SPRINGER.  I  ask  that  the  telegram  accompany 
ing  this  objection  be  read. 

The  PRESIDING  OFFICER.  Is  there  objection  to  reading  the  accom 
panying  telegram  ? 

SEVERAL  MEMBERS  objected. 

Mr.  Representative  TOWNSEND,  of  New  York.  It  will  not  do  any 
hurt  to  read  it.  It  is  not  long. 

Mr.  Representative  SPRINGER.  It  is  a  short  telegram;  only  about 
ten  words. 


ELECTORAL    COUNT    OF    1877.  715 

The  PRESIDING  OFFICER.    Is  there  objection  ? 

Mr.  Representative  PAGE.    I  object.     [Cries  of  "O,  no."] 

The  PRESIDING  OFFICER.  Does  the  gentleman  persist  in  his  ob*- 
jection  9 

Mr.  Representative  PAGE.    I  waive  the  objection. 

The  PRESIDING  OFFICER.  The  Chair  hears  no  objection,  and  the 
telegram  will  be  read. 

The  Clerk  of  the  House  read  as  follows  : 

BURLINGTON,  VERMONT,  February  28,  1877. 
[Received  at  two  o'clock  and  twenty-six  minutes  p.  m.] 
To  S.  J.  RANDALL, 

•    ;      Speaker  of  the  House  of  Representatives : 

Certificate  of  Amos  Aldrich  as  elector  was  deposited  in  this  office  December  13. 

B.  B.  SMALLEY, 
Cleric  of  the  United  States  District  Court  for  Vermont. 

A  SENATOR.    That  is  not  the  post-office.    [Laughter.] 

The  PRESIDING  OFFICER.  Are  there  further  objections  to  the 
certificate  from  the  State  of  Vermont  ? 

Mr.  Representative  POPPLETON.  Yes,  sir.  I  submit  the  objection 
which  I  send  to  the  desk. 

The  PRESIDING  OFFICER.  The  member  from  Ohio  submits  an 
objection,  which  will  be  read  by  the  Secretary  of  the  Senate. 

The  Secretary  of  the  Senate  read  as  follows : 

The  undersigned,  Senator  and  Representatives,  object  to  the  return  from  the  State  01 
Vermont  on  the  grounds  following,  namely: 

1.  That  Henry  N.  Sollace,  who  is  certified  to  have  been  elected  on  the  7th  of  Novem 
ber,  1876,  was  at  that  day  and  for  a  long  time  before  had  been  a  postmaster  of  the 
United  States,  and  therefore  held  an  office  of  trust  and  profit  under  the  United  States, 
and  could  not  be  constitutionally  appointed  an  elector  of  said  State  under  the  Consti 
tution  of  the  United  States. 

2.  That  the  law  of  Vermont  did  not  authorize  the  election  of  said  Sollace  to  fill  the 
vacancy  alleged  to  have  been  the  result  of  the  absence  of  said  Sollace  from  the  college 
of  electors. 

3.  It  does  not  appear  that  said  Sollace  had  resigned  his  office  of  postmaster  at  the 
date  of  his  appointment  by  the  college  of  electors. 

4.  That  Amos  Aldrich,  who  received  the  highest  vote  at  the  election  on  the  7th  day 
of  November.  1876,  next  to  that  cast  for  said  Sollace,  should  have  been  allowed  to  have 
cast  one  of  the  electoral  votes  of  the  State  of  Vermont. 

W.  H.  BARNUM,  Connecticut, 

Senator. 

E.  F.  POPPLETON, 
J.  A.  McMAHON, 
JACOB  TURNEY,  Pennsylvania, 
JOHN  L.  VANCE,  Ohio, 
G.  G.  DIBRELL,  Tennessee, 
FRANK  H.  HURD, 
A.  T.  WALLING,  Ohio, 
WM.  TERRY, 

Representatives. 

The  PRESIDING  OFFICER.  Are  there  any  further  objections  to 
the  certificate  of  the  State  of  Vermont  ? 

Mr.  Representative  POPPLETON.  I  submit  the  following  additional 
objections. 

The  PRESIDING  OFFICER.  Has  the  member  from  Ohio  a  dupli 
cate  '? 

Mr.  Representative  POPPLETON.  I  will  furnish  a  duplicate  here 
after. 

•*  The  PRESIDING  OFFICER.    The  objections  will  be  read  by  the 
Clerk  of  the  House  of  Representatives. ' 


716  ELECTORAL    COUNT    OF    1877 

The  Clerk  of  the  House  read  as  follows  : 

The  undersigned,  Senator  and  Members,  object  to  the  return  No.  1  from  the  State  of 
Vermont  on  the  ground  following,  to  wit : 

I.  That  Henry  N.  Sollace,  who  is  certified  to  have  been  elected  on  the  7th  day  of 
November,  1876,  was  at  that  day,  and  for  a  long  time  before  had  been,  a  postmaster  of 
the  United  States,  and  therefore  held  an  office  of  trust  and  profit  under  the  United 
States,  and  could  not  be  constitutionally  appointed  an  elector  of  said  State  under  the 
Constitution  of  the  United  States. 

II.  That  the  law  of  Vermont  did  not  authorize  the  election  of  said  Sollace  to  fill  the 
vacancy  alleged  to  have  been  the  result  of  the  absence  of  said  Sollace  from  the  college 
of  electors. 

III.  It  does  not  appear  that  said  Sollace  had  resigned  his  office  of  postmaster  at  the 
date  of  his  appointment  to  the  college  of  electors,  which  fact  is  proper  to  be  inquired 
of  by  the  Commission  established  by  law. 

IV.  It  is  proper  for  the  said  Commission  to  inquire  and  report  whether  Amos  Aldrich, 
who  received  the  highest  number  of  votes  at  the  election  on  the  7th  day  of  November, 
1876,  next  to  that  cast  for  said  Sollace,  and  who  is  certified  as  an  elector  by  certificate 
No.  2,  is  not  a  duly  appointed  elector  for  the  State  of  Vermont. 

W.  H.  BARNUM,  of  Connecticut, 

Senator. 

EARLEY  F.  POPPLETON,  of  Ohio, 
JOHN  A.  McMAHON,  of  Ohio, 
JACOB  TURNEY,  of  Pennsylvania, 
JOHN  L.  VANCE,  of  Ohio, 
GEORGE  G.  DIBRELL,  of  Tennessee, 
FRANK  H.  HURD,- of  Ohio, 
ANSEL  T.  WALLING,  of  Ohio, 
WILLIAM  TERRY,  of  Virginia, 

Representatives. 

The  PRESIDING  OFFICER.  Are  there  further  objections  to  the 
certificate  of  the  State  of  Vermont  ? 

Mr.  Representative  SPRINGER.  I  ask  that  the  duplicate  return  shall 
now  be  opened  by  the  Presiding  Officer  and  read  by  the  tellers. 

The  PRESIDING  OFFICER.  The  original  certificate  from  the  State 
of  Vermont  has  been  read. 

Mr.  Representative  SPRINGER.  I  refer  to  the  dual  return  submitted 
with  ray  objections,  and  referred  to  in  those  objections.  [Cries  of 
"  Order  P]  I  ask  that  that  second  return  be  opened  and  now  read. 

The  PRESIDING  OFFICER.    That  is  not  an  objection. 

Mr.  Representative  SPRINGER.  That  is  not  an  objection,  but  it  is 
my  right  to  demand  that  it  shall  be  read  as  it  has  been  laid  before  the 
two  Houses.  [Cries  of  "Order  !"]  tt  is  my  right  to  have  it  read. 

The  PRESIDING  OFFICER.  Does  the  gentleman  refer  to  the  one 
corresponding  with  that  received  by  messenger ;  that  is,  the  one  received 
by  mail  ? 

Mr.  Representative  SPRINGER.  I  allude  to  the  one  submitted  by 
the  gentleman  from  NeT  York,  [Mr.  Hewitt.] 

The  PRESIDING  OFFICER.  So  tke  Chair  understood,  and  rules  it 
out. 

Mr.  Representative  SPRINGER.  I  ask  that  the  Chair  will  now  order, 
the  State  of  Vermont  having  forwarded  double  returns,  that  those  re* 
turns  and  the  objections  thereto  shall  now  be  submitted  to  the  judgment 
of  the  Electoral  Commission.  [Laughter  and  cries  of  "  Object! "] 

The  PRESIDING  OFFICER.  The  Presiding  Officer  has  stated  that 
he  has  not  received  any  duplicate  returns  from  the  State  of  Vermont. 

Mr.  Representative  SPRINGER.  They  are  now  before  the  joint  meet 
ing,  presented  by  the  gentleman  from  New  York. 

The  PRESIDING  OFFICER.  Are  there  further  objections  to  the 
certificate  from  the  State  of  Vermont  ?  The  Chair  hears  none. 

Mr.  Representative  SPRINGER.  Does  the  Chair  decline  to  receive 
the  return  laid  on  the  table  with  rny  objections  ? 


ELECTORAL   COUNT    OF    1877.  717 

The  PRESIDING  OFFICER.  The  Chair  declines  to  receive  any  re 
turn  from  any  State  at  this  time. 

Mr.  WADDELL.     As  being  aliunde,  I  suppose.  Mr.  President  ? 

The  PRESIDING  OFFICER.     In  any  form. 

If  there  are  no  further  objections  to  the  certificate  from  the  State  of 
Vermont,  the  Senate  will  withdraw  to  its  chamber  to  separately  consider 
the  objections  already  presented  and  read. 

Mr.  Representative  SPRINGER.  I  make  the  point  that  the  electoral 
vote  of  the  State  of  Vermont  now  goes  to  the  Commission,  and  cannot 
be  considered  separately  by  the  two  Houses.  [Laughter.]  O,  yes ;  you 
can  laugh  now,  but  the  laugh  will  be  on  the  other  side  after  a  while. 
Let  me  tell  gentlemen  that  the  law  which  they  have  been  so  anxious  to 
carry  out  heretofore  is  now  being  disregarded  by  them.  [Laughter.] 

The  Senate  (at  seven  o'clock  and  ten  minutes  p.  m.)  withdrew. 

IN  SENATE,  Wednesday,  February  28,  1877. 

The  Senate  having  returned  from  the  joint  meeting  at  seven  o'clock 
and  fifteen  minutes  p.  m.,  the  President  pro  tempore  resumed  the  chair 
and  caused  to  be  read  the  objections  submitted  to  the  certificate  from 
from  the  State  of  Vermont ;  whereupon 

Mr.  Senator  EDMUNDS  offered  the  following  resolution ;  which,  after 
debate,  was  adopted  by  a  vote  of  yeas  47,  nays  0: 

Resolved,  That  the  vote  of  Henry  N.  Sollace  as  an  elector  for  the  State  of  Vermont 
be  counted  together  with  the  other  four  electoral  votes  of  that  State,  the  objections 
to  the  contrary  notwithstanding. 

On  motion  of  Mr.  Senator  EDMUNDS,  the  Secretary  was  directed 
to  notify  the  House  of  Representatives  of  this  action  and  of  the  readi 
ness  of  the  Senate  to  meet  the  House  to  continue  the  count  of  the 
electoral  votes. 

The  Senate  (being  advised  that  the  House  of  Representatives  had 
taken  a  recess)  took  a  recess  at  seven  o'clock  and  forty  minutes  p.  m. 
until  to-morrow  at  ten  o'clock  a.  m. 

IN  THE  HOUSE  OF  REPRESENTATIVES, 

Wednesday,  February  28,  1877. 

The  Senate  having  withdrawn  from  the  hall  of  the  House  at  seven 
o'clock  and  ten  minutes  p.  in.,  the  House  resumed  its  session,;  and  the 
Speaker,  acting  under  the  previous  unanimous  agreement  of  the  House, 
directed  a  recess  to  be  taken  until  to-morrow  at  ten  o'clock  a.  m. 

IN  SENATE,  Thursday,  March  1, 1877. 

The  recess  taken  from  the  previous  day  having  expired,  the  Senate 
resumed  its  session  on  Thursday,  March  1,  at  ten  o'clock  a.  m.,  trans 
acting  no  business. 

At  ten  o'clock  and  fifty  minutes  p.  m.,  a  message  was  received  from 
the  House  of  Representatives  announcing  its  resolution  in  regard  to 
the  vote  of  Henry  N.  Sollace,  claiming  to  be  an  elector  for  the  State  of 
Vermont ; 

Whereupon  the  Senate  immediately  proceeded  to  the  hall  of  the 
House. 

IN  THE  HOUSE  OF  REPRESENTATIVES, 

Thursday,  March  1,  1877. 

The  recess  taken  from  the  previous  day  having  expired,  the  House 
of  Representatives  resumed  its  session  on  Thursday,  March  1,  at  ten 
o'clock  a.  m. 


718  ELECTORAL    COUNT    OF    1877. 

Mr.  Eepresentative  WOOD,  of  New  York,  rose  to  submit  a  resolu 
tion,  and  was  recognized  by  the  Speaker. 

Mr.  Eepresentative  WALLING  moved  a  call  of  the  House ;  which 
motion  was  disagreed  to — yeas  68,  nays  169. 

Mr.  Eepresentative  WALLING  moved  a  reconsideration  of  the  vote 
by  which  a  call  of  the  House  was  refused. 

On  motion  of  Mr.  Eepresentative  HALE,  the  motion  to  reconsider 
was  laid  on  the  table — yeas  173,  nays  66. 

A  message  was  received  from  the  Senate  announcing  its  resolution 
on  the  objection  to  the  vote  of  Henry  N.  Sollace  as  elector  of  the  State 
of  Vermont  and  its  readiness  to  meet  the  House  to  proceed  with  the 
electoral  count. 

Mr.  Eepresentative  WOOD,  of  New  York,  submitted  the  following 
resolution : 

Resolved,  That  the  vote  of  Henry  N.  Sollace,  claiming  to  be  an  elector  from  the  State 
of  Vermont,  be  not  counted. 

Mr.  Eepresentative  POPPLETON  claimed  the  floor  as  objector  in 
the  joint  meeting  to  the  vote  of  Sollace  as  an  elector  for  Vermont. 

Mr.  Eepreseutative  CAUL  FIELD  claimed  the  floor  on  a  question  of 
high  privilege. 

The  SPEAKEE  declined  to  entertain  the  claim  of  Mr.  Eepresentative 
Caulfield  at  present,  as  there  can  be  but  one  question  of  privilege  pend 
ing  at  a  time. 

Mr.  Eepresentative  POPPLETON  submitted  the  following : 

Whereas,  at  a  joint  meeting  of  the  two  Houses  on  the  28th  day  of  February,  1877, 
a  sealed  package,  addressed  to  the  President  of  the  Senate,  purporting  to  contain  the 
electoral  vote  of  the  State  of  Vermont,  was  delivered  to  the  said  President  of  the 
Senate  by  Mr.  Hewitt,  a  member  of  this  House,  who  then  stated  that  he  received  it 
by  express  about  the  middle  of  December  last,  and  with  it  a  letter  notifying  him  that 
a  similar  package  had  been  forwarded  by  mail  to  the  President  of  the  Senate ;  and 
said  Hewitt  being  informed  by  the  said  President  that  no  package  had  been  received 
corresponding  thereto,  that  he,  Mr.  Hewitt,  had,  previously  to  said  joint  meeting, 
tendered  said  package  to  said  President  of  the  Senate,  who  declined  to  receive  the 
same,  and  which  statement  was  not  denied ; 

And  whereas  it  also  appeared  by  a  telegram  from  the  clerk  of  the  district  court  of 
the  United  States  for  the  district  of  Vermont  that  a  duplicate  of  said  return  was 
deposited  in  that  office  on  the  13th  day  of  December,  1876 ; 

And  whereas  objections  were  made  pursuant  to  law  to  the  certificate  purporting  to 
be  the  electoral  vote  of  Vermont  which  had  been  opened  by  the  President  of  the 
Senate  in  the  presence  of  the  two  Houses,  and  said  package  was  in  terms  made  a  part 
of  said  objection,  and  still  remains  unopened,  and  said  objection  cannot  be  considered 
until  said  package  is  opened  according  to  law ; 

And  whereas  the  said  return  then  tendered  to  said  President  of  the  Senate  in  the 
presence  of  the  two  Houses  was  retained  by  him  or  by  the  Secretary  of  the  Senate, 
and  the  said  President  of  the  Senate  refused  to  open  said  sealed  package  in  the  pres 
ence  of  the  two  Houses  :  Therefore, 

Resolved  ~by  the  House  of  Representatives ',  That  the  refusal  of  the  President  of  the 
Senate  to  open,  in  the  presence  of  the  Senate  and  House  of  Representatives,  said 
sealed  package,  purporting  to  be  the  electoral  vote  of  the  State  of  Vermont,  was  a 
violation  of  law  and  of  the  privileges  of  this  House,  and  that,  until  said  package  shall 
be  opened  pursuant  to  law  in  the  presence  of  the  two  Houses  of  Congress,  the  count 
ing  of  the  votes  cannot  further  proceed  according  to  the  Constitution  and  law  now  in 
existence  for  the  counting  of  said  electoral  votes  for  President  and  Vice-President  of 
the  United  States. 

Resolved  further,  That  the  Clerk  of  this  House  inform  the  Senate  of  the  adoption  of 
the  foregoing  preamble  and  resolution,  and  request  the  Senate  to  meet  this  House  in 
joint  session,  to  the  end  that  said  package  purporting  to  be  a  certificate  of  the  elect 
oral  vote  of  Vermont  be  opened  by  the  President  of  the  Senate,  and  that  the  proceed 
ings  thereafter  be  held  according  to  law. 

Mr.  Eepresentative  WOOD,  of  New  York,  made  the  point  of  order 
that  the  paper  submitted  by  Mr.  Eepresentative  Poppleton  was  not  in 
order  under  the  first  section*  of  the  electoral  act. 


ELECTORAL    COUNT    OF    1877.  719 

The  SPEAKEE  held  that,  while  in  his  opinion  a  grave  mistake  and 
wrong  had  been  committed  in  the  joint  meeting  of  the  two  Houses 
yesterday  by  the  refusal  of  the  Presiding  Officer  to  receive,  even  for 
opening  and  reading  for  information,  a  package  which  had  all  the  sur 
roundings  of  an  authentic  and  duly-attested  paper  in  relation  to  an 
electoral  vote  for  the  State  of  Vermont,  he  was  also  of  opinion  that 
there  was  no  power  in  the  House  to  reverse  the  decision  of  the  Presiding 
Officer  of  the  joint  meeting.  In  his  view,  however,  so  much  of  the 
paper  submitted  by  the  member  from  Ohio  [Mr.  Poppleton]  as  requests 
the  return  of  certain  papers  from  the  Senate,  alleged  in  the  preamble 
to  have  been  taken  away  in  an  undue  manner,  was  in  order. 

Mr.  Eepresentative  POPPLETON  thereupon  modified  his  resolution 
to  conform  to  the  decision  of  the  Chair. 

The  SPEAKEE  decided  this  to  be  the  pending  resolution,  and  the 
proposition  of  the  member  from  New  York  [Mr.  Wood]  an  amendment 
thereto. 

Mr.  Eepresentative  KNOTT  submitted  the  following  as  an  amend 
ment  in  the  nature  of  a  substitute  for  the  modified  resolution : 

Resolved,  That  this  House  require  that  the  package  tendered  by  the  member  from 
New  York  [Mr.  Hewitt]  to  the  President  of  the  Senate  in  the  presence  of  the  two 
Houses  on  yesterday,  and  purporting  to  be  a  certificate  of  the  electoral  vote  for  the 
President  and  Vice-President  of  the  United  States  in  the  State  of  Vermont,  shall  be 
opened  by  the  President  of  the  Senate  in  the  presence  of  the  two  Houses,  and  if  found 
to  be  such  a  certificate,  the  same  shall  be  submitted,  together  with  the  certificate  read 
in  the  presence  of  the  two  Houses,  to  the  Electoral  Commission  for  its  judgment  and 
decision,  and  that  the  Senate  be  requested  to  make  a  like  order,  requiring  the  Presi 
dent  of  the  Senate  to  open  said  package  in  the  presence  of  the  two  Houses ;  and 
until  such  order  be  made  the  House  will  not  be  ready  to  meet  the  Senate  to  proceed 
with  the  count  of  the  electoral  vote. 

Mr.  Eepresentative  POPPLETON  accepted  the  proposed  amendment. 

The  question  being  raised,  the  SPEAKEE  ruled  that  the  two  hours' 
debate  authorized  by  the  electoral  law  would  now  commence  ;  from  which 
ruling  Mr.  Eepresentative  CAULFIELD  appealed ;  but  the  Speaker 
declined  to  entertain  the  appeal. 

A  scene  of  confusion  followed,  several  members  protesting  against  the 
action  of  the  Speaker  and  others  insisting  that  proceedings  should  con 
tinue  according  to  the  electoral  law. 

When  order  was  restored,  debate  proceeded;  and  after  two  hours' 
debate  the  proposition  of  Mr.  Eepresentative  Knott,  accepted  by  Mr. 
Eepresentative  Poppleton,  was  rejected — yeas  116,  nays  148. 

The  question  recurring  on  the  amendment  of  Mr.  Eepresentative  Wood, 
of  New  York,  to  the  original  resolution  submitted  by  Mr.  Eepresentative 
Poppleton, 

Mr.  Eepresentative  HOPKINS  moved  to  amend  the  amendment  by 
striking  out  all  after  the  word  "Eesolved"  and  inserting — 

That  this  House  requires  that  the  package  tendered  by  the  member  from  New  York 
[Mr.  Hewitt]  to  the  President  of  the  Senate  in  the  presence  of  the  two  Houses  on 
yesterday,  and  purporting  to  be  a  certificate  of  electoral  votes  for  President  and  Vice- 
President  of  the  United  States  in  the  State  of  Vermont,  shall  be  opened  by  the  Presi 
dent  of  the  Senate  in  the  presence  of  the  two  Houses;  and,  if  found  to  be  such  a  certifi 
cate,  the  same  shall  be  submitted,  together  with  the  certificate  read  in  the  presence  of 
the  two  Houses,  to  the  Electoral  Commission  for  its  judgment  and  decision ;  and  that 
the  Senate  be  requested  to  make  a  like  order  requiring  the  President  of  the  Senate  to 
open  said  package  in  the  presence  of  the  two  Houses. 

The  amendment  to  the  amendment  was  rejected — yeas  115,  nays  147. 
Mr.  Eepresentative  LANE  moved  to  reconsider  the  vote  rejecting  the 
amendment  to  the  amendment. 


720  ELECTORAL    COUNT    OF    1877. 

Mr.  Kepresentative  HALE  moved  to  lay  the  motion  for  reconsidera 
tion  on  the  table;  which  was  agreed  to — yeas  171,  nays  80. 

Mr.  Representative  WALLING  moved  that  the  pending  resolution 
be  laid  on  the  table. 

Mr.  Kepresentative  McCRARY  made  the  point  of  order  that  under 
the  electoral  law  this  motion  was  not  in  order,  but  the  main  question 
was  required  to  be  put. 

The  SPEAKER  overruled  the  point  of  order,  on  the  ground  that  any 
motions  which  are  allowed  by  the  rules  of  the  House,  and  which  pertain 
to  the  main  question,  are  in  order  at  any  period  of  the  progress  of  the 
main  question. 

The  question  being  put  on  the  motion  to  lay  on  the  table,  it  was  de 
cided  in  the  negative — yeas  61,  nays  167. 

Mr.  Representative  POPPLETON  moved  to  reconsider  the  vote  last 
taken. 

Mr.  Kepresentative  WOOD,  of  New  York,  raised  the  point  of  order 
that  this  was  a  dilatory  motion,  and  therefore  not  in  order  at  this  stage. 

The  SPEAKER  overruled  the  point  of  order. 

The  question  being  taken  on  the  motion  to  reconsider,  it  was  decided 
in  the  negative — yeas  64,  nays  162. 

The  amendment  of  Mr.  Representative  Wood,  of  New  York,  was  then 
agreed  to — yeas  208,  nays  17. 

Mr.  Kepresentative  O'BRIEN  moved  to  reconsider  the  vote  last  taken. 

Mr.  Representative  GARFIELD  moved  to  lay  the  motion  to  recon 
sider  on  the  table;  which  was  agreed  to — yeas  172,  nays 55. 

The  question  recurring  on  the  resolution  submitted  by  Mr.  Represent 
ative  Poppleton,  as  amended  by  the  substitute  of  Mr.  Representative 
Wood,  of  New  York,  viz : 

Pesohed,  That  the  vote  of  Henry  N.  Sollace,  claiming  to  he  an  elector  from  the  State 
of  Vermont,  he  not  counted, 

Mr.  Representative  YANCE,  of  Ohio,  moved  to  lay  the  resolution  on 
the  table  ;  which  motion  was  disagreed  to — yeas  53,  nays  180. 

Mr.  Representative  MONEY  moved  to  reconsider  the  vote  last  taken. 

Mr.  Representative  HALE  moved  to  lay  the  motion  to  reconsider  on 
the  table ;  which  was  agreed  to — yeas  170,  nays  57. 

The  question  recurring  on  the  original  resolution  as  amended, 

Mr.  Representative  WALLING  asked  to  be  excused  from  voting 
thereon. 

Mr.  Representative  YANCE,  of  Ohio,  moved  that  his  colleague  [Mr. 
Walling]  be  excused. 

The  Speaker  declined  to  entertain  the  motion. 

Mr.  Representative  WALLING  appealed  from  the  decision  of  the 
Chair. 

The  Speaker  declined  to  entertain  the  appeal. 

The  resolution,  as  amended,  was  then  agreed  to — yeas  207,  nays  26. 

Mr.  Representative  CLARK,  of  Missouri,  moved  to  reconsider  the 
vote  last  taken. 

Mr.  Representative  HALE  moved  that  the  motion  to  reconsider  be 
laid  on  the  table ;  which  was  agreed  to — yeas  174,  nays  59. 

Mr.  Representative  O'BRIEN  claimed  the  floor  to  submit  a  resolution 
notifying  the  Senate  of  the  action  of  the  House. 

The  SPEAKER  stated  that  he  had  allowed  a  vote  to  be  taken  on 
every  legitimate  legislative  motion.  He  had  allowed  the  motion  to  re 
consider  to  be  voted  on  whenever  made,  so  that  the  House  might  have 
an  opportunity  to  correct  any  error  it  might  have  committed.  The 
House  had  had  an  opportunity  to  vote  on  the  motion  to  lay  on  the  table 


ELECTORAL   COUNT    OF   1877.  721 

the  propositions  themselves  and  on  the  motions  to  reconsider  the  votes 
upon  those  propositions.  The  House,  having  now  advanced  to  a  decla 
ration  of  its  judgment  on  the  objection  to  counting  the  vote  from  the 
State  of  Vermont,  was  brought  to  the  following  paragraph  of  the  law 
as  its  guide  and  its  mandatory  instruction : 

When  the  two  Houses  have  voted,  they  shall  immediately  again  meet,  and  the  Pre 
siding  Officer  shall  then  announce  the  decision  of  the  question  submitted. 

The  Senate  had  notified  the  House  of  its  action  on  the  objection  ;  the 
House  had  now  reached  its  judgment  on  the  objection  ;  and  it  was  the 
duty  of  the  Chair,  by  the  terms  of  the  law,  mandatory  and  ministerial, 
to  notify  the  Senate  to  that  effect ;  and  he  therefore  directed  the  Clerk 
accordingly. 

JOINT  MEETING. 

THURSDAY,  March  1, 1877. 

The  Senate  entered  the  hall  of  the  House  of  Representatives  at  ten 
o'clock  and  fifty-five  minutes  p.  m.,  in  the  usual  manner. 

The  PRESIDENT  pro  tempore  of  the  Senate  took  his  seat  as  presid 
ing  officer  of  the  joint  meeting,  the  Speaker  of  the  House  occupying  a 
chair  on  his  left. 

The  PRESIDING  OFFICER.  The  joint  meeting  of  Congress  resumes 
its  session.  The  two  Houses  separately  having  determined  on  the  ob 
jection  to  the  certificate  from  the  State  of  Vermont, 'the  Secretary  of 
the  Senate  will  now  read  the  resolution  of  the  Senate. 

The  Secretary  of  the  Senate  read  as  follows : 

Resolved,  That  the  vote  of  Henry  N.  Sollace,  as  an  elector  for  the  State  of  Vermont, 
be  counted,  together  with  the  other  four  electoral  votes  of  that  State,  the  objections 
to  the  contrary  notwithstanding. 

The  PRESIDING  OFFICER.    The  Clerk  of  the  House  will  now  read 
the  resolution  of  the  House. 
The  Clerk  of  the  House  read  as  follows  : 

Resolved,  That  the  vote  of  Henry  N.  Sollace,  claiming  to  be  an  elector  from  the  State 
of  Vermont,  be  not  counted. 

The  PRESIDING  OFFICER.  The  two  Houses  not  having  concurred 
in  an  affirmative  vote  to  reject  one  of  the  votes  from  the  State  of  Ver 
mont,  the  whole  vote  of  that  State  will  be  counted.  The  tellers  will 
announce  the  vote. 

Mr.  Senator  INGALLS,  (one  of  the  tellers.)  The  State  of  Vermont 
casts  5  votes  for  Rutherford  B.  Hayes,  of  Ohio,  as  President,  and  5  votes 
for  William  A.  Wheeler,  of  New  York,  as  Vice-President. 

UNDISPUTED  STATES. 

The  PRESIDING  OFFICER.  Having  opened  the  certificate  received 
by  messenger  from  the  State  of  Virginia,  the  Chair  hands  the  same  to 
the  tellers  to  be  read  in  the  presence  and  hearing  of  the  two  Houses. 
The  corresponding  one  received  by  mail  is  also  handed  to  the  tellers. 

Mr.  Representative  WOOD,  of  New  York.  Mr.  President,  I  suggest 
that  the  result  be  announced  without  the  full  reading  of  the  papers. 

Mr.  Representative  LANE  and  others  objected. 

The  PRESIDING  OFFICER.  Objection  is  made,  and  the  certificate 
will  be  read  in  full. 

The  certificate  having  been  read  by  Mr.  Representative  Cook,  (one 
of  the  tellers,)  and  there  being  no  objection  thereto,  the  vote  of  Virginia 
was  counted — 11  votes  for  Samuel  J.  Tilden,  of  New  York,  as  President, 
and  11  votes  for  Thomas  A.  Hendricks,  of  Indiana,  as  Vice-President. 
46  E  c 


722  ELECTORAL    COUNT    OF    1877. 

The  certificate  from  the  State  of  West  Virginia  was  next  opened ;  and 
having  been  read  by  Mr.  Representative  Stone,  (one  of  the  tellers,)  and 
there  being  no  objection  thereto,  the  vote  of  West  Virginia  was  counted 
— 5  votes  for  Samuel  J.  Tilden,  of  New  York,  as  President,  and  5  votes 
for  Thomas  A.  Hendricks,  of  Indiana,  as  Vice-President. 

WISCONSIN. 

The  certificate  from  the  State  of  Wisconsin  was  next  opened  j  and,  it 
having  been  read  by  Mr.  Senator  Allison,  (one  of  the  tellers,) 

The  PRESIDING  OFFICER.  Are  there  any  objections  to  the  cer 
tificate  from  the  State  of  Wisconsin  ? 

Mr.  Representative  LYNDE.    I  send  to  the  Chair  an  objection. 

The  objection  was  read,  as  follows,  by  the  Clerk  of  the  House : 

The  undersigned,  Senators  and  Representatives,  object  to  the  counting  of  the  vote 
of  Daniel  L.  Downs  as  an  elector  for  the  State  of  Wisconsin  upon  the  following  grounds, 
namely : 

That  the  said  Daniel  L.  Downs  held  the  office  of  pension  surgeon  and  of  examining 
surgeon  for  the  Pension-Office,  by  valid  appointment  under  the  laws  of  the  United 
States,  prior  to  the  7th  day  of  November,  1876,  the  day  of  the  presidential  election, 
and  upon  said  day  and  upon  the  6th  day  of  December,  1876,  at  the  time  of  his  assum 
ing  to  cast  a  vote  as  elector  for  the  State  of  Wisconsin,  and  that  he  has  continually 
held  said  office  from  a  long  period  prior  to  the  said  7th  day  of  November,  1876,  until 
the  present  time ;  and  the  undersigned  therefore  state  that  said  Downs,  as  pension 
surgeon  and  as  examining  surgeon  for  the  Pension-Office  as  aforesaid,  held  an  office  of 
trust  and  profit  under  the  United  States  on  the  day  of  the  presidential  election  and  on 
the  day  that  he  voted  as  an  elector  for  the  State  of  Wisconsin,  and  therefore  could  not 
be  constitutionally  appointed  an  elector  for  the  State  of  Wisconsin  or  vote  as  such 
under  the  Constitution  of  the  United  States. 

Wherefore  the  undersigned  aver  that  the  said  Downs  was  not  duly  appointed  an 
elector  for  the  said  State,  and  that  his  vote  cannot  be  constitutionally  counted.  And 
the  undersigned  hereto  annex  the  evidence  of  the  facts  above  stated  and  to  be  taken 
as  a  part  of  their  objections. 

W.  H.  BARNUM,  Connecticut; 

J.  E.  McDONALD,  Indiana ; 

JAS.  K.  KELLY,  Oregon : 

HENRY  COOPER,  Tennessee ; 

JOHN  W.  JOHNSTON,  Virginia; 
.  Senators. 

WM.  P.  LYNDE,  Wisconsin ; 

J.  F.  PHILIPS,  Missouri ; 

SAML.  D.  BURCHARD ; 

J.  R.  TUCKER,  Virginia ; 

WM.  M.  SPRINGER; 

A.  V.  RICE,  Ohio; 

JOHN  L.  VANCE,  Ohio; 

CASEY  YOUNG,  Tennessee  ; 

H.  D.  MONEY, 

Ecpresentatives. 


WASHINGTON,  D.  C.,  February  3,  1877. 
DANIEL  L.  DOWNS  sworn  and  examined. 

By  Mr.  SPARKS  : 

Question.  Were  you  appointed  elector  in  the  State  of  Wisconsin  in  the  last  presiden 
tial  election  1 
Answer.  I  was. 
Q.  In  what  district  ? 
A.  In  the  third  congressional  district. 
Q.  Did  you  sit  as  a  member  of  the  electoral  college  ? 
A.  I  did. 
Q.  And  voted  ? 
A.  And  voted. 
Q.  For  whom  were  the  electoral  votes  of  Wisconsin  cast  ? 


ELECTORAL    COUNT    OF    1877.  723 

A.  For  Hayes  and  Wheeler. 

Q.  You  were  on  the  ticket  and  were  elected  ? 

A.  Yes. 

Q.  Did  you  hold  any  office  under  the  Government  of  the  United  States  at  the  time 
you  were  appointed  elector  ? 

A.  I  can  only  give  rny  opinion  on  that  point.  I  never  understood  myself  as  holding 
an  office.  I  held  the  position  of  examining  surgeon  for  the  Pension-Office. 

Q.  Did  you  hold  that  position  at  the  time  you  were  elected  ? 

A.  I  did. 

Q.  Did  you  hold  it  at  the  time  you  acted  and  voted  ? 

A.  I  did. 

Q.  And  hold  it  now  ? 

A.  Yes,  sir. 

Q.  How  long  have  you  held  it  ? 

A.  My  recollection  is  that  I  received  the  appointment  in  1863. 

Q.  And  that  has  continued  up  to  the  present  time  ? 

A.  It  has  continued  up  to  the  present  time. 

Q.  Have  you  your  appointment  with  you  ? 

A.  I  have  not. 

Q.  It  was  in  writing  ? 

A.  Yes,  sir.  ,  • 

Q.  By  whom  were  you  appointed  ? 

A.  By  the  Commissioner  of  Pensions. 

Q.  Did  you  derive  any  profit  from  the  position  ? 

A.  I  did.  The  compensation  is  fixed  by  law.  In  the  first  instance,  when  I  was  first 
appointed.  I  received  nothing  from  the  United  States  Government.  The  law  was  then 
changed  so  that  I  received  $1.50  for  each  examination,  which  was  paid  by  the  applicant 
and  was  refunded  to  him  on  the  first  payment  of  his  pension.  The  law  has  been  since 
changed,  so  that  now  I  have  a  fee  which  is  paid  by  the  Government  of  the  United 
States. 

Q.  How  much  from  each  applicant  ? 

A.  Two  dollars  from  each  person  referred  to  me  for  examination  and  examined. 

Q.  How  many  applicants  do  you  examine  a  year  ? 

A.  The  biennial  examination  would  probably  amount  to  sixty  persons.  In  the  other 
odd  year,  there  would  be  some  fifteen  or  twenty  examinations  in  the  course  of  a  year. 

Q.  How  many  examinations  would  that  make  annually  ? 

A.  Probably  an  average  of  forty. 

By  Mr.  BURCHARD  : 

Q.  There  is  no  salary  connected  with  your  position  ? 
A.  No,  sir. 

Q.  Nothing  but  a  fee  ? 
A.  A  fee  in  each  case. 
Q.  At  first  it  was  paid  by  the  applicant  ? 
A.  Yes. 

Q.  When  was  the  law  changed  ? 
A.  I  cannot  tell  you. 

Q.  Are  you  now  paid  on  a  statement  of  account  ? 

A.  Yes ;  I  render  a  monthly  account,  and  return  the  notice  of  reference  with  my 
accounts  to  the  Pension-Office. 

Q.  Was  there  any  question  raised  as  to  your  eligibility  as  a  presidential  elector  ? 
A.  Not  before  the  election  ;  there  was  after  the  election. 

By  Mr.  LAWRENCE  : 

Q.  It  never  was  mentioned  before  the  election  ? 
A.  Not  that  I  know  of. 

Q.  How  many  examining  surgeons  are  there  in  your  county  ? 
A.  None,  besides  myself. 
Q.  How  many  in  the  congressional  district  ? 
A.  I  cannot  answer ;  I  know  three  or  four. 

By  Mr.  SPARKS  :  • 

Q.  You  say  that  at  first  the  applicant  paid  a  fee  of  .$1.50  ? 
A.  Yes,  sir. 

Q.  And  that  was  refunded  to  the  applicant  by  the  Government  ? 
A.  That  was  my  understanding  of  it. 
Q.  So  that  the  Government  paid  it. 
A.  Yes. 

Q.  When  was  the  law  changed  that  you  got  $2  for  each  examination  ? 
A.  I  cannot  tell  you  the  time  ;  my  recollection  is  that  it  was  about  1868  or  1870. 


724  ELECTORAL    COUNT    OF    1877 

Q.  Since  then  the  fee  has  been  $2  for  each  examination,  and  has  been  paid  by  the 
Government  ? 

A.  Yes. 

Q.  At  what  period  is  that  paid  ? 

A.  Monthly.  I  make  out  a  monthly  statement  of  the  business  done  by  me  and  send 
it  to  the  Pension-Office,  together  with  the  orders  of  reference.  The  Pension-Office 
approves  of  the  account  and  returns  it.  and  it  goes  to  the  pension  agent  of  the  district, 
and  he  pays  it. 

By  Mr.  BURCHAKD  : 

Q.  You  did  not  suppose  that  you  were  ineligible  as  a  presidential  elector,  and  do  not 
suppose  it  now  ? 

A.  No,  sir;  that  was  not  my  understanding. 
Q.  And  no  one  else  supposed  so,  to  your  knowledge  ? 
A.  No,  sir ;  I  understand  that  I  was  simply  an  employ  6  of  the  Pension-Office. 

By  the  CHAIRMAN  : 

Q.  When  did  you  receive  your  appointment?  . 
A.  My  recollection  is  that  I  received  it  in  1868.    I  cannot  state  positively. 

By  Mr.  BURCHARD  : 

Q.  The  examination  biennially  is  of  the  same  or  nearly  the  same  persons,  is  it  not? 

A.  Of  the  same  persons  exactly ;  all  persons  except  those  who  are  termed  perma 
nently  disabled  have  to  be*  examined  biennially,  simply  to  ascertain  whether  a  contin 
uation  of  the  disabilities  exists. 

By  Mr.  SPARKS  : 

Q.  There  is  a  list  of  persons  whom  you  examine  biennially  ? 

A.  Yes,  sir. 

Y.  And  then  there  are  original  applicants  constantly  coming  in  for  examination  ? 

A.  Yes,  sir. 

Q.  And  you  receive  $2  per  capita  for  each  examination  ? 

A.  Yes,  sir. 

Q.  Where  is  your  appointment  ? 

A.  I  am  not  positive  whether  I  have  it  in  my  possession  at  home  or  not.  I  think  I 
have. 

Q.  What  other  duties  do  you  perform  besides  mere  examinations  ? 

A.  Not  any,  except  that  I  make  a  report  after  I  make  the  examination.  I  send  the 
certificate  of  each  examination  directly  to  the  Pension  Office,  excepting  the  certificates 
of  biennial  examination.  These  go  to  the  pension  agent  and  duplicates  to  the  Pension 
Office. 

Q.  Do  you  make  any  other  report  except  those  certificates  ? 

A.  No ;  except  that  I  make  out  an  account  monthly  of  the  narnels  of  the  persons 
examined,  and  return  them  with  the  orders  of  examination  in  order  to  get  my  pay, 

Q.  You  draw  your  pay  monthly  on  those  vouchers  ? 

A.  Yes,  sir. 

Q.  By  whom  were  you  sworn  in  as  examining  surgeon  ? 

A.  I  think  I  was  not  sworn  in  at  all,  but  I  would  not  state  positively,  as  it  is  a  good 
many  years  since. 

Q.  If  it  is  the  rule  to  swear  in  examining  surgeons,  you  doubtless  were  sworn  in  ? 

A.  Yes,  sir;  I  suppose  so.  I  have  no  recollection  at  all  on  the  subject.  I  know  that 
I  never  received  any  commission  beyond  simply  the  appointment  in  writing. 

DEPARTMENT  OF  THE  INTERIOR,  PENSION  OFFICE, 

Washington,  D.  C.,  February  8, 1877. 

DEAR  SIR  :  Yours  of  the  6th  instant,  requesting  the  certificate  of  the  appointment  of 
Dr.  Daniel  W.  Downs  as  pension  surgeon  at  Richland  Center,  Richland  County,  Wis 
consin,  the  time  of  his  appointment,  the  amount  of  fees  received  by  him  in  the  years 
1875  and  1876,  and  whether  he  has  ever  resigned,  and  whether  he  now  holds  and  has 
held  such  position  since  his  first  appointment,  was  received  on  yesterday,  but  owing  to 
the  illness  of  the  medical  referee,  who  has  charge  of  the  papers  relating  to  the  surgeons 
employed  by  the  office,  I  could  not  sooner  get  at  the  information  you  desired. 

Dr.  Daniel  L.  Downs,  of  Richland  Center,  Richland  County,  Wisconsin,  was  first 
employed  by  the  Commissioner  of  Pensions  to  make  examinations  to  be  used  in  pension 
cases  as  early  as  May,  1863,  and,  excepting  for  the  period  of  his  service  in  the  Army 
during  the  late  rebellion,  cases  have  been  occasionally  sent  to  him  for  examination  all 
along  down  from  that  date.  In  1875  he  made  twenty-three  examinations,  and  in  1876 
he  made  thirty-five  examinations,  receiving  for  his  services  $2  for  each  examination. 
So  far  as  I  am  informed,  he  has  never  declined  to  make  examinations  which  have  been 
requested;  and  he  is  still  employed  to  make  examinations  in  pension  cases  in  his  neigh- 


ELECTORAL   COUNT    OF    1877.  725 

\ 

borhood.    The  last  order  for  a  claimant  to  appear  before  him  to  be  examined  was  made 
as  late  as  the  3d  instant. 

The  above  statement  does  not  include  biennial  examinations  which  he  may  have 
made  in  1875,  the  number  of  which  I  cannot  readily  ascertain,  as  the  certificates  of 
such  examinations  are  sent  by  the  examining  surgeon  to  the  pension  agent  who  pays 
the  pension. 

I  suppose  you  must  be  in  error  as  to  the  name  being  Daniel  W.,  as  no  other  surgeon 
at  that  place  named  Downs  has  ever  been  employed  as  herein  stated  than  the  Daniel 
L.  above  referred  to. 

Very  respectfully,  your  obedient  servant, 

J.  A.  BENTLEY, 
Commissioner  of  Pensions. 
Hon.  J.  R.  TUCKER, 

Souse  of  Representatives. 

The  PRESIDING  OFFICER.  Are  there  farther  objections  to  the 
certificate  from  the  State  of  Wisconsin  ?  If  there  be  none,  the  Sen 
ate  will  now  withdraw  to  its  Chamber,  that  the  Houses  separately  may 
consider  and  determine  the  objection. 

The  Senate  retired  at  eleven  o'clock  and  twenty-seven  minutes  p.  in. 

IN  SENATE,  Thursday,  March  1, 1877. 

The  Senate  having  returned  from  the  joint  meeting,  the  President  pro 
tempore  resumed  the  chair  at  eleven  o'clock  and  thirty  minutes  p.  m., 
and  caused  the  objection  to  the  vote  of  Daniel  L.  Downs  as  an  elector 
for  the  State  of  Wisconsin  to  be  read,  whereupon 

Mr.  Senator  CAMERON,  of  Wisconsin,  submitted  the  following  res 
olution,  which  was  agreed  to  without  debate  and  without  a  division,  viz : 

Resolved,  That  the  vote  of  Daniel  L.  Downs  as  an  elector  for  the  State  of  Wisconsin' 
be  counted  together  with  the  other  nine  electoral  votes  of  that  State,  the  objections 
made  thereto  to  the  contrary  notwithstanding. 

On  motion  of  Mr.  Senator  CAMERON,  of  Wisconsin,  the  Secretary 
was  directed  to  notify  the  House  of  Representatives  of  this  action,  and 
that  the  Senate  was  ready  to  meet  the  House  to  continue  the  count  of 
the  electoral  vote  for  President  and  Yice-President. 

A  message  was  received  from  the  House  of  Representatives  at  three 
o'clock  and  fifty-eight  minutes  a.  m.,  (Friday,  March  2,)  announcing  the 
action  of  the  House  on  the  objection  to  the  vote  of  Daniel  L.  Downs  as 
an  elector  from  Wisconsin,  and  the  Senate  immediately  proceeded  to 
the  hall  of  the  House. 

IN  THE  HOUSE  OF  REPRESENTATIVES, 

Thursday,  March  1, 1877. 

The  Senate  having  withdrawn  from  the  House  hall  at  eleven  o'clock 
and  twenty-seven  minutes  p.  m.,  the  House  of  Representatives  resumed 
its  session. 

Mr.  Representative  MILLS  claimed  the  floor  to  submit,  as  a  question 
of  privilege,  a  resolution  for  the  immediate  election  of  a  President  by 
the  House  of  Representatives. 

Mr.  Representative  LYNDE  moved  that  the  House  take  a  recess  till 
to-morrow  (March  2)  at  ten  o'clock. 

The  motion  was  not  agreed  to,  yeas  99,  nays  148. 

A  message  was  received  from  the  Senate,  announcing  its  action  on  the 
objection  to  the  vote  of  Daniel  L.  Downs  as  an  elector  for  the  State  of 
Wisconsin,  and  its  readiness  to  proceed  with  the  count. 

Mr.  Representative  LYNDE  submitted  the  following  resolution : 

Resolved,  That  the  vote  of  Daniel  L.  Downs  as  an  elector  of  the  State  of  Wisconsin 
should  not  be  counted,  because  he  held  an  office  of  trust  and  profit  under  the  United 
States,  and  therefore  was  not  constitutionally  appointed  an  elector  by  the  said  State  of 
Wisconsin. 


726  ELECTORAL    COUNT    OF    1677. 

After  debate, 

Mr.  Representative  CAS  WELL  moved  to  amend  the  resolution  by 
striking  out  all  after  the  word  "  Resolved"  and  inserting — 

That  the  vote  of  D.  L.  Downs  be  counted  with  the  other  votes  of  the  electors  of 
the  State  of  Wisconsin,  the  objections  thereto  notwithstanding. 

After  debate, 

The  amendment  was  rejected — yeas  77,  nays  136. 
The  question  recurring  on  the  resolution  of  Mr.  Representative  Lynde, 
it  was  agreed  to. 

JOINT  MEETING. 

THURSDAY,  March  1, 1877. 

The  Senate  entered  the  hall  of  the  House  at  4  o'clock  a.  m.  (Friday, 
March  2)  in  the  usual  manner. 

The  PRESIDENT  pro  tempore  of  the  Senate  took  his  seat  as  Presid 
ing  Officer  of  the  joint  meeting,  the  Speaker  of  the  House  occupying  a 
chair  on  his  left. 

The  PRESIDING  OFFICER.  The  joint  meeting  of  the  two  Houses 
of  Congress  for  counting  the  electoral  vote  resumes  its  session.  The 
Houses  acting  separately  having  considered  and  determined  on  the  ob 
jection  to  the  certificate  from  the  State  of  Wisconsin,  the  Secretary  of 
the  Senate  will  read  the  resolution  of  the  Senate. 

The  Secretary  of  the  Senate  read  as  follows : 

Resolved,  That  the  vote  of  Daniel  L.  Downs  as  an  elector  for  the  State  of  Wisconsin 
be  counted  together  with  the  other  nine  electoral  votes  of  that  State,  the  objections 
made  thereto  to  the  contrary  notwithstanding. 

The  PRESIDING  OFFICER.    The  Clerk  of  the  House  of  Representa 
tives  will  read  the  resolution  of  the  House. 
The  Clerk  of  the  House  read  as  follows : 

Resolved,  That  the  vote  of  Daniel  L.  Downs  as  an  elector  of  the  State  of  Wisconsin 
should  not  be  counted,  because  he  held  an  office  of  trust  and  profit  under  the  United 
States,  and  therefore  was  not  constitutionally  appointed  an  elector  by  said  State  of 
Wisconsin. 

The  PRESIDING  OFFICER.  The  two  Houses  not  having  concurred ! 
in  an  affirmative  vote  to  reject,  the  vote  of  the  State  of  Wisconsin  will 
now  be  counted.  Teller's,  announce  the  vote  of  the  State  of  Wisconsin. 

Mr.  Senator  ALLISON,  (one  of  the  tellers.)  The  State  of  Wisconsin 
casts  10  votes  for  Rutherford  B.  Hayes,  of  Ohio,  for  President,  and  10 
votes  for  William  A.  Wheeler,  of  New  York,  for  Vice-President. 

THE  RESULT. 

The  PRESIDING  OFFICER,  (at  five  minutes  past  four  o'clock  a.  m., 
March  2,  1877.)  This  concludes  the  count  of  the  thirty-eight  States  of 
the  Union.  The  tellers  will  now  ascertain  and  deliver  the  result  to  the 
President  of  the  Senate. 

Mr.  Senator  ALLISON  (one  of  the  tellers)  read  the  list  of  votes,  as 
follows : 


ELECTORAL    COUNT   OF    1877. 


727 


List  of  votes  for  President  and  Vice-President  of  the  United  States  for  the  constitutional  term 
to  commence  on  the  4th  day  of  March,  1877. 


Number  of  electoral  votes  t*> 
which  each  State  is  entitled. 

States. 

For  President. 

For  Vice-Presi 
dent. 

Rutherford  B.  Hayes, 
of  Ohio. 

Samuel  J.  Tilden,  of 
New  York. 

William  A.  Wheeler, 
of  New  York. 

Thomas  A.  Heudricks, 
of  Indiana. 

10 
6 
6 
3 
6 
3 
4 
11 
21 
15 
11 
5 
12 
8 
7 
8 
13 
11 
5 
8 
15 
3 
3 
5 
9 
35 
10 
22 
3 
29 
4 
7 
12 
8 
5 
11 
5 
10 

Alabama  

10 
6 

10 
6 

Arkansas  ........        .     .. 

6 
3 

6 
3 

Colorado             .... 

Connecticut  

6 
3 

G 
3 
..... 

""is 

Delaware 

Florida  

4 

4 

Georgia 

11 

Illinois    

21 

21 

ludiana  

15 

Iowa    ....  ..  ....  .     .  .. 

11 
5 

11 

5 

Kansas 

Kentucky                ......       .      .. 

12 

12 

8 

7 

8 
7 

Maine 

"~8 

8 

13 
11 
5 

13 
11 

5 

Michigan  

Mississippi. 

8 

8 
15 

Nebraska  ...          .. 

3 

3 

3 
5 

3 
5 

New  Hampshire 

New  Jersey  . 

9 

9 
35 

10 

New  York 

35 

10 

North  Carolina  .        .      ? 

Ohio 

22 
3 
29 
4 

22 
3 

29 
4 

Oregon    .  ....  . 

Pennsylvania 

Rhode  Island       

7 

7 

Tennessee      .. 

12 

8 

12 

8 

Texas 

"Vermont                  ... 

5 

5 

11 
5 

11 
5 

West  Virginia          .       

10 

10 

Total 

369 

185 

184 

185 

484 

The  PRESIDING  OFFICER.  In  announcing  the  final  result  of  the 
electoral  vote  the  Chair  trusts  that  all  present,  whether  on  the  floor  or 
in  the  galleries,  will  refrain  from  all  demonstrations  whatever  j  that 
nothing  shall  transpire  on  this  occasion  to  mar  the  dignity  and  modera 
tion  which  have  characterized  these  proceedings,  in  the  main  so  reputa 
ble  to  the  American  people  and  worthy  of  the  respect  of  the  world . 

The  whole  number  of  the  electors  appointed  to  vote  for  President  and 
Vice-President  of  the  United  States  is  369,  of  which  a  majority  is  185. 

The  state  of  the  vote  for  President  of  the  United  States,  as  delivered 
by  the  tellers,  and  as  determined  under  the  act  of  Congress  approved 
January  29,  1877,  on  this  subjecfc,  is  : 

For  Rutherford  B.  Hayes,  of  Ohio 185  votes. 

For  Samuel  J.  Tilden,  of  New  York 184  votes. 

And  the  state  of  the  vote  for  Vice-President  of  the  United  States,  as 


728  ELECTORAL   COUNT   OF    1877. 

delivered  by  the  tellers,  and  as  determined  under  the  act  of  Congress 
approved  January  29,  1877,  on  this  subject,  is  : 

For  William  A.  Wheeler,  of  New  York 185  votes. 

For  Thomas  A.  Hendricks,  of  Indiana 184  votes. 

Wherefore,  I  do  declare — 

That  Eutherford  B.  Hayes,  of  Ohio,  having  received  a  majority  of  the 
whole  number  of  electoral  votes,  is  duly  elected  President  of  the  United 
States  for  four  years,  commencing  on  the  4th  day  of  March,  1877. 

And  that  William  A.  Wheeler,  of  New  York,  having  received  a  ma 
jority  of  the  whole  number  of  electoral  votes,  is  duly  elected  Vice-Pres- 
ident  of  the  United  States  for  four  years,  commencing  on  the  4th  day  of 
March,  1877. 

This  announcement,  together  with  the  list  of  the  votes,  will  be  entered 
upon  the  Journals  of  the  two  Houses. 

The  count  of  the  electoral  vote  being  completed,  and  the  result  deter 
mined,  the  joint  meeting  of  the  two  Houses  is  dissolved.  The  Senate 
will  now  retire  to  its  chamber. 

The  Senate  accordingly  retired  from  the  hall  of  the  House  of  Eepre- 
sentatives  at  ten  minutes  past  four  o'clock  a.  m.,  March  2, 1876. 

ELEOTOEAL  COMMISSION— CLOSING  PEOCEEDINGS. 

FRIDAY,  March  2, 1877. 

The  Commission  met  at  eleven  o'clock  a.  m.,  pursuant  to  adjournment. 

Present,  the  President  and  Commissioners  Miller,  Strong,  Field,  Brad 
ley,  Morton,  Frelinghuysen,  Kernan,  Payne,  and  Abbott. 

'The  Journal  of  Tuesday  last  was  read  and  approved. 

Mr.  Commissioner  FEELINGHUYSEN,  from  the  committee  ap 
pointed  to  consider  the  allowances  to  be  made  to  the  officers  and  per 
sons  who  had  "been  employed  in  the  service  of  the  Commission,  sub 
mitted  a  report,  which  was  read,  considered,  and  agreed  to. 

On  motion  of  Mr.  Commissioner  MOETON,  it  was 

Ordered,  That  the  time  heretofore  allowed  for  the  filing  of  opinions  by  members  of 
the  Commission  be  extended  until  the  close  of  the  month  of  March. 

On  motion  of  Mr.  Commissioner  MILLEE,  it  was 

Ordered,  That  450  copies  of  the  RECORD  (after  all  the  proceedings,  including  the 
arguments  of  the  Commissioners,  shall  have  been  published)  shall  be  bound  with  an 
index,  under  the  care  of  the  Secretary  and  his  assistants,  and  distributed  equally 
among  the  members  of  the  Commission. 

At  the  suggestion  of  the  PEESIDENT,  it  was 

Ordered,  That  the  minutes  of  to-day's  proceedings,  after  they  shall  have  been  pre 
pared  by  the  Secretary,  be  read  by  the  President,  and  if  approved  by  him  be  consid 
ered  as  approved  by  the  Commission. 

On  motion  of  Mr.  Commissioner  PAYNE  (at  eleven  o'clock  ami  thirty 
minutes  a.  m.)  the  Commission  adjourned  sine  die. 


APPENDIX  OF  BRIEFS. 


The  briefs  submitted  to  the  Electoral  Commission  by  counsel  in  the 
various  cases  argued  before  it,  are  as  follows  : 

BRIEF  No.  1. 

SUBMITTED  BY  COUNSEL  FOR  OBJECTORS  TO  CERTIFICATE 
No.  1  IN  THE  CASE  OF  THE  STATE  OF  FLORIDA. 

Brief  as  to  the  conclusive  character  of  lists  of  the  Executive^  presented  Feb 
ruary  3,  1877,  by  Aslibel  Green,  of  counsel. 

This  brief  is  limited  to  the  consideration  of  the  question,  how  far  this 
Commission  can  go  behind  the  lists  of  the  executive,  furnished  in  com 
pliance  with  the  provisions  of  the  United  States  Revised  Statutes,  sec 
tion  136. 

It  will  be  convenient  to  consider — 

I.  THE  POWERS  OF  THE  COMMISSION  : 

The  act  approved  January  29,  1877,  section  2,  provides: 

"  That  if  more  than  one  return,  or  paper  purporting  to  be  a  return  from  a  State,  shall 
have  been  received  by  the  President  of  the  Senate,  purporting  to  be  the  certificate  of 
electoral  votes  given  at  the  last  preceding  election  for  President  and  Vice-President  in 
such  State,  (unless  they  shall  be  duplicates  of  the  same  return,)  all  such  returns  and 
papers  shall  be  opened  by  him  in  the  presence  of  the  two  Houses,  when  met  as  afore 
said,  and  read  by  the  tellers :  and  all  such  returns  and  papers  shall  thereupon  be  sub 
mitted  to  the  judgment  and  decision  as  to  which  is  the  true  and  lawful  electoral  vote  of  such 
State,  of  a  commission  constituted"  by  the  act.  It  then  provides,  whenever  objections 
presented  in  the  mode  pointed  out  in  the  act  shall  be  made,  that  "  When  all  such  ob 
jections  eo  made  to  any  certificate,  vote,  or  paper  from  a  State  shall  have  been  receiv.ed 
and  read,  all  such  certificates,  votes,  and  papers  so  objected  to,  and  all  papers  accompany- 
iug  the  same,  together  with  such  objections,  shall  be  forthwith  submitted  to  said  com 
mission,  which  shall  proceed  to  consider  the  same,  witli  the  same  powers,  if  any,  now 
possessed  for  that  purpose  by  the  two  Houses  acting  separately  or  together,  and,  by  a  majority 
of  votes,  decide  whether  any  and  what  votes  from  such  State  are  the  votes  provided  for 
by  the  Constitution  of  the  United  States,  and  how  many  and  what  persons  were  duly 
appointed  electors  in  such  State,  and  may  therein  talce  into  view  such  petitions,  depositions, 
and  other  papers,  if  any,  as  shall,  by  the  Constitution  and  now  existing  law,  be  competent 
and  pertinent^in  such  consideration." 

By  the  terms  of  the  act,  then,  the  tribunal  thus  constituted  has  the 
same  powers  which  are  possessed  by  the  two  Houses  of  Congress  acting 
separately  or  together. 

This  would  lead  to  the  consideration  of  the  questions — 

1st.  Whether  the  Houses  of  Congress  have  any  powers  either  together 
or  separately  ? 

2d.  What  these  powers  are  ? 

Have  the  Houses  of  Congress  any  powers  separately  or  acting  to 
gether  ? 

Three  theories  have  been  advanced : 


730  ELECTOROL    COUNT    OF    1877. 

a.  That  the  power  of  counting  or  rejection  of  the  votes  resides  in  the 
President  of  the  Senate. 

&.  That  the  two  Houses,  acting  together,  shall  determine  the  ques 
tion. 

c.  That  the  two  Houses  have  equal  power  in  ascertaining  what  votes 
shall  be  counted,  and  that  if  the  two  Houses  disagree  there  can  be  no 
decision  allowing  the  vote,  and  that  what  the  two  Houses  do  not  agree 
to  count,  cannot  be  counted. 

It  would  seem  to  be  unnecessary  to  do  more  than  to  refer  to  the  de 
bates  which  have  taken  place  upon  the  right  of  the  President  of  the 
Senate  to  determine  what  votes  should  be  counted.  It  cannot  be  useful 
to  repeat  the  argument  here;  for  the  act  constituting  the  commission 
has  at  least  settled  the  question  pro  'hac  vice,  and  must  be  taken  to  have 
decided  that  the  power  of  counting  the  vote  is  not  vested  in  the  Presi 
dent  of  the  Senate.  The  whole  theory  of  the  bill  is  contrary  to  the  idea 
of  the  right  of  that  officer.  It  ignores  him  except  so  far  as  it  consti 
tutes  him  the  presiding  officer  of  the  joint  meeting  of  the  Houses  of 
Congress,  grants  him  the  incidental  power  as  such  presiding  officer  to 
preserve  order,  and  recognizes  his  duty  to  open  the  certificates,  and  to 
hand  them  to  the  tellers  appointed  previously  by  the  Senate  and  the 
tellers  previously  appointed  by  the  House  of  Representatives. 

The  bill  would  also  seem  to  have  settled  the  point  that  the  concur 
rence  of  two  Houses  is  requisite  to  the  counting  of  any  disputed  vote. 
It  was  adopted  by  both  Houses  for  their  guidance  in  the  emergency 
now  presented,  and  the  necessity  of  their  concurrence  and  their  equal 
voice  in  arriving  at  the  determination  of  the  question  are  involved  in 
the  very  fact  of  the  passage  of  the  act.  Moreover,  the  act  itself  recog 
nizes  this  right  of  the  two  Houses  and  the  control  of  their  concurrent 
action  in  the  premises.  For  it  reserves  to  the  two  Houses  the  absolute 
power  to  overrule  by  their  action  the  solemn  adjudication  of  the  tribu 
nal  constituted  by  the  act  whenever  "the  two  Houses  shall,  separately, 
concur  in  ordering  otherwise,  in  which  case  such  concurrent  order  shall 
govern." 

It  must,  therefore,  be  held  that  the  Houses  of  Congress  have  some 
powers  in  the  counting  of  the  electoral  votes,  and  that  the  two  Houses, 
acting  concurrently,  and  only  so  acting,  have  the  authority  to  admit  or 
reject  any  votes  which  may  be  "  opened  or  presented  to  them  for  action." 

JI.  WHAT  POWERS  HAVE  THE  TWO  HOUSES  OF  CONGRESS  TO  DECIDE 

WHETHER  ANY  AND  WHAT  VOTES  SHALL  BE  COUNTED  ? 

Here,  again,  recourse  may  be  had  to  the  act  of  January  29,  1877.  It 
cannot  be  reasonably  contended  that  Congress  is  to  act  merely  as  an 
accountant  to  add  up  the  numbers  of  the  respective  returns  and  an 
nounce  the  result.  If  this  were  true,  its  action  would  be  paralyzed  at 
the  outset;  for  it  would  be  met  by  double  inconsistent  returns,  each 
claiming  to  be  true,  and  in  order  to  determine  which  was  correct,  the 
exercise  of  judgment  and  the  adjudication  of  the  question  thus  pre 
sented  would  be  a  prerequisite  to  the  mere  clerical  act  of  addition  and 
announcement  of  the  result. 

Moreover,  the  examination  does  not  stop  here;  for  it  is  contemplated 
by  the  act  that  some  votes  may  not  be  counted  at  all,  and  that  the  whole 
number  of  electors  which  a  State  has  the  constitutional  right  to  appoint, 
may  not  be  appointed.  The  commission  is  expressly  directed  to  decide 
whether  any  and  what  votes  are  the  votes  provided  for  by  the  Constitu 
tion,  and  how  many  and  what  persons  were  duly  appointed  electors. 
This  authority  is  not  limited  by  the  clause  preceding,  giving  the  com 
mission  "  the  same  powers,  if  any,  now  possessed  for  the  purpose  of 


ELECTORAL    COUNT    OF    1877.  731 

considering  the  objections  by  the  two  Houses,  acting  separately  or  to 
gether,"  but  is  a  legislative  declaration,  free  from  the  saving  doubt 
therein  expressed,  that  there  is  a  clear  right  to  decide  whether  any  and 
what  votes  are  votes  provided  for  by  the  Constitution,  and  how  many 
and  what  persons  were  duly  appointed  electors. 

In  this  connection,  before  proceeding'to  look  at  the  Constitution,  and 
at  the  laws  heretofore  enacted,  it  may  be  profitable  to  refer  to  the  pre 
vious  practice  of  Congress  in  this  behalf 

I.  (a)  The  question  whether  the  State  whose  vote  was  presented  was 
a  State  of  the  Union  or  not,  arose  in  the  following  cases,  and  the  votes 
iv ere  counted  in  the  alternative : 

1.— 1817,  Indiana,     (p.  46,  House  Doc.  No.  13.) 

2.— 1821,  Missouri,     (p.  51.) 

3.— 1837,  Michigan,     (p.  72.) 

(b)  The  same  question  arose  in  the  following  cases,  and  the  votes  ivere 
rejected:  (p.  229.) 

1.—1865,  Virginia. 

2.— 1865,  North  Carolina. 

3.— 1865,  South  Carolina, 

4.— 1865,  Georgia. 

5.— 1865,  Florida. 

6. — 1865,  Alabama. 

7. — 1865,  Mississippi. 

8. — 1865,  Louisiana. 

9.— 1865,  Texas. 
10.— 1865,  Arkansas. 
11.— 1865,  Tennessee. 

II.  The  question  whether  a  vote  was  valid  on  the  facts  stated  in  the 
certificate  arose,  and  was  not  decided,  in  one  case  : 

1.— Wisconsin,  1857.     (p.  88.) 

III.  The  question  whether  a  vote,  duly  certified,  could  be  rejected  be 
cause  the  election  was  not  valid  (i.  e.,  on  the  ground  of  fraud)  has  been 
raised  in  one  case,  and  the  vote  was  counted : 

1. — 1869,  Louisiana,     (p.  238.) 

IV.  All  of  these  questions  (I,  II,  III)  arose  in  one  case,  and  the  vote 
was  taken  in  the  alternative : 

1.— 1869,  Georgia,     (p.  244.) 

V.  In  the  cases  of  Mississippi,  1873,  (p.  378,)  and  Texas,  1873,  (p.  382,) 
two  questions  arose : 

1.  That  the  vote  was  bad  on  the  face  of  the  certificate. 

2.  That  the  certificate  was  defective  in  form. 
The  vote  was  counted. 

In  the  case  of  Mississippi  the  first  objection  was  overruled,  on  the 
ground  of  the  provision  of  the  State  statute. 

VI.  In  the  case  of  Arkansas,  1873,  (p.  389,)  two  questions  arose : 

1.  Whether  the  certificate  was  good  in  form. 

2.  Whether  it  agreed  with  the  actual  returns  of  the  election. 
The  Senate  and  House  disagreeing,  the  vote  was  rejected. 

VII.  In  the  case  of  Louisiana,  1873,  (p.  391,)  there  were  two  certifi 
cates,  and  seven  objections  were  raised.    Neither  vote  was  counted. 

VIII.  The  vote  of  Georgia  was  rejected  in  1873,  (p.  407,)  because  cast 
for  a  candidate  dead  at  the  time  of  election. 

III.  THE  PROVISIONS  OF  THE  CONSTITUTION  IN  THIS  REGARD  ARE- 
ARTICLE  ii. 

2.  Each  State  shall  appoint,  in  such  manner  as  the  legislature  thereof  may  direct,  a 
number  of  electors  equal  to  the  whole  number  of  Senators  and  Representatives  to  which 


732  ELECTORAL    COUNT    OF    1677. 

the  State  may  be  entitled  in  the  Congress;  but  no  Senator  or  Representative,  or  per 
son  holding  an  office  of  trust  or  profit  under  the  United  States,  shall  be  appointed  an 
elector. 

ARTICLE  XII. 

1.  The  electors  shall  meet  in  their  respective  States  and  vote  by  ballot  for  Presi 
dent  and  Vice-President,  one  of  whom  at  least  shall  not  be  an  inhabitant  of  the  same 
State  with  themselves ;  they  shall  name  in  their  ballots  the  person  voted  for  as  Presi 
dent,  and  in  distinct  ballots  the  person  voted  for  as  Vice-President ;  and  they  shall 
make  distinct  lists  of  all  persons  voted  for  as  President  and  of  all  persons  voted  for  as 
Vice-President,  and  of  the  number  of  votes  for  each,  which  lists  they  shall  sign  and 
certify,  and  transmit  sealed  to  the  seat  of  the  government  of  the  United  States,  directed 
to  the  President  of  the  Senate;  the  President  of  the  Sepate  shall,  in  the  presence  of 
the  Senate  and  House  of  Representatives,  open  all  the  certificates,  and  the  votes  shall 
then  be  counted;  the  person  having  the  greatest  number  of  votes  for  President  shall 
be  President,  if  such  a  number  be  a  majority  of  the  whole  number  of  electors  ap 
pointed  ;  and  if  no  person  have  such  majority,  then  from  the  persons  having  the  high 
est  numbers,  not  exceeding  three,  on  the  list  of  those  voted  for  as  President,  the  House 
of  Representatives  shall  choose  immediately,  by  ballot,  the  President.     But  in  choosing 
the  President,  the  votes  shall  be  taken  by  States,  the  representation  from  each  State 
having  one  vote ;  a  quorum  for  this  purpose  shall  consist  of  a  member  or  members 
from  two- thirds  of  the  States,  and  a  majority  of  all  the  States  shall  be  necessary  to 
a  choice.     And  if  the  House  of  Representatives  shall  not  choose  a  President,  whenever 
the  right  of  choice  shall  devolve  upon  them,  before  the  fourth  day  of  March  next  fol 
lowing,  then  the  Vice-President  shall  act  as  President,  as  in  the  case  of  the  death  or 
other  constitutional  disability  of  the  President. 

2.  The 'person  having  the  greatest  number  of  votes  as  Vice-President  shall  be  the 
Vice-Presideut,  if  such  number  be  a  majority  of  the  whole  number  of  electors  ap 
pointed  ;  and  if  no  person  have  a  majority,  then  from  the  two  highest  numbers  on  the 
list,  the  Senate  shall  choose  the  Vice-President ;  a  quorum  for  the  purpose  shall  con 
sist  of  two-thirds  of  the  whole  number  of  Senators,  and  a  majority  of  the  whole  num 
ber  shall  be  necessary  to  a  choice. 

4.  The  Congress  may  determine  the  time  of  choosing  the  electors,  and  the  day  on 
which  they  shall  give  their  votes ;  which  day  shall  be  the  same  throughout  the  United 
States. 

1.  The  Constitution,  therefore,  does  not  prescribe  the  evidence  of  the 
appointment  of  electors.     It  does  not  require  certified  lists  from  the 
governor  that  persons  claiming  to  have  been  appointed  as  electors  have 
in  fact  been  so  appointed.     It  does  not  require  any  particular  form  of 
proof.     It  is  wholly  silent  in  respect  to  the  evidence  by  which  such  an 
appointment  is  to  be  authenticated. 

2.  In  delegating  to  the  State  the  appointment  of  electors,  and  to  the 
legislature  of  that  State  the  authority  to  "direct"  the  "manner*'  in 
which  such  appointment  shall  be  made,  the  Constitution  seems  to  con 
template  that  the  proof  of  the  appointment  should,  in  the  first  instance 
at  least,  be  furnished  by  the  State  and'  its  nature  and  form  prescribed 
by  the  legislature  of  the  State.     "Each  State,"  it  declares,  "shall  ap 
point,  in  such  manner  as  the  legislature  thereof  may  direct,'*  the  elect 
ors.    It  is  natural  that  the  power  authorized  to  do  an  act  and  to  deter 
mine  the  manner  in  which  that  act  is  to  be  done  should  also  provide 
for  verifying  its  own  act  and  showing  that  it  was  done  in  the  proper 
manner.    The  legislative  power  of  the  State,  in  directing  the  manner  in 
which  the  act  is  to  be  done,  might  properly  direct  also  the  mode  of  prov 
ing  that  such  manner  had  been  followed.  .     , 

In  conformity  to  the  well-established  rules  of  proof,  it  would  seem 
that  the  primary  and  best  authority  as  to  what  the  State  had  done  is 
the  State  itself.  Its  own  declarations  through  its  legislature  and  judi 
cial  organs  are  the  most  weighty  testimony  which  can  be  offered. 

IV.  THE  PROVISIONS  or  THE  STATUTES  OF  THE  UNITED  STATES 

ARE  AS  FOLLOWS: 

SEC.  136.  It  shall  be  the  duty  of  the  executive  of  each  State  to  cause  three  lists  of 
the  names  of  the  electors  of  such  State  to  be  made  and  certified  and  to  be  delivered 


ELECTORAL    COUNT    OF    1877.  733 

o  the  electors  on  or  before  the  day  on  which  they  are  required  by  the  preceding  sec 
tion  to  meet. 

SEC.  137.  The  electors  shall  vote  for  President  and  Vice-President,  respectively,  in 
the  manner  directed  by  the  Constitution. 

SEC.  138.  The  electors  shall  make  and  sign  three  certificates  of  all  the  votes  given  by 
them,  each  of  which  certificates  shall  contain  two  distinct  lists,  one  of  the  votes  for 
President  and  the  other  of  the  votes  for  Vice-President,  and  shall  annex  to  each  of  the 
certificates  one  of  the  lists  of  the  electors  which  shall  have  been  furnished  to  them  by 
direction  of  the  executive  of  the  State. 

P  The  statute  of  1792  provided  that  "It  shall  be  the  duty  of  the  execu 
tive  of  each  State  to  cause  three  lists  of  the  names  of  the  electors  of 
such  State  to  be  made  and  certified,  and  to  be  delivered  to  the  electors 
on  or  before  the  day  on  which  they  are  required  by  the  preceding  sec 
tion  to  meet;"  and  one  of  these  lists  was  directed  to  be  annexed  by  the 
electors  to  each  certificate  of  their  votes. 

This  provision,  so  far  as  the  State  executive  is  concerned,  is  little 
more  than  a  request  to  the  governor  to  make  such  lists ;  for  there  is 
probably  no  mode  of  compelling  him  to  perform  the  duty.  Its  real  effect 
is  to  provide  by  act  of  Congress  convenient  evidence  of  the  appointment 
of  the  electors  to  be  considered  by  the  two  Houses  of  Congress  when 
they  come  to  examine  and  count  the  votes.  The  act  nowhere  goes  be 
yond  thafc.  It  does  not  require  even  the  seal  of  the  State  to  be  affixed, 
nor  the  countersigning  by  the  secretary  of  the  State,  as  in  the  case  of  a 
certificate  of  election  of  Senators.  It  does  not  make  this  evidence  indis 
pensable.  It  does  not  make  this  evidence  conclusive.  It  does  not  make 
this  evidence  exclusive.  It  does  not  shut  out  other  evidence.  It  does 
not  limit  the  discretion  or  fetter  the  judgment  of  the  authority  having 
the  power  to  count  the  votes  and  to  decide  between  several  sets  of  papers 
purporting  to  be  votes,  as  to  which  are  in  truth  genuine  and  valid  votes. 
Suppose  the  governor's  certified  list  should  happen  to  have  been  unat 
tainable  at  the  time  the  electors  voted.  Suppose  that  accident,  disa 
bility,  or  death  intervened,  or  that  the  governor's  conscientious  judg 
ment  on  the  case,  or  his  willful  refusal  to  perform  his  duty,  deprived  the 
electors  of  this  evidence,  are  their  votes  to  be  destroyed  ? 

Or  suppose  that  by  mistake  or  fraud  the  governor  should  give  the 
certified  lists  in  favor  of  persons  who  were  not  appointed  electors  and 
should  withhold  them  from  the  true  electors.  Suppose,  as  was  said  by 
Senator  Frelinghuysen,  "  a  State  had  notoriously  given  its  vote  for  one 
candidate,  and  by  sheer  accident  the  list  of  votes  had  such  a  heading  as 
to  give  it  for  another?77  Is  there  no  remedy?  Must  the  State  lose  its- 
votes'?  Must  the  State  submit  to  have  its  votes  cast  against  its  real 
will,  as  if  by  false  personation  made  before  its  eyes,  in  the  open  day,  but 
which  it  has  no  power  to  resist  ? 

If  it  can  be  shown  that  the  certificate  was  corruptly  made,  by  the  per 
petration  of  gross  frauds  in  tampering  with  or  altering  the  returns, 
must  it  nevertheless  flaunt  its  falsehood  in  the  faces  of  us  all  without 
the  possibility  of  contradiction  9 

The  answer  is  that  the  authority  commissioned  to  count  the  votes 
(and,  in  doing  so,  to  determine  what  are  authentic  and  .valid  votes  enti 
tled  to  be  counted)  will  receive  other  evidence  besides  the  governor's 
certificate,  which  evidence  may  prevail  over  that  certificate,  and  will 
receive  evidence  impeaching  the  truth  of  that  certificate  for  mistake  or 
toad.  The  tribunal  might  act  on  the  petition  of  the  persons  claiming 
to  have  been  duly  appointed  electors  and  wrongfully  interfered  with  in 
the  exercise  of  their  functions;  for  it  is  not  limited  as  to  the  sources  of 
the  evidence  it. will  accept.  But  especially  will  it  receive- evidence  from 
the  State  itself. 


734  ELECTORAL    COUNT    OF    1677. 

1.  The  Constitution  deals  expressly  with  the  subject  of  authenticating 
the  votes,  (Article  XII.)     And  it  declares  expressly  what  powers  of 
legislation  Congress  "  may  "  exercise  with  respect  to  action  within  the 
respective  States  in  the  choosing  of  electors  and  the  casting  of  electoral 
votes,  (Article  II,  section  4.)    JExpressio  unius  exclusio  est  alterius  is  a 
maxim,  and  it  is  very  doubtful,  at  best,  whether  any  other  compulsory 
power  over  the  States  in  these  matters  can  be  exercised  by  Congress, 

2.  Section  136  of  the  Revised  Statutes  was  a  very  suitable  precau 
tionary  enactment,  and  it  ought  to  be  obeyed.    But  under  the  view  last 
stated  it  is  justly  subject  to  many  observations. 

(a)  Its  framers  seem  to  have  understood  that  it  was  only  directory  or 
as  a  recommendation,  and  operative  only  through  the  presumable  respect 
of  the  State  authorities  for  the  wishes  of  Congress. 

Certainly  there  was  no  power  in  the  United  States  Government  to 
compel  a  governor's  obedience.  A  mandamus  could  not  be  employed  in 
the  case  by  any  judicial  court. 

(b)  The  section  does  not  declare  that  the  lists  referred  to  shall  be 
conclusive  evidence,  or  the  only  evidence,  or  the  evidence,  or  any  evi 
dence  as  to  the  appointment  of  the  electors ;  nor  does  it  define,  affirm 
atively,  negatively,  or  in  any  way,  what  shall  be  the  effect  of  their 
presence  or  their  absence.  • 

(c)  If  Congress  chooses  to  go  behind  the  governor's  certificate  and 
inquire  who  have  been  chosen  electors,  it  is  not  violating  the  right  of 
the  States  to  prescribe  what  shall  be  the  evidence  of  the  election  ot 
electors,  but  it  is  simply  going  behind  the  certificate  as  prescribed  by 
ail  act  of  Congress. 

The  bill  creates  a  tribunal  which  is  to  consider  the  questions  and  is  to 
decide  the  issues  presented. 

1.  It  is  to  consider  the  returns  which  are  double  and  antagonistic, 
with  the  objections  of  members  of  Congress,  and  which  thus  raise  the 
issues. 

2.  It  is.  also  to  decide  the  issues  thus  raised,  and  in  so  doing  is  to 
'"  take  into  view"  petitions,  which  may  supplement  and  fortify  the  claims 
or  the  objections  of  either  of  the  contestants;   also  depositions  and 
other  papers,  which  are  modes  of  proof  of  the  facts  asserted  upon  either 
hand. 

a.  From  the  character  of  the  members  of  the  Commission,  composed 
of  high  judicial  officers. 

&.  From  the  nature  of  its  attributes  and  functions,  viz,  examination, 
impartiality,  decision,  and  judgment. 

c.  From  the  methods  pointed  out  for  arriving  at  its  decision,  viz,  con 
sideration  of  certificates,  votes,  papers,  objections,  and  taking  into  view 
petitions,  depositions,  and  other  papers,  which  include  the  most  inferior 
means  of  evidence. 

d.  From  the  oath  the  members  of  the  Commission  are  to  take,  viz, 

li  I, ,  do  solemnly  swear  (or  affirm,  as  the  case  may  be)  that  I  will 

impartially  examine  and  consider  all  questions  submitted  to  the  Com 
mission  of  which  I  am  a  member,  and  a  true  judgment  give  thereon, 
agreeably  to  the  Constitution  and  the  laws :  so  help  me  God." 

e.  From  the  previous  course  of  procedure  by  both  Houses  of  Con 
gress  in  inquiring  and  investigating  "  whether  elections  of  electors  have 
been  conducted  in  certain  States  in  accordance  with  the  Constitution 
and  laws  of  the  United  States  and  the  laws  of  the  said  States,  and 
what  contests,  if  any,  have  arisen  as  to  who  were  elected  as  electors." 

/.  From,  the  language  of  the  commission  issued  by  both  Houses  of 
Congress  to  their  investigating  committees,  to  send  for  persons  and 
papers,  and  take  testimony. 


ELECTORAL    COUNT    OF    1877.  735 

These  instructions  were  in  the  Senate,  viz :  "  That  the  said  corn 
mittee  be,  and  is  hereby,  instructed  to  inquire  into  the  eligibility  to 
office  under  the  Constitution  of  the  United  States  of  any  persons 
alleged  to  have  been  ineligible  on  the  7th  day  of  November  last,  or  to 
be  ineligible  as  electors  of  President  and  Vice-President  of  the  United 
States,  to  whom  certificates  of  election  have  been  or  shall  be  issued  by 
the  executive  authority  of  any  State  as  such  electors,  and  whether  the 
appointment  of  electors,  or  those  claiming  to  be  such,  in  any  of  the 
States,  has  been  made,  declared,  or  returned,  either  by;  force,  fraud,  or 
other  means,  otherwise  than  in  conformity  with  the  Constitution  and 
laws  of  the  United  States  and  the  laws  of  the  respective  States ; 
and  whether  any  such  appointment  or  action  of  any  such  elector  has 
been  in  any  wise  unconstitutionally  or  unlawfully  interfered  with." 
And  in  the  House,  viz:  "Resolved,  That  three  special  committees,  one 
of  fifteen  members,  to  proceed  to  Louisiana ;  one  of  six  members,  to 
proceed  to  Florida ;  and  one  of  nine  members,  to  proceed  to  South 
Carolina,  shall  be  appointed  by  the  Speaker  of  the  House  to  investi 
gate  recent  elections  therein,  and  the  action  of  the  returning  or  can 
vassing  boards  in  the  said  States  in  reference  thereto,  and  to  report  all 
the  facts  essential  to  an  honest  return  of  the  votes  received  by  the 
electors  of  the  said  States  for  President  and  Vice-President  of  the  United 
States,  and  to  a  fair  understanding  thereof  by  the  people,  and  whether 
the  electoral  votes  of  the  said  States  should  be  counted ;  and  that  for 
the  purpose  of  speedily  executing  this  resolution,  the  said  committee 
shall  have  power  to  send  for  persons  and  papers,  to  administer  oaths, 
and  to  take  testimony,  and,  at  their  discretion,  to  detail  subcommittees, 
with  like  authority  to  send  for  persons  and  papers,  to  administer  oaths, 
and  to  take  testimony ;  and  that  the  said  committees  and  their  subcommit 
tees  may  employ  stenographers,  clerks,  and  messengers,  and  be  attended 
each  by  a  deputy  sergeant-at-arms ;  and  said  committees  shall  have 
leave  to  report  at  any  time  by  bill  or  otherwise.'7 

g.  From  the  construction  already  placed  by  the  Commission  upon  its 
own  powers  by  its  Rule  V,  viz  : 

Application  for  process  to  compel  the  attendance  of  witnesses  or  the  production  of  writ 
ten  or  documentary  testimony  may  be  made  by  counsel  on  either  side         * 
Depositions  taken  for  use  before  the  Commission  shall  be  sufficiently  authenticated  if  taken 
before  any  commissioner  of  the  circuit  court  of  the  United  States,  or  any  clerk  or  dep 
uty  clerk  of  any  court  of  the  United  States. 

From  all  this,  it  follows  irresistibly — 

1.  That  evidence  and  proof  were  heretofore  sought  for  by  the  Houses 
of  Congress  for  the  purposes  of  arriving  at  a  judicial  determination  of 
the  issues  which  are  now  remitted  for  primary  decision  to  the  Commis 
sion  created  ;  and 

2.  That  this  Commission  must  also  employ  the  common  modes  which 
the  experience  of  mankind  has  pointed  out  for  the  purpose  of  arriving 
at  the  truth  of  any  matter  submitted  to  the  determination  of  conscien 
tious  and  intelligent  persons,  whether  clothed  with  judicial  or  quasi- 
judicial  functions  or  not. 

These  methods  are  knowledge  and  judgment. 

It  will  not  be  for  a  moment  contended  that  the  members  of  this  Com 
mission  have  knowledge  of  the  truth  of  the  various  disputed  questions 
of  fact  which  are  raised  by  the  returns,  petitions,  and  objections. 

They  must  therefore  enlighten  themselves,  and  base  their  judgments 
upon  some  evidence  outside  of  themselves. 

In  so  doing  they  must  resort  to  the  ordinary  methods  by  which  in 
quiry  after  truth  is  conducted,  and  must  satisfy  their  consciences  and 


736  ELECTORAL    COUNT    OF    1877. 

understandings  by  such  proof  as  any  other  tribunal  employs  in  seeking 
the  same  end. 

We  conclude,  therefore,  that  the  Commission  is  limited  as  to  the  kind 
of  evidence  it  is  to  take  into  consideration  by  the  Constitution  and  now 
existing  law,  only  by  the  petitions,  depositions,  and  other  papers  as  shall 
be  competent  and  pertinent  in  such  consideration. 

But  it  has  been  contended  with  great  ability  and  pertinacity  that  the 
certificates  of  the  executive  are  conclusive  evidence  of  the  facts  stated 
in  them,  and  this  leads  to  the  consideration  of  the  question — 

Y.  WHAT  is  THE  NATURE  OF  THE  CERTIFICATES  SIGNED  BY  THE 
EXECUTIVE  ? 

It  will  assist  in  the  solution  of  this  problem  to  inquire  what  is  the 
end  sought  to  be  gained  by  the  signing,  delivery,  and  forwarding  to 
the  President  of  the  Senate  of  these  certificates.  There  can  be  but 
one  answer  to  this  inquiry,  viz  :  it  is  to  furnish  proof  as  to  what  per 
sons  the  State  has,  in  accordance  with  the  forms  of  law,  appointed 
to  vote  for  President  and-  Vice-President  of  the  United  States.  This 
is  the  fact  to  be  determined.  There  is  no  inherent  virtue  in  the  mode 
pointed  out  by  Congress.  .  There  is  nothing  which  invests  the  certificate 
vrith  a  sanctity  superior  to  legislative  and  judicial  acts.' 

The  certificate  is  not  the  election.  It  is  only  one  proof  of  the  result 
of  the  election. 

The  commission  of  the  President  of  the  United  States  is  not  an 
appointment,  but  only  evidence  of  an  appointment.  Marbury  vs.  Madi 
son,  (1  Cranch,  170.) 

The  election  is  the  foundation,  not  the  return.    (4  Coke,  Inst.,  49.) 

Chief-Justice  Whiton,  in  4  Wis.,  792,  commenting  upon  the  effect  of 
certificates  of  canvassers,  says : 

Before  proceeding  to  state  our  views  in  regard  to  the  law  regulating  the  canvass  of 
votes  by  the  State  canvassers,  we  propose  to  consider  how  far  the  right  of  a  person  to 
an  office  is  aifected  by  the  determination  of  the  canvassers  of  the  votes  cast  at  the  elec 
tion  held  to  choose  the  officer.  Under  our  constitution,  almost  all  our  officers  are 
elected  by  the  people.  Thus  the  governor  is  chosen,  the  constitution  providing  that 
the  person  having  the  highest  number  of  votes  for  that  office  shall  be  elected.  But 
the  constitution  is  silent  as  to  the  mode  in  which  the  election  shall  be  conducted,  and 
the  votes  cast  for  governor  shall  be  canvassed  and  the  result  of  the  election  ascer 
tained.  The  duty  of  prescribing  the  mode  of  conducting  the  election  and  of  canvass 
ing  the  votes  was,  therefore,  devolve/I  upon  the  legislature.  They  have  accordingly 
made  provision  for  both,  and  the  question  is  ivhether  the  canvass  or  the  election  establishes 
the  right  of  a  person  to  an  office.  It  seems  clear  that  it  cannot  be  the  former,  because  by 
our  Constitution  and  laws  it  is  expressly  provided  that  1he  election  by  the  qualified  voters 
shall  determine  the  question.  To  hold  that  the  canvass  shall  control  would  subvert  the  founda 
tions  upon  which  our  Government  rests.  But  it  has  been  repeatedly  contended  in  the 
course  of  this  proceeding  that,  although  the  election  by  the  electors  determines  the 
right  to  the  office,  yet  the  decision  of  the  persons  appointed  to  canvass  the  votes  cast 
at  the  election  settles  finally  and  completely  the  question  as  to  the  persons  elected, 
and  that,  therefore,  no  court  can  have  jurisdiction  to  inquire  into  the  matter.  It  will 
be  seen  that  this  view  of  the  question,  while  it  recognizes  the  principle  that  the  elec 
tion  is  the  foundation  of  the  right  to  the  office,  assumes  that  the  canvassers  have 
authority  to  decide  the  matter  finally  and  conclusively.  We  do  not  deem  it  necessary 
to  say  anything  on  the  present  occasion  upon  the  subject  of  the  jurisdiction  of  this 
court,  as  that  question  has  already  been  decided  and  the  reasons  for  the  decision 
given.  Bearing  it  in  mind,  then,  that  under  our  constitution  and  laws  it  is  the  election 
to  an  office,  and  not  the  canvass  of  the  votes,  which  determines  the  right  to  the  office, 
,we  will  proceed  to  inquire  into  the  proceedings  of  the  State  canvassers,  by  which  they 
determined  that  the  respondent  was  duly  elected. 

The  legality  of  the  election,  and  the  rights,  powers,  and  duties  of  the  officer  do 
not  depend  upon  the  fact  of  the  declaration  of  the  board  of  election.  That  declaration 
is  proper  and  is  the  usual  practice ;  but  withholding  it  or  neglecting,  causelessly  or 
illegally,  to  make  it,  will  not  prevent  the  installation  in  and  investment  with  the 


ELECTORAL    COUNT    OF    1877.  737 

office.  The  authority,  rights,  and  powers  of  such  officers  are  derived  from  the  election, 
and  not  from  the  returns,  which  are  the  usual  prescribed  evidences  of  it. — (People  vs. 
Killduff,  15  111.,  492.) 

We  have,  therefore,  no  ground  for  our  interference  but  the  single  one  that  the 
return -judges  included  in  their.enumeration  returns  purporting  to  be  from  three  com 
panies  of  volunteers,  which  were  mere  forgeries.  We  admit  that,  in  the  evidences 
before  us,  it  appears  clear  to  us  all  that  those  returns  are  forgeries,  and  that  it  was 
only  by  their  inclusion  in  the  enumeration  that  the  defendants  have  obtained  certifi 
cates  of  their  election.  We  admit,  therefore,  that  the  evidence  proves  that  these  cer 
tificates  of  the  election  of  the  defendants  are  founded  in  manifest  fraud,  the  forgery  of 
some  unknown  person,  but  we  do  not  find  that  the  defendants  had  any  hand  in  it,  and 
we  trust  that  they  had  not. 

Can  we  on  this  account  interfere  and  declare  the  certificates  void  ?  We  think  not. 
According  to  our  laws  the  election  has  passed  completely  through  all  its  forms,  the 
result  has  been  in  due  form  declared  and  certified,  and  the  defendants  have  received 
their  certificates  of  election,  and  are  entitled  to  seats  as  members  of  the  common  coun 
cil.  The  title-papers  of  their  offices  are  complete,  and  have  the  signatures  of  the  proper 
officers  of  the  law,  and  if  they  are  vitiated  by  any  fraud  or  mistake  in  the  process  that 
has  produced  them,  this  raises  a  case  to  be  tried  by  the  forms  of  "  a  contested  election" 
before  the  tribunal  appointed  by  law  to  try  such  questions,  and  not  by  the  ordinary 
forms  of  legal  or  equitable  process  before  the  usual  tribunals.  It  is  part  of  the  process 
of  political  organization,  and  not  a  question  of  private  rights,  and  therefore  the  con 
stitution  does  not  require  that  the  courts  shall  determine  its  validity. 

The  law  has  appointed  a  special  tribunal  to  try  just  such  a  question,  and  we  can 
have  no  right  to  step  in  between  the  case  and  that  tribunal  and  alter  the  return  of  the 
election-judges  and  annul  their  certificates. — (Per  Lowrie,  C.  J. ;  Hulseman  vs.  Kerns, 
41  Perm.,  396.) 

The  title  to  an  elective  office  is  derived  from  the  people  through  the  ballot-box. 
Somebody  must  declare  the  will  of  the  electors  as  thus  expressed.  Canvassers 
are  provided  for  that  purpose.  The  certificate  of  a  board  of  canvassers  is  evidence  of 
the  person  upon  whom  the  office  has  been  conferred.  Upon  all  questions  arising  col 
laterally,  or  between  a  party  holding  the  certificate  and  a  stranger,  it  is  conclusive 
evid^ice  ;  but,  in  a  proceeding  to  try  the  right  to  the  office,  it  is  only  prima-facie  evi 
dence.  In  such  a  proceeding,  now  regarded  as  a  civil  action,  it  is  competent  for  the 
court  to  go  behind  the  adjudication  of  the  canvassers.  The  whole  question  is  thrown 
open  and  extrinsic  evidence  is  allowed  to  show  which  was  the  true  state  of  the  votes. 
In  such  an  action,  where  the  right  to  the  office  is  the  very  thing  in  issue,  the  court  will 
allow  nothing  to  stand  in  the  way  between  it  and  the  ballot-box.  It  will  put  in  requi 
sition  all  the  means  within  its  reaeh  to  ascertain  the  expressed  will  of  the  electors,  and 
will  conform  its  judgment  to  such  ascertained  will. — (Morgan  vs.  Quackenbush,  22 
Barb.,  72.) 

In  deciding  the  question  as  to  which  candidate  has  received  the  greater 
number  of  votes  cast  by  the  electors  for  a  particular  office,  the  court 
and  jury  will  go  behind  the  canvass  to  ascertain  the  intention  of  the 
voters,  and,  when  ascertained,  will  give  effect  to  that  intention  by  giv 
ing  to  each  candidate  the  votes  the  voters  gave  him. — (People  vs.  Fer 
guson,  8  Cow.,  102 ;  People  vs.  Cook,  8  K  Y.,  67,  83;  People  vs.  Pease, 
27  N.  Y.,45;  People  vs.  Love,  63  Barb.,  535.;  People  vs.  Wilson,  62  N. 
T.,  186  ;  People  vs.  Vail,  20  Wend.,  12.) 

The  false  issue,  whether  a  certificate  has  been  issued,  cannot  be  prop 
erly  substituted  for  the  true  issue,  who  have  been  appointed  electors  by 
the  State.  That  is  the  question,  and  it  is  only  as  they  assist  in  the  solu 
tion  of  that  question  that  there  is  any  power  or  authority  in  the  certifi 
cates  themselves.  The  fact  to  be  determined  is  the  appointment ;  the 
certificate  is  only  the  evidence,  controvertible  or  incontrovertible,  as  may 
be  provided  by  law.  The  point  to  be  adjudged  and  declared  is,  who  has 
received  a  majority  of  valid  electoral  votes,  not  who  has  received  a  ma 
jority  of  certified  votes.  A  President  is  to  be  declared  elected  not  by  a 
preponderance  of  certificates,  but  by  a  preponderance  of  electoral  votes. 
The  end,  therefore,  to  be  arrived  at  by  the  signing,  delivery,  and  for 
warding  of  the  certificates,  is  proof  of  the  fact  of  the  appointment  of 
electors  and  who  the  electors  are  that  have  been  so  appointed.  There 
is  nothing  in  the  nature  of  the  lists  of  the  governor  which  forbids  in  - 
47  E  c 


738  ELECTORAL   COUNT    OF    1877. 

quiry  into  their  verity.  They  are  not  revelations  from  above ;  they  are 
papers  made  by  men,  fallible  always,  and  sometimes  dishonest  as  well 
as  fallible  ;  and,  if  honest,  often  deceived  ;  made  generally  in  secret  and 
ex  parte,  without  hearing  both  sides,  without  oral  testimony,  without 
cross-examination.  Of  such  evidence  it  may  be  safely  affirmed  that  it 
is  never  made  final  and  conclusive  without  positive  law  to  that  express 
effect. 

]N"ow,  it  may  be  competent  for  the  legislature  of  a  State,  under  its  own 
constitution,  to  determine  how  far  one  of  its  own  records  shall  be  con 
clusive  between  its  own  citizens.  It  may  enact  that  the  certificate  of  a 
judge  of  a  court  of  record,  of  a  sheriff,  county  commissioner,  a  board  of 
tax-assessors,  or  a  board  of  State  canvassers  shall  or  shall  not  be  open 
to  investigation.  There  is,  however,  no  act  of  Congress  on  the  subject 
of  the  present  inquiry,  and  we  are  left  to  the  Constitution  itself,  with 
such  guide  to  its  true  interpretation  as  is  furnished  by  just  analogy 
and  by  history.  A  President  is  to  be  declared  elected  for  thirty-eight 
States  and  forty-two  millions  of  people;  the  declaration  depends  upon 
the  voice,  we  will  suppose,  of  a  single  State;  that  voice  is  uttered  by 
her  votes;  to  learn  what  those  votes  are,  this  tribunal  is  referred  to  a 
certificate,  and  told  that  it  cannot  go  behind  it.  In  such  case,  to  assert 
that  the  remaining  thirty-seven  States  are  powerless  to  inquire  into  the 
getting  up  of  this  certificate,  on  the  demand  of  those  who  offer  to  prove 
the  fraud  of  the  whole  process,  is  to  assert  that  we  are  the  slaves  of 
fraud  and  cannot  take  our  necks  from  the  yoke. 

In  the  absence  of  express  enactments  to  the  contrary,  any  judge  may 
inquire  into  any  fact  necessary  to  his  judgment.  The  certificate  is  not 
the  fact  to  be  proved,  but  evidence  of  the  fact,  and  one  kind  of  evidence 
may  be  overcome  by  other  and  stronger  evidence,  unless  some  positive 
law  declares  that  the  weaker  shall  prevail  over  the  stronger,  the  false 
over  the  true.  There  may  be  cases  where,  for  the  quieting  of  titles  or 
the  ending  of  controversies,  a  record  or  certificate  is  made  unanswera 
ble;  that  is,  though  it  might  be  truthfully  answered,  the  law  will  not 
allow  it  to  be  answered.  Such  cases  are  exceptional,  and  the  burden  of 
establishing  them  rests  upon  him  who  propounds  them.  Let  him,  there 
fore,  who  asserts  that  the  certificate  of  a  returning-board  cannot  be 
answered  by  any  number  of  living  witnesses  to  the  contrary,  show  that 
positive  law  which  makes  it  thus  unanswerable.  There  is  certainly 
nothing  in  the  Constitution  of  the  United  States  which  makes  it  so,  as 
there  is  no  act  of  Congress  to  that  effect. 

We  may  formulate  the  question  in  this  manner:  Whom  has  the  State 
appointed  to  vote  in  its  behalf  for  President?  The  manner  of  appoint 
ment  is  the  vote  of  the  people,  for  the  legislature  has  so  directed.  Who, 
then,  are  appointed  by  the  people?  To  state  the  question  is  nearly 
equivalent  to  stating  what  evidence  is  admissible;  for  the  question  is 
not  who  received  the  certificate,  but  who  received  the  votes;  and  any 
evidence  showing  what  votes  were  cast  and  for  whom  is  pertinent,  and 
must  therefore  be  admissible,  unless  excluded  by  positive  law.  The 
law  by  which  this  question  is  to  be  decided  is  not  State,  but  Federal. 
If  it  were  otherwise,  the  State  officers  might  evade  the  Constitution 
altogether,  for  this  ordains  that  the  appointment  shall  be  by  the  State, 
and  in  such  manner  a,s  its  legislature  directs ;  but  if  the  State  certificate 
is  conclusive  of  the  fact,  the  State  authorities  may  altogether  refuse 
obedience  to  the  Constitution  and  laws,  and  save  themselves  from  the 
consequences  by  certifying  that  they  have  obeyed  them.  And  they  may 
in  like  manner  defraud  us  of  our  rights,  making  resistance  impossible, 
by  certifying  that  they  have  not  defrauded.  Indeed,  they  might  make 


ELECTORAL    COUNT    OF    1877.  739 

shorter  work  of  it,  and  omit  the  election  altogether,  writing  the  certificate 


The  nature  of  the  question  to  be  determined,  the  absence  of  any  posi 
tive  law  to  shut  out  pertinent  evidence,  the  impolicy  of  such  an  exclu 
sion,  its  injustice,  and  the  impossibility  of  maintaining  it,  if  by  any 
fatality  it  were  for  a  time  established — all  these  considerations  go  to 
make  and  fortify  the  position  that  whatever  body  has  authority  to 
decide  how  a  State  has  voted  has  authority  to  draw  information  from 
all  sources  of  knowledge. 

It  has  been  asserted  that  the  certificates  of  the  executive  partake  of 
the  nature  of  records,  and  it  is  sought  to  be  argued  therefore  that  they 
are  conclusive  evidence  of  the  facts  contained  in  them.  We  proceed, 
therefore,  to  consider  the  question : 

YI.  IS  THE  CERTIFICATE  OF  THE  EXECUTIVE  A  RECORD  INCAPABLE 
OF  CONTRADICTION  ? 

Records,  in  the  original  sense  of  the  word,  in  which  only  it  is  true 
that  they  are  "authentic  beyond  all  manner  of  contradiction,"  include 
only  "the  memorials  of  the  legislature  and  of  the  king's  courts  of  jus 
tice."— Gilbert  on  Evidence,  7 ;  Plowd.,  491 ;  Co.-Litt.,  260«;  4  Coke, 
71a;  Finch  Law,  230. 

These  are  said  to  be  "monumenta  veritatis  et  vetustatis  vestigia,"  as  also 
the  "treasure  of  the  king."— Coke-Litt.,  118a;  2936;  11  Edw.  IV,  1, 
cited  in  Best  on  Evidence,  5  ed.,  §  128. 

Outside  of  these  two  kinds  of  documents  there  are  others  inap 
propriately  called  records,  but  which  derive  no  vigor  or  efficacy  from 
their  own  nature,  but  only  from  some  potentiality  impressed  upon  or 
imputed  to  them  by  positive  statutory  enactment.  There  is  nothing  in 
the  mere  fact  of  a  public  instrument  being  engrossed  in  a  book  of  rec 
ords,  or  being  uttered  by  a  public  official,  even  of  the  highest  rank  in 
political  office,  or  in  its  being  stamped  or  verified  by  the  great  seal  of  a 
sovereign  State,  which  gives  the  instrument  the  attributes  of  a  record 
as  that  word  is  used  in  the  ancient  books. 

The  proclamation  of  the  President  of  the  United  States  as  to  the 
conclusion  of  a  treaty  only  derives  its  power  from  the  Constitution  and 
laws  of  the  United  States,  and  not  because  it  is  an  official  document 
called  a  record.  So,  too,  with  the  other  proclamations  the  President  is 
authorized  to  issue.  Rev.  Stat.,  §§  4067,  4079,  4228,  4230,  5300,  5301, 
5317. 

The  copies  of  records,  books,  or  papers  in  the  Executive  Departments 
are  only  evidence  equally  with  the  originals.  And  the  instances  in 
which  such  originals  are  evidence — plenary,  sufficient,  prima  facie — 
are  rare;  and,  when  having  such  effect,  only  derive  it  from  the  force  of 
positive  enactment,  and  not  from  any  virtue  by  reason  of  being  official 
acts  or  being  recorded  in  a  public  office.  See  Rev.  Stat.,  §§  8G2-S96,  in 
clusive  ;  Church  vs.  Hubbart,  2  Cranch,  178 ;  The  Amiable  Isabella,  6 
Wheat,,  1 ;  United  States  vs.  The  Amistad,  15  Peters,  595. 

Neither  does  the  affixing  of  the  great  seal  of  the  State  impart  to  the 
certificate  of  the  executive  such  absolute  verity  that  the  truth  of  its 
statements,  cannot  be  inquired  into. 

The  authority  of  the  executive  of  the  State  to  certify  the  list  of 
names  of  the  persons  appointed  as  electors  rests  upon  the  act  of  Con 
gress  of  1792.  The  form  of  the  certificate  is  not  prescribed,  nor  does 
the  act  require  that  it  should  be  under  seal ;  and  the  fact  that  the  elec 
tion  of  Senators  must  be  certified  by  the  executive  of  the  State  under 


740  ELECTORAL    COUNT    OF    1877. 

the  seal  of  the  State,  and  the  certificate  countersigned  by  the  secretary 
of  state,  (U.  S.  Stat.  at  L.,  p.  3,)  is  presumptive  evidence  that  the  cer 
tificate  to  the  list  of  electors  would  be  sufficient  without  having  affixed 
to  it  the  seal  of  State.  In  other  words,  that  the  seal  is  not  necessary 
to  give  to  the  certificate  of  electors  the  force  and  effect  intended  to  be 
conferred  upon  that  paper.  This  being  so,  the  fixing  of  the  seal  of 
State  is  a  mere  harmless  superfluity,  or,  at  furthest,  is  merely  evidence 
of  authenticity  of  the  signature  to  the  certificate.  In  the  language  of 
the  Chief  Justice,  in  Marbury  vs.  Madison,  1  Cranch,  158 :  "It  attests, 
by  an  act  supposed  to  be  of  public  notoriety,  the  verity  of  the  (presi 
dential)  signature." 

A  modern  writer  has  defined  a  record  to  be  ua  written  instrument 
made  by  a  public  officer  authorized  by  law  to  perform  that  function, 
and  intended  to  serve  as  evidence  of  something  written,  said,  or  done." 
2Bouviei's  Law  Die.,  41,  429,  citing  18  Yin.  Ab.,  170;  1  Kent,,  260; 
Gresiey  on  Evidence,  99;  Coke-Litt.,  260a;  6  Call,  78;  1  Dana,  595. 

But  this  definition  does  not  imply  that  the  evidence  of  such  records 
is  conclusive.  They  are  intended  to  serve  as  evidence,  but  not  as  the 
exclusive  evidence,  unless  made  so  by  positive  enactment. 

There  is  nothing  in  the  nature  of  the  certificate  itself,  nor  in  the 
object  which  it  is  to  accomplish,  which  brings  it  within  the  category  of 
records  "  authentic  beyond  contradiction." 

It  is  a  mere  ministerial,  not  a  legislative  or  judicial,  act,  issued  with 
out  the  exercise  of  discretion,  founded  not  upon  testimony  of  witnesses, 
and  given  without  opportunity  to  parties  interested  to  be  heard  as  to  its 
truth  or  falsity. 

Its  object  is  to  furnish  evidence,  and  this  can  be  accomplished  with 
out  giving  to  it  that  conclusive  character  which  some  records  are  sup 
posed  to  possess. 

VII.  EVEN  IF  THE  CERTIFICATE  PARTOOK  OF  THE  CHARACTER  OF 
A  LEGISLATIVE  ACT  OR  OF  A  JUDICIAL  RECORD,  ITS  VERITY  COULD 
BE  INQUIRED  INTO. 

1.  As  to  legislative  acts: 

The  question  how  far  acts  of  legislatures  may  be  inquired  into  has 
been  mooted  in  the  courts  of  the  several  States,  and  the  power  of  the 
courts  asserted  to  go  behind  statutes  and  explore  their  enactment  at 
every  stage.  Clare  vs.  State  of  Iowa,  5  Iowa  Eeports ;  Pond  vs.  Maddox, 
38  California  Eeports ;  Fowler  vs.  Pierce,  2  California,  165 ;  Jones  vs. 
Hutchinson,  43  Alabama  Eeports,  721 ;  People  vs.  Mahoney,  13  Michigan 
Eeports ;  Illinois  Central  Eailroad  vs.  Wren,  43  Illinois  Eeports ;  Cooley 
on  Constitutional  Limitations,  pp.  135, 177  ;  State  vs.  McBride,  4  Mis 
sissippi  Eeports,  302 ;  Furgusson  vs.  Miners'  Bank,  Sneed,  Tennessee, 
609  ;  People  vs.  Campbell,  3  Gilman,  Illinois,  466 ;  Spangler  vs.  Jacoby, 
14  Illinois,  297  ;  Hurley  vs.  Logan,  17  Illinois,  151 ;  Prescott  vs.  Board 
of  Trustees,  19  Illinois,  324;  Supervisors  vs.  People,  25  Illinois,  181; 
Skinner  vs.  Demming,  2  Indiana,  560 ;  Board  of  Supervisors  vs.  Heenan, 
2  Minnesota,  330 ;  De  Bow  vs.  The  People,  1  Denio,  9 ;  Bank  vs.  Spar 
row,  2  Denio,  97;  People  vs.  Purdy,  2  Hill,  31 ;  same  case,  4  Hill,  484; 
35  New  Hampshire,  579 ;  South wark  Bank  vs.  Commonwealth,  26  Pa. 
State,  446 ;  Miller  vs.  The  State,  3  Ohio,  475 ;  Fordyce  vs.  Gadman,  20 
Ohio  State,  1. 

The  enrolled  act  duly  authenticated  as  the  Constitution  prescribes,  and  approved 
and  signed  by  the  governor,  is  not  conclusive  evidence  of  the  terms  of  the  bill  as  it 
passed  the  bouses  of  the  general  assembly,  but  the  journals  of  the  houses  or  other 
appropriate  evidence  may  be  received  to  show  what  these  terms  were ;  and  whenever 


ELECTORAL   COUNT   OF   1877.  741 

it  appears  that  the  enrolled  act  differs  from  the  bill  as  it  passed,  in  a  substantial  man 
ner,  the  judiciary  department  of  the  State  may  declare  the  whole  act,  or  the  part 
affected  by  the  change,  unconstitutional  and  void.  (State  vs.  Platt,  So.  Ca.  Rep.,  2 
Rich,  N.  S.,  150.) 

See  Jones  vs.  Jones,  2  Jones,  (Perm.,)  350 ;  Grouse  vs.  Grouse,  54  Penn. 
State,  255. 

While  the  motives  of  the  legislature  may  not  be  inquired  into,  nor 
fraud  in  the  passage  of  the  act  proved,  yet  the  fact  whether  the  act  was 
passed  at  all  or  in  consonance  with  due  formality  may  be  considered, 
as  well  as  whether  the  engrossed  or  enrolled  copy  contains  all  of  the 
act  or  more  than  the  act  actually  passed.  (Fletcher  vs.  Peck,  6  Cranch, 
87.) 

The  Supreme  Court  of  the  United  States,  in  Gardner  -vs.  The  Collector, 
6  Wallace,  499,  (Miller,  J.,)  say : 

"We  are  of  opinion  therefore,  on  principle  as  well  as  authority,  that  whenever  a  ques 
tion  arises  in  a  court  of  law  of  the  existence  of  a  statute,  or  of  the  time  Avhen  a  statute 
took  effect,  or  of  the  precise  terms  of  a  statute,  the  judges  who  are  called  upon  to  decide 
it  have  a  right  to  resort  to  any  source  of  information  which  in  its  nature  is  capable  of 
conveying  to  the  judicial  mind  a  clear  and  satisfactory  answer  to  such  questions,  always 
seeking  first  for  that  which  in  its  nature  is  most  appropriate,  unless  the  positive  law 
has  enacted  a  different  rule. 

2.  As  to  judicial  proceedings.  Noonan  vs.  Bradley,  12  Wall.,  121 ;  Jack- 
son  vs.  Ludeling,  21  Wall.,  631;  Ex  parte  White  vs.  Tommey,  4  Ho.  of 
Lords  Cases,  313 ;  U.  S.  vs.  Gomez,  23  How.,  326  ;  U.  S.  vs.  Hughes,  11 
How.,  566;  Maxfield  vs.  Levy,  4  Dallas,  336;  2  Smith  Lead.  Cases, 
634-636. 

There  are  other  matters  of  record  which  may  be  inquired  into,  viz  : 

1.  Letters-patent. 

Scire  facias  lies  to  repeal  letters-patent  where  the  grant  is  made 
upon  a  false  suggestion.  (4  Coke  Inst.,  88.) 

2.  Grants  of  land  by  the  United  States. 

The  great  difficulty  in  this  case  consists  in  the  admission  of  any  testimony  whatever 
which  calls  in  question  the  validity  of  a  warrant  issued  by  the  officer  to  whom  that 
duty  is  assigned  by  law.  In  examining  this  question,  the  distinction  between  an  act 
which  is  judicial  and  one  which  is  merely  ministerial  must  be  regarded.  The  register 
of  the  land-office  is  not  at  liberty  to  examine  testimony  and  exercise  his  own  judg 
ment  resnecting  the  right  of  an  applicant  for  a  military  land-warrant.  (Miller  vs.  Kerr, 
9  Wheat.,  1.) 

In  Brush  vs.  Ware,  15  Peters,  104,  the  court  hold  that  the  acts  of  the 
officer  being  ministerial,  and  not  judicial,  the  presumption  in  favor  of 
his  acts,  if  apparently  fair  and  legal,  might  ba  impeached  by  evidence. 

The  general  doctrine  is  that  when  the  law  has  confided  to  a  special  tribunal  the 
authority  to  hear  and  determine  certain  matters  arising  in  the  course  of  its  duties,  the 
decision  of  that  tribunal,  within  the  scope  of  its  authority,  is  conclusive  upon  all  oth 
ers.  That  the  action  of  the  Laud-Office  in  issuing  a  patent  for  any  of  the  public  land, 
subject  to  sale  by  pre-emption  or  otherwise,  is  conclusive  of  the  legal  title,  must  be 
admitted  under  the  principle  above  stated;  and  in  all  courts,  and  in  all  forms  of  judicial 
proceedings,  where  this  title  must  control,  cither  by  reason  of  the  limited  powers  of 
the  court  or  of  the  essential  character  of  the  proceeding,  no  inquiry  can  be  permitted 
into  the  circumstances  under  which  it  was  obtained.  On  the  other  hand,  there  has 
always  existed,  in  the  courts  of  equity  the  power  in  certain  classes  of  cases  to  inquire 
into  and  correct  mistakes,  injustice,  and  wrong  in  both  judicial  and  executive  action, 
however  solemn  the  form  which  the  result  of  that  action  may  assume,  when  it  invades 
private  rights ;  and  by  virtue  of  this  power  the  final  judgments  of  courts  of  law  have 
been  annulled  or  modified,  and  patents  and  other  important  instruments  issuing  from 
the  Crown,  or  other  executive  branch  of  the  government,  have  been  corrected  or 
declared  void,  or  other  relief  granted.  No  reason  is  perceived  why  the  action  of  the 
Land-Office  should  constitute  an  exception  to  the  principle.  In  dealing  with  the  pub 
lic  domain  under  the  system  of  laws  enacted  by  Congress  for  their  management  and 
sale,  that  tribunal  decides  upon  private  rights  of  great  value,  and  very  often,  from  the 
nature  of  its  functions,  by  a  proceeding  essentially  ex  parte  and  peculiarly  liable  to  the 
nfluence  of  frauds,  false  swearing,  and  mistakes.  (Johnson  vs.  Towsley,  13  Wall.,  83.) 


742  ELECTORAL    COUNT    OF    1877. 

3.  The  case  of  the  United  States  vs.  The  Amistad,  15  Peters,  518,  is 
instructive  on  this  point.  The  court  say : 

It  is  argued  that  the  ship  and  cargo  and  negroes  were  duly  documented  as  belonging 
to  Spanish  subjects,  and  this  court  has  no  right  to  look  behind  these  documents;  that 
full  faith  and  credit  is  to  be  given  to  them,  and  that  they  are  to  be  held  conclusive 
evidence  in  this  cause,  even  although  it  should  be  established  by  the  most  satisfactory 
proofs  that  they  have  been  obtained  by  the  grossest  frauds  and  impositions  upon  the 
constituted  authorities  of  Spain.  To  this  argument  we  can  in  no  wise  assent.  There 
is  nothing  in  the  treaty  which  justifies  or  sustains  the  argument.  We  do  not  here 
meddle  with  the  point  whether  there  has  been  any  connivance  in  this  illegal  traffic  on 
the  part  of  any  of  the  colonial  authorities  or  subordinate  officers  of  Cuba;  because,  in 
our  view,  such  an  examination  is  unnecessary,  and  ought  not  to  be  pursued,  unless  it 
were  indispensable  to  public  justice,  although  it  has  been  strongly  pressed  at  the  bar. 
What  we  proceed  upon  is  this :  that  although  public  documents  of  the  Government 
accompanying  property  found  on  board  of  the  private  ships  of  a  foreign  nation  cer 
tainly  are  to  be  deemed  prima-facie  evidence  of  the  facts  which  they  propose  to  state, 
yet  they  are  always  open  to  be  impugned  for  fraud ;  and  whether  that  fraud  be  in  the 
original  obtaining  of  these  documents  or  in  the  subsequent  fraudulent  and  illegal  use 
of  them,  when  once  it  is  satisfactorily  established,  it  overthrows  all  their  sanctity  and 
destroys  them  as  proof.  Fraud  will  vitiate  any,  even  the  most  solemn,  transaction;  and  an 
asserted  title  to  property  founded  upon  it  is  utterly  void.  The  very  language  of  the  ninth 
article  of  the  treaty  of  1795  requires  the  proprietor  to  make  due  and  sufficient  proof 
of  his  property. 

And  how  can  that  proof  be  deemed  either  due  or  sufficient  which  is  but  a  con 
nected  and  stained  tissue  of  fraud  ?  This  is  not  a  mere  rule  of  municipal  jurisprudence. 
Nothing  is  more  clear  in  the  law  of  nations  as  an  established  rule  to  regulate  their 
rights  and  duties  and  intercourse  than  the  doctrine  that  the  ship's  papers  are  but 
prima-facie  evidence,  and  that,  if  they  are  shown  to  be  fraudulent,  they  are  not  to  be 
held  proof  of  any  valid  title.  This  rule  is  familiarly  applied,  and,  indeed,  is  of  every 
day  occurrence  in  cases  of  prize,  in  the  contests  between  belligerents  and  neutrals,  as 
is  apparent  from  numerous  cases  to  be  found  in  the  reports  of  this  court ;  and  it  is  just 
as  applicable  to  the  transactions  of  civil  intercourse  between  nations  in  times  of  peace. 
If  a  private  ship,  clothed  with  Spanish  papers,  should  enter  the  ports  of  the  United 
States  claiming  the  privileges  and  immunities  and  rights  belonging  to  bona-fide  sub 
jects  of  Spain,  under  our  treaties  or  laws,  aud  she  should  in  reality  belong  to  the  sub 
jects  of  another  nation,  which  was  not  entitled  to  any  such  privileges,  immunities,  or 
rights,  and  the  proprietors  were  seeking  by  fraud  to  cover  their  own  illegal  acts  un 
der  the  flag  of  Spain,  there  can  be  no  doubt  that  it  would  be  the  duty  of  our  courts  to  strip 
off  the  disguise  and  to  look  at  the  case  according  to  its  naked  realities.  In  the  solemn  treaties 
between  nations  it  can  never  be  presumed  that  either  state  intends  to  provide  the  means  of  per 
petrating  or  protecting  frauds,  but  all  the  provisions  are  to  be  construed  as  intended  to 
be  applied  to  bona-fide  transactions. 

VIII.  BUT  OVER  AND  ABOYE  ALL  OTHER  CONSIDERATIONS  REMAINS 
THE  RULE  THAT  FRAUD  VITIATES  EVERY  ACT. 

The  general  maxims  of  the  law:  "Dolus  etfraus  nemini patrocinentur"1 
"Jus  etfraus  nunqiiam  cohabitant?  "  Qm  fraudem  fit  frustra  ayit?  apply 
to  the  decisions  of  tribunals. 

Lord  Chief-Justice  de  Grey,  in  delivering  the  answers  of  the  judges 
of  the  House  of  Lords  in  the  Duchess  of  Kingston's  case,  speaking  of  a 
certain  sentence  of  a  spiritual  court,  says : 

If  it  was  a  direct  and  decisive  sentence  upon  the  point,  and  as  it  stands,  to  be  ad 
mitted  as  conclusive  evidence  upon  the  court  and  not  to  be  impeached  from  within, 
yet,  like  other  acts  of  the  highest  judicial  authority,  it  is  impeachable  from  without; 
although  it  is  not  permitted  to  show  that  the  court  was  mistaken,  it  may  be  shown  that 
they  were  misled. 

Fraud  is  an  extrinsic  collateral  act  which  vitiates  the  most  solemn 
proceedings  of  courts  of  justice. 

In  such  cases,  as  has  been  well  expressed,  the  whole  proceeding  was 
"fabula  non  judicium." 

The  principle  applies  to  every  species  of  judgments;  to  judgments  of 
courts  of  exclusive  jurisdiction;  to  judgments  in  rem;  to  judgments  of 
foreign  tribunals,  and  even  to  judgments  of  the  House  of  Lords. 

On  an  indictment  for  perjury,  the  record  of  the  proceedings  at  the 


ELECTORAL    COUNT    OF    1877.  743 

trial,  with  the  finding  of  the  jury  and  the  judgment  of  the  court  thereon, 
in  accordance  with  the  evidence  given  by  the  accused,  is  no  defense. 

It  is  perhaps  needless  to  add  that  a  supposed  judicial  record  offered 
in  evidence  may  be  shown  to  be  a  forgery.  (Best  on  Evidence,  §  595,  cit 
ing  14  Hen.  VIII,  8 a-,  39  Hen.  VI,  50,  p.  15 ;  1  Keb.,  546 ;  10  Co.,  45 a ; 
2  Eol.,  17;  3  Co.,  78  a;  the  Duchess  of  Kingston  case,  11  St. Trials,  262; 
Brownsword  vs.  Edwards,  2  Vez.,  246 ;  Earl  of  Bandon  vs.  Becher,  3 
Cl.  &  F.,  479  ;  Harrison  vs.  Mayor  of  Southampton,  IV  De  G.  &  M.  &  G., 
148;  Meddows  Graft  vs.  Hugenin,  3  Curties,  403;  In  re  Place,  8  Exch., 
704;  Bank  of  Australasia  vs.  Nias,  16  Q.  B.,  717;  Sheddon  vs.  Patrick, 
1  Macq.  Ho.  Lo.  cases,  535 ;  Hobart,  201 ;  Titus  Oates  case,  10  How. 
St.  Trials,  1136;  Noell  vs.  Wells,  1  Sid.,  359.) 

In  Ex  parte  White  vs.  Toinmey,  4  Ho.  of  Lords  Cases,  313,  it  is  held 
that  though  the  House  of  Lords  cannot  reverse  their  own  judgment,  they 
will  find  a  way  to  protect  themselves  and  parties  from  fraud,  and  they 
annulled  their  order  granting  the  petition  for  leave  to  appeal. 

IX.  IS  THIS  TRIBUNAL  A  CANVASSING  BOARD? 

For  the  purpose  of  the  argument,  it  must  be  conceded  that  a  wrong 
exists.  It  is  averred  that  the  highest  crimes  possible  under  our  Govern 
ment  have  been  committed,  namely:  The  fraudulent  setting  aside  of  the 
will  of  the  people  constitutionally  expressed,  and  the  usurpation  of  the 
right  to  choose  the  chief  magistrate  of  the  nation. 

It  is  a  maxim  recognized  in  the  jurisprudence  of  every  civilized  com 
munity  that  there  is  no  wrong  without  an  adequate  remedy. 

What  remedy  exists  for  this  alleged  wrong  ? 

Will  quo  ivarranto  lie  at  the  relation  of  a  claimant  of  the  presidential 
office  against  the  actual  incumbent  ? 

Certainly  not  in  any  State  court ;  no  State  court  could  enforce  its 
judgments  by  ouster,  even  if  it  should  entertain  jurisdiction.  It  is  not 
useful  to  inquire  whether  State  courts  might  not  consider  the  question 
in  a  collateral  matter. 

It  is  at  least  doubtful  if  the  Federal  courts  are  not  equally  powerless. 
There  is  no  common-law  jurisdiction  in  the  Federal  courts.  Whatever 
jurisdiction  the  Federal  courts  possess  to  issue  writs  of  quo  warranto  is 
to  be  found  in  express  statutory  enactment. 

The  only  provisions  in  the  Kevised  Statutes  (pp.  95,  111,  318)  would 
seem  to  exclude  the  exercise  of  this  jurisdiction  in  the  case  now  under 
consideration. 

The  doctrine  that  canvassing-boards  "  act,  for  the  most  part,  minis 
terially  only,  and  are  not  vested  with  judicial  powers  to  correct  errors 
and  mistakes  that  may  have  occurred  with  any  officer  who  preceded 
them  in  the  performance  of  any  duty  connected  with  the  election,  or  to 
pass  upon  any  disputed  fact  which  may  affect  the  result,"  is  founded  on 
the  reason  that  adequate  remedy  exists  for  the  redress  of  a  wrong,  false 
or  fraudulent  return,  in  the  courts  or  other  tribunals  erected  for  the 
trial  of  contested  elections,  or  in  the  right  of  legislative  bodies  to  judge 
of  the  election  and  qualifications  of  their  own  members. 

Cooley  on  Const.  Lim.,  3d  ed.,  734,  citing — 

State  vs.  Justices  of  Middlesex,  Coxe,  244; 

Hill  V8.  Hill,  4  McCord,  277 ; 

Wammack  vs.  Holloway,  2  Ala,,  31 ; 

State  vs.  Clerk  of  Passaic,  1  Dutch,  354; 

Marshall  vs.  Kerns,  2  Swan,  68; 

Attorney-General  vs.  Barstow,  4  Wis.,  567  ; 


744  ELECTORAL    COUNT    OF    1877. 

Attorney-General  vs.  Ely,  ib.,  420 ; 

People  vs.  Van  Cleve,  1  Mich.,  362; 

People  vs.  Higgins,  3  Mich.,  233 ; 

Dishon  vs.  Smith,  10  Iowa,  211 ; 

State  vs.  Johnson,  17  Ark.,  407; 

State  vs.  Fetter,  12  Wis.,  566 ; 

State  vs.  Avery,  14  Wis.,  122 ; 

People  vs.  Jones,  20  Cal.,  50; 

JSTewcum  vs.  Kirtley,  13  B.  Monr.,  515 ; 

People  vs.  Van  Slyck,  4  Cow.,  297 ; 

People  vs.  Vail,  20  Wendell,  12  ;  4 

Peoples.  Seaman,  5  Denio,  409; 

People  vs.  Cook,  14  Barb.,  259,  and  8  N.  Y.,  67 ; 

People  vs.  Matteson,  17  111.,  167; 

Taylor  vs.  Taylor,  10  Minn.,  107 ; 

Calaveras  County  vs.  Brock  way,  30  Cal.,  325; 

Ex  parte  Ellyson,  20  Grat.,  10. 

Justice  Christiancy,  in  People  vs.  Cicotte,  16  Mich.,  313,  expresses 
his  views  as  follows : 

I  cannot  go  to  the  extent  of  holding  that  no  inquiry  is  admissible  in  any  case  into 
the  qualification  of  voters,  or  the  nature  of  the  votes  given.  Such  a  rule,  I  admit, 
would  be  easy  of  application,  and,  as  a  general  rule,  might  not  be  productive  of  a  great 
amount  of  injustice,  while  the  multitude  of  distinct  questions  of  fact  in  reference  to 
the  great  number  of  voters  whose  qualifications  may  be  contested  is  liable  to  lead  to 
some  embarrassment,  and  sometimes  to  protracted  trials,  without  a  more  satisfactory 
result  than  would  have  been  attained  under  a  rule  which  should  exclude  all  siich  in 
quiries.  Still,  I  cannot  avoid  the  conclusion  that  in  theory  and  spirit  our  constitution 
and  our  statutes  recognize  as  valid  those  votes  only  which  are  given  by  electors  who 
possess  the  constitutional  qualifications;  that  they  recognize  as  valid  such  elections 
only  as  are  effected  by  the  votes  of  a  majority  of  such  qualified  electors;  and  though 
the  election-boards  of  inspectors  and  canvassers,  acting  only  ministerially,  are  bound 
in  their  decisions  by  the  number  of  votes  deposited  in  accordance  with  the  forms 
of  law  regulating  their  action,  it  is  quite  evident  that  illegal  votes  may  have 
been  admitted  by  the  perjury  or  other  fault  of  the  voters,  and  that  the  majority 
to  which  the  inspectors  have  been  constrained  to  certify,  and  the  canvassers  to  allow, 
has  been  thus  wrongfully  and  illegally  secured  ;  and  I  have  not  been  able  to  satisfy 
myself  that  in  such  a  case  these  boards,  acting  thus  ministerially,  and  often  compelled 
to  admit  votes  which  they  know  to  be  illegal,  were  intended  to  constitute  tribunals  of 
last  resort  for  the  determination  of  the  rights  of  parties  claiming  an  election.  If  this 
were  so,  and  there  were  no  legal  redress,  I  think  there  would  be  much  reason  to  ap 
prehend  that  elections  would  degenerate  into  mere  contests  of  fraud. 

The  person  having  the  greatest  number  of  the  votes  of  legally  qualified  electors  it 
seems  to  me  has  a  constitutional  right  to  the  office,  and  if  no  inquiry  can  be  had  into 
the  qualification  of  any  voter,  here  is  a  constitutional  right  depending  upon  a  mode 
of  trial  unknown  to  the  Constitution  ;  and,  as  I  am  strongly  inclined  to  think,  opposed 
to  its  provisions.  I  doubt  the  competency  of  the  legislature,  should  they  attempt  it, 
which  I  think  they  have  not,  to  make  the  decision  of  the  inspectors  or  canvassers  final 
under  our  constitution. 

If  it  be  correct  to  say  that  no  remedy  exists  for  trial  of  the  title  to 
the  Presidential  office,  then  it  follows  that  this  tribunal  must  have  other 
powers  than  those  of  a  mere  returning  or  canvassing- board,  for  where 
the  reason  fails  the  law  ceases. 

But  it  is  not  necessary  even  to  concede  that  writ  of  quo  warranto  will 
not  lie  to  test  the  right  to  the  Presidential  office.  The  object  of  the 
writ  is  to  try  the  question  of  fact.  This,  we  submit,  is  one  of  the  pur 
poses  of  this  tribunal.  It  cannot  be  that  the  people  of  this  country  are 
to  be  kept  in  a  state  of  suspense  while  the  tedious  process  of  a  trial  un 
der  quo  warranto  is  to  be  followed.  This  tribunal  can  reach  a  decision 
more  speedily  and  with  equal  efficacy,  and  by  the  same  methods  as  a 
court  trying  the  issues  raised  on  the  proceeding  by  quo  warranto. 


ELECTORAL   COUNT    OF    1877.  745 

BRIEF  No.  2. 

SUBMITTED    BY   COUNSEL  FOE    OBJECTORS    TO    CERTIFI 
CATE  No.  1  IN  THE  CASE  OF  THE  STATE  OF  FLORIDA. 

1.  The  Constitution  of  the  United  States  does  not  prescribe  the  evi 
dence  of  the  appointment  of  electors.    It  does  not  require  certified  lists 
or  certificates  from  the  governor  that  persons  claiming  to  have  been 
appointed  as  electors  have  in  fact  been  so  appointed.    It  does  not  require 
any  particular  proof  of  form.    It  is  wholly  silent  in  respect  to  the  evi 
dence  by  which  such  an  appointment  is  to  be  authenticated. 

2.  In  delegating  to  the  "  State"  the  appointment  of  electors,  and  to 
the  legislature  of  that  State  the  authority  to  u  direct,"  the  "  manner'7 
in  which  such  appointment  shall  be  made,  the  Constitution  seems  to 
contemplate  that  the  proof  of  the  appointment  should  in  the  first  in 
stance  at  least  be  furnished  by  the  State,  and  its  nature  and  form  pre 
scribed  by  the  legislature  of  the  State.    "  Each  State  " — it  declares — 
"shall  appoint,  in  such  manner  as  the  legislature  thereof  may  direct,"  the 
electors.    It  is  natural  that  the  power  authorized  to  do  an  act  and  to 
determine  the  manner  in  which  that  act  is  to  be  done,  should  also  pro 
vide  for  verifying  its  own  act  and  showing  that  it  was  done  in  the  proper 
manner.    The  legislative  power  of  the  State,  in  directing  the  manner 
in  which  the  act  is  to  be  done,  might  properly  direct  also  the  mode  of 
proving  that  such  manner  had  been  followed. 

The  primary  and  best  authority  as  to  what  the  State  has  done  is  the 
State  itself.  Its  ;own  declarations  through  its  legislative  and  judicial 
organs  are  the  most  weighty  testimony  which  can  be  offered. 

3.  The  statute  of  1792  provided  that  "  It  shall  be  the  duty  of  the  ex 
ecutive  of  each  State  to  cause  three  lists  of  the  names  of  the  electors 
of  such  State  to  be  made  and  certified,  and  to  be  delivered  to  the  elec 
tors  on  or  before  the  day  on  which  they  are  required,  by  the  preceding 
section,  to  meet  ;"  and  one  of  these  lists  was  directed  to  be  annexed  by 
the  electors  to  each  certificate  of  their  votes. 

This  provision,  so  far  as  the  State  executive  is  concerned,  is  little 
more  than  a  request  to  the  governor  to  make  such  lists  5  for  there  is  no 
mode  of  compelling  him  to  perform  the  duty.  (See  NoteD,  post,  p.  30.) 
Its  real  effect  is  to  provide  by  act  of  Congress  convenient  evidence  of 
the  appointment  of  the  electors  to  be  considered  by  the  two  Houses 
of  Congress  when  they  come  to  count  the  votes.  The  act  nowhere  goes 
beyond  that.  It  does  not  make  this  evidence  indispensable.  It  does 
not  make  this  evidence  conclusive.  It  does  not  make  this  evidence  ex 
clusive.  It  does  not  shut  out  other  evidence.  It  does  not  limit  the 
discretion  or  fetter  the  judgment  of  the  authority  having  the  power  to 
count  the  votes  and  to  decide  between  several  sets  of  papers  purport 
ing  to  be  votes,  as  to  which  are  in  truth  genuine  and  valid  votes. 

Suppose  the  governor's  certified  lists  should  happen  to  have  been  unat 
tainable  at  the  time  the  electors  voted.  Suppose  that  accident,  disa 
bility  or  death  intervened,  or  that  the  governor's  conscientious  judg 
ment  on  the  case,  or  his  willful  refusal  to  perform  his  duty,  deprived 
the  electors  of  this  evidence — are  their  votes  to  be  destroyed  ? 

Or  suppose  that  by  mistake  or  fraud  the  governor  should  give  the 
certified  lists  in  favor  of  persons  who  were  not  appointed  electors  and 
should  withhold  them  from  the  true  electors — is  there  no  remedy? 
Must  the  State  lose  its  vote?  Must  the  State  submit  to  have  its  vote 
cast  against  its  real  will,  as  if  by  a  false  personation  made  before  its 
eye?,  in  the  open  day,  but  whicirithas  no  power  to  resist  ? 


746  ELECTORAL    COUNT    OF    1877. 

The  answer  is  that  the  authority  commissioned  to  count  the  votes, 
and,  in  doing  so,  to  determine  what  are  authentic  and  valid  votes  en 
titled  to  be  counted,  will  receive  other  evidence  besides  the  governor's 
certified  lists,  which  evidence  may  prevail  over  that  certificate  ;  and  will 
receive  evidence  impeaching  the  truth  of  that  certificate  for  mistake  or 
fraud.  The  tribunal  might  act  on  the  petition  of  the  persons  claiming 
to  have  been  duly  appointed  electors,  and  wrongfully  interfered  with  in 
the  exercise  of  their  functions ;  for  it  is  not  limited  as  to  the  sources  of 
the  evidence  it  will  accept.  But  especially  will  it  receive  evidence  from 
the  State  itself. 

EVIDENCE  OF  THE  APPOINTMENT  OF  THE  TILDEN  ELECTORS. 

The  evidence  that  Wilkinson  Call,  James  E.  Yonge,  Robert  B.  Hilton, 
and  Robert  Bullock,  or  the  Tilden  electors,  as  we  shall  for  convenience 
call  them,  were  duly  appointed  by  the  State  of  Florida,  in  the  manner 
the  legislature  of  that  State  had  directed,  is  complete  and  conclusive. 

GOVERNORS  CERTIFIED  LISTS.  '  -.* 

The  only  defect  which  can  be  alleged  in  the  evidence  in  their  favor  is 
that  the  governor's  certified  lists  specified  by  the  act  of  1792  were  not 
furnished  "on  or  before  the  day  on  which"  they  were  required  to  meet 
for  the  purpose  of  casting  and  certifying  their  votes,  and  therefore  were 
not  at  that  time  annexed  to  their  statements  of  their  votes ;  but  that 
the  governor's  certified  lists  were  furnished  and  annexed  after  that  day. 

GOVERNOR'S  CERTIFIED  LISTS  NOT  ESSENTIAL. 

It  has  already  been  shown  that  the  permanent  absence  of  the  gov 
ernor's  certified  lists  is  not  fatal  to  the  validity  of  the  vote  of  the  electors ; 
that  this  piece  of  evidence  is  not  made  indispensable  or  conclusive  or 
exclusive,  or  invested  with  any  particular  force  or  effect,  by  the  statute 
which  provides  it.  The  terms  of  the  statute  are  remarkable.  They  do 
not  even  say  that  the  certified  lists  shall  be  required  by  anybody  or  as 
a  condition  of  anything  to  be  done,  but  are  a  mere  imposition  of  a 
"duty"  upon  the  State  executive  to  furnish  the  lists,  with  only  the 
moral  force  of  a  recommendation.  Language  could  not  be  chosen  fitter 
to  make  the  injunction  fall  within  the  class  called  in  legal  parlance  di 
rectory,  as  contradistinguished  from  mandatory,  the  neglect  of  which 
works  no  invalidity  in  the  act  done,  but  only  an  omission  of  duty  on  the 
part  of  the  officer  who  ought  to  have  complied  with  the  .direction.  And 
in  this  instance  the  injunction  is  not  addressed  to  the  electors  who  cast 
the  votes  or  to  the  tribunal  which  counts  the  votes,  but  only  to  a  third 
party  to  do  an  act  for  the  convenience  of  the  electors  and  the  counting 
tribunal.  There  can  be  no  doubt,  then,  that  the  permanent  absence  of 
the  governor's  certified  lists  would  work  no  invalidity  of  the  votes  of 
the  electors. 

STATUTORY    SPECIFICATION  OF  TIME    FOR    DELIVERY    OF  CERTIFIED 

LISTS  DIRECTORY. 

Still  less  can  delay  in  receiving  the  governor's  certified  lists,  which  the 
electors  have  no  legal  power  to  obtain,  but  are  wholly  dependent  on  the 
voluntary  action  of  the  governor,  or  a  consequent  delay  in  annexing 
such  lists  to  the  electors'  statement  of  their  votes,  until  the  day  fixed 


ELECTORAL    COUNT    OF    1877.  747 

for  the  meeting  of  the  electors  had  elapsed,  work  an  invalidity  of  the 
votes,  or  indeed  produce  any  legal  consequences  whatever. 

The  reason  the  governor  is  directed  to  furnish  his  lists  on  or  before 
the  day  the  electors  meet  was  doubtless  in  order  that  the  electors  might 
not  be  hindered  in  annexing  the  lists  to  their  statements  of  the  votes  if 
they  chose  to  do  so  on  the  first  day  of  their  meeting. 

The  first  Wednesday  in  December  is  fixed  by  the  statute  for  the 
meeting  of  the  electors.  The  delivery  of  the  statement  by  the  electors 
of  their  votes,  by  messenger,  to  the  President  of  the  Senate,  at  the  seat 
of  Government,  is  to  be  made  at  any  time  before  the  first  Wednesday 
in  January.  Thirty  days  are  thus  allowed  for  transmission  and  delivery. 
No  doubt  it  would  be  a  perfect  compliance  with  this  provision  if  tile 
electors'  statement  of  their  votes  were  made  out,  and  the  lists  of  the 
governor  obtained  and  annexed  at  any  time,  so  that  the  delivery  should 
be  made  within  the  thirty  days.  It  is  true  that  the  statement  of  the 
votes  to  be  forwarded  by  mail  and  the  statement  to  be  deposited  with 
the  district  judge  are  required  to  be  sent  forthwith;  but  the  one  trans 
mitted  by  the  messenger  would  be  good  if  the  others  were  never  received, 
or  never  sent.  How  little  the  statute  regards  the  times  specified  in  it 
as  of  the  essence  of  the  transaction  is  illustrated  by  the  provision  direct 
ing  that  whenever  neither  the  statement  sent  by  messenger  nor  that 
sent  by  mail  shall  have  been  received  at  the  seat  of  Government  on  the 
first  Wednesday  in  January,  the  secretary  of  state  shall  send  a  mes 
senger  to  the  district  judge,  and  that  he  shall  forthwith  transmit  the 
copy  deposited  with  him  to  the  seat  of  Government. 

No  time  is  fixed  by  any  of  the  statutes  for  the  arrival  at  the  seat  of 
Government  of  the  statement  deposited  with  the  district  judge.  No 
doubt  if  it  were  received  at  any  time  before  it  was  to  be  used  in  the 
counting  of  the  votes,  that  would  be  sufficient.  The  vote  could  not  be 
objected  to  because  it  had  not  arrived  earlier. 

Taking  all  the  statutory  provisions  together,  they  exhibit  careful  pre 
cautions  that  the  votes  shall  be  received  before  the  count.  The  Tuesday 
after  the  first  Monday  in  November — falling  this  year  on  the  7th  of 
November — is  fixed  for  the  appointment  of  electors.  The  first  Wednes 
day  in  December — falling  this  year  on  the  6th  of  December — is  fixed 
for  the  meeting  of  the  electors.  They  are  required  to  make  out  three 
statements  of  the  votes  and  to  transmit  one  by  messenger  and  one 
by  mail,  and  to  deposit  the  third  with  the  district  judge  of  the  United 
States  for  the  district  in  which  the  electors  shall  have  assembled. 
The  first  Wednesday  in  January — falling  this  year  on  the  third  day  of 
January — is  fixed  for  the  arrival  of  the  transmitted  statements  at 
the  seat  of  Government,  which  are  to  be  received  by  the  President 
of  the  Senate,  or,  in  his  absence,  by  the  Secretary  of  State  as  tem 
porary  custodian.  If  the  two  transmitted  statements  fail  of  arriving 
before  the  first  Wednesday  in  January,  the  Secretary  of  State  is  directed 
to  take  measures  to  supply  the  default  by  means  of  the  statement  de 
posited  with  the  district  judge ;  but  no  time  is  fixed  for  the  arrival  of 
that  statement,  because  no  subsequent  act  is  dependent  on  it,  and  no 
provision  is  made  to  supply  the  failure  of  that  expedient.  And  the 
second  Wednesday  in  February — falling  this  year  on  the  14th  of  Feb 
ruary — is  fixed  for  the  counting  of  the  votes.  The  times  fixed  would  be 
this  year  as  follows : 

Appointment  of  electors,  November  7. 

Meeting  of  electors,  December  6. 

Arrival  of  transmitted  statement  of  votes,  January  3. 

Counting  of  the  votes,  February  14. 


748  ELECTORAL    COUNT    OF    1877. 

The  specifications  of  the  times  at  which  or  before  which  acts  shall  be 
done  to  furnish  evidence  to  the  counting  tribunal  as  to  who  have  been 
appointed  electors  and  for  whom  those  electors  have  voted,  are  merely 
directory.  The  times  are  fixed  so  that  each  act  shall  be  done  in  season 
to  enable  the  next  step  to  be  promptly  taken,  and  in  season  to  enable 
any  failures  to  be  remedied.  These  limitations  of  time  are  precautionary 
and  remedial.  They  are  intended  to  save  and  give  effect  to  the  votes. 
They  are  not  snares  to  betray  and  destroy  the  votes. 

The  act  of  the  governor  in  furnishing  certified  lists  containing  the 
names  of  the  electors ;  the  act  of  the  electors  in  annexing  these  certified 
lists  to  the  statements  of  their  votes ;  their  acts  in  making  out  and  sign 
ing  the  statements  of  their  votes;  in  transmitting  one  set  by  messenger 
and  another  by  mail,  and-  in  depositing  the  third  set  with  the  judge ;  the 
act  of  the  Secretary  of  State  in  notifying  the  district  judge,  and  the  act 
of  the  district  judge  in  transmitting  the  set  deposited  with  him,  are  each 
and  all  acts  of  this  nature,  intended  to  furnish  evidence  of  the  appoint 
ment  and  votes  of  the  electors.  The  times  when  these  acts  should  be 
done  are  expressly  specified,  except  in  the  case  of  the  Secretary  of  State. 
But  if  these  acts  should  not  have  been  done  within  the  times  specified, 
but  should  be  done  afterward  in  season  for  their  object,  these  acts 
would  not  be  void,  but  would  be  valid  and  effectual.  Take  an  illustra 
tion. 

The  district  judge,  who,  in  the  event  that  the  other  sets  of  statements 
have  failed  to  arrive  by  the  1st  of  January,  is  to  transmit  the  set  depos 
ited  with  him,  is  required  to  do  so  "  forthwith." 

Jf  he  have  prompt  notice,  some  six  weeks  would  intervene  before  the 
packages  could  be  opened  for  the  counting.  If  he  should  happen  to 
transmit  them  on  the  last  of  the  six  weeks  instead  of  the  fir^t,  will 
anybody  suggest  that  his  act  would  be  void  and  the  votes  should  not 
be  counted  I 

The  Constitution  commands  the  electors  to  seal  up.  their  statements 
of  their  votes,  and  orders  that  the  seals  shall  be  broken  only  in  pres 
ence  of  the  two  Houses  when  the  votes  are  to  be  counted.  To  have 
them  in  the  possession  of  the  President  of  the  Senate,  ready  to  be 
opened  at  that  time,  is  the  object ;  and  all  the  provisions  fixing  the  times 
when  the  acts  of  preparation  and  transmission  shall  be  successively 
done  are  intended  to  insure  that  object.  They  are  designed  for  that  pur 
pose  and  for  nothing  else.  There  is  110  possible  utility  in  having  these 
papers  in  the  hands  of  their  depositaries  before  they  can  be  opened  and 
used,  except  to  make  it  certain  that  they  will  be  there  when  they  are 
needed  for  use  on  the  count. 

CERTIFIED  LISTS  FURNISHED  AFTERWARD  EFFECTUAL. 

Such  acts  of  public  officers,  if  not  done  within  the  time  prescribed  by 
law,  do  not  thereby  become  incapable  of  being  done  afterward.  They 
not  only  remain  capable  of  being  done,  but  the  duty  of  the  public  officers 
to  do  them  subsists  in  full  vigor  and  obligation,  and  the  right  to  com 
pel  their  performance  by  the  public  officers  accrues  for  the  very  reason 
that  the  time  limited  by  law  has  passed.  Mandamus,  resorted  to  in  in 
numerable  instances  to  coerce  by  the  mandate  of  judicial  courts  the 
performance  by  public  officers  of  acts  enjoined  on  them  by  law,  begins 
by  alleging  that  the  time  fixed  by  law  for  the  doing  of  the  acts  has 
elapsed.  It  is  on  that  very  ground  that  the  judicial  power  is  invoked. 
Such  is  the  general  doctrine  of  our  jurisprudence  and  the  settled  con 
struction  of  the  effect  of  statutes  fixing  the  time  within  which  official 
acts  shall  be  done,  adopted  by  courts  and  governments. 


ELECTORAL   COUNT   OF    1877.  749 

(See  authorities  cited,  post  p.  750,  and  note  A,  post  p.  756.) 

But  in  the  present  instance  the  same  result  is  also  established  by  an 

enabling  and  remedial  statute  enacted  by  a  legislative  power  having 

competent  jurisdiction  over  the  subject. 

CURATIVE  STATUTE. 

That  statute  of  the  State  of  Florida  authorizes  and  directs  the  gov 
ernor  of  that  State  to  make  and  certify  in  due  form  and  under  the 
great  seal  of  the  State  three  lists  of  electors  named  in  the  act,  and  to 
transmit  the  same  to  the  President  of  the  Senate  of  the  United  States, 
and  also  to  make  and  certify  three  other  like  lists  and  to  deliver  them 
to  the  said  electors,  who  are  required  to  meet  and  make  out  new  state 
ments  of  their  votes  cast  on  the  6th  of  December,  1876,  and  to  annex 
thereto  the  said  certified  lists  of  the  governor  and  the  same  to  trans 
mit  and  forward  to  the  President  of  the  Senate  and  to  deliver  to  the 
district  judge  in  the  manner  provided  by  law.  And  the  statute  further 
enacts  that  the  said  certified  lists  of  the  governor  and  statements  of 
the  votes  of  the  electors  "  shall  be  as  valid  and  effectual  to  authenticate 
in  behalf  of  this  State  the  appointment  of  such  electors  by  this  State 
as  if  they  had  been  made  and  delivered  on  or  before  the  6th  day  of 
December,  1876,  and  had  been  transmitted  immediately  thereafter." 

Of  the  competency  of  the  legislative  power  of  the  State  of  Florida  to 
pass  a  curative  statute  of  this  nature,  and  of  the  complete  efficacy  of 
that  statute  to  remedy  such  an  informality,  there  can  be  no  doubt.  It 
is  simply  allowing  and  requiring  a  piece  of  evidence  to  be  supplied  after 
the  time  within  which  the  law  required  the  public  officers  to  furnish  it, 
but  before  it  is  needed  for  the  use  intended.  It  is  allowing  an  act  to  be 
done  nunc  pro  tune  in  furtherance  of  right  and  justice,  as  courts  some 
times  do,  curing  a  defect  of  form  which  the  law-making  power  has  a 
large  jurisdiction  to  do,  and  frequently  and  habitually  does. 

Not  only  is  such  a  statute  clearly  within  the  power  of  the  government 
of  Florida,  under  the  general  authority  in  respect  to  appointing  electors 
for  the  said  State  conferred  by  the  Constitution  of  the  United  States, 
but  it  is  in  perfect  harmony  with  the  policy  indicated  by  the  Federal 
Government  and  the  rights  on  the  part  of  the  States  over  this  subject, 
which  are  recognized  in  or  granted  by  the  legislation  of  the  Federal 
Government. 

In  addition  to  the  precautions  against,  and  remedies  for,  neglects  and 
omissions  provided  by  the  acts  of  1792  and  1804,  which  have  been 
already  mentioned,  the  statute  of  1845  affords  an  illustration  of  the 
same  policy  and  purpose.  Thafc  act  was  intended  to  execute  the  power 
conferred  on  Congress  by  the  Constitution  to  u  determine  the  time  of 
choosing  the  electors  n  by  fixing  a  uniform  day  in  all  the  States.  But 
the  first  proviso,  now  re-enacted  as  section  134  of  the  Eevised  Statutes, 
provided  for  supplying  vacancies  happening  otherwise  than  by  non-elec 
tion  "  which  may  occur  in  its  college  of  electors  when  such  college  meets 
to  give  its  electoral  vote.'7 

And  the  second  proviso,  substantially  re-enacted  as  section  135  of  the 
Eevised  Statutes,  provided  for  supplying  vacancies  happening  from 
non  election,  as  follows : 

Whenever  any  State  has  held  an  election  for  the  purpose  of  choosing  electors,  and 
has  failed  to  make  a  choice  on  the  day  prescribed  by  law,  the  electors  may  be  appointed 
on  a  subsequent  day  in  such  manner  as  the  legislature  of  such  State  may  direct. 

If  a  State,  by  its  legislature,  may,  by  itself  appointing,  or  by  pro 
viding  for  the  appointment  of  electors,  remedy  a  total  failure  of  election 


750  ELECTORAL   COUNT    OF    1877, 

at  the  time  and  in  the  manner  prescribed  by  act  of  Congress  in  pursu 
ance  of  an  express  authority  of  the  Constitution  and  may  do  so  after 
that  failure  has  actually  happened,  much  more  may  it  remedy  a  delay  or 
omission  of  a  specific  piece  of  evidence  of  the  appointment  of  electors, 
not  in  itself  regarded  by  law  as  of  much  significance  or  value,  and' not 
made  necessary  or  conclusive  or  exclusive,  or  even  expressly,  but  only 
by  implication,  made  evidence  at  all. 

THE  ILLEGAL  PRIOR  LISTS. 

If  the  lists  made  and  certified  by  Governor  Drew  under  this  statute 
would  be  valid  and  effectual  in  the  absence  of  any  competing  documents, 
the  existence  of  the  prior  certified  lists  can  make  no  difference.  Such 
prior  lists  are  impeached  by  a  statute  enacted  by  the  law-making  power 
of  the  State  of  Florida  testifying  to  the  counting  tribunal  and  declaring 
that  such  prior  competing  lists  are  illegal  and  consequently  void. 

That  statute  adduces  the  most  absolute  proof  that  such  prior  lists 
are  false  in  fact;  that  the  persons  whose  names  are  contained  in 
them  were  not  chosen  electors  according  to  the  laws  of  Florida ; 
that  such  persons  did  not  receive  the  highest  number  of  votes  for  the 
electoral  offices  at  the  election  held  on  the  7th  of  November,  1876 ;  that 
the  pretended  canvass  of  the  board  of  State  canvassers  by  which  such 
persons  were  declared  by  such  board  to  have  been  elected  has  been 
adjudged  by  the  highest  court  of  the  State,  after  full  argument  and  by 
a  unanimous  judgment,  to  be  unlawful  and  to  be  in  truth  no  canvass ; 
that,  under  an  enabling  statute,  a  canvass  has  been  conducted  in  the 
manner  approved  and  according  to  the  rules  prescribed  by  the  supreme 
court,  which  showed  that  such  persons  had  not,  but  that  other  persons 
actually  had,  the  highest  number  of  votes  for  the  said  electoral  offices 
at  the  said  election. 

Acting  on  these  facts,  the  legislature  of  Florida  has  by  statute  de 
clared,  authenticated,  enacted,  confirmed,  ratified,  and  renewed  the  ap 
pointment  as  electors  of  the  said  other  persons  who  did  receive  the 
highest  number  of  votes  at  such  election,  and  who  are  shown  by  the 
aforesaid  lawful  and  valid  canvass  to  have  been  duly  chosen.  In  the 
mean  time,  in  an  action  of  quo  warranto  duly  brought  in  a  court  of  com 
petent  jurisdiction,  the  said  persons  named  in  such  prior  and  illegal 
certified  lists,  and  called  for  convenience  the  Hayes  electors,  appeared 
and  defended $  judgment  was  rendered  ousting  the  said  Hayes  electors 
and  affirming  the  title  of  the  four  other  persons,  who  may  for  conveni 
ence  be  designated  Tildeu  electors. 

The  competing  certified  lists  of  the  Hayes  electors  are  thus  effectually 
impeached  and  shown  to  be  null  and  void. 

The  Supreme  Court  of  the  United  States,  speaking  by  Mr.  Justice 
Story,  in  the  Amistad  case,  15  Pet.,  594,  said : 

"What  we  proceed  upon  is  this,  that  although  public  documents  of  the  government? 
accompanying  property  found  on  board  of  the  private  ships  of  a  foreign  nation,  cer 
tainly  are  to  be  deemed  prima  facie  evidence  of  the  facts  which  they  purport  to  state, 
yet  they  are  always  open  to  be  impugned  for  fraud ;  and  whether  that  fraud  be  in  the 
original  obtaining  of  these  documents,  or  in  the  subsequent  fraudulent  and  illegal  use 
of  them,  when  once  it  is  satisfactorily  established,  it  overthrows  all  their  sanctity,  and 
destroys  them  as  proof.  Fraud  will  vitiate  any,  even  the  most  solemn  transaction  ; 
and  an  asserted  title  to  property  founded  upon  it  is  utterly  void. 

The  extent  to  which  the  courts  go  in  the  remedy  of  default  iu'doing 
official  acts  within  the  time  limited  by  law  is  illustrated  by  the  follow 
ing  cases :  Queen  vs.  St.  Pancras,  11  Adolphus  and  Ellis,  15;  (S.  C.  39 
Eng.  Com.  Law  E.,  p.  38.) 


ELECTORAL    COUNT    OF    1877.  751 

Facts. — A  statute  required  that  "  on  the  day  of  the  annual  election," 
fixed  by  the  act,  inspectors  should  be  nominated  by  the  church-wardens 
and  the  meeting,  and  that  after  such  nomination  the  parishioners  should 
elect  vestrymen,  &c. 

At  a  meeting  held  May  6,  which  was  the  statute  day,  the  church 
wardens,  acting  as  chairmen,  prevented  a  fair  choice  of  inspectors.  A 
mandamus  being  moved  for  on  June  6,  to  compel  them  to  hold  a  new 
election,  and  cause  shown  on  November  4,  it  was  objected  that  the  pro 
ceeding  was  too  late. 

Held,  on  November  21st,  that  the  mandamus  ought  to  issue. 

Opinion  of  the  court : 

The  difficulty,  or  impossibility,  rather,  of  complying  now  with  the  act  of  Parliament,  on 
account  of  the  lapse  of  time,  was  not  very  strongly  pressed. 

For,  though  the  election  is  fixed  to  take  place  iu  May,  yet  the  well-known  practice 
of  this  court  is  to  set  aside  vicious  proceedings  held  at  the  regular  period,  and  direct 
others  in  their  place  afterward.  //  would  be  too  great  a  triumph  for  injustice  if  we  should 
enable  it  to  postpone  forever  the  performance  of  a  plain  duty  only  because  it  had  done  wrong 
at  the  right  season,  (pp.  24,  25.) 

Mayor  of  Rochester  vs.  The  Queen,  1  Ellis,  Blackburn,  &  Ellis,  1024. 

Facts. — Objections  were  taken  to  certain  voters,  which  were  unlawfully 
overruled.  After  the  time  limited  for  holding  the  tribunal  had  expired, 
and  its  presiding  officer,  the  mayor,  had  been  succeeded  by  the  plain- 
tin1  in  error,  a  mandamus  was  awarded,  to  which  the  new  mayor  re 
turned  that  he  was  not  the  mayor  who  rejected  the  objections,  but  was 
willing  to  obey  the  writ  if  he  could  lawfully  hold  the  court.  On  demur 
rer  to  this  return,  the  Queen's  Bench  sustained  the  demurrer  and  issued 
a  peremptory  mandamus. 

Held :  No  error. 

Opinion  of  the  court,  (Martin,  B.:) 

We  are  of  opinion  that  the  Court  of  Queen's  Bench  was  right,  and  ought  to  be  af 
firmed.  It  seems  to  us  that  Rex  vs.  Sparrow,  2  Strange,  1123,  and  Rex  vs.  Mayor  of 
Norwich,  1  B.  and  Adolphus,  310,  are  authorities  upon  the  point,  and  that  the  princi 
ple  of  those  cases  establishes  the  doctrine  that  the  Court  of  Queen's  Bench  ought  to 
compel  the  performance  of  a  public  duty  by  public  officers,  although  the  time  prescribed 
by  statute  for  the  performance  of  them  lias  passed  ;  and  if  the  public  officer  to  whom  be 
longs  the  performance  of  that  duty  has  in  the  mean  time  been  succeeded  by  another, 
we  think  it  is  the  duty  of  the  successor  to  obey  the  writ  and  to  do  the  acts  (when  re 
quired)  which  his  predecessor  has  omitted  to  perform  ;  and  we  think  all  statutes  are  to 
be  read  ivith  reference  to  this  knoiun,  acknowledged,  recognized,  and  established  power  of  the 
Court  of  Queen's  Bench  to  superintend  and  control  inferior  jurisdictions  and  authorities  of 
every  kind.  So,  reading  this  statute,  we  think  it  sustains  the  judgment  of  the  Court  of 
Queen's  Bench  as  much  as  if  express  words  were  found  in  it  directing  what  that  court  has 
ordered,  (pp.  1031-2.) 

(Cited  and  followed,  Queen  vs.  Monmouth,  Law  Eeports,  5  Q.  B.,  251.) 

Ex-parte  Heath,  3  Hill  K.,  42. 

Facts. — Ward  inspectors  of  New  YorR  City  were  required  by  statute 
to.certify  the  result  of  the  ward  election  "on  the  day  subsequent  to  the 
closing  of  the  polls,  or  sooner."  A  ward  election  was  held  on  the  12th 
of  April ;  the  result  was  not  certified  until  the  14th. 

Held :  The  return  was  valid  notwithstanding,  and  a  mandamus  should 
go  commanding  the  mayor  to  administer  the  oath  to  the  persons  re 
turned  as  elected. 

Opinion  of  the  court,  (pp.  46,  47:) 

The  idea  which  we  understood  to  be  thrown  out  in  argument,  that  the  return  from 
the  sixth  ward  was  void  because  not  completed  till  the  14th  of  April  instead  of  the  13th, 
is  altogether  inadmissible.  Nothing  is  better  settled,  as  a  general  rule,  than  that 
where  a  statute  requires  an  act  to  be  done  by  an  officer  ivithin  a  certain  time  for  a  pub 
lic  purpose,  the  statute  shall  be  taken  to  be  merely  directory  ;  and  though  he  neglect 
his  duty  by  allowing  the  precise  time  to  go  by,  if  he  afterward  perform  it,  the  public 
shall  not  suffer  by  the  delay. 


752  ELECTORAL    COUNT    CP    1877. 

This  case  was  affirmed  in  the  court  of  errors  by  the  unanimous  vote 
of  thirty-four  members  out  of  the  thirty-five  constituting  the  court,  one 
alone  being  absent.  (3  Hill,  53,  note.) 

(See  Note  A,  post,  p.  756.) 

STATUTE  OF  AUTHENTICATION  AND   CONFIRMATION. 

The  statute  "  declaring  and  establishing  the  appointment  of  electors," 
if  considered  merely  as  a  testimony  of  what  the  State  of  Florida  has 
actually  done  in  respect  to  the  appointment  of  electors,  is  an  evidence 
of  a  higher  nature,  of  greater  authority,  and  of  more  cogency  than  a 
certified  list  by  the  governor. 

A  statute  enacted  with  the  concurrence  of  the  two  houses  of  the  legis 
lature,  and  approved  by  the  governor,  is,  in  itself,  a  more  important  and 
weighty  thing  than  a  certificate  made  by  the  governor  in  a  merely 
ministerial  capacity,  and  at  best  but  quasi  official.  It  has  attributes 
and  incidents  of  a  public  law,  and  is  in  its  nature,  in  the  absence  of  any 
legal  standard  of  appreciation,  entitled  to  more  consideration  and  credit. 

The  law-making  power,  except  as  limited  by  written  constitutions,  is 
the  highest  of  governmental  powers,  it  is  the  government  itself ;  and, 
subject  to  such  limitations,  may  modify  the  powers  of  the  governor  and 
direct  him  in  their  exercise. 

And  in  respect  to  the  appointment  of  electors  by  the  State,  the  legis 
lature  of  the  State  is  vested  by  the  Constitution  of  the  United  States 
with  special  and  exceptional  powers.  It  may  direct  the  mode  in  which 
electors  shall  be  appointed,  provided  they  be  in  reality  appointed  by 
the  State,  through  some  of  its  proper  organs.  It  may  appoint  those 
electors  itself ;  and  even  after  it  has  devolved  that  function  on  a  popu 
lar  vote  may  resume  the  power. 

It  creates  all  the  machinery  by  which  the  appointment  of  electors  by 
popular  election  is  made,  its  powers  in  this  respect  being  limited  by 
the  condition  that  the  election  shall  be  a  reality  and  not  a  fiction ;  and 
it  prescribes  the  whole  system  of  authentication  and  proof  of  the 
persons  who  are  chosen,  except  only  the  governor's  lists.  Curative 
powers  to  remedy  a  failure  in  the  appointment  of  electors  have  been 
specially  added  to  the  general  authority  of  the  legislature  or  recognized 
as  a  part  of  that  authority  by  the  acts  of  Congress  of  1792,  1804,  and 
1845.  These  remedial  means  have  been  applied  to  two  classes  of  cases, 
the  one  of  .vacancies  in  the  electoral  colleges  arising  from  every  variety 
of  cause  subsequent  to  the  original  appointment,  and  the  other  vacan- 
.cies  occasioned  by  failure  to  elect.  It  is  not  doubted  that  the  legisla 
ture  might  fill  such  vacancies  by  its  own  direct  appointment. 

The  legislature  representing  the  State  stands  in  some  sort  as  a  prin 
cipal  to  rectify  the  errors  and  wrongs  of  the  subordinate  agents  %by 
which  the  State  might  lose  its  votes,  or,  what  is  worsfe,  be  misrepre 
sented  in  the  votes  given  in  its  behalf.  If,  in  its  extensive  and  various 
acknowledged  powers  over  the  whole  subject,  no  capacity  could  be 
found  to  prepare  and  submit  fresh  proofs  of  what  the  State  has  really 
done,  to  authenticate  the  acts  of  the  State,  to  correct  defects  of  form 
and  give  effect  to  the  will  of  the  State,  it  would  be  a  solecism  in  gov 
ernmental  polity.  Such  remedies  appeal  to  the  tribunal  which  is  to 
count  the  votes  with  great  force,  and  are  entitled  to  a  benign  construc 
tion. 

This  statute  of  Florida  contains  words  of  authentication,  words  of 
confirmation  and  ratification,  and  words  of  appointment. 

If  the  Commission  shall  find,  what  it  is  not  believed  it  will  find,  that 


ELECTORAL  COUNT    OF    1877.  753 

there  was  a  failure  to  make  a  choice  of  electors  in  Florida  on  the 
seventh  day  of  last  November,  or  an  impossibility  of  ascertaining  what 
that  choice  was,  then  these  words  of  appointment  in  the  new  law  of 
Florida  must  be  taken  as  a  new  appointment  under  section  134  of  the 
Revised  Statutes  of  the  United  States,  which  does  not  limit  the  time 
within  which  such  appointment  can  be  made,  while  authorizing  it  to  be 
made  "on  a  subsequent  day.77  It  would  follow  that  the  electors  ap 
pointed  could  meet  and  vote,  if  they  had  not  already  done  so,  even 
though  it  were  on  a  later  day  than  the  tirst  Wednesday  in  December, 
the  statute  of  1845  thus  making  an  exception  to  the  statute  of  1792. 
But  that  question  is  not  involved.  The  power  of  new  appointment  is 
a  larger  power  than  that  of  perfecting  and  validating  official  acts  which 
the  legislature  had  the  r^ght  to  authorize,  and  did  authorize,  but  which 
had  been  imperfectly  performed. 

CANVASS  OF  THE  ELECTORAL  VOTES. 

The  first  canvass  of  the  votes  cast  at  the  election  of  November  7, 
1876,  in  the  State  of  Florida,  for  presidential  electors  as  well  as  for 
Representatives  in  Congress,  governor  and  other  State  officers,  became 
the  subject  of  discussion  before  the  Supreme  Court  in  the  mandamus 
case  brought  on  the  relation  of  Drew,  a  candidate  for  governor,  against 
McLin  and  others  forming  the  board  of  State  canvassers.  Although 
Drew  alone  was  relator,  and  the  claimants  for  the  other  offices  were 
not  parties,  the  questions  involved  and  the  principles  declared  applied 
equally  to  other  State  officers  and  to  the  presidential  electors.  The 
board  of  State  canvassers,  in  obedience  to  the  judgment  of  the  court 
in  this  case,  made  a  new  canvass  of  the  votes  for  governor.  Mr.  Drew 
was  declared  elected,  and  entered  upon,  and  ever  since  has  been  and  is 
now  in  his  office  without  opposition.  The  new  canvass  was  applied  to 
the  lieutenant-governor,  though  he  was  not  'a  relator,  and  he  was  de 
clared  elected  and  was  installed. 

The  votes  for  presidential  electors  were  likewise  canvassed  anew  by 
the  same  board  of  State  canvassers.  In  making  such  canvass,  the  di 
rections  of  the  Supreme  Court  were  obeyed  by  them  in  respect  to  the 
returns  from  all  the  counties  which  had  been  the  subject  of  special  cor 
rection  in  the  opinion  pronounced  by  the  court ;  but  they  changed  the 
effect  of  these  corrections,  and  neutralized  the  judgment  by  setting  aside 
their  own  former  conclusions  in  respect  to  Baker  County.  In  respect  to 
it,  they  rejected  the  perfect  returns  which  they  had  allowed  and  can 
vassed  on  the  former  occasion,  and  substituted  as  a  basis  of  their  revis 
ion  the  imperfect  returns  which  they  had  before  rejected. 

In  this  condition  of  things  the  old  board  of  State  canvassers  went  out 
of  office  and  the  new  board  came  in.  The  legislature  deeming  both  the 
canvasses  of  the  electoral  vote,  so  made  by  the  former  board,  illegal  and 
therefore  void,  passed  an  act  to  provide  for  a  new  canvass,  and  requir 
ing  that  the  canvass  should  be  conducted  according  to  the  rules  pre 
scribed  by  the  Supreme  Court.  A  canvass  was  made  accordingly  and 
recorded  and  reported  to  the  legislature.  It  shows  that  the  Tildeii 
electors  received  the  highest  number  of  votes,  and  that  they  were  duly 
chosen  and  appointed  as  such  electors. 

THE   QUO   WAKKANTO. 

I. — In  Florida,  as  in  most  other  States,  the  local  inspectors  of  election 
form  the  first  or  primary  returning-board.     They  make  returns  to  a 
county  board  or  officer,  and  this  second  returniug-board  makes  a  return 
48  EC 


754  ELECTORAL   COUNT   OF    1877. 

to  the  final  or  State  canvassing-board.  Neither  the  first  nor  the  second 
of  these  bodies  has  any  power  or  duty  but  that  which  is  most  purely 
and  simply  ministerial.  They  can  merely  compute  from  the  documents 
before  them,  and,  in  their  respective  returns,  report  the  result. 

The  State  board  of  canvassers  in  Florida  has  authority  which  may  be 
said  slightly  to  exceed  this.  They  have  power  to  judge  of  the  "  returns  " 
on  which  they  act,  so  far  as  to  reject  them  if  irregular,  false,  or  fraudu 
lent.  They  have  no  power  beyond  this.  They  cannot  investigate  the 
qualifications  of  voters,  or  as  to  the  employment  of  any  force,  fraud,  or 
improper  influence  that  might  justly  defeat  or  vitiate  the  ballots  cast. 
The  powers  and  duties  of  all  these  officers  are  essentially  ministerial. 

Outside  of,  or  beyond  this,  it  is  the  judicial  power  alone  that  can  in 
vestigate  and  determine  any  question  of  fact. 

II.— In  Florida,  as  in  most  if  not  all  the  States,  if  a  deeper  investiga 
tion  be  necessary  to  justice,  the  judicial  power  must  be  invoked  through 
the  ancient  process  commonly  called  quo  warranto,  or  through  such 
other  essentially  similar  judicial  process  as  may  be  created  by  statute 
or  established  by  custom  in  the  particular  State.  In  Florida  the  quo 
warranto  is  used. 

III. — It  may  safely  be  assumed  that,  in  fact  there  was  no  fault  in  the 
voting  process.  Any  attempt  to  color  a  pretense  of  this  sort  by  affida 
vit  or  otherwise  will  utterly  fail  from  its  own  internal  weakness.  It  can 
hardly  require  the  employment  of  any  evidence  to  overthrow  it.  And 
really,  the  only  questions  in  the  Florida  case  must  arise  upon  an  in 
quiry:  1st,  whether  the  documentary  title  to  their  alleged  electoral 
offices  set  up  by  the  persons  who  have  cast  their  vote  for  Mr.  Hayes  is 
so  strong  in  the  mere  technical  forms  entrenching  it  that  it  cannot  be 
gainsaid  ;  and  2d,  if  that  asserted  title  be  not  thus  impregnable  through 
the  absolute  force  of  its  formality,  whether  an  adequate  impeachment 
of  it  is  presented  by  the  opposing  documents  ? 

IV. — The  material  elements  of  the  title  set  up  by  the  Hayes  electors 
and  of  the  impeachment  presented  against  it  may  easily  be  stated  in  a 
brief  and  intelligible  form,  and  so  as  to  be  free  from  dispute  about  mat 
ters  of  detail. 

1.  The  so-called  Hayes  electors  were  reported  by  the  State  canvass 
ing-board  as  duly  elected.  Mr.  Stearns,  the  governor  of  Florida,  gave 
them  the  three  lists  prescribed  by  the  act  of  Congress  (Kevised  Statutes 
of  U.  S.,  §  136),  and  on  December  6th,  1876,  being  the  proper  day  ap 
pointed  for  that  purpose  (E.  S.  U.  S.,  §  149),  they  cast  the  four  votes  of 
that  State  for  Mr.  Hayes,  and  in  the  prescribed  form  returned  their  cer 
tificates  thereof  to  the  President  of  the  Senate.  Their  title  to  their 
asserted  offices  and  their  action  as  assumed  electors,  conducing  to  give 
Mr.  Hayes  four  votes  for  the  Presidency  of  the  United  States,  would  be 
in  all  respects  perfect,  but  for  the  fact  that  the  report  of  the  State  canvass- 
iug-board  was  unlawful  and  untrue.  It  was  unlawful  in  this,  that  such 
canvassing-board,  exercising  high  powers  of  a  judicial  nature  riot  granted 
to  them,  rejected  certain  regular,  formal,  and  true  returns  duly  laid  be 
fore  them,  and  by  this  means  alone  were  enabled  to  reach  a  result  fa 
vorable  to  the  so-called  Hayes  electors.  If  these  returns  had  been  in 
cluded  in  the  computation  made  by  the  State-canvassers,  the  so-called 
Hayes  electors  could  not  have  been  returned  as  chosen  ;  and  on  the  con 
trary  four  other  persons,  who  may  be  called  Tilden  electors,  would  have 
been  so  returned.  Independently  of  the  strict  technical  questions,  1st, 
•whether  the  mere  documentary  title  of  these  so-called  Hayes  electors 
can  lawfully  be  drawn  in  question,  and  2d,  whether  such  asserted  title 


ELECTORAL    COUNT    OF    1877.  755 

has  been  effectually  impeached  by  stronger  and  con  trolling  documentary 
evidence,  the  correctness  of  the  preceding  statement  must  be  conceded. 

2.  On ,  1876,  and  prior  to  the  time  when  the  so-called 

Hayes  electors  assumed  to  cast,  and  in  form  did  cast,  the  electoral  votes 
of  Florida,  proceedings  in  due  form  by  quo  warranto  were  instituted 
against  them  in  the  proper  judicial  court  of  that  State;  and  such  pro 
ceedings  having  been  prosecuted  against  them  with  due  diligence  and 
all  practicable  speed;  judgment  of  ouster  was  duly  entered  against  them 
on ,  1877. 

3.  The  said  four  Tilden  electors,  acting  without  the  triplicate  lists  pre 
scribed  by  the  act  of  Congress  (JR.  S.  of  U.  S.,  §  136),  did  on  December 
6,  1876,  cast  the  four  votes  of  Florida  for  Mr.  Tilden  as  President;  and, 
as  well  in  that  respect  as  in  all  others,  acting  in  entire  and  perfect  con 
formity  with  the  Constitution  of  the  United  States,  they  certified  the 
same  votes  to  the  President  of  the  Senate. 

They  did  everything  toward  the  authentication  of  such  votes  re 
quired  by  the  Constitution  of  the  United  States  or  by  any  act  of  Con 
gress  except  the  said  section  136  of  the  Revised  Statutes.  And,  in 
conformity  with  the  aforesaid  judgment  of  the  Florida  court,  a  governor 
of  Florida,  who  had  been  duly  inducted  into  office  subsequently  to  De 
cember  6,  1876,  did,  on  the  day  of ,  1877,  give  to  the  above- 
mentioned  Tilden  electors  the  triplicate  lists  prescribed  by  said  act  of 
Congress  (R.  S.  of  U.  S.,  §  136),  which  they  have  forwarded  as  prescribed 
by  the  acts  of  Congress,  as  a  supplement  to  their  former  certification  in 
that  behalf. 

Y. — ]S^o  technical  difficulties  exist  which  can  prevent  the  proper 
authorities  of  the  Union  from  seeing  the  invalidity  of  the  title  set  up  by 
the  Hayes  electors. 

1.  It  is  a  fundamental  rule  that  all  intruders  into  official  positions 
may  be  ousted  by  regular  judical  action  at  law  in  the  nature  of  quo  war 
ranto. 

2.  Judgment  against  the  defendants  in  a  quo  warranto  determines 
conclusively  that  such  defendants  were  without  title,  and  were  usurpers 
holding  by  unlawful  intrusion,  as  far  back,  at  least,  as  the  commence 
ment  of  the  proceedings  against  them. 

(Note  B,  post,  p.  757.) 

3.  Acts  performed  by  officers  de  facto,  holding  under  color  of  a  reg 
ular  appointment,  are  held  to  be  valid  so  far  as  may  be  necessary  for 
the  public  good  and  to  protect  rights  and  interests    acquired  in  good 
faith  under  the  formal  action  of  such  officers ;  but  this  conservative 
principle,  adopted  from  the  necessity  of  the  case,  can  have  no  applica 
tion  to  the  unlawful  casting  of  electoral  votes  for  Mr.  Hayes  now  in 
question. 

(a.)  Balloting  and  certifying  the  votes  are  preliminary  steps  only  in 
a  process  which  has  no  perfection  or  efficacy  until  the  certificates  reach 
the  proper  authority  at  the  seat  of  government,  and  are  there  opened 
and  published  in  the  presence  of  the  two  Houses. 

Until  this  is  done  no  act  of  the  pretended  electors  is  consummated  or 
perfected.  And  if,  before  this  act  is  done,  the  State  of  Florida,  through 
its  appropriate  judicial  power,  ascertains  and  condemns  the  usurpation, 
and  ousts  the  usurpers,  the  conservative  principle  in  question  will  not 
apply.  It  has  never  been  held  that  partial  and  incomplete  action  dur 
ing  their  usurpation  by  wrongful  intruders  into  an  office  shall  be  carried 
onward  to  perfection  after  their  ouster  by  quo  warranto. 

(b.)  The  judgment  of  the  circuit  court  is  not  impaired  or  lessened  in  effi 
cacy  by  the  proceeding  to  review  it  in  a  higher  court.  At  common  law 


756  ELECTORAL   COUNT   OF    1877. 

the  judgment  of  a  court  of  original  juisdiction  takes  full  effect  iinme" 
diately  upon  its  entry,  and  until  reversed  it  is  as  effectual  as  if  pro 
nounced  by  a  court  of  last  resort. 

(Note  0,  post,  p.  758.) 

VI. — Taking  into  view  the  action  of  the  Tilden  electors,  a  case  of 
competition  is  presented,  and  their  votes  should  be  counted  instead  of 
those  cast  for  Mr.  Hayes. 

1.  The  Constitution  deals  expressly  with  the  subject  of  authenticating 
the  votes.     (Article  XII.)     And  it  declares  expressly  what  powers  of 
legislation  Congress  "may"  exercise  with  respect  to  action  within  the 
respective  States  in  the  choosing  of  electors  and  the  casting  of  electoral 
votes.     (Article  II,  §  4.)    Expressio  unius  exclusio  est  alterius  is  a  maxim, 
and  it  is  very  doubtful,  at  best,  whether  any  other  compulsory  power 
over  the  States  in  these  matters  can  be  exercised  by  Congress. 

2.  Section  136  of  the  Eevised  Statutes  was  a  very  suitable  precau 
tionary  enactment,  and  it  ought  to  be  obeyed.    But  under  the  view 
last  stated  it  is  justly  subject  to  many  observations. 

(a.)  Its  framers  seem  to  have  understood  that  it  was  only  directory 
or  as  a  recommendation,  and  operative  only  through  the  presumable 
respect  of  the  State  authorities  for  the  wishes  of  Congress. 

Certainly  there  was  no  power  in  the  United  States  Government  to 
compel  a  governor's  obedience.  A  mandamus  could  not  be  employed 
in  the  case  by  any  judicial  court. 

(&.)  The  section  does  not  declare  that  the  lists  referred  to  shall  be 
conclusive  evidence,  or  the  only  evidence,  or  the  evidence,  or  any  evi 
dence  as  to  the  appointment  of  the  electors  ;  nor  does  it  define,  affirma 
tively,  negatively,  or  in  any  way,  what  shall  be  the  effect  of  their  presence 
or  their  absence. 

3.  The  Tilden  electors,  on  the  day  prescribed  by  the  act  of  Congress, 
did  everything  required  by  the  Constitution  itself,  or  by  any  act  which 
Congress  had  authority  compulsorily  to  prescribe  to  the  State  or  any  of 
its  officers  as  a  duty. 

VII. — Neither  the  omission  of  the  State  canvassers  to  make  proper 
evidence  that  the  Tilden  electors  were  appointed,  nor  the  want  of  the 
lists  prescribed  by  the  Eevised  Statutes  of  the  United  States,  §  136,  can 
work  any  prejudice. 

1.  The  failure  of  an  officer  to  perform  a  duty  at  or  within  a  time  pre 
scribed  cannot,  except  in  very  special  cases  or  under  very  peculiar 
circumstances,  utterly  defeat  the  right  which  the  law  intended  to  secure 
by  enjoining  such  performance. 

2.  Of  this  proof  may  be  found  in  the  practice  of  the  courts  on  appli 
cation  for  a  mandamus  to  compel  performance  of  official  duties. 

(Note  A,  below,) 

The  time  allowed  for  performance  of  the  duty  must  always  be  shown 
to  have  elapsed  before  a  mandamus  will  be  granted. 

If  the  duty  could  never  be  performed  after  by  any  accident  or  mis 
adventure  the  time  had  elapsed,  the  law  would  by  an  absurd  technical 
rigor  defeat  its  own  object. 

VIII. — If  there  be  any  incurable  defects  in  prior  action,  the  subse 
quent  legislation  of  Florida  was  warranted  by  the  Eevised  Statutes  of 
the  United  States,  §  134.  A  just  and  liberal  construction,  of  the  most 
liberal  kind,  should  be  given  to  remedial  acts  of  this  nature. 

Note  A. 

1.  State  vs.  Judges  of  Bergen  County  Common  Pleas,  2  Pennington 
N.  J.  Law  E.,  541,  (3  ed.,  p.  308.) 


ELECTORAL    COUNT    OF    1877.  757 

Facts. — A  statute  required  that  the  trial  justice  should  send  the  papers 
on  appeal  to  the  clerk  of  the  appellate  court  "on  or  before  the  first  day 
of  the  next  term."  The  trial-justice  delayed  filing  the  return  until 
after  such  first  day,  whereupon  the  appellant  filed  them  himself  during 
the  term.  The  appellate  court  having  dismissed  the  appeal  on  the 
ground  of  this. omission, 

Held,  A  mandamus  should  issue  to  compel  the  appellate  court  to 
receive  the  appeal. 

Opinion  of  the  court : 

The  act  *  *  is  only  directory  to  the  justice,  and  not  conclusive  on  the  court. 
The  mandamus  must,  therefore,  issue. 

2.  People  vs.  Dodge,  5  Howard's  X.  T.  Practice  E.  47. 

Facts. — An  inferior  court  was  required  by  statute  to  file  its  decision 
'*  within  twenty  days  after  the  court  at  which  the  trial  took  place."  In  a 
case  where  the  court  had  made  a  decision  within,  but  had  been  pre 
vented  by  accident  from  filing  it  until  after  the  statutory  time, 

Held,  A  mandamus  should  go  to  compel  the  filing  after  the  day. 

3.  King  vs.  Carmarthen,  1  Maule  &  Selwyn,  697. 

Facts. — A  borough  charter  ordained  that  no  persons  should  be  a  bur 
gess  except  freeholders  having  specified  estates,  &c.,  "so  as  such  person 
should  make  application  to  the  mayor,  &c.,  on  Monday  next  after  Mich 
aelmas  in  each  year,  and  at  no  other  time,  and  so  as  such  person  did 
then  before  the  mayor  so  make  *  *.  *  proof  of  his  qualification; 
and  that  upon  such  proof  such  person  should  be  admitted  at  the  next  or 
any  subsequent  court,"  &c. 

The  prosecutors,  some  fifty  in  number,  made  application  on  the  statute 
day,  and  offered  proof  of  their  qualifications,  but  the  whole  day  was 
consumed  in  other  business,  and  the  mayor,  &c.,  refused  to  hold  an 
adjourned  meeting  for  taking  the  proof  offered,  on  the  ground  of  want 
of  power  to  go  beyond  tbe  day  fixed  by  the  statute. 

Held,  That  the  excluding  words  of  the  charter  did  not  prevent  the 
issuing  of  a  mandamus  compelling  the  mayor,  &c.,  to  record  an  adjourn 
ment  and  hold  an  adjourned  meeting. 

Opinion  of  the  court,  (Le  Blanc,  J. :) 

There  is  no  doubt  that  a  peremptory  mandamus  must  go.  The  provisions  of  the 
charter  are  to  enable  persons  having  a  previous  inchoate  right  to  perfect  that  right. 
*  *  In  this  case  it  seems  that  from  unavoidable  necessity  the  whole  day  had  been 
exhausted  ;  not  before  the  claims  were  made,  but  before  the  evidence  in  support  of 
them  could  be  heard.  Common  sense  shows  that  the  charter  must  have  meant  that 
the  corporate  body  should  have  power  to  adjourn  in  order  to  conclude  such  business 
as  they  had  regularly  begun  ;  otherwise  it  would  have  been  in  the  power  of  any  person,  by 
contrivance,  to  protract  the  business  and  prevent  the  claims  being  effectual.  (P.  702, 703.) 

Dampier,  J. : 

The  argument  on  the  (mayor's)  side  would  go  to  show  that  if  the  corporation  wrong 
fully  refused  the  claims,  those  claims  must  be  suspended  until  another  year  ;  that  this 
case  is  like  the  case  of  no  election,  or  of  a  colorable  election,  prior  to  the  statute. 
But  that  is  pushing  the  argument  much  too  far.  It  seems  to  me,  from  the  very  nature 
of  this  case,  to  be  absolutely  necessary  that  the  corporate  body  should  have  the  power 
of  adjournment,  in  order  to  give  effect  to  the  inchoate  rights  of  the  claimants,  and  to  guard 
against  the  possibility  of  their  claims  being  frustrated  by  collusion.  Therefore,  I  am  of 
opinion  a  peremptory  mandamus  ought  to  go.  (P.  706.) 

(See  additional  authorities  cited,  ante,  p.  750.) 

Note  B. 

1.  High  on  Quo  Warranto  ; 

$  748.  The  effect  of  an  absolute  judgment  of  ouster  is  conclusive  upon  the  person 
against  whom  the  judgment  is  rendered,  and  is  a  complete  bar  to  his  again  asserting 
title  to  the  office  or  franchise  by  virtue  of  an  election  before  the  original  proceedings. 


758  ELECTORAL    COUNT    OF    1877. 

2.  King  vs.  Clarke,  2  East,,  75. 

Facts. — After  a  judgment  of  ouster  in  quo  ivarranto  had  been  en 
tered  against  one  claiming  to  be  an  alderman  duly  elected  and  sworn, 
he  obtained  a  mandamus  to  have  himself  sworn  in,  and  was  sworn.  On 
a  second  quo  ivarranto  against  him,  he  pleaded  that  he  had  been  duly 
elected  before  the  first  quo  warranto  and  sworn  afterward.  On  de 
murrer, 

Held,  That  the  first  judgment  was  a  bar. 

Lord  Kenyou,  C.  J. : 

The  question  is  abundantly  clear  of  all  doubt.  *  *  Upon  an  information  exhibited 
against  the  defendant  for  usurping  the  office,  '  *  there  was  judgment  of  ouster 
against  him,  whereby  he  was  actually  forejudged  and  excluded  from  ever  using  the 
office  in  future.  If  this  were  not  to  conclnde  him  from  insisting  upon  the  same  election 
again,  I  know  not  what  would.  Suppose,  after  this,  an  application  had  been  made  to 
the  court  for  a  mandamus  to  compel  the  corporation  to  proceed  to  a  new  election  to  fill 
up  the  vacancy,  what  resistance  could  have  been  made  to  it  ?  And  yet  if  the  prior 
election  could  be  resorted  to  again  it  could  be  of  no  avail ;  or  there  could  be  two  per 
sons  filling  one  office  at  the  same  time.  If  the  defendant  could  insist  on  the  former 
election,  he  would  also  be  entitled  to  a  mandamus  to  swear  him  in,  and  thus  the  pro 
ceedings  of  the  court  would  be  utterly  inconsistent.  (P.  83,  84.) 

3.  Queen  vs.  Blizard,  Law  Reports,  2  Q.  B.,  55. 

Facts. — The  relator  and  the  defendant  were  both  of  them  candidates 
at  an  election.  The  relator  had  a  majority  of  the  votes  if  the  defend 
ant  was  ineligible.  The  defendant  being  in  fact  ineligible  resigned  the 
office.  Afterward  a  rule  for  a  quo-warranto  information  was  moved 
for,  and  this  prior  resignation  was  relied  on  by  the  defendant  to  defeat 
the  rule. 

Held,  That  the  object  of  the  relator  being  to  substantiate  his  own 
claim  to  the  office  arising  from  the  election  itself,  the  rule  should  be 
made  absolute. 

Opinion  of  the  court,  (Cockburn,  C.  J. :) 

The  relator  not  only  denies  the  validity  of  the  defendant's  election,  but  claims  to 
have  been  himself  elected  into  the  office.  *  *  In  order  to  enable  the  relator  to  take 
that  position,  it  must  necessarily  be  assumed  that  there  never  was  any  election  of  the 
defendant.  *  *  *  The  effect  of  a  resignation  would  be  simply  to  send  the  parties 
to  a  new  election,  while  the  effect  of  a  disclaimer  or  judgment  for  the  Crown  upon  the  final 
issue  of  the  quo  warranto  would  be  to  displace  the  defendant  FHOM  THE  FIRST,  leaving  it 
open — which  otherwise  it  would  not  be — to  the  relator  to  claim  the  office.  (Pp.  57, 
58.)  Mellor  and  Lush,  JJ.,  concurred. 

Note  C. 

1.  Allen  vs.  Mayor  of  Savannah,  9  Georgia,  286. 

Facts. — Pending  an  appeal  from  a  judgment  declaring  a  tax  ordinance 
of  a  city  to  be  unconstitutional  and  void,  the  legislature  passed  an  act 
confirming  all  the  ordinances  in  operation  at  its  date.  Afterward  the 
court  of  error  affirmed  the  original  judgment. 

Held,  That  the  confirmatory  act  did  not  validate  the  ordinance  in 
question. 

Opinion  of  the  court : 

The  pendency  of  the  writ  of  error  did  not  affect  the  judgment.  *  *  It  was  bind 
ing  until  reversed,  and,  being  affirmed,  was  binding  ab  initio.  '•  *  The  judgment 
of  affirmance  *  *  *  relates  back  and  takes  effect  from  the  date  of  the  first  judg 
ment.  (P.  294.) 

2.  Sage  vs.  Harpending,  49  Barb.,  174. 

Facts. — After  a  judgment  in  favor  of  a  landlord  that  a  tenancy  had  ex 
pired,  and  while  an  appeal  therefrom  was  pending,  the  defeated  tenant 
attempted  to  oust]  the  landlord,  and  being  repelled  by  force,  sued  the 
landlord  for  an  assault. 


ELECTORAL   COUNT   OF    1877.  759 

Held,  That  the  judgment  was  a  good  plea  to  the  action. 
Opinion  of  the  court : 

The  fact  that  an  appeal  had  been  taken  to  another  court  did  not  affect  the  conclusive 
nature  of  the  judgment  as  a  bar  while  it  remained  unreversed.  (Harris  vs,  Hammond, 
13  How.  Pr.,  124.) 

3.  Buzzard  vs.  Moore,  16  Indiana,  107,  109. 
Opinion  of  the  court : 

The  only  effect  of  an  appeal  to  a  court  of  error,  when  perfected,  is  to  stay  execution 
upon  the  judgment  from  which  it  is  taken.  In  all  other  respects  the  judgment,  until 
annulled  or  reversed,  stands  binding  upon  the  parties  as  to  every  question  directly 
decided.  (Cole  vs.  Connolly,  16  Ala.,  271.)  And  it  has  been  expressly  decided  that 
"  It  is  no  bar  to  an  action  on  a  judgment  that  the  judgment  has  been  removed  by  writ 
of  error  to  a  superior  court."  (Suydam  vs.  Hoyt,  1  Dutcher,  N.  J.  R.,  230.) 

S.  P.  Bank  of  North  America  vs.  Wheeler,  28  Conn.,  441,  442,  and 
cases  cited. 

Note  D. 

In  this  connection  the  following  special  message  of  Governor  John 
Hancock  to  the  senate  and  house  of  representatives  of  Massachusetts, 
dated  November  8,  1792,  calling  the  attention  of  the  legislative  power 
of  that  commonwealth  to  the  mandatory  character  of  the  Federal  legis 
lation  of  March  1,  1792,  is  most  suggestive : 

Gentlemen  of  the  senate  and  of  the  house  of  representatives: 

By  the  Constitution  of  the  United  States  of  America,  each  State  is  to  appoint,  in 
such  manner  as  the  legislature  shall  direct,  electors  of  President  and  Vice-Presideut. 
By  a  late  act  of  Congress  it  is  enacted  "that  the  supreme  executive  of  each  State 
SHALL  cause  three  lists  of  the  names  of  the  electors  of  such  State  to  be  made  and  certi 
fied,  and  to  be  delivered  to  the  electors  on  or  before  the  first  Wednesday  in  December." 

I  feel  the  importance  of  giving  everj  constitutional  support  to  the  General  Govern 
ment  ;  and  I  also  am  convinced  that  the  existence  and  well  being  of  that  Government 
depends  upon  preventing  a  confusion  of  the  authority  of  it  with  that  of  the  States 
separately.  But  that  Government  applies  itself  to  the  people  of  the  United  States  in 
their  natural,  individual  capacity,  and  cannot  exert  any  force  upon  or  by  any  means 
control  the  officers  of  the  State  governments  as  such  ;  therefore  when  an  act  of  Con 
gress  uses  compulsory  words  with  regard  to  any  act  to  be  done  by  the  supreme  execu 
tive  of  this  commonwealth,  I  shall  not  feel  myself  obliged  to  obey  them,  because  I  am 
not,  in  my  official  capacity,  amenable  to  that  Government. 

My  duty  as  governor  will  most  certainly  oblige  me  to  see  that  proper  and  efficient 
certificates  are  made  of  the  appointment  of  electors  of  President  and  Vice-President ; 
and  perhaps  the  mode  suggested  in  the  act  above  mentioned  may  be  found  to  be  the 
most  proper.  If  you,  gentlemen,  have  any  mode  to  propose  with  respect  to  the  con 
duct  of  this  business,  I  shall  pay  every  attention  to  it.  J 

Gentlemen,  I  do  not  address  you  at  this  time  from  a  disposition  to  regard  the  pro 
ceedings  of  the  General  Government  with  a  jealous  eye,  nor  do  I  suppose  that  Con 
gress  could  intend  that  clause  in  their  act  as  a  compulsory  provision ;  but  I  wish  to 
prevent  any  measure  to  proceed  through  inattention  which  may  be  drawn  into  pre 
cedents  hereafter  to  the  injury  of  the  people,  or  to  give  a  constructive  power  where 
the  Federal  Constitution  has  not  expressly  given  it. — Columbian  Sentinel,  Nov.  10, 

A/  «7/£. 

[NOTE. — The  language  of  the  statute  of  1792  is  :  "  The  executive  au 
thority  of  each  State  SHALL  c  AUSE  three  lists, "  &c.  That  of  the  Ee vised 
Statutes,  §  136,  is :  "It  shall  be  THE  DUTY  of  the  executive  of  each  State 
to  cause  three  lists,"  &c.J 

Note  E. 

CURATIVE  ACTS. 

Thomson  vs.  Lee  County,  3  Wallace,  327. 

A  statute  submitted  the  question  to  bonding  a  town  to  a  vote  of  the 


760  ELECTORAL    COUNT    OF    1877. 

municipality.    After  bonds  had  been  issued,  defects  in  the  voting  were 
alleged,  and  the  legislature  passed  a  curative  act  legalizing  the  issue. 

Held,  That  the  act  was  valid. 

Opinion  of  the  court : 

If  the  legislature  could  authorize  this  ratification  the  bonds  are  valid,  notwith 
standing  the  submission  of  the  question  to  the  vote  of  the  people  or  the  manner  of 
taking  the  vote  may  have  been  informal  and  irregular.  This  act  of  confirmation ,  very 
soon  after  its  passage,  underwent  an  examination  in  the  courts  of  Iowa,  and  it  was 
held  that  the  legislature  possessed  the  power  to  pass  it,  and  that  the  bonds  were  valid 
and  binding.  (6  Iowa,  391.)  *  *  If  the  legislature  possessed  the  power  to  authorize 
the  act  to  be  done,  it  could,  by  a  retrospective  act,  cure  the  evils  which  existed,  be 
cause  the  power  thus  conferred  had  been  irregularly  executed.  (P.  331.) 

St.  Joseph  vs.  Rogers,  16  Wallace,  644. 
Opinion  of  the  court : 

Argument  to  show  that  defective  subscriptions  of  the  kind  may  in  all  cases  be  rati 
fied  when  the  legislature  could  have  originally  conferred  the  power  is  certainly  unnec 
essary,  as  the  question  is  authoritatively  settled  by  the  decisions  of  the  supreme  court  of 
the  State  (of  Illinois)  and  of  this  court  in  repeated  instances.  (15  111.,  203 ;  34  ib.,  405 ; 
3  Wallace,  327  ;  9  ib.,  477 ;  8  Peters,  111 ;  24  How.,  295.) 

Mistakes  and  irregularities  are  of  frequent  occurrence  in  municipal  elections,  and 
the  State  legislatures  have  often  had  occasion  to  pass  laws  to  obviate  such  diffi 
culties.  Such  laws,  when  they  do  not  impair  any  contract  or  injuriously  affect  the 
rights  of  third  persons,  are  never  regarded  as  objectionable,  and  certainly  are  within 
the  competency  of  the  legislative  authority.  (Pp.  663,  664.) 

Cooley  on  Constitutional  Limitations,  137  : 

A  retrospective  statute  curing  defects  in  legal  proceedings  where  they  are  in  their 
nature  irregularities  only,  and  do  not  extend  to  matters  of  jurisdiction,  is  not  void  on 
constitutional  grounds,  unless  expressly  forbidden.  Of  this  class  are  the  statutes  to 
cure  *  *  irregularities  in  the  votes,  or  other  action  by  municipal  corporations,  or 
the  like,  where  a  statutory  power  has  failed  of  due  and  regular  execution  through  the 
carelessness  of  officers  or  other  cause.  ( 1  Penn.  St.,  218 ;  17  ib.,  524  ;  26  Iowa,  497  ;  49 
Maine,  346;  69  Penn.  St.,  328 ;  4  Vroom,  350.) 


BRIEF  No.  3. 

SUBMITTED    BY   WM.  0.  WHITNEY,   OF   COUNSEL    IN   THE 
CASE  OF  THE  STATE  OF  FLORIDA. 

In  the  matter  of  the  electoral  vote  of  the  State  of  Florida. — Argument 
and  authorities  in  support  of  the  validity  of  the  vote  cast  by  those 
electors  whose  title  to  their  office  has  been  established  by  the  decision  of 
the  circuit  court  of  Florida. 

FIRST. 

It  is  proper  and  relevant  to  the  determination  of  the  main  question — 
What  is  the  electoral  vote  of  Florida  ? — to  ascertain  whether  the  officers 
of  the  State,  in  the  execution  and  delivery  of  the  certificates  or  evidences 
of  election,  have  conformed  to  the  laws  of  the  State  governing  their 
action. 

There  are  two  classes  of  State  officers  whose  combined  action  ordi 
narily  contributes  to  the  determination  of  the  question,  How  has  the 
State  voted  ? 

These  are  the  board  of  State  canvassers,  a  body  which,  in  the  dis 
charge  of  ministerial  and  quasi-judicial  functions  strictly  defined  and 
limited  by  law,  enumerates  and  announces  the  votes  cast,  and  the 
Governor,  who,  in  the  discharge  of  a  purely  executive  function,  and  in 
response  to  an  invitation  from  the  Federal  Government,  undertakes  to- 
certify  the  result  transmitted  by  the  canvassers. 


ELECTORAL   COUNT    OF    1877  761 

That  the  functions  of  the  canvassers  are  thus  limited  was  determined 
by  the  supreme  court  of  Florida  in  the  recent  gubernatorial  contest  of 
Drew  et  al.  vs.  Stearns  et  al,  and  also  with  reference  to  a  former  election 
law  (in  this  particular  not  essentially  unlike  the  present)  in  the  case  of 
the  State  ex  rel.  Bloxham  vs.  Board  of  State  Canvassers,  13  Fla.,  55-73. 

The  court  there  says  of  the  canvassers : 

Their  duties  and  functions  are  mainly  ministerial,  but  are  quasi-judicial  so  far  as 
it  is  their  duty  to  determine  whether  the  papers  received  by  them  and  purporting  to 
be  returns  were  in  fact  such  as  were  genuine,  intelligible,  and  substantially  authenti 
cated  as  required  by  law;  in  other  words,  whether  they  contained  within  themselves 
evidence  that  they  were  authentic  returns  of  the  election. 

In  this  discussion  it  is  assumed  that  the  certificate  of  the  governor 
adds  no  strength  to  the  force  of  the  announcement  of  the  canvassersr 
but  is  a  mere  attestation  of  the  result  of  their  enumeration  as  declared 
by  them. 

It  is  also  assumed  that  if  this  declaration  of  the  canvassers  was  in 
disregard  and  violation  of  the  laws  governing  their  action,  the  certifi 
cate  of  the  governor  founded  upon  that  declaration  is  equally  contrary 
to  the  laws  of  the  State. 

In  this  view  it  is  unnecessary  to  treat  of  the  declarations  of  the  can 
vassers  and  the  governor  separately,  for  they  both  proceed  from  the 
executive  department  of  the  government. 

What,  then,  would  be  the  effect  of  these  certificates,  if  it  can  be 
shown  that  they  were  given  in  disregard  and  violation  of  the  laws  of 
Florida  ? 

It  is  clear  that  these  certificates  do  not  themselves  constitute  a  right 
to  the  office  of  elector,  but  can  operate  only  as  an  evidence  of  that 
right. 

It  is  by  the  popular  expression,  by  the  voters  through  the  ballot-box,  that  a  title  is 
derived  to  an  elective  office.  The  certificate  of  the  board  of  canvassers  is  mere 
evidence  of  the  person  to  whom  the  majority  of  the  votes  was  given. — People  vs.  Cook,  8 
Hew  York,  67-82. 

And  in  the  case  of  Eex  vs.  Vice-Chancellor,  &c.,  of  Cambridge,  3 
Burr,  647,  involving  the  election  of  Lord  Hardwicke  to  be  chancellor  of 
the  university,  notwithstanding  the  contrary  declaration  of  the  proctors 
who  canvassed  the  vote,  the  court  said : 

As  to  the  declaration  of  the  proctors,  I  think  it  immaterial,  for  the  question  depends 
not  upon  that,  but  upon  the  real  majority  of  legal  votes. 

But  if  it  is  to  be  held  that  these  certificates,  which  are  mere  evi 
dences  as  to  the  existence  of  facts,  are  not  open  to  question  as  to  their 
truth,  it  is  of  the  utmost  consequence  to  determine  whether  they  are 
certificates.  If  they  are  not  made  according  to  the  laws  of  the  State 
for  which  they  assume  to  speak,  what  authority  can  they  possess? 

Would  it  not  be  a  monstrous  perversion  of  justice  and  law  to  accept 
as  conclusive  a  mere  form  of  law,  an  assumed  instrument  of  legal  evi 
dence,  without  permitting  those  who  allege  its  falsity  to  show  that  those 
from  whom  it  emanated  executed  and  delivered  it  in  violation  of  law  ? 

The  certificates  assume  to  speak  in  the  name  of  the  State ;  they  ema 
nate  from  the  executive  department  of  the  State ;  they  are,  as  we  have 
seen,  mere  instruments  of  evidence,  not  judgments  of  courts;  in  the 
absence  of  any  legal  provision  expressly  giving  to  them  a  conclusive 
effect,  they  cannot  defy  inquiry  as  to  the  legality  of  the  action  from 
which  they  result. 

Neither  can  it  be  claimed  that  there  is  any  infringement  upon  the 
independence  of  the  State  transmitting  the  return,  if  the  inquiry  be 
limited,  as  is  now  proposed,  simply  to  the  question,  Has  the  State  itself 


762  ELECTORAL   COUNT    OF    1877. 

given  formal  expression  as  to  the  legality  of  the  assumed  instrument  of 
evidence  I 

If  it  has  so  determined,  that  decision  may  properly  be  accepted  as  the 
voice  of  the  State  instead  of  the  certificate,  if  such  determination  pro 
ceeds  from  a  body  possessing  revisory  powers  over  the  body  from  which 
the  assumed  instrument  of  evidence  emanated. 

It  therefore  is  of  consequence  to  ascertain  what  the  law  of  Florida 
provides  as  to  the  powers  of  those  making  these  certificates,  and  whether 
these  certificates  result  from  a  lawful  exercise  of  these  powers. 

SECOND. 

In  the  examination  of  the  question  whether  or  not  the  State  officers 
have  conformed  to  their  own  laws  in  the  execution  and  delivery  of  these 
certificates  or  instruments  of  evidence,  the  decisions,  if  any,  of  the  courts 
of  the  State  upon  the  question  are  competent  evidence. 

As  we  have  seen,  the  certificates  emanate  from  the  executive  depart 
ment  of  the  State  government;  they  are  consequently  subject  to  the 
determination  of  the  judicial  department  of  the  State  as  to  their  validity. 
This  is  the  theory  upon  which  rests  the  distribution  of  power  under  our 
system  of  government. 

This  proposition  as  to  the  prerogative  of  the  judicial  department  is  not 
liable  to  the  criticism  that  it  asserts  the  existence  of  a  power  liable  to  in 
juriously  affect  the  public  rights.  As  was  said  in  the  Federalist,  No. 
78 :  "  Whoever  attentively  considers  the  different  departments  of  power 
must  perceive  that  in  a  government  in  which  they  are  separated  from 
each  other,  the  judiciary,  from  the  nature  of  its  functions,  will  always 
be  the  least  dangerous  to  the  political  rights  of  the  Constitution,  because 
it  will  be  least  in  capacity  to  annoy  or  injure  them." 

From  the  beginning,  our  courts  have  held  the  power  not  only  of  con 
struing  statutes  so  as  to  decide  what  requirements  they  impose  and 
what  rights  they  confer  upon  those  to  whom  they  apply,  but  even  the 
right  to  determine  whether  or  not  the  legislative  department  has  con 
formed  to  the  fundamental  law  in  making  its  enactments.  This  last 
right  is  possessed  by  every  tribunal  in  the  land  as  much  as  by  the  Su 
preme  Court  of  the  United  States,  which  differs  from  the  others  only 
•in  being  the  court  of  last  resort,  from  whose  decision  there  is  no  appeal. 
Dana's  Wheaton,  eighth  edition,  p.  79,  n.  I. 

And  so  the  courts  have  always  had  the  authority  to  determine  as  to 
the  lawfulness  of  the  act  of  any  person  or  officer  of  the  Government 
when  presented  before  them  in  an  actual  case,  not  involving  the  ques 
tion  of  the  exercise  by  any  public  officer  of  a  discretionary  power. 

In  fact,  as  is  well  said  by  Mr.  Yearman,  (Study  of  Government,  p.  236:) 

Both  the  legislative  and  executive  departments  act  independently,  not  of  each  other, 
but  of  the  courts,  up  to  the  point  of  judicial  construction  regularly  had.  At  this  point  their 
independence,  such  as  it  properly  is,  does  not  cease,  but  a  new  rule  of  action  is  estab 
lished,  or  rather  the  true  rule  is  constitutionally  ascertained  and  established.  A  statute 
is  held  law  only  in  the  sense  in  ivhich  it  is  construed  and  applied  by  the  courts.  * 

If  the  foregoing  observations  are  well  founded,  it  results  that  the  office  of  the  execu 
tive  in  all  its  ramifications  is  to  execute  the  law  in  such  a  manner  as  to  it  seems  to  be 
-required  by  the  law  itself,  subject  to  uitmiate  authoritative  judicial  construction.     * 
Competent  judicial  construction  becomes  a  part  of  the  Jaw,  or  the  official  and  authoritative 
light  by  which  the  law  must  be  read  and  its  real  meaning  discovered. 

And  so  it  was  recognized  by  the  United  States  Supreme  Court,  Shelby 
vs.  Guy,  11  Wheat.,  367,  "  that  a  fixed  and  received  construction  of  their 
respective  statute  laws,  (of  the  several  States,)  in  their  own  courts, 
makes  in  fact  a  part  of  the  statute  law  of  the  country." 


ELECTORAL    COUNT    OF    1877.  763 

Tbe  State  thus  seeins  to  be  a  political  community,  organized  and  ex 
isting  under  a  system  of  law  by  which  the  declaration  of  the  courts,  in 
matters  submitted  to  their  jurisdiction,  becomes  the  declaration  of  the 
State  itself. 

Let  us,  then,  ascertain  how  the  State  of  Florida  has  expressed  itself 
with  reference  to  this  question,  through  its  judiciary. 

THIRD. 

A  decision  has  been  given  by  the  circuit  court  of  Florida  to  the  effect 
that  the  certificate  of  the  canvassers  that  the  vote  of  the  State  was 
given  for  the  Hayes  electors  is  without-  foundation  in  law  or  fact,  and 
also  determining  that  the  vote  of  the  State  was  given  for  the  Tilden 
electors. 

The  record  has  been  produced,  and  will  speak  for  itself. 

FOURTH. 

The  judgment  of  the  circuit  court  of  Florida  conclusively  determines 
that  the  true  electoral  vote  of  Florida  was  that  cast  by  the  Tilden 
electors. 

This  proposition  involves  an  examination  of  the  following  questions: 

First.  What  is  the  effect  of  a  judgment  of  a  State  court  when  pre 
sented  before  any  other  tribunal? 

Second.  Did  the  circuit  court  of  Florida  have  jurisdiction  of  the  sub 
ject-matter  and  parties  in  this  proceeding  ? 

Third.  Did  it  render  a  judgment  ? 

Fourth.  What  is  the  operation  and  effect  of  that  judgment? 

These  questions  are  answered  in  the  following  discussion. 

By  the  Constitution  of  the  United  States,  Art.  IV,  sec.  1,  it  is  declared  that  ^full 
faith  and  credit  shall  be  given  in  each  State  to  the  public  acts,  records,  and  judicial 
proceedings  of  every  other  State.  And  the  Congress  may,  by  general  laws,  prescribe 
the  manner  in  which  such  acts,  records,  and  proceedings  shall  be  proved,  and  the  effect 
thereof. 

The  act  of  May  26,  1790,  (1  Stats,  at  Large,  115,)  declared  that— 

The  said  records  and  judicial  proceedings,  authenticated  as  aforesaid,  shall  have  such 
faith  and  credit  given  to  them  in  every  court  within  the  United  States  as  they  have  by 
law  or  usage  in  the  courts  of  the  State  from  whence  the  said  records  are  or  shall  be 
taken. 

This  provision  of  law  has  been  preserved  and  continued  by  section 
905  of  the  Eevisecl  Statutes. 

While  the  courts  of  the  several  States  did  not  invariably,  in  the  years 
immediately  following  the  adoption  of  the  Constitution  and  this  act  of 
Congress,  recognize  the  full  force  of  these  provisions,  the  courts  of  the 
United  States  never  mistook  their  effect.  The  Federal  tribunals  have 
from  the  first  regarded  as  final  all  judgments  of  State  courts  of  general 
jurisdiction  over  matters  and  persons  within  their  jurisdiction,  and  the 
courts  of  the  several  States  now,  without  exception,  acquiesce  in  this 
ruling. 

The  earliest  as  well  as  the  leading  case  on  the  subject  is  that  of  Mills 
vs.  Duryee,  7  Cranch,  481,  wherein  the  opinion  of  the  court  was  delivered 
by  Judge  Story. 

The  learned  justice  says : 

Were  the  construction  contended  for  by  the  plaintiff  in  error  to  prevail,  that  judg 
ments  of  the  State  courts  ought  to  be  considered  prima-facie  evidence  only,  this  clause 
in  the  Constitution  would  be  utterly  unimportant  and  illusory.  The  common  law 
would  give  precisely  the  same  effect.  It  is  manifest,  however,  that  the  Constitution  con 
templated  a  power  in  Congress  to  give  a  conclusive  effect  to  such  judgments,  and  we 
can  perceive  no  rational  interpretation  of  the  act  of  Congress,  unless  it  declares  a  judg- 


764  ELECTORAL    COUNT    OF    1S77. 

ment  conclusive  when  a  court  of  the  particular  State  where  it  is  rendered  would  pro 
nounce  the  same  decision. 

From  this  decision  down  to  that  of  Maxwell  vs.  Stewart,  22  Wall.,  77, 
the  Supreme  Court  of  the  United  States  has  held  to  this  doctrine. 

There  has  been  some  discussion  as  to  the  necessity  that  certain  pre 
liminary  questions  of  jurisdiction  in  the  court  rendering  the  judgment 
shall  be  first  settled,  but  even  as  to  these  questions  the  presumption  of 
regularity  and  jurisdiction  is  to  be  invoked  in  support  of  the  State 
record. 

See  2  Am.  Leading  Cases,  5th  ed.,  652 ;  4th  ed.,  797. 

It  is  now  clearly  settled,  according  to  the  opinion  of  the  court,  by  Mr. 
Chief-Justice  V^aite,  in  Maxwell  vs.  Stewart,  supra,  that — 

The  form  of  a  record  of  a  judgment  is  regulated  by  the  practice  of  the  court  in  which 
the  action  is  prosecuted.  To  make  such  a  record  valid  upon  its  face  it  is  only  neces 
sary  for  it  to  appear  that  the  court  had  jurisdiction  of  the  subject-matter  of  the  action 
and  of  the  parties,  and  that  a  judgment  had  in  fact  been  rendered.  All  else  is  form 
only. 

In  the  supreme  court  of  Connecticut,  in  the  case  of  The  Bank  of  North 
America  vs.  Wheeler,  28  Conn.,  433-439,  the  court  says : 

In  Hampton  vs.  McConnell,  3  Wheat.,  234,  which  was  declared  by  Chief- Justice  Mar 
shall  to  be  precisely  the  same  case  as  that  of  Mills  vs.  Duryee,  he  states  that  the  doc 
trine  there  held  was  that  the  judgment  of  a  State  court  should  have  the  same  credit, 
validity,  and  effect  in  every  other  court  in  the  United  States  which  it  had  in  the  State 
where  it  was  pronounced,  and  that  whatever  pleas  would  be  good  to  a  suit  thereon  in 
such  State,  and  none  other,  could  be  pleaded  in  any  other  court  in  the  United  States. 
This  principle  has  since  been  universally  recognized  and  adopted,  with  the  exception 
of  a  single  case  decided  by  the  county  court  of  Baltimore,  in  which  that  court,  as  we 
think,  misapprehending  the  decision  in  the  case  of  McEloioyle  vs.  Cohen,  13  Pet.,  312, 
came  erroneously  to  a  different  conclusion. 

Neither  does  this  conclusive  character  of  the  judgment  of  a  foreign 
tribunal,  possessing  jurisdiction,  depend  solely  upon  the  Constitution 
and  laws  of  the  United  States.  It  results  from  the  adjudicated  princi 
ples  of  the  common  law  as  well. 

In  1862  the  Court  of  Queen's  Bench,  in  the  case  of  Scott  vs.  Pelkington, 
2  Best  and  S.,  11,  which  was  an  action  brought  to  enforce  a  New  York 
judgment  in  England,  held  the  judgment  of  the  New  York  court  having 
jurisdiction  over  the  subject-matter  could  not  be  questioned  in  England 
on  the  ground  that  the  foreign  court  had  mistaken  the  laws  of  its  own 
country,  or  had  come,  on  the  evidence,  to  an  erroneous  conclusion  as  to 
the  facts.  This  conclusion  was  reached  notwithstanding  the  New  York 
judgment  had  been  rendered  on  the  report  of  a  referee,  which  embraced 
conclusions  of  law  that  would  not  have  been  followed  in  England,  and, 
also,  notwithstanding  the  fact  that  an  undetermined  appeal  was  still 
pending  from  such  judgment. 

It  is  also  decided  that  the  acts  of  Congress  prescribing  the  mode  of 
authenticating  the  records  of  such  judgment  do  not  exclude  all  other 
evidence  thereof. 

See  Kean  vs.  Rice,  12  S.  and  E.,  203 ;  Bennett  vs.  Bennett,  Deady, 
299-309. 

In  order  to  a  determination  of  the  effect  of  the  judgment-record  of 
the  circuit  court  of  Florida,  it  becomes  necessary,  therefore,  to  ascer 
tain,  according  to  the  rule  in  Maxwell  vs.  Stewart,  27  Wall.,  77— 

First.  Whether  the  court  has  jurisdiction  : 

(a)  Of  the  subject-matter; 

(b)  Of  the  parties. 

Second.  Whether  a  judgment  was  in  fact  rendered. 
These  questions  may  be  considered  in  their  order. 


ELECTORAL    COUNT    OF    1877.  765 

First,  (a)  The  court  had  jurisdiction  of  the  subject-matter. 

By  the  constitution  of  Florida,  adopted  February  25,  1868,  (Bush's 
Digest,  p.  1,)  it  is  provided  in  the  eighth  section  of  the  first  article 
"  that  the  circuit  court  and  the  judges  thereof  shall  have  power  to  issue 
writs  of  quo  warrantor  This  provision  has  not  been  affected  by  the 
amendments.  (Laws  1875,  p.  49.) 

By  the  laws  of  Florida  (1868,  p.  33 ;  1872,  p.  28)  provision  has  been 
made  for  the  exercise  and  the  effect  of  the  exercise  of  this  power  by  the 
courts.  It  is  also  provided  by  law  (chap.  1561,  sec.  2)  that  the  circuit 
court  may  issue  the  writ  in  vacation  as  well  as  in  term,  and,  by  rule  of 
the  court,  that  the  judge  will  regulate  the  practice.  (Eule  14;  14  Fla., 
App.  23.) 

By  the  decision  of  the  supreme  court  of  Florida,  (which  is  hereafter 
shown  to  be  binding  upon  the  tribunals  of  the  United  States,)  it  was 
held  that  this  grant  of  power  to  issue  a  writ  of  quo  warranto  embraces 
and  includes  the  proceeding  by  information  in  the  nature  of  a  quo  war 
ranto.  It  was  also  held  that  in  absence  of  statutory  regulations  as  to 
the  mode  of  procedure,  the  common-law  practice  was  to  be  followed. 
(State  vs.  Gleason,  12  Fla.,  190.) 

First,  (b)  The  court  also  had  jurisdiction  of  the  parties. 

In  the  first  place,  as  to  the  particular  branch  of  the  tribunal  and  the  venue 
loithin  which  the  proceedings  were  had. 

The  defendants  in  the  proceeding  were  assembled  at  the  capital  of  the 
State,  Tallahassee,  in  the  county  of  Leon.  By  the  third  section  of  the 
twenty-first  article  of  the  constitution  of  Florida  the  county  of  Leon  is 
made  part  of  the  second  circuit,  of  which  P.  W.  White,  before  whom 
the  proceedings  were  had,  is  judge.  (15  Florida  Eeports,  p.  3.) 

In  the  second  place,  as  to  the  persons  of  the  defendants. 

Their  appearance  in  the  proceeding  would  confer  jurisdiction  of  per 
son  if  the  court  also  had  jurisdiction  of  the  subject-matter. 

If,  however,  it  be  suggested  that  the  proceeding,  being  instituted 
with  relation  to  an  official  capacity  or  character  which  the  defendants 
had  assumed,  and  that  such  official  capacity  had  been  entirely  exer 
cised  and  exhausted  before  the  judgment  was  rendered,  the  following 
answer  is  made : 

The  proposition  that  the  office  had  expired  or  was  exhausted  is  in  no 
wise  conceded,  but  is  in  all  respects  resisted,  and  denied  to  be  true  in 
fact  or  sound  in  law. 

The  office  of  elector  could  not  determine  and  expire  so  long  as  any  act 
remained  to  be  done  to  express  the  true  voice  of  the  State.  In  this  re 
spect  the  same  rule  applied  to  the  electors  as  was  announced  by  the 
supreme  court  with  reference  to  the  board  of  canvassers,  (13  Florida, 
55-73:) 

The  object  of  the  law  is  to  ascertain  the  whole  number  of  votes  cast  and  who  had 
received  the  highest  number  of  such  votes,  so  that  the  choice  of  the  majority  of  the 
voters  might  be  ascertained  and  respected.  If  the  facts  are  correctly  stated  by  the 
relator,  the  respondents  neglected  to  perform  this  duty,  and  therefore  did  not  comply 
with  the  law,  in  which  case  they  did  not  conclude  their  duties  as  canvassers  nor  put 
an  end  to  their  powers  as  canvassers  by  an  adjournment  sine  die. 

There  is  no  provision  of  law  which  determines  when  the  office  of  elector 
shall  expire,  and  upon  principle  it  would  seem  to  continue  so  long  as 
anything  could  be  done  by  use  of  the  office  in  accomplishing  the  object 
of  its  creation,  the  expression  of  the  real  and  true  will  of  the  State. 

But  even  if  the  claim  that  the  term  had  expired  were  true,  the  judg 
ment  of  the  court  would  not  in  consequence  be  without  jurisdiction. 

Mr.  High,  in   treating  of  quo  warranto,  (Extraordinary  Eemedies, 


766  ELECTORAL    COUNT    OF    1877. 

§633,)  observes  that  while  under  the  English  practice  leave  to  file  an  in 
formation  is  frequently  given,  notwithstanding  the  expiration  of  the 
term  of  office  in  question,  yet  in  this  country  a  diiferent  rule  prevails. 
This  is  not  invariably  the  case  even  with  reference  to  the  first  step  in 
the  proceeding,  namely,  the  granting  of  leave  to  file  an  information, 
which  is  a  matter  purely  in  the  discretion  of  the  court.  Thus,  in  the 
case  of  People  vs.  Tibbetts,  4  Cow.,  358-381,  leave  was  granted  to  file 
an  information  notwithstanding  the  near  expiration  of  the  term.  But 
an  examination  of  the  cases  upon  which  Mr.  High  rests  his  unguarded 
proposition  shows  that  even  they  do  not  refer  to  the  initiatory  proceeding, 
the  obtaining  leave  to  file  the  information,  and  do  not  indicate  the  ex 
istence  of  different  rules  as  to  the  subsequent  proceedings.  This  is 
shown  upon  an  examination  of  the  two  leading  cases  upon  this  subject, 
both  decided  in  the  same  year,  (1807,)  and  from  which  every  subsequent 
American  decision  has  drawn  its  law. 

The  Commonwealth  vs.  Athearn,  3  Mass.,  285,  was  a  case  in  which  the 
supreme  court  of  Massachusetts  declined  to  grant  leave  to  file  an  in 
formation  as  against  an  alleged  usurper  whose  term  would  expire  before 
judgment  could  be  given.  But,  in  denying  the  application,  Chief-Jus 
tice  Parsons  says : 

The  court  will  be  understood  by  this  decision  to  have  determined  not  that  they  have 
no  authority  to  grant  an  information  whenever  they  shall  think  a  case  exhibited  to 
them  shall  require  it,  but  only  in  the  present  case  it  would  not  be  a  discreet  and  proper 
exercise  of  their  authority. 

In  The  People  vs.  Sweeting,  2  Johns.,  184,  the  supreme  court  of  New 
York,  in  denying  a  similar  application,  said : 

This  court  has  a  discretion  to  grant  motions  of  this  kind  or  to  refuse  them  if  no  suffi 
cient  reasons  appear  for  allowing  this  mode  of  proceeding. 

That  this  was  the  sole  effect  of  this  decision  appears  from  the  subse 
quent  case  of  The  People  vs.  Tibbetts,  4  Cow.,  358,  381,  bottom.  Here 
the  same  court  granted  such  a  motion  for  leave  to  file  an  information, 
notwithstanding  the  former  case,  which  was  cited  and  considered.  They 
say: 

Here  the  motion  was  brought  before  us  at  the  term  next  after  the  election.  We  can 
not  refuse  it  upon  the  mere  chance  that  a  trial  may  fail.  To  do  'this  would  be  equiva 
lent  to  a  refusal  in  all  cases  where  the  office  is  annual ;  a  length  to  which  we  presume 
the  court  did  not  intend  to  go,  and  to  which  it  was  not  necessary  they  should  go,  in 
The  People  vs.  Sweeting.  On  the  whole,  we  are  clear,  upon  the  nature  of  the  case, 
as  to  our  right  of  allowing  the  information  to  be  filed  ;  and  that  the  lapse  of  time  is  not 
such  as  to  require  us  in  the  exercise  of  a  sound  discretion  to  deny  it. 

And  all  the  succeeding  line  of  American  authorities  have  arisen  upon 
applications  for  leave  to  file  informations  involving  an  exercise  of  pure 
discretion  on  the  part  of  the  conrt,  or  have  else  been  misapplications 
of  the  rule  laid  down  in  the  first  cases  in  Massachusetts  and  l^ew  York, 
upon  which  they  assume  to  rest. 

But  while  the  courts  may  and  have  this  discretion  with  reference  to 
the  granting  of  leave  to  file  an  information  in  the  first  instance,  their 
discretion  is  entirely  exhausted  after  that  leave  is  granted.  The  trial 
must  then  proceed  like  any  other. 

Says  Chief-Justice  Ames,  in  delivering  the  opinion  of  the  supreme 
court  of  Khode  Island,  State  vs.  Brown,  5  E.  L,  1 : 

When  the  information  is  filed  all  the  discretionary  power  of  the  court  is  expended, 
and  the  issues  of  law  or  fact  raised  by  the  pleadings  must  be  tried  and  decided  under 
the  law,  and  in  the  same  manner  and  with  the  same  strictness  as  in  any  other  case, 
civil  or  criminal.  (P.  4.) 

There  is  no  difference  between  the  authorities  of  England  and  Amer 
ica  as  to  the  course  to  bea  taken  after  the  information  is  filed — after  the 


ELECTORAL    COUNT    OP    1877.  767 

discretion  of  the  court  has  been  expended.  The  only  difference  has  been 
as  to  the  cases  in  which  the  original  discretionary  power  should  be  ex 
ercised. 

The  circuit  court  of  Florida  had  passed  this  point  of  discretion  and 
had  entered  upon  the  actual  trial  of  the  issue  as  to  the  rights  of  the 
contending  parties  under  the  laws  of  Florida.  What  decision,  there 
fore,  was  the  circuit  court  bound  to  give  under  those  laws  ? 

One  of  the  statutes  of  Florida  provides  that  any  office  in  the  State 
becomes  vacant  upon  a  decision  of  a  competent  tribunal,  declaring  void 
the  election  or  appointment  of  the  one  occupying  it,  and  his  removal 
by  said  tribunal.  (Laws  of  1868,  p.  34.)  Another  statute  provides  that> 
in  the  trial  of  an  information  in  the  nature  of  a  quo  warranto,  the  court, 
if  requested,  must  pass  upon  the  title  of  the  claimant  as  well  as  that  of 
the  defendant.  (Laws  of  1872,  p.  28,  ch.  1874.)  It  is  also  the  practice 
of  the  court  that  an  unsuccessful  defendant  must  pay  costs. 

Vide  judgment  in  The  State  of  Florida  vs.  Gleason,  12  Fla.,  267. 

The  courts  of  other  States  have  already  determined  what  duties  such 
statutes  impose  upon  the  courts  administering  them.  Even  the  obliga 
tion  of  the  defendant  to  pay  costs  is  sufficient  to  induce  and  authorize, 
nay,  to  constrain  the  court  to  proceed  to  a  determination  of  all  the 
rights  of  the  parties,  with  a  view  to  the  settlement  of  this  minor  and 
incidental  question. 

In  the  action  of  The  People  vs.  Loomis,  8  Wend.,  396,  397,  the  supreme 
court  of  New  York,  speaking  by  Mr.  Justice  Nelson,  said: 

The  remedy  must  be  entirely  fruitless  in  this  case,  as  the  term  of  office  of  the  defend 
ant  has  long  ago  expired.  If  application  had  been  made  for  the  quo  ivarranto  we 
should  have  denied  it,  as  was  done  in  The  People  vs.  Sweeting.  Although  judgment 
will  be  unavailing  and  the  damages,  if  a  suggestion  be  made,  must  be  very  trilling, 
still  I  am  of  opinion  we  cannot  suspend  the  judgment,  as  the  Revised  Statutes  are 
imperative,  and  give  to  the  prevailing  party  costs. 

The  same  conclusion  was  reached  by  the  supreme  court  of  Michigan, 
in  the  case  of  The  People  vs.  Hartweli,  12  Mich.,  508,  522. 

And  Mr.  High,  §  633,  supra,  states  that  although  a  quo  warranto  in 
formation  is  concededly  not  to  be  granted  merely  for  the  purpose  of 
vacating  an  office  which  the  defendant  has  already  resigned,  "  yet 
where  the  object  of  the  proceeding  is  not  only  to  cause  the  respondent 
to  vacate  the  office,  but  also  to  establish  the  title  of  the  relator  thereto,  a 
different  principle  prevails." 

It  will  be  remembered  that  the  Florida  statute  (Laws  1872,  p.  33) 
especially  provides  for  such  a  trial  of  the  relator's  right. 

In  illustration  of  this  principle  may  be  cited  the  recent  case,  (1866,) 
decided  by  the  court  of  King's  Bench,  in  which  Lord  Chief-Justice 
Cockburn  is  very  careful  to  place  his  decision,  not  upon  the  prior  au 
thorities,  but  upon  the  underlying  reasons  which  he  states.  (Queen  vs. 
Blizard,  7  B.  &  8.,  922.) 

The  question  arose  upon  an  application  to  make  absolute  a  rule  nisi, 
which  had  been  previously  obtained,  calling  upon  the  defendant  to  show 
by  what  authority  he  claimed  to  exercise  the  office  of  town  councilor  of 
Tewksbury,  to  which  he  had  assumed  to  be  elected  on  November  10, 
three  weeks  before  the  hearing.  It  appeared,  also,  that  the  defendant 
had  resigned  the  office  three  days  before  the  relator  had  made  his  first 
application.  Nevertheless  the  court  made  absolute  the  rule  to  file  the 
information. 

The  chief-justice,  after  saying  that  at  first  he  thought  the  resignation 
avoided  the  possibility  of  the  proceeding,  and  that  he  reached  his  con- 


768  ELECTORAL    COUNT    OF    1877. 

elusions  independently  of  the  authority  of  the  cases  cited  by  the  relator, 
decides  as  follows : 

If  the  object  were  merely  to  vacate,  so  that  a  fresh  election  might  take  place,  it  is 
obvious  that  the  resignation  of  the  office  would  effect  it  as  well  as  the  removal  from 
the  office  by  an  information  in  the  nature  of  a  quo  warranto;  but  in  the  present  case 
the  proceeding  is  instituted  by  a  relator,  who  not  only  denies  the  validity  of  the  elec 
tion  of  the  person  against  whom  he  moves,  but  also  claims  to  have  been  elected  and  to  be 
admitted  into  the  office.  '  *  Now,  in  order  to  enable  the  relator  to  stand  in 

that  position  and  be  admitted  into  this  office,  it  must,  as  he  maintains,  necessarily  be 
assumed  that  there  was  never  any  election  of  the  defendant.  *  *  *  The  effect 
of  a  resignation  would  only  be  to  send  the  parties  to  a  fresh  election,  whereas  the  effect 
of  a  disclaimer  or  judgment  for  the  Crown  would  be  to  displace  and  oust  the  defendant, 
leaving  it  open,  which  it  otherwise  would  not  be,  to  the  relator  to  claim  the  office. 

This  reasoning  sustains  the  circuit  court  of  Florida  in  proceeding  to 
a  determination  of  the  relators'  rights. 

But  still  another  principle,  recognized  by  the  courts  both  of  England 
and  of  this  country,  may  be  invoked  in  support  of  the  procedure  of  the 
circuit  court,  notwithstanding  the  assumption  (the  correctness  of  which 
we  always  controvert)  that  the  term  of  office  in  dispute  had  expired 
before  judgment.  That  principle  results  from  the  necessity  of  determin 
ing  the  validity  of  the  acts  of  the  defendants,  which  were  of  public  con 
cern  and  were  intended  to  confer  rights  upon  others. 

So  long  ago  as  1759  this  principle  received  recognition  in  the  case  of 
The  King  vs.  New  Eadnor,  2  Ld.  Kenyon,  498.  An  information  was  ap 
plied  for  as  against  a  defendant  four  years  after  the  expiration  of  the 
aldermanic  term  which  the  defendant  was  charged  with  having  usurped. 
It  was  held  that  leave  should  be  granted  to  try  a  civil  right,  for  in  order 
to  invalidate  the  "  election  of  other  members  (chosen  while  the  defend 
ant  was  in  office)  it  may  be  put  in  issue  that  he  was  not  a  legal  officer; 
and,  to  prove  that,  it  may  perhaps  be  necessary  to  produce  the  record  of 
his  conviction,  as  the  judge  may  otherwise  say  he  appeared  to  have  been 
an  officer  de  facto,  and  the  right  to  his  office  is  not  the  issue  then  to  be 
tried." 

And  this  case  was  followed  and  approved  by  the  supreme  court  of 
North  Carolina,  which  held  (Burton  vs.  Patton,  2  Jones's  Law,  24)  that 
an  information  in  the  nature  of  a  quo  warranto  may  be  filed  against  public 
officers  after  the  expiration  of  their  office,  where  their  conviction  is  neces 
sary  to  invalidate  their  acts,  when  such  acts  are  of  public  concern  and 
are  intended  to  confer  rights  upon  others.  The  court  also  cites  with 
approval  the  language  of  Littledale,  J.,  (Re  Harris,  6  A.  and  E.,  475-477,) 
that  "  there  have  been  instances  in  which  an  information  issued  after 
the  office  expired,  where  something  done  in  the  office  would  have  affected 
the  general  administration  of  affairs  in  the  borough." 

Even  upon  the  most  disputed  assumption  that  the  term  of  the  elect 
oral  office  had  expired,  it  does  not  seem  possible  to  doubt  that  the 
court  had  jurisdiction  of  the  parties  for  either  one  of  the  following  pur 
poses: 

1.  To  award  costs  to  the  plaintiffs. 

2.  To  establish  the  relators'  rights  with  reference  to  the  office. 

3.  To  invalidate  the  acts  of  the  defendants,  which  were  of  public  con 
cern  and  were  intended  to  confer  rights  upon  others. 

And,  having  jurisdiction  for  these  purposes,  the  court  should  and  did 
examine  and  determine  the  entire  question. 

In  any  event,  the  court  had  sufficient  jurisdiction  of  the  question  to 
determine  whether,  under  the  laws  of  Florida,  it  had  jurisdiction,  and 
its  decision  that  it  had  is  now  conclusive  and  final. 

This  brings  us,  in  our  consideration  of  the  conditions  suggested  by 
Chief-Justice  Waite,  (Maxwell  vs.  Stewart,  supra,)  to  the — 


ELECTORAL   COUNT    OF    1877,  769 

Second.  Whether  a  judgment  was  in  fact  rendered. 

The  profert  of  the  record  sufficiently  establishes  the  fact  of  the  judg 
ment,  and  the  cases  of  Bank  vs.  Wheeler,  Merchants7  Insurance  Com 
pany  vs.  DeWolf,  and  Scott  vs.  Pilkington,  before  cited,  sufficiently  dem 
onstrate  that  it  is  binding  and  conclusive,  notwithstanding  the  possi 
bility  or  pendency  of  an  appeal. 

But  in  its  essential  features  this  judgment  of  the  circuit  court  is 
founded  upon  the  decision  of  the  court  of  last  resort,  the  supreme  court 
of  Florida,  in  the  quo  warranto  proceedings  of  Drew  et  al.  vs.  Stearns  et  al., 
in  which  the  gubernatorial  question  was  settled.  It  was  there  decided, 
which  was  the  turning-point  of  the  present  case,  that  the  board  of  State 
canvassers  was  without  judicial  functions. 

This  decision  is  absolutely  controlling  upon  the  courts  of  the  United 
States,  not  by  reason  of  any  act  of  Congress  or  any  principle  before 
cited,  but  upon  the  ground  stated  in  the  cases  of  Shelby  vs.  Guy,  11 
Wheat.,  361,  and  Green  vs.  Lessee  of  Neal,  6  Peters,  291,  with  reference 
to  the  decisions  of  the  State  courts  upon  a  question  arising  under  local 
law.  The  court  say  that  "  the  decision  of  this  question  by  the  highest 
tribunal  of  a  State  should  be  considered  as  final  by  this  court ;  not  be 
cause  the  State  tribunal,  in  such  case,  has  any  power  to  bind  this  court, 
but  because  a  fixed  and  received  construction  by  a  State  in  its  own 
courts  makes  a  part  of  the  statute  law." 

So  in  the  case  of  Tioga  Kailroad  Company  vs.  Blossburgh  and  Corning 
Eailroad,  20  Wall.,  137-143,  Mr.  Justice  Bradley  says,  for  the  court,  with 
reference  to  the  decisions  of  the  New  York  courts  as  to  the  New  York 
statute  of  limitations :  "  These  decisions  upon  the  construction  of  the 
statute  are  binding  upon  us,  whatever  we  may  think  of  their  soundness 
on  general  principles.-' 

And  in  the  very  last  case  upon  the  subject,  (Township  of  Elniwood  vs. 
Macy,  2  Otto,  289-294,)  the  court  says,  as  to  certain  Illinois  decisions  con 
cerning  the  effect  of  Illinois  statutes : 

We  are  not  called  upon  to  vindicate  the  decisions  of  the  supreme  court  of  Illinois 
in  these  cases  or  approve  the  reasoning  by  which  it  reached  its  conclusions.  If  the 
questions  before  us  had  never  been  passed  upon  by  it,  some  of  my  brethren  who  agree 
to  this  opinion  might  take  a  different  view  of  them.  But  are  not  these  decisions  bind 
ing  upon  us  in  the  present  controversy  ?  They  adjudge  that  the  bonds  are  void  be 
cause  the  laws  which  authorized  their  issue  were  in  violation  of  a  peculiar  provision 
of  the  constitution  of  Illinois.  We  have  always  followed  the  highest  court  of  the 
State  in  its  construction  of  its  own  constitution  and  laws. 

In  fact  and  in  law,  therefore,  the  judgment  of  the  circuit  court  of 
Florida  is  final  and  conclusive. 

We  have  now  to  consider  what  was  the  operation  and  effect  of  this  judg 
ment. 

It  is  well  observed  by  Mr.  High,  (§  750,)  following  the  case  of  Attorney- 
General  vs.  Barstow,  (4  Wis.,  567,)  that  in  this  proceeding  the  judgment 
itself  creates  no  right,  but  is  merely  declaratory  of  rights  already  exist 
ing,  the  court  being  the  instrument  or  medium  through  which  the  rights 
created  by  law  are  ascertained  and  definitely  fixed.  The  judgment,  he 
continues,  therefore,  neither  creates  a  right  in  the  successful  party  nor 
destroys  one  which  formerly  belonged  to  the  party  ousted. 

It  appears  that  in  the  cited  Wisconsin  case  the  claim  was  made  that 
the  substitution  by  the  court  of  the  relator  as  governor  would  impose 
upon  the  people  a  governor  elected  or  created  by  the  court.  The  answer 
was  made  by  Judge  Whiton,  for  the  court,  (p.  659:) 

As  the  case  now  appears  upon  the  record,  the  respondent  has  no  legal  right  to  the 
1  office,  and  the  relator  has  a  perfect  right  to  it  by  virtue  of  the  clause  of  the  constitu 
tion  above  referred  to.    If  the  facts  should  remain  unchanged,  a  judgment  of  ouster 

49  E  0 


770  ELECTORAL    COUNT   OF    1877. 

in  this  court  against  the  respondent  and  a  judgment  establishing  the  right  of  the  re- 
lator  would  not  create  a  right  in  the  latter  or  destroy  one  which  belongs  to  the  former. 
Their  rights  are  fixed  by  the  constitution,  and  the  court,  if  it  has  jurisdiction  of  this 
proceeding,  is  the  mere  instrument  provided  by  the  constitution  to  ascertain  and  en 
force  their  rights  as  fixed  by  that  instrument.  Its  office  is  the  same  as  in  all  contro 
versies  between  party  and  party,  not  to  create  rights,  but  to  ascertain  and  enforce 
them.  The  same  argument  would  apply  with  equal  force  to  an  information  in  the 
nature  of  a  quo  ivarranto  against  a  sheriff  or  any  other  officer.  We  do  not  think  it  well 
founded. 

And  so  in  the  Florida  case,  the  judgment  in  favor  of  the  relators  did 
not  create  them  electors  from  the  day  of  its  rendition,  but  it  declared 
that  from  the  day  of  election,  November  7,  1876,  they  were,  and  had 
been,  the  electors  of  the  State  of  Florida,  chosen  under  its  laws,  and 
consequently  that  all  their  acts  as  electors  since  that  time  were  the  acts 
of  the  legal  and  valid  electors  of  the  State  of  Florida. 

The  position  of  the  assumed  Hayes  electors  was  not  that  of  de  facto 
officers,  whose  acts  were  valid  as  to  the  public  and  third  persons  until 
they  were  ousted.  They  had  merely  undertaken  to  perform  an  act  which 
had  not  yet  been  finally  acted  upon  by  otfiers  when  the  court  gave  its 
judgment  that  they  had  never  possessed  the  authority  necessary  to  the 
performance  of  the  act. 

At  the  time  of  this  judgment  there  were  in  existence  and  awaiting  the 
acceptance  of  Congress  the  returns  evidencing  action  of  each  of  these 
bodies  of  electors.  When  these  returns  are  opened  there  is  presented 
to  the  tribunal  about  to  choose  between  them  the  judgment  of  the  court 
declaring  that  at  the  time  these  returns  were  prepared  the  Hayes 
electors  were  not,  and  the  Tilden  electors  were,  authorized  to  cast  the 
vote  of  Florida. 

It  does  not  seem  possible  that  the  merely  ministerial  and  executive 
attestation  of  the  official  character  of  the  one  body  can  stand  for  a 
moment  as  against  the  subsequent  judicial  determination  that  these 
ministerial  and  executive  attestations  had  been  given  without  warrant 
in  law  or  fact. 

There  is  also  another  legal  principle  which  may  be  invoked  in  support 
of  the  proposition  that  the  tribunal  should  accept  the  judgment  in  favor 
of  the  Tilden  electors  as  evidence  of  their  official  character. 

As  has  been  repeatedly  demonstrated,  the  certificates  of  the  governor 
and  canvassers  of  the  State  of  Florida  did  not  constitute  the  right,  but 
were  simply  the  evidence  of  the  right  of  the  electors  to  their  office. 

If  th<}y  had  in  fact  been  elected  to  the  office,  they  were  entitled  to 
the  evidence  of  that  fact;  and  if  the  prescribed  instrument  of  evidence, 
the  ce/tificate,  was  withheld  without  sufficient  legal  reason  by  the  offi 
cers  whose  duty  it  was  to  give  it  to  the  lawfully -chosen  electors,  then 
they  could  resort  to  other  instruments  of  evidence  to  establish  the  ex 
istence  of  the  fact  of  their  election. 

The  judgment  of  the  circuit  court  thus  operates  not  only  to  demon 
strate  that  the  governor  and  canvassers  were  without  legal  excuse  in 
withholding  from  the  Tilden  electors  the  prescribed  evidence  of  their 
election,  but  it  also  becomes  admissible  as  itself  constituting  the  consti 
tuted  evidence  of  such  election. 

The  authorities  for  the  proposition  that,  in  case  of  the  prescribed  in 
strument  of  evidence  being  withheld  by  those  whose  duty  it  is  to  give 
it,  substituted  evidence  of  the  fact  may  be  offered,  have  all  arisen  upon 
matters  of  contract,  but  they  sufficiently  demonstrate  the  principle  that 
the  law  in  all  cases  seeks  to  determine  controversies  according  to  exist 
ing  facts,  and  that  it  is  not  to  be  defeated  in  this  purpose  by  the  unrea 
sonable  suppression  or  withholding  of  any  particular  method  of  proving 
such  facts. 


ELECTORAL    COUNT   OF    1877  771 

Among  these  authorities  the  following  may  be  cited : 
United  States  vs.  Kobeson,  9  Peters,  319-327.    In  this  case  the  de 
fendant  had  proved  in  the  court  below,  as  an  offset,  the  payment  of  cer 
tain  amounts  for  which  it  was  provided  by  the  contract  that  certificates  of 
the  commanding  officer  should  be  obtained,  and  such  certificates  were 
not  produced  or  offered.    On  this  ground  the  judgment  was  reversed, 
the  court  saying : 

The  defendant  cannot  compel  the  payment  of  this  amount  unless  he  shall  procure 
the  kind  of  evidence  required  by  the  contract  or  show  that  by  time  or  accident  he 
was  unable  to  do  so. 

Had  the  defendant  proved  that  application  had  been  made  to  the  commanding 
officer  for  the  proper  certificates  and  that  he  had  refused  to  give  them,  it  would  have 
been  proper  to  receive  other  evidence  to  establish  the  claim. 

To  the  same  effect  are  the  decisions  of  the  New  York  court  of  appeals 
in  Thomas  vs.  Fleury,  26  N.  Y.,  26,  and  The  Bowery  National  Bank  vs. 
Mayor,  63  N.  Y.,  336. 

It  is  also  to  be  noticed  that  no  statute  makes  the  certificate  of  the 
governor  or  canvassers  exclusive  proof  as  to  the  question  of  the  election 
of  the  electors ;  other  competent  proof  would  therefore  be  admissible. 

It  has  been  decided  by  the  New  York  superior  court  (6  Bosworth,  213) 
that,  though  a  statute  provide  that  a  copy  of  a  certificate  of  incorpora 
tion  shall  be  presumptive  legal  evidence  of  the  facts  therein  stated, 
this  does  not  exclude  any  other  method  of  proving  the  fact  of  incorpo 
ration. 

FIFTH. 

The  judgment  of  the  circuit  court  is  not  impaired  or  lessened  in  effi 
cacy  by  the  proceeding  to  review  it  in  a  higher  court,  if  any  such  pro 
ceeding  has  been  taken.  At  common  law  the  judgment  of  a  court  of 
original  jurisdiction  takes  full  effect  immediately  upon  its  entry;  and 
until  reversed  it  is  as  effectual  as  if  pronounced  by  a  court  of  last 
resort. 

Allen  vs.  Mayor  of  Savannah,  9  Georgia,  286. 

Facts. — Pending  an  appeal  from  a  judgment  declaring  a  tax  ordinance 
of  a  city  to  be  unconstitutional  and  void  the  legislature  passed  an  act 
confirming  all  the  ordinances  in  operation  at  its  date.  Afterward  the 
court  of  error  affirmed  the  original  judgment. 

Held,  That  the  confirmatory  act  did  validate  the  ordinance  in  ques 
tion. 

Opinion  of  the  court : 

The  pendency  of  the  writ  of  error  did  not  affect  the  judgment.  *  *  It  was  bind 
ing  until  reversed,  and,  being  affirmed,  was  binding  ab  initio.  *  *  *  The  judgment 
of  affirmance  *  *  relates  back  and  takes  effect  from  the  date  of  the  first  j  udgment. — 
(P.  294.) 

Sage  vs.  Harpending,  49  Barb.,  174. 

Facts. — After  a  judgment  in  favor  of  a  landlord  that  a  tenancy  had 
expired,  and  while  an  appeal  therefrom  was  pending,  the  defeated  tenant 
attempted  to  oust  the  landlord,  and  being  repelled  by  force  sued  the 
landlord  for  an  assault. 

Held,  That  the  judgment  was  a  good  plea  to  the  action. 

Opinion  of  the  court : 

The  fact  that  an  appeal  had  been  taken  to  another  court  did  not  affect  the  con  elu 
sive  nature  of  the  judgment  as  a  bar,  whilst  it  remained  unreversed.'  (Harris  rs.  Ham 
mond,  18  How.  Pr.,  124.) 

Buzzard  vs.  Moore,  16  Indiana,  107,  109. 


772      •  ELECTORAL    COUNT    OF    1877. 

Opinion  of  the  court : 

The  only  effect  of  an  appeal  to  a  court  of  error,  when  perfected,  is  to  stay  execu 
tion  upon  the  judgment  from  which  it  is  taken.  In  all  other  respects,  the  judgment, 
until  annulled  or  reversed,  stands  binding  upon  the  parties  as  to  every  question  directly 
decided.  (Cole  vs.  Connolly,  16  Ala.,  271.)  And  it  has  been  expressly  decided  that  "  it 
is  no  bar  to  an  action  on  a  judgment  that  the  judgment  has  been  removed  by  writ  of 
error  to  a  superior  court."  (Suydam  vs.  Hoyt,  1  Dutcher,  N.  J.  R.,  230.) 

Bank  of  North  America  vs.  Wheeler,  28  Conn.,  441,  462.  Suit  in  Con 
necticut  upon  notes.  Defendants  pleaded  that  plaintiffs  have  recovered 
judgment  on  them  in  N.  Y. 

The  plaintiffs  finally  claim  that  the  judgment  in  New  York  is  set  aside  or  suspended 
by  the  appeal  from  it  to  the  court  of  appeals  of  that  State,  and  that  it  therefore  con 
stitutes  no  defense  in  this  suit. 

The  effect  of  that  appeal  depends  upon  the  character  of  the  jurisdiction  of  that 
court.  If,  by  the  laws  of  New  York,  a  case  coming  before  it  by  appeal  is  to  be  retried 
by  it  as  upon  original  process  in  that  court,  and  it  has  jurisdiction  to  settle  the  con 
troversy  by  a  judgment  of  its  own  and  to  enforce  that  judgment  by  its  own  process, 
the  appeal,  like  an  appeal  under  our  statutes,  from  a  justice  of  the  peace  to  the  supe 
rior  court,  would  vacate  the  judgment  of  the  inferior  tribunal.— (Curtiss  vs.  Beardsley, 
15  Conn.,  518;  Campbell  vs.  Howard,  5  Mass.,  376.) 

But  if  the  appeal  is  in  the  nature  of  a  writ  of  error,  and  only  carries  up  the  case  to 
the  court  of  appeals,  as  an  appellate  court,  for  the  correction  of  errors  which  may  have 
intervened  in  the  trial  of  the  case  below,  and  for  its  adjudication  upon  the  question 
whether  the  judgment  appealed  from  should  be  affirmed,  reversed,  or  modified,  and 
that  court  has  no  other  powers  or  duties  than  to  affirm,  reverse,  or  modify  that  judg 
ment,  or  remit  the  case  to  the  inferior  tribunal  that  it  may  conform  its  judgment  to 
that  of  the  appellate  tribunal,  then  such  an  appeal,  like  an  appeal  under  our  laws 
from  the  probate  court  to  the  superior  court,  does  not  vacate  or  suspend  the  judgment 
appealed  from  ;  and  the  removal  of  the  case  to  the  appellate  court  would  no  more  bar 
an  action  upon  the  judgment  than  the  pendency  of  a  writ  of  error  at  common  law,  when 
that  was  the  proper  mode  of  correcting  errors  which  may  have  occurred  in  the  inferior 
tribunal.  That  such  an  action  would  not  be  barred  by  the  pendency  of  such  a  pro 
ceeding  is  well  settled.  The  judgment  below  is  only  voidable,  and  stands  good  until 
set  aside.  (Case  vs.  Case,  Kirby,  284  ;  Sloan's  Appeal  from  Probate,  1  Root,  151 ;  Curtiss 
vs.  Beardsley,  15  Conn.,  523.) 

It  was  accordingly  held,  and  in  our  opinion  correctly,  by  Judge  Nelson,  in  the  United 
States  circuit  court  for  this  district,  at  its  September  term,  1854,  in  Seely  vs.  Pritchard, 
that  under  the  laws  and  practice  of  the  State  of  New  York  a  judgment  was  not  im 
paired  by  an  appeal,  but  that  an  action  of  debt  was  sustainable  thereon  while  the 
appeal  was  pending. 

BRIEF  ~No.  4. 

SUBMITTED  BY  MR.  MERRICK  IN  THE  CASE  OF  THE  STATE 

OF  LOUISIANA. 

AS  TO  VALIDITY  OF  ACTS  OF  OFFICERS  DE  FACTO. 

1.  The  rule  that  the  acts  of  a  de  facto  officer  will  be  regarded  as 
valid  rests  upon  public  policy  and  the  necessities  of  public  convenience. 
Being  an  exception  to  the  general  rule  that  no  official  act  is  valid  unless 
performed  by  some  party  having  legal  authority  in  that  regard,  rather 
than  a  rule,  it  is  limited  in  its  application  to  those  exact  conditions  from 
which  it  derives  its  existence  and  authority. 

2.  The  acts  of  an  officer  de  facto  are  regarded  as  valid  only  when  it 
appears  that  the  officer  has  been  in  the  exercise  of  the  functions  of  the 
office  for  such  a  period  of  time  and  with  such  degree  of  public  notoriety  as 
to  justify  the  conclusion  that  those  dealing  with  him  had  reason  to  be 
lieve  that  he  was  an  officer  dejure. 

3.  It  follows  from  the  last  foregoing  proposition  that  where  the  func 
tion  of  the  office  extends  to  the  performance  of  a  single  act,  the  exception 
in  favor  of  the  validity  of  the  acts  of  de  facto  officers  can  never  apply. 


ELECTORAL    COUNT    OF    1877.  773 

4.  As  the  acts  of  a  de  facto  officer  are  regarded  as  valid  only  as  re 
gards  the  public  and  third  parties,  it  follows  that  such  acts  will  never 
be  treated  as  valid  unless  they  have,  at  the  time  of  the  inquiry  into  their 
validity,  already  operated  to  affect  the  rights  of  third  parties  to  such 
an  extent  as  to  cause  a  change  in  the  condition  of  those  to  whom  such 
acts  may  have  reference. 

5.  It  follows  from  the  foregoing  propositions  that  when  the  act  of  the 
de  facto  officer  has  not  operated  to  accomplish  some  change  in  the  rela 
tion  of  parties  to  each  other  or  to  property,  or  to  the  public,  such  acts 
will  never  be  regarded  as  valid,  especially  when  the  particular  act  in 
question  was  performed  by  the  officer  de  jure  at  the  same  time  of  its 
performance  by  the  officer  de  facto,  and  when  the  inquiry  is  as  to  whose 
performance  is  to  be  accepted  as  valid. 

In  support  of  the  foregoing  propositions  the  following  authorities  are 
respectfully  submitted : 

An  individual  coming  into  office  by  color  of  an  election  or  appoint 
ment  is  an  officer  de  facto,  and  his  actions  in  relation  to  the  public  or 
third  persons  are  valid  until  he  is  removed,  although  it  be  conceded 
that  his  election  or  appointment  was  illegal.  His  title  shall  not  be 
inquired  into.  The  mere  claim  to  be  a  public  officer  and  the  perform 
ance  of  a  single  act  or  even  a  number  of  acts  in  that  character  would 
not  perhaps  constitute  an  individual  an  officer  de  facto.  There  must  be 
some  color  of  an  election  or  appointment,  or  an  exercise  of  the  office, 
and  an  acquiescence  on  the  part  of  the  public  for  a  length  of  time  which 
would  afford  a  strong  presumption  of  at  least  a  colorable  election  or 
appointment.  (Wilcox  vs.  Smith,  5  Wend.,  231;  Heirs  of  Hildreth  vs. 
Mclntire's  Devisee,  1  J.  J.  Marshall,  206.) 

A  road  commissioner,  declared  elected  by  the  co&rt  of  common  pleas, 
after  reversal  of  that  decision -by  the  superior  court,  but^  before  the 
declaration  by  the  court  of  common  pleas  of  the  election  of  a'nother  per 
son  in  obedience  to  the  mandamus  of  the  superior  court,  was  Jield  to  be 
no  longer  an  officer  de  facto,  and  his  acts  as  such  were  void.  (Petition 
of  Portsmouth,  19  X.  H.,  115.) 

The  act  of  an  officer  de  facto  is  good  wherever  it  concerns  a  third  per 
son,  who  had  a  previous  right  to  the  act  or  had  paid  a  valuable  consid 
eration  for  it.  (Savage  vs.  Ball,  17  N.  J.  Eq.,  142.) 

Where  an  officer  attempts  to  enforce  a  legal  right  by  action,  he  must 
show  himself  properly  qualified.  But  where  the  action  is  against  the 
officer,  it  is  sufficient  if  he  is  shown  to  be  an  officer  de  facto.  (Fetter- 
man  vs.  Hopkins,  5  Watts,  (Pa.,)  539.) 

The  acts  of  officers  de  facto  are  valid  when  they  concern  the  public  or 
the  rights  of  third  persons  who  have  an  interest  in  the  act  done.  But 
a  different  rule  prevails  where  the  act  is  for  the  benefit  of  the  officer, 
because  he  is  not  permitted  to  take  advantage  of  his  own  wrong.  Ven- 
able  vs.  Curd,  2  Head,  Tenn.,  582 ;  Patterson  vs.  Miller,  2  Mete.,  Ky., 
493 ;  Gourley  vs.  Hawkins,  2  Iowa,  75. 

A  person  not  duly  appointed  to  an  office  cannot  justify  his  acts  on  the 
ground  that  he  was  an  officer  de  facto.    Cummins  vs.  Clark,  15  Vermont, 
653. 

When  suit  is  brought  against  individuals  who  justify  as  public  offi 
cers,  they  must  show  themselves  officers  de  jure,  and  that  they  were 
duly  qualified  by  taking  the  oath  prescribed  by  law.  A  record  that  they 
were  duly  sworn  is  insufficient.  Blake  vs.  Sturtevant,  12  New  Hamp 
shire,  507  :  Schlenke  vs.  Kisley,  4  Illinois,  (3  Scam.,)  483. 


774  ELECTORAL    COUNT    OF    1877. 

1821.    Kiddie  vs.  County  of  Bedford,  7  Sergeant  &  Rawle,  391 : 

There  are  many  acts  done  by  an  officer  de  facto  which  are  valid. 

They  are  good  as  to  strangers,  and  all  those  persons  who  are  not  bound  to  look  further  than 
that  the  person  is  in  the  actual  exercise  of  the  office,  ivithout  investigating  his  title.  *  *  * 

Whenever  the  act  done  by  an  officer  de  facto  has  been  declared  to  be  valid,  it  is  where 
some  third  person  claims  an  interest  or  title  in  the  act  done ;  and  I  have  not  been  able, 
after  much  research,  to  find  any  decision  where  such  an  act  has  been  considered  valid 
in  an  action  by  the  officer  de  facto  claiming  for  an  act  done  by  himself. 

1855.  Yaccan  vs.  Maxwell,  3  Blatchford,  368,  Judges  Nelson  and 
Betts. 

Facts. — The  plaintiff',  an  importer,  whose  entry  of  goods  had  been  ap 
praised  by  a  general  appraiser  and  a  merchant  appraiser  appointed  by 
the  collector,  and  the  value  of  the  goods  raised  by  them,  protested  on 
paying  the  duties  "  that  the  merchant  appraiser  was  not  legally  sworn 
in."  Suit  to  recover  back  the  overcharge. 

It  appeared  that  he  had  not  been  sworn  in,  and  the  court  then  treats 
of  his  acts  as  a  de  facto  officer: 

We  think,  however,  that  the  decisions  in  relation  to  the  acts  of  officers  de  facto  are 
reasonably  to  be  restricted  to  those  who  hold  office  under  some  degree  of  notoriety,  or 
are  in  the  exercise  of  continuous  official  acts,  or  are  in  possession  of  a  place  which  has 

the  character  of  a  public  office. 

*  '    *  *  *  *  * 

Merchants  called  in  by  the  collector  to  estimate  the  value  of  merchandise  take  no 
rank  as  public  officers. 

1874.    The  United  States  vs.  Insurance  Company,  22  Wallace,  99. 

The  real  nature  of  the  rule  as  to  the  validity  of  the  acts  of  a  de  facto 
officer  is  well  illustrated  in  this  case.  "  Their  acts  are  held  valid,  as  it 
respects  the  rights  of  third  persons  who  have  an  interest  in  them  and 
as  concerns  the  public,  in  order  to  prevent  the  failure  of  justice."  Green 
vs.  Burke,  23  Wend.,  490. 

They  rather  hold  the  position  of  referees  or  trustees,  charged  with  the 
performance  of  a  single  act  or  appointed  to  act  in  an  individual  case. 

Held  that  the  act  was  invalid. 

The  King  vs.  The  Corporation  of  Bedford  Level,  6  East,  368.  Lord 
Ellenborough,  C.  J. : 

An  officer  de  facto  is  one  who  has  the  reputation  of  being  the  officer  he  assumes  to  be  and 
yet  is  not  a  good  officer  in  point  of  law. 

1  Lord  Eaymond,  660. 

In  this  case  Gotobed  was  never  more  than  deputy ;  and,  therefore, 
after  the  death  of  his  principal  he  never  could  have  had  the  reputation 
of  being  more  than  a  deputy,  but  such  reputation  must  necessarily  have 
ceased  with  the  knowledge  of  the  death  of  his  principal.  When  that 
fact  was  notorious  to  the  owners  of  land  in  this  level,  no  one  could  have 
registered  his  deeds  with  him  under  a  belief  that  he  was  acting  as  the 
assistant  of  one  who  by  the  course  of  nature  has  ceased  to  fill  the  office 
in  the  execution  of  which  he  was  to  be  assisted  by  the  deputy. 

In  this  case  Cole  died  in  December,  and  the  greater  part  of  the  con 
veyances  objected  to  were  registered  some  months  after,  on  the  eve  of 
the  election. 

E,  T.  MERRICK. 


ELECTORAL    COUNT    OF    1877.  775 

BRIEF  ]STo.  5. 

SUBMITTED  BY  MR.  MERRICK  Itf  THE  CASE  OP  THE  STATE 

OF  LOUISIANA. 

THE  LOUISIANA  RETURNINO-BOARD  WAS  WITHOUT  AUTHORITY 
BECAUSE  NOT  COMPOSED  OF  THE  FULL  NUMBER  OF  MEMBERS 
REQUIRED  BY  THE  STATUTES  OF  THAT  STATE. 

By  the  act  of  November  20,  1872,  creating  the  returning-board  of 
Louisiana,  it  is  provided  as  follows  : 

SECTIONS.  Be  it  further  enacted,  #c.,  That  five  persons,  to  be  elected  by  the  Senate 
anl  from  all  political  parties,  shall  be  the  returning-officers  for  all  elections  in  the  State, 
a  majority  of  whom  shall  constitute  a  quorum  and  have  power  to  make  the  returns  of 
all  elections.  In  case  of  any  vacancy  by  death,  resignation,  or  otherwise,  of  either  of 
the  board,  then  the  vacancy  shall  be  filled  by  the  residue  of  the  board  of  returning  - 
officers. 

Where  an  authority  of  a  public  nature  is  delegated  by  law  to  a  cer 
tain  number  of  individuals,  the  authority  cannot  be  exercised  unless 
the  body  created  by  law  is  composed  of  the  full  number  the  law  re 
quires.  It  is  not  contended  that  a  less  number  than  the  entire  board 
may  not  act ;  but  the  entire  number  must  be  in  existence,  clothed  with 
authority  to  act,  and  have  due  notice  of  all  proceedings  that  take  place, 
tnd  an  opportunity  to  attend  and  participate  therein,  in  order  to  give 
such  proceedings  validity.  Wentworth  vs.  Farmington,  49  IsTewHamp., 
]>.  120. 

Especially  is  this  true  where  different  constituent  elements  of  such 
body  are  by  the  law  required  to  represent  distinct  and  separate  interests 
to  be  affected  by  its  action. 

Now,  it  is  well  known  that  in  the  elections  that  take  place  in  the 
United  States  there  are  contests  between  two  or  more  political  parties, 
aid  these  contests  are  more  or  less  exciting. 

The  laws  of  Louisiana  evidently  contemplated  the  appointment  on 
the  board  of  canvassers  of  members  of  the  different  political  parties  in 
the  State,  in  order  that  each  of  such  parties  might  have  a  represent 
ative  who  would  be  a  guard  and  protection  against  any  evil  practices 
that  might  be  designed  or  attempted  by  their  associates  on  the  board. 

[t  may  be  stated  as  a  rule,  without  exception,  that  where  the  law 
pnvides  for  the  organization  of  a  body  of  men  to  execute  a  public 
authority,  and  requires  it  to  be  composed  of  a  certain  number  of  per 
sons  representing  the  different  interests  in  regard  to  which  that  author 
ity  is  to  be  exercised,  such  body  can  never  exercise  the  power  conferred 
ipon  it  unless  it  is,  in  every  particular,  constituted  in  accordance  with 
•he  requirements  of  the  statute. 

In  such  cases  the  requirement  that  a  board  should  consist  of  a  certain 
lumber  of  individuals  taken  from  the  different  classes  of  citizens  desig- 
lated  is  mandatory,  and  unless  so  constituted  it  is  not  the  body  created 
ly  the  law,  and  therefore  not  authorized  to  execute  the  power  conferred 
ly  the  law. 

That  one  of  the  individuals  composing  the  organization  should,  after 
h's  appointment  and  after  entering  upon  his  duties,  change  his  political 
opinions,  is  no  answer  to  the  position  assumed.  In  such  a  case  the 
s.atute  requirement  would  have  been  fully  complied  with  if  the  appoint- 
nent  had  been  made  in  obedience  to  its  mandate  in  the  first  instance, 
tnder  such  circumstances  the  organization  would  have  been  full  and 
•cunplete  under  the  law. 


776  ELECTORAL    COUNT    OF    1877. 

The  case  now  presented  is  one  in  which  that  full  and  complete  organ  - 
ization  had  not  been  accomplished,  and  where  those  who  professed  to 
exercise  the  entire  power  conferred  by  the  statute  persistently  and  stub 
bornly  refused  to  fill  up  the  number  required  by  the  law,  although 
repeatedly  and  earnestly  requested  to  do  so  by  one  of  the  very  parties  the 
act  of  legislation  ivas  designed  and  intended  to  protect  by  giving  it  a  repre 
sentation  on  the  board. 

The  power  of  a  quorum  to  act  is  not  denied,  provided  the  body  itself 
had  power  to  act.  But  we  deny  that  the  body  had  the  power  to  act, 
because  of  its  defective  organization. 

The  subject  was  fully  discussed  in  the  case  from  Xew  Hampshire 
above  referred  to. 

The  case  is  directly  in  point  on  the  proposition  submitted,  and  the 
court,  in  its  opinion,  says : 

Even  if  the  statute  goes  no  jfurther  than  the  common-law  rule,  a  report  signed  by 
the  majority,  under  the  circumstances  of  this  case,  would  have  been  good.  According 
to  the  case  of  Grindley  et  al.  vs.  Barker,  1  B.  &  P.,  228,  before  cited,  it  would  have  been 
deemed  to  be  the  report  of  the  whole.  The  real  point  of  the  objection  is,  that  at  ;he 
time  when  the  report  was  signed  there  was  a  vacancy  in  the  board  of  commissioners, 
caused  by  the  removal  of  the  chairman  from  the  county;  and  the  general  doctrine 
that  in  case  there  be  a  vacancy  in  the  board  the  remaining  members  cannot  act,  seems 
to  be  unquestionable.  Palmer  vs.  Conway,  22  N.  H.,  148 ;  Mitchell  vs.  Holderness,  34 
N.  H.,  209,  214. 

The  question  here,  then,  is  whether  this  doctrine  applies  where,  at  the  time  the  va 
cancy  occurred,  nothing  remained  to  be  done  but  to  reduce  to  writing,  and  make  the 
formal  report  of  what  had  already  been  determined  by  the  whole  board. 

In  Palmer  vs.  Conway,  before  cited,  it  was  held  that  as  there  were  not  three  mem 
bers  of  the  board  in  office  at  the  time,  there  was  no  such  board  as  the  statute  requires, 
and  therefore  there  could  be  no  action  of  the  majority. 

In  that  case  a  report  laying  out  a  highway  had  been  recommitted  to  the  same  boar  J, 
and  a  hearing  notified,  and  before  the  time  appointed  one  of  the  commissioners  diei, 
but  the  others  went  on  with  the  hearing  and  made  several  changes  in  the  report,  aid 
upon  the  report  being  again  recommitted,  the  same  two  commissioners  made  further 
changes,  and  the  report,  upon  full  consideration,  was  set  aside  for  want  of  authority 
in  those  commissioners  to  act. 

In  Mitchell  vs.  Holderness,  before  cited,  the  full  board  had  decided  to  lay  out  a  read 
and  made  known  their  decision,  and  thereupon  a  motion  was  made  that  the  town  of 
Plymouth  be  required  to  contribute  to  the  expense  of  making  the  road,  and  as  on*  of 
the  commissioners  lived  in  Plymouth  another  was  appointed  in  his  place ;  after waid 
another  member  of  the  board  removed  frouuthe  State,  and  the  petitioners  thereupon 
moved  the  court  to  declare  his  office  vacant  and  appoint  another  in  his  stead,  but  tie 
motion  was  denied,  and  upon  exceptions  to  the  supreme  court  this  ruling  was  heldto 
be  wrong.  The  court  held  that  while  unfinished  business  was  pending  before  ;he 
board,  it  became  the  duty  of  the  court  to  pronounce  the  office  vacant,  and  to  fill  he 
vacancy  under  the  statute.  The  court  say  that  they  do  not  understand  that  becaise 
a  board  of  commissioners  have  decided  to  lay  out  a  road,  and  then  proceed  to  inqcirs 
whether  other  towns  should  defray  part  of  the  expense,  they  may  not,  upon  furtbe? 
investigation,  reconsider  their  original  intention  to  lay  the  Toad ;  that  the  statute  con' 
templates  but  one  report,  and  until  that  is  made  to  the  court,  commissioners  maj 
change  it  if  they  think  proper.  The  petition  of  Nashua,  12  N.  H.,  425,  was  for  leave  t( 
discontinue  a  highway,  and  commissioners  to  whom  it  was  referred  reported  in  favoi 
of  the  discontinuance ;  but  as  one  of  the  commissioners  was  a  resident  of  Nashua,  th( 
report  was  rejected,  the  court  holding  that  a  majority  could  not  act  unless  the  matte' 
was  heard  and  considered  by  a  full  board,  all  of  whom  were  competent  to  act. 

The  court  concludes  by  saying : 

Upon  the  whole,  we  think  that  by  the  removal  of  the  chairman  from  the  coun# 
his  office  ipso  facto  became  vacant,  and  the  others  had  no  power  to  complete  the  pro 
ceedings  by  the  making  of  a  report. 

We  should  have  been  glad  to  have  found  some  satisfactory  ground  on  which  the  r[- 
port  could  have  been  sustained,  but  have  been  unable  to  do  so.  What  remained  to  te 
done  was  of  a  substantial  character ;  and  should  the  report  now  be  sustained,  it  woucl 
be  difficult  to  fix  any  limits  beyond  which  the  majority  of  the  board  could  not  go,  afDr 
the  office  of  one  member  had  become  vacant. 


ELECTORAL    COU]S7T    OF    1877  777 

The  same  principle  is  laid  down  in  the  following  cases  : 

Schenck  vs.  Peay,  1  "Woolworth,  175.     Opinion  Mr.  Justice  Miller. 

Same  case,  1  Dillon,  267. 

Pell  vs.  Ullrnan,  21  Barb.,  500. 

Matter  of  Beekman,  1  Abbt.  Prac.,  449. 

Matter  of  Palmer,  31  Hd.  Prac.,  43. 

Pulaski  Co.  vs.  Lincoln,  9  Ark.,  320. 

People  vs.  Coghill,  47  Cal.,  361. 

Ballard  et  al.  vs.  Davis,  31  Miss.,  525. 

Dillon  on  Mun.  Corp.,  sees.  221,  222. 

State  vs.  Deliesseline,  1  McCord,  52,  and  criticism  upon  same  by  Judge 
Dillon,  in  note  to  Dillon  on  Mun.  Corp.,  sec.  220. 

In  Schenck  vs.  Peay,  (1  Woolworth,  C.  C.  Eep.,  175,)  Mr.  Justice  Mil 
ler  says : 

We  understand  it  to  be  well  settled  that  where  authority  of  this  kind  is  conferred 
on  three  or  more  persons,  in  order  to  make  its  exercise  valid  all  must  be  present  and 
participate,  or  have  an  opportunity  to  participate,  in  the  proceedings,  although  some 
may  dissent  from  the  action  determined  on.  The  action  of  two  out  of  three  commis 
sioners,  to  all  of  whom  was  confided  a  power  to  be  exercised,  cannot  be  upheld  when 
the  third  party  took  no  part  in  the  transaction  and  was  ignorant  of  what  was  done, 
gave  no  implied  consent  to  the  action  of  the  others,  and  was  neither  consulted  by  them 
nor  had  any  opportunity  to  exert  his  legitimate  influence  in  the  determination  of  the 
course  to  be  pursued.  Such  is  the  uncontradicted  course  of  the  authorities,  so  far  as 
we  are  advised,  where  the  power  conferring  the  authority  has  not  prescribed  a  differ 
ent  rule.  (2  Kent's  Commentaries,  '293,  note  a,  633,  and  authorities  cited  there,  note  b  / 
Commonwealth  vs.  Canal  Commissioners,  9  Watts,  466 ;  Green  vs.  Miller,  6  Johnson,  39  ; 
Kirk  vs.  Ball,  12  Eng.  L.  &  E.,  385 ;  Crocker  vs.  Crane,  21  Wendell,  211 ;  Dougherty  vs. 
Hope,  1  Comstock,  79, 252 ;  ib.,  3  Denio,  252, 259.) 

The  case  before  us  goes  even  beyond  this,  for,  according  to  the  statement  of  the  bill, 
there  never  was  a  board  of  commissioners  in  existence  until  after  the  proceedings  in 
regard  to  his  title  were  completed.  The  law  required  three  commissioners.  A  less  number 
was  not  a  board  and  could  do  nothing.  The  third  commissioner  for  Arkansas,  although 
nominated  and  confirmed,  did  not  qualify  or  enter  upon  the  duties  of  his  office  until 
after  the  sale  of  the  lots  to  the  defendants.  There  was,  therefore,  no  board  of  commis 
sioners  in  existence  authorized  to  assess  tile  tax,  to  receive  the  money,  or  to  sell  the  property. 
If  Congress  had  intended  to  confide  these  important  functions  to  two  persons,  it  would  not 
have  required  the  appointment  of  the  third.  If  it  had  been  willing  that  two  out  of  the  three 
should  act,  the  statute  could  easily  have  made  provision  for  that  contingency,  as  has  since  been 
done  by  the  act  of  1865. 

II. 

If  William  Pitt  Kellogg  was,  at  the  time  of  the  meeting  of  the  electoral 
college  of  Louisiana,  governor  of  that  State,  he  was,  under  the  laws  of 
Louisiana,  disqualified  as  an  elector.  m^.^ 

Constitution  of  La.,  Art.  117. 

If,  on  the  other  hand,  his  appointment  as  an  elector  vacated  his  office 
as  governor,  the  lists  certified  to  by  him  as  governor  are  ineffectual, 
because  he  was  not  then  governor. 

E.  T.  MEEEICK, 
GEOEGE  HOADLY, 
ASHBEL  GEEEIS", 
ALEX.  POETEE  MOESE, 

Of  Counsel. 


JR 


OF 


CALIFORNIA.-  I 

=========--~^^ 


778  ELECTORAL    COUNT    OF    18/7. 

BRIEF  No.  6. 

SUBMITTED    BY   COUNSEL    FOR    OBJECTORS    TO   CERTIFI 
CATE  NO.  1  IN  THE  CASE  OF  THE  STATE  OF  OREGON. 

In  the  matter  of  the  electoral  vote  of  the  State  of  Oregon. 

ARGUMENT. 

We  claim  that  the  three  votes  given  for  Hayes  and  Wheeler  by  Will 
iam  H.  Odell,  John  C.  Cartwright,  and  John  W.  Watts  are  not  the  electoral 
votes  of  the  State  of  Oregon,  but  that  the  three  electoral  votes  cast — 
two  for  Hayes  and  Wheeler  and  one  for  Tilden  and  Hendricks — by  E. 
A.  Cronin,  J.  N.  T.  Miller,  and  John  Parker — are  the  true  and  valid 
electoral  votes  of  the  State  of  Oregon. 

Our  inquiry  is  thus  divisible  into  three  branches,  viz : 

First.  Was  John  W.  Watts  duly  appointed  and  had  he  the  right  to 
vote  as  an  elector  of  the  State  of  Oregon  at  the  recent  presidential  elec 
tion  ? 

Secondly.  Was  E.  A.  Cronin  duly  appointed,  and  had  he  the  right  to 
cast  a  vote  as  an  elector  of  the  State  of  Oregon  at  said  election  ? 

Thirdly.  Which  was  the  electoral  college  of  the  State  of  Oregon,  that 
composed  of  Odell,  Cartwright,  and  Watts,  or  that  composed  of  Cronin, 
Miller,  and  Parker  f 

Of  these,  in  their  order,  we  say : 

I. 

That  John  W.  Watts  was  not  duly  appointed,  and  that  he  had  no  right  to 
vote  as  an  elector  for  the  State  of  Oregqn,  at  the  recent  election  for  President 
and  Vice- President  of  the  United  States. 

His  claim  of  title  to  this  office  is  twofold.  First,  by  force  of  the  votes 
of  the  qualified  electors  of  the  State  of  Oregon  cast  in  his  favor  at  the 
election,  held  on  Tuesday,  November  7,  1876;  and,  secondly,  in  virtue  of 
the  attempted  organization  on  December  6,  1876,  by  Odell,  Cartwright, 
and  Watts,  as  the  electoral  college  of  Oregon,  and  his  resignation  and 
re-election  by  Odell  and  Cartwright  to  fill  a  supposed  vacancy. 

Of  these  claims,  in  their  order,  we  say : 

1.  It  is  not  denied  that  at  the  election  held  in  the  State  of  Oregon  on 
Tuesday,  November  7, 1876,  a  majority  of  the  votes  of  the  qualified 
electors  were  given  in  favor  of  John  W.  Watts. 

It  cannot  be  denied  that  at  that  time  and  at  least  until  November  13, 
1876,  John  W.  Watts  was  the  incumbent  of  the  office  of  postmaster  at 
Yamhill,  the  county-seat  of  La  Fayette  County,  in  the  State  of  Oregon, 
an  office  of  trust  and  profit  under  the  United  States. 

Our  contention  is  that  while  Watts  held  this  office  he  could  not  be 
"  appointed77  an  elector,  and  that  the  attempt  to  appoint  him  was  during 
the  time  when  he  was  laboring  under  such  disqualification. 

The  provision  of  the  Constitution  in  this  regard  (article  2,  section  1) 
is  in  these  words : 

Each  State  shall  appoint,  in  such  manner  as  the  legislature  thereof  may  direct,  a 
number  of  electors,  equal  to  the  whole  number  of  Senators  and  Representatives  to 
which  the  State  may  be  entitled  in  the  Congress ;  but  no  Senator  or  Representative, 
or  person  holding  an  office  of  trust  or  profit  under  the  United  States,  shall  be  appointed 
an  elector. 

In  form  this  provision  of  disqualification  is  mandatory, 

First,  because  it  is  coupled  with  the  grant  of  power  to  appoint  elect- 


ELECTORAL    COUNT    OF    1877.  779 

<ors  by  the  word  "  but,"  which  indicates  that  it  is  a  qualification,  diminu 
tion,  and  limitation  of  the  powers  granted  in  preceding  words. 

Secondly,  because  it  is  clothed  in  negative  language. 

Sedgwick  on  Const.  &  Stat.  Law,  370. 

Cooley  on  Const.  Lim.,  75. 

From  these  expressions  the  conclusion  is  sometimes  drawn  that 
"  negative  words  will  make  a  statute  imperative,"  which  is  incontestable. 
*  *  *  Negative  words  will  make  a  statute  imperative,  and  it  is  appre 
hended  affirmative  may,  if  they  are  absolute,  explicit,  and  peremptory, 
and  show  that  no  discretion  is  intended  to  be  given,  and  especially  so 
when  jurisdiction  is  conferred.  Potter's  D  warns  on  Statutes,  228 ;  Rex 
vs.  Justices  of  Leicester,  7  B.  &  C.,  6,  12. 

In  substance,  this  provision  of  disqualification  is  imperative,  and  ad 
mits  of  no  evasion. 

Lord  Mansfield  distinguished  mandatory  from  directory  clauses  in 
statutes  by  dividing  "circumstances  which  are  of  the  essence  of  a  thing 
required  to  be  done  by  act  of  Parliament  from  clauses  merely  directory." 
Eex  vs.  Loxdale,  1  Burr,  447. 

First,  considerations  relating  to  the  character  of  the  provision,  as 
shown  by  the  Constitution  itself,  fix  its  meaning.  The  grant  of  power 
is  "to  each  State" — to  each  State  in  its  organized  governmental,  or  if 
we  may  be  allowed  the  expression,  corporate  capacity;  and  the  limita 
tion,  in  like  manner,  is  of  the  action  of  the  State  in  the  same  capacity. 
The  restriction  in  the  choice  of  electors  does  not  merely  work  a  disquali 
fication  of  the  candidate,  nor  does  it  bind  merely  the  voters  of  the  State; 
for,  by  the  Constitution,  the  manner  of  appointing  electors  may  be 
directed  by  the  legislature  of  the  State,  and  as  was  done  in  Colorado  at 
this  election,  and  formerly  in  most,  if  not  all  the  States,  need  not  be  left 
to  popular  choice  at  all — it  binds  the  State  itself,  binds  it  in  its  entire 
action  from  first  to  last,  binds  it  in  all  its  departments,  binds  all  its 
functionaries.  This  is  clearly  shown  by  the  distinction  taken  in  the 
provision  itself  between  the  appointing  power,  which  is  confided  to  "  each 
State,"  and  the  power  to  direct  the  manner  of  appointment,  which  is 
given  to  the  u  legislature  thereof;"  it  is  further  indicated  by  the  subse 
quent  use  of  the  word  "  State:"  "  Senators  and  Representatives  to  which 
the  State  may  be  entitled  in  the  Congress." 

Again,  the  limitation  is  upon  the  action  of  the  State :  "  Xo  person 
holding  an  office  of  trust  or  profit  under  the  United  States  shall  be  ap 
pointed  an  ele«tor."  The  State  may  act  so  as  to  appoint  electors,  but 
such  action  shall  not  have  the  effect  to  establish  the  appointment  of  any 
such  disqualified  person.  Again,  the  limitation  works  by  taking  from 
or  carving  out  of  the  granted  power;  it  establishes  a  province  into 
which  the  power  may  not  extend;  it  establishes  a  class  of  persons  from 
among  whom  the  appointment  may  not  be  made,  and  thus  another  class 
from  which  only  it 'may  be  made.  Each  State  may  appoint,  but  not 
from  the  disqualified  class.  This  is  equivalent  to  saying  that  each 
State  may  appoint  from  among  the  whole  body  of  citizens  other  than 
the  disqualified  class. 

This,  then,  is  the  power  as  determined  by  the  letter  and  spirit  of 
the  words  used,  viz :  Each  State  may  appoint  from  among  persons  not 
disqualified,  in  the  manner  directed  by  its  legislature,  a  number  of  elec 
tors  equal  to  the  whole  number  of  Senators  and  Representatives  to 
which  the  State  may  be  entitled  in  the  Congress. 

Secondly,  this  conclusion  follows  from  the  consideration  of  the  reasons 
for  the  disqualification ;  of  the  mischiefs  sought  to  be  prevented  by  its 


780  ELECTORAL    COUNT    OF   1877. 

enactment.  The  purpose  of  our  wise  forefathers  was  to  exclude  the 
possibility,  so  far  as  this  provision  could  have  effect,  of  the  interference 
of  the  officers  controlling  the  Federal  Government  and  its  agencies,  even 
with  the  assent  of  any  State  or  number  of  States,  to  perpetuate  their 
own  power.  The  apprehension  of  our  forefathers  was  that  Federal  offi 
cers  might  use  the  power  conferred  upon  them  for  the  purposes  of  Fed 
eral  trust,  to  prevent  the  free  action  of  the  States  in  the  choice  of  electors. 

Time  has  not  weakened  the  force  of  their  reasoning ;  experience  has 
not  shown  the  futility  of  their  apprehensions.  To-day  we  are  confronted 
by  this  danger,  grown  into  colossal  proportions  by  the  augmentation  of 
Federal  power  and  the  increased  number  of  Federal  functionaries.  If  it 
be  suggested  that  the  plan  of  our  fathers  to  avert  the  peril  is  insufficient, 
we  answer  that  the  suggestion  itself  requires  a  liberal  construction  of 
the  provision,  so  that  it  may  have  at  least  all  reasonable  potency  in  the 
prescribed  direction  toward  the  desired  end. 

The  history  of  the  disqualifying  proviso  seems  to  be  this  :  On  July  19, 
Mr.  Gerry  and  Mr.  Gouverneur  Morris  moved  "  that  the  electors  of  the 
Executive  shall  not  be  members  of  the  National  Legislature,  nor  officers 
of  the  United  States,  nor  shall  the  electors  themselves  be  eligible  to  the 
Supreme  Magistracy."  Agreed  to  nem.  con.  (Madison  Papers,  343.) 

On  Thursday,  September  6,  Mr.  Kufus  King  and  Mr.  Gerry  moved  to 
insert  in  the  fourth  clause  of  the  report,  (see  the  4th  of  September,  page 
507,)  after  the  words  "  may  be  entitled  in  the  legislature,"  the  words  fol 
lowing  :  u  But  no  person  shall  be  appointed  an  elector  who  is  a  member 
of  the  legislature  of  the  United  States,  or  who  holds  any  office  of  profit 
or  trust  under  the  United  States,"  which  passed  nem.  con.  (Madison 
Papers,  515.) 

Several  postmasters  were  chosen  electors  at  the  presidential  election 
of  1836,  and  on  January  27,  1837,  on  motion  of  Henry  Clay,  the  joint 
committee  of  the  Senate  and  House  to  ascertain  and  report  a  mode  of 
examining  the  votes  of  President  and  Vice-President  of  the  United 
States  were  instructed  by  the  Senate  also  "  to  inquire  into  the  expedi 
ency  of  ascertaining  whether  any  votes  were  given  at  the  recent  elec 
tion  contrary  to  the  prohibition  contained  in  the  second  section  of  the 
second  article  of  the  Constitution ;  and  if  any  such  votes  were  given, 
what  ought  to  be  done  with  them  ;  and  whether  any  and  what  provis 
ion  ought  to  be  made  for  securing  the  faithful  observance,  in  future,  of 
that  section  of  the  Constitution.  ••:••*»/.; 

Felix  Grundy,  Henry  Clay,  and  Silas  Wright  were  appointed  to  this 
committee  on  the  part  of  the  Senate ;  Francis  Thomas,  Churchill  C. 
Cambreleng,  John  Keed,  Henry  W.  Connor,  and  Francis  S.  Lyon  (of 
whom  the  latter  is  still  living,  at  great  age,  in  the  State  of  Alabama) 
were  the  members  of  this  committee  on  behalf  of  the  House. 

On  February  4,  1837,  Mr.  Grundy  submitted  to  the  Senate  the  report 
of  the  committee,  from  which  we  make  the  following  quotations: 

That  the  short  period  at  which  they  were  appointed,  before  the  day  on  which  the 
vote  for  President  and  Vice-President  of  the  United  States  have  to  be  counted,  have 
prevented  them  from  investigating  the  facts  submitted  to  their  examination  as  fully 
as  might  have  been  done  had  more  time  been  allowed.  The  correspondence  which  has 
taken  place  between  the  chairman  of  the  committee  and  the  heads  of  the  different 
departments  of  the  Executive  branch  of  the  Government  accompanies  this  report,  from 
which  it  appears  *  *  *  that  in  two  cases  persons  of  the  same  names  with  the  in 
dividuals  who  were  appointed  and  voted  as  electors  in  the  State  of  Norjh  Carolina 
held  the  office  of  deputy  postmasters  under  the  General  Government.  It  also  appears 
that  in  New  Hampshire"  there  is  one  case  ;  in  Connecticut  there  is  one  case  ;  in  North 
Carolina  there  is  one  case,  in  which,  from  tbe  report  of  the  Postmaster-General,  it  is 
probable  that  at  the  time  of  the  appointment  of  electors  in  these  States,  respectively,, 
the  electors  or  persons  of  the  same  name  were  deputy  postmasters.  The  committee 
have  not  ascertained  whether  the  electors  are  the  same  individuals  wbo  held  or  are 


ELECTORAL   COUNT   OF    1877.  781 

presumed  to  have  held  the  office  of  deputy  postmasters  at  the  time  when  the  appoint 
ment  of  electors  was  made ;  and  this  is  the  less  to  be  regretted,  as  it  is  confidently  be 
lieved  that  no  change  in  the  result  of  the  election  of  either  the  President  or  Vice-Presi 
dent  would  be  effected  by  the  ascertainment  of  the  fact  in  either  way,  as  five  or  six 
votes  only  would,  in  any  event,  be  abstracted  from  the  whole  number,  for  the  com 
mittee  cannot  adopt  the  opinion,  entertained  by  some,  that  a  single  illegal  vote  would 
vitiate  the  whole  electoral  vote  of  the  college  of  electors  in  which  it  was  given,  par 
ticularly  in  cases  where  the  vote  of  the  whole  college  has  been  given  for  the  same 
persons. 

The  committee  are  of  opinion  that  the  second  section  of  the  second  article  of  the 
Constitution,  which  declares  that  "no  Senator  or  Representative,  or  person  holding 
an  office  of  trust  or  profit  under  the  United  States,  shall  be  appointed  an  elector," 
ought  to  be  carried,  in  its  whole  spirit,  into  rigid  execution,  in  order  to  prevent  officers  of  the 
General  Government  from  bringing  their  official  power  to  influence  the  elections  of  President 
and  Vice- President  of  the  United  States.  This  provision  of  the  Constitution,  it  is  believed, 
excludes  and  disqualifies  deputy  postmasters  from  the  appointment  of  electors ;  and  the  dis 
qualification  relates  to  the  time  of  the  appointment,  and  that  a  resignation  of  the  office  of  dep 
uty  postmaster  after  his  appointment  as  elector  would  not  entitle  him  to  vote  as  elector  under 
the  Constitution. 

In  the  debate  ensuing  in  the  House  of  Representatives  upon  the  re 
port  of  this  joint  committee,  Mr.  Francis  Thomas,  chairman  of  the 
House  committee,  said  that  "  the  committee  came  unanimously  to  the 
conclusion  that  they  (the  postmasters  in  question)  were  not  eligible  at 
the  time  they  were  elected,  and  therefore  the  whole  proceeding  was 
vitiated  ab  initio." 

Fortunately  or  unfortunately,  our  American  habit  of  not  providing 
by  legislation  in  advance  for  apprehended  dangers  controlled  Congress 
in  1837,  and  inasmuch  as  the  eligibility  or  non-eligibility  of  the  five 
postmasters  chosen  electors  made  no  difference  in  the  result  of  the  elec 
tion,  Congress  passed  to  its  more  immediate  business'without  legislat 
ing,  as  Mr.  Clay  proposed,  with  reference  to  cases  of  disqualification. 

(See  Gales  &  Seaton's  Register  of  Debates  in  Congress,  vol.  13,  part 
1,  pp.  617,  698 ;  part  2,  p.  1583.) 

2.  The  attempt  to  elect  this  disqualified  person  Watts  cannot  be  treated  as 
if  it  had  any  legal  effect,  unless  it  were  (and  this  we  shall  consider  in  a  sub 
sequent  part  of  our  argument)  to  prevent  the  choice  of  the  next  highest  com- 
petitor. 

It  was  a  mere  nullity,  incapable  of  ratification  or  any  process  of  heal 
ing.  A  violation  of  the  Federal  Constitution  is  a  wrong  which  can 
never«ripen  into  a  right ;  a  malady  which  must  necessarily  be  fatal  to 
the  diseased  part.  As  the  provision  of  the  Constitution  is  not  merely 
a  disqualification  of  the  candidate,  but  a  limitation  of  the  power  of  the 
State,  it  follows  that  the  action  of  the  State  in  the  appointment  of  a 
disqualified  person  to  be  an  elector,  even  if  consummate  and  complete 
in  form,  has  such  defect  of  substance  that  in  law  it  is  a  mere  nullity, 
utterly  void,  and  of  no  effect.  It  is  in  law  as  if  it  had  not  been  in  fact, 
•  at  least  so  far  as  concerns  the  election  of  the  disqualified  candidate. 

Opinion  of  the  Judges,  7  Maine,  Appendix,  497. 

Spear  vs.  Robinson,  29  Maine,  531. 

Opinion  of  Supreme  Court,  38  Maine,  597. 

People  ex  rel.  Furman  vs.  Clute,  50  X.  Y.,  451. 

Commonwealth  vs.  duly,  56  Penn.  Stat.,  270. 

Commonwealth  vs.  Read,  2  Ashinead,  261. 

Hutcheson  vs.  Tilden  &  Bordley,  4  Harris  &  McH. 

Gulick  vs.  New,  14  Indiana,  93. 

Carson  vs.  McPhetridge,  15  Indiana,  327. 

Price  vs.  Baker,  governor,  41  Indiana,  572. 

Stewart  vs.  Hoges,  3  Chicago  Legal^News,  117. 


782  ELECTORAL    COUNT    OF    1877 

State  vs.  Giles,  1  Chand.,  (Wis.,)  112. 

State  vs.  Smith,  14  Wis.,  497. 

State  vs.  Boal,  46  Mo.,  528. 

State  vs.  Vail,  53  Mo.,  97. 

Whitman  vs.  Malony,  10  Cal.,  47. 

Saunders  vs.  Haynes,  13  Cal,,  145. 

State  vs.  Gastinel,  18  Louisiana,  517. 

State  vs.  Gastinel,  20  Louisiana,  114. 

Fish  vs.  Collins,  21  Louisiana,  289. 

People  ex  rel.  Crawford  vs.  Moliter,  23  Mich.,  341. 

State  vs.  Swearingen.  12  Georgia,  23. 

Sublett  vs.  Bidwell,  47  Miss,,  226. 

Pearce  vs.  Hawkins,  2  Swan,  87. 

Patterson  vs.  Miller,  2  Mete.,  Ky.,  323. 

Morgan  vs.  Yauce,  4  Bush.,  323. 

Harrison  vs.  Evans,  cited  in  Cowper,  393  note,  535. 

Eex  vs.  Monday,  Cowper,  536. 

Hawkins  vs.  Rex,  2  Don.,  124. 

Gosling  vs.  Veley,  7  Ad.  &  Ellis,  K  S.,  437. 

Eegina  vs.  Coaks,  3  Ell.  &  BL,  249  ;  14  Jurist,  Part  1,  378. 

Drinkwater  vs.  Deakin,  Law  Eep.  9  C.  P.,  p.  626. 

French  vs.  Nolan,  Irish  Eep.,  9  Com.  Law,  217. 

Grant  on  Corporations,  208. 

Cushing's  Law  and  Pr.  of  Leg.  Ass.,  §§  177,  178,  and  179. 

And  to  this  effect  are  all  the  cases,  English  and  American,  which  we 
shall  hereafter  cite,  as  well  as  those  that  may  be  cited  against  our  propo 
sition  that  the  candidate  receiving  the  next  highest  vote  is,  under  such 
circumstances,  elected.  Any  other  construction  would  destroy  the 
whole  force  of  the  constitutional  inhibition.  Like  the  other  inhibitory 
clauses  of  the  Constitution,  this  is  self-enforcing. 

3.  The  disability  relates  to  the  time  of  the  election,  and  is  not  cured  by 
subsequent  resignation  of  the  disqualifying  office. 

By  the  Constitution  the  manner  of  appointing  electors  is  left  to  the 
direction  of  the  legislatures  of  the  States,  but  "  Congress  may  determine 
the  time  of  choosing  the  electors,  and  the  day  on  which  they  shall  give 
their  votes ;  which  day  shall  be  the  same  throughout  the  United  States/' 

That  the  words  "  choosing  w  and  "  appointing  "  are  convertible  terms, 
used  in  the  same  sense,  is  obvious  from  the  fact  that  the  manner  of  ap 
pointing  (or  choosing)  is  not  specified;  "  choosing"  therefore  means 
appointing  in  such  manner  as  the  legislatures  of  the  States  may  direct. 

Congress  has  determined  the  time  of  choosing  the  electors,  viz,  by 
section  131  of  the  Eevised  Statutes,  now  in  force  : 

SEC.  131.  Except  in  case  of  a  presidential  election,  prior  to  the  ordinary  period,  as- 
specified  in  sections  147  to  149  inclusive,  when  the  offices  of  President  and  Vice-Presi 
dent  both  become  vacant,  the  electors  of  President  and  Vice-President  shall  be  ap 
pointed  in  each  State  on  the  Tuesday  next  after  the  first  Monday  in  November  in  every 
fourth  year  succeeding  every  election  of  a  President  and  Vice-President. 

In  the  act  of  March  1, 1792,  the  same  language  was  used,  viz  :  "  Elect 
ors  shall  be  appointed  in  each  State  for  the  election  of  a  President  and 
Y ice-President  of  the  United  States  within  thirty-four  days  preceding 
the  first  Wednesday  in  December,  1792,  and  within  thirty-four  days 
preceding  the  first  Wednesday  in  December  in  every  fourth  year  suc 
ceeding  the  last  election." 

So  also  in  the  act  of  January  23, 1845,  "  that  the  electors  of  President 


ELECTORAL   COUNT    OF    1877. 

and  Vice-President  shall  be  appointed  in  each  State  on  the  Tuesday  next 
after  the  first  Monday  in  the  month  of  November  of  the  year  in  which 
they  are  to  be  appointed." 

It  follows  that  the  appointment  must  be  complete  on  the  day  pre 
scribed  by  the  act  of  Congress,  and  that  whatever  may  be  done  after 
that  date  is  not  part  of  the  appointment,  but  is  rather  the  ascertaining 
who  was  then  appointed.  The  principle  is  well  stated  in  McWhirter  vs. 
Brainard,  5  Oreg.,  426,  thus :  u  The  mode  of  canvassing  the  vote  and  the 
proclamation  of  the  governor  are  substantially  only  modes  of  ascertain 
ing  and  publishing  the  result  of  the  vote." 

We  have  already  seen  what  was  the  opinion  upon  this  subject  of  Felix 
Grundy,  Henry  Clay,  and  Silas  Wright,  and  of  their  associates,  the 
members  of  the  committee  from  the  House  of  Eepresentatives  in  1837. 

The  same  doctrine  was  held  in  the  case  of  Searcy  vs.  Grow,  15  Cal., 
118,  where  the  opinion  was  pronounced  by  Baldwin,  J. ;  Cope,  J.,  and 
Field,  C.  J.,  concurring.  It  was  a  contest  for  the  office  of  sheriff  of 
Siskiyou  County.  Grow  had  been  returned  as  elected  to  the  office.  At 
the  time  of  the  election  he  was  postmaster  in  the  town  of  Yreka,  the 
compensation  of  which  exceeded  five  hundred  dollars  per  annum.  The 
court  below  found  for  Searcy,  and  Grow  appealed.  The  constitution  of 
California  provides  that  "  no  person  holding  any  lucrative  office  under 
the  United  States  or  in  their  power  shall  be  eligible  to  any  civil  office 
of  profit  under  this  State,  provided  that  offices  in  the  militia  to  which 
there  is  attached  no  annual  salary,  or  local  officers,  and  postmasters 
whose  compensation  does  not  exceed  five  hundred  dollars  per  annum, 
shall  not  be  deemed  lucrative."  Grow  was  postmaster  at  the  time  of 
the  election,  but  had  resigned  at  the  time  of  his  qualification.  The 
supreme  court  unanimously  confirmed  the  judgment  of  the  court  below. 

In  the  opinion  Justice  Baldwin  says,  (page  121,)  "The  people  in  this 
case  were  clothed  with  this  power  of  choice.  Their  selection  of  a  can 
didate  gave  him  all  the  claim  to  the  office  which  he  has.  His  title  to 
the  office  comes  from  their  designation  of  him  as  sheriff.  But  they 
could  not  designate  or  choose  a  man  not  eligible — that  is,  not  capable 
of  being  selected.  They  might  select  any  man  they  chose,  subject  only 
to  this  exception:  that  the  man  they  selected  was  capable  of  taking 
what  they  had  the  power  to  give.  We  do  not  see  how  the  fact  that  he 
became  capable  of  taking  office  after  they  had  exercised  their  power 
can  avail  the  appellant.  If  he  was  not  eligible  at  the  time  the  votes 
were  cast  for  him,  the  election  failed.  We  do  not  see  how  it  can  be 
assumed  that  by  the  act  of  the  candidate  the  votes  which,  when  cast, 
were  ineffectual  because  not  given  for  a  qualified  candidate,  became  ef 
fectual  to  elect  him  to  office." 

In  The  People  vs.  Pease,  27  New  York,  55,  it  is  said  that  it  is  the  vote 
of  the  people  which  confers  title  to  an  elective  officer.  "  It  is  not  the 
canvass,  or  estimate,  or  certificate  which  determines  the  right.  These 
are  only  evidences  of  the  right.'7 

So,  also,  in  Mayfield  vs.  Moore,  53  111.,  428,  the  court  say,  "  Under  the 
law,  so  soon  as  a  majority  of  tlie  votes  were  cast  for  appellant,  at  the 
election  held  in  pursuance  to  law,  he  became  legally  and  fully  entitled 
to  the  office.  The  title  was  as  complete  then  as  it  ever  was,  and  no 
subsequent  act  lent  the  least  force  to  the  right  of  the  place.  The  com 
mission  was  evidence  of  the  title,  but  not  the  title.  The  title  was  con 
ferred  by  the  people,  and  the  evidence  of  the  right  by  the  law."  To 
the  same  effect  see  Laimbeer  vs.  Swineburne,  48  Illinois,  400  ;  State  ex 
rel  Cornwell  vs.  Allen,  21  Indiana,  516 ;  Shannon  vs.  Baker,  33  do.,  380  f 
State  vs.  Steers,  44  Missouri,  223. 


784  ELECTORAL    COUNT    OF    1877. 

So  also  in  the  case  of  the  State  of  Nevada  ex  rel.  Nourse  vs.  Clarke, 
(3  Nev.,  566,)  the  supreme  court  of  Nevada  held  that  a  person  holding 
the  office  of  United  States  district  attorney  on  the  day  of  election  was 
incapable  of  being  chosen  to  the  office  of  attorney-general  of  the  State, 
because  of  a  provision  in  the  State  constitution  to  the  effect  that  no 
Federal  office-holder  "  shall  be  eligible  to  any  civil  office  of  profit  under 
this  State."  "  Which  word  <  eligible,7 "  says  this  learned  court,  "  means 
capable  both  of  being  legally  chosen  and  capable  of  legally  holding." 

Since  the  election  of  November  7,  1876,  the  subject  has  been  consid 
ered  by  the  supreme  court  of  Rhode  Island,  in  the  matter  of  George 
H.  Corliss.  (16  American  Law  Register,  N.  S.,  15,  number  for  January, 
1877.)  Corliss  was  a  Centennial  commissioner  on  November  7,  1876, 
when  the  qualified  voters  of  Rhode  Island  cast  a  majority  of  their  votes 
for  him  for  the  office  of  presidential  elector.  The  governor,  under  the 
laws  of  Rhode  Island,  submitted  to  the  supreme  court  five  questions, 
the  answers  to  which  were  to  guide  his  action  in  making  the  required 
executive  lists  of  electors  appointed.  Of  these  the  third,  upon  the 
assumption  that  the  court  should  answer  that  the  office  was  one  of  trust 
and  profit  under  the  Constitution  of  the  United  States,  was :  "  Is  the 
disqualification  removed  by  the  resignation  of  said  office  of  trust  and 
profit!"  There  was  a  dissenting  opinion  of  one  judge  out  of  five  in 
answer  to  the  first  question,  but  all  agreed  in  answering  the  third  ques 
tion  as  follows : 

We  think  the  disqualification  is  not  removed  by  the  resignation  of  the  office  of 
trust  unless  the  office  is  resigned  before  the  election.  The  language  of  the  constitution 
is  that  "no  person  holding  an  office  of  trust  or  profit  under  the  United  States  shall  be 
appointed  an  elector."  Under  our  law  (Gen.  Stats.,  ch.  11,  sects.  1  and  2,)  the  election 
by  the  people  constitutes  the  appointment.  The  duty  of  the  governor  is  to  examine 
and  count  the  votes,  and  give  notice  to  the  elector.  He  merely  ascertains,  he  does  not 
complete,  the  appointment.  A  resignation,  therefore,  after  the  election  is  too  late  to 
be  effectual. 

The  manner  of  appointing  electors  in  Oregon  is  precisely  similar  to 
that  adopted  in  Rhode  Island.  It  has  been  directed  by  the  legislature 
by  section  1  of  chapter  44,  page  843,  of  the  general  laws  of  Oregon,  as 
follows : 

On  the  Tuesday  next  after  the  first  Monday  in  November,  1864,  and  every  four 
years  thereafter,  there  shall  be  elected  by  the  qualified  electors  of  the  State  as  many 
electors  of  President  and  Vice-President  as  this  State  may  be  entitled  to  elect  of  Sena 
tors  and  Representatives  in  Congress. 

Therefore  if  Postmaster  Watts  was  not  qualified  to  be  "  chosen,"  " ap 
pointed,"  "elected,"  on  November  7, 1876,  he  was  not  chosen,  appointed, 
or  elected  on  that  day,  and  no  subsequent  resignation  of  his  disqualify 
ing  office  could,  by  relation,  or  any  nuncpro  tune  action,  avoid  the  oper 
ation  of  the  two  peremptory  constitutional  requirements,  viz,  that  he 
should  be  qualified  when  appointed,  and  that  the  time  of  his  appoint 
ment  should  be  on  the  day  determined  by  the  Congress. 

4.  The  disqualification  of  Watts  did  not  create  a  case  of  vacancy,  but  of 
non-election,  if  not  of  the  election  of  the  next  highest  competing  candidate. 

It  can  hardly  be  claimed  that  in  principle  a  different  result  flows  from 
the  disqualification  of  part  of  the  electoral  college,  from  that  which 
would  be  the  consequence  if  every  elector  were  disqualified. 

If  every  elector  appointed  in  every  State  were  disqualified,  there 
would  be  no  election. 

If  every  elector  appointed  in  any  one  State  were  disqualified,  the  case 
would  fall  within  the  contingency  contemplated  in  section  134  of  the 
Revised  Statutes. 


ELECTORAL    COUNT    OF    1877.  785 

SEC.  134.  Whenever  any  State  has  held  an  election  for  the  purpose  of  choosing 
electors,  and  has  failed  to  make  a  choice  on  the  day  prescribed  by  law,  the  electors 
may  be  appointed  on  a  subsequent  day,  in  such  a  manner  as  the  legislature  of  such 
State  may  direct. 

This  is  a  different  power,  and  relates  to  a  different  class  of  cases  from 
that  contemplated  in  section  133 : 

SEC.  133.  Each  State  may,  by  law,  provide  for  the  filling  of  any  vacancies  which 
may  occur  in  its  college  of  electors,  when  such  college  meets  to  give  its  electoral  vote. 

Omne  majus  continet  in  se  minus.  If  it  be  true  that  whenever  a  State 
has  held  an  election  for  the  purpose  of  choosing  electors,  and  has  failed 
to  make  a  choice  of  any  qualified  electors  on  the  day  prescribed  by  law, 
the  case  is  governed  by  section  134,  then  it  follows  that  the  same  is  true, 
pro  tanto,  in  the  case  of  the  failure  to  make  the  choice  of  all  the  electors 
to  which  the  State  is  entitled  from  among  the  class  of  persons  qualified 
under  the  Constitution  ;  in  other  words,  in  the  case  of  the  choice  of  one 
or  more  disqualified  electors. 

The  distinction  here  made  is  between  an  election  held  on  the  day  pre 
scribed  by  law,  resulting  in  a  tie  vote,  or  the  election  of  one  or  more 
disqualified  persons,  (a  case  governed  by  section  134,)  and  an  election 
held  at  the  appointed  time,  resulting  in  the  election  of  the  full  number 
of  qualified  electors,  after  which,  and  at  the  time  when  the  electoral  col 
lege  meets  to  give  its  electoral  vote,  a  vacancy  shall  occur.  This  case 
is  governed  by  section  133.  These  provisions  of  law,  now  separated 
from  each  other  by  being  cast  in  the  revision  of  the  statutes  into  two 
sections,  may  be  found  in  the  original  form  in  the  act  of  January  23, 
1845,  the  whole  of  which  is  as  follows : 

AN  ACT  to  establish  a  uniform  time  for  holding  elections  for  electors  of  President  and  Vice-President 

of  the  United  States. 

SEC.  1.  Be  it  enacted,  <fc.,  That  the  electors  of  President  and  Vice-President  shall  be 
appointed  in  each  State  on  the  Tuesday  next  after  the  first  Monday  in  the  month  of 
November  of  the  year  in  which  they  are  to  be  appointed:  Provided,  That  each  State 
may  by  law  provide  for  the  filling  of  any  vacancy  or  vacancies  which  may  occur  in  its 
college  of  electors,  when  such  college  meets  to  give  its  electoral  vote:  And  provided 
also,  When  any  State  shall  have  held  an  election  for  the  purpose  of  choosing  electors, 
and  shall  fail  to  make  a  choice  on  the  day  aforesaid,  then  the  electors  may  be  ap 
pointed  on  a  subsequent  day  in  such  manner  as  the  State  shall  by  law  provide. 

Approved  January  23,  1845. 

And  this  was  the  act  in  force  when  Oregon  adopted  its  statute  rela 
tive  to  vacancies  in  the  electoral  college.  It  will  appear  that  whereas 
Bhode  Island,  as  shown  by  the  Corliss  case,  enacted  laws  to  meet  both 
the  contingencies  named  in  the  act  of  1845,  Oregon  made  provision  only 
for  the  case  of  vacancy  "  which  might  occur  in  its  college  of  electors 
when  such  college  meets  to  give  its  electoral  vote." 

Without  the  election  of  a  qualified  candidate,  there  can  be  no  va 
cancy.  A  vacancy  only  occurs  where  the  office  has  been  once  filled  by 
the  election  of  a  qualified  incumbent. 

The  case  of  George  H.  Corliss,  already  referred  to,  is  exactly  in  point. 
The  second  question  propounded  by  the  governor  to  the  judges  of  the 
supreme  court  of  Rhode  Island  was  in  these  words : 

Does  such  a  candidate  [one  disqualified  by  holding  an  office  of  trust  or  profit]  for  the 
office  of  elector,  who  receives  a  plurality  of  the  legal  votes  given,  and  declines  said 
office,  create  thereby  such  a  vacancy  as  is  provided  for  in  section  7,  chapter  II  of  the 
General  Statutes  ? 

This  was  answered,  by  the  unanimous  voice  of  the  judges,  thus: 

We  think  a  centennial  commissioner,  who  was  a  candidate  for  the  office  of  elector, 
and  received  a  plurality  of  the  votes,  does  not,  by  declining  the  office,  create  such  a 
vacancy  as  is  provided  for  in  Gen.  Stats.,  ch.  11,  sect.  7.  Section  7  is  as  follows  : 

"  If  a  y  electors,  chosen  as  aforesaid,  shall,  after  their  said  election,  decline  the  said 

50  E  G 


786  ELECTORAL    COUNT    OF    1877. 

office,  or  be  prevented  by  any  cause  from  serving  therein,  the  other  electors,  when  met 
in  Bristol  in  pursuance  of  this  chapter,  shall  till  such  vacancies,  and  shall  file  a  cer 
tificate  in  the  secretary's  office  of  the  person  or  persons  by  them  appointed." 

Before  any  person  can  decline  m  der  this  section  he  must  first  be  elected,  and  no 
person  can  be  elected  who  is  ineligible,  or  in  other  words  incapable  of  being  elected. 
"Resignation,"  said  Cockburn,  C.  J.,  in  The  Queen  r«.  Blizzard,  Law  Rep.,  2,  Q.  B.,  55, 
"  implies  that  the  person  resigning  has  been  elected  into  the  office  he  resigns.  A  man 
cannot  resign  that  which  he  is  not  entitled  to,  and  which  he  has  no  right  to  occupy.'; 

The  fifth  question  propounded  to  the  judges  by  the  governor  of  Rhode 
Island  was :  "  If  by  reason  of  the  disqualification  of  the  candidate  who 
received  a  plurality  of  the  votes  given  there  was  no  election,  can  the 
general  assembly  in  grand  committee  elect  an  elector?" 

To  which  the  judges,  without  dissent,  made  answer: 

Our  statute  (Gen.  Stat.,  ch.  11,  sec.  5)  provides  that  if,  by  reason  of  the  votes  being 
equally  divided,  or  otherwise,  there  shall  not  be  an  election  of  the  number  of  electors  to 
which  the  State  may  be  entitled,  the  governor  shall  forthwith  convene  the  general 
assembly  at  Providence  for  the  choice  of  electors  to  fill  such  vacancy  by  an  election 
in  grand  committee. 

We  think  this  provision  covers  the  contingency  which  has  happened,  and  that,  there 
fore,  the  general  assembly  in  grand  committee  can  elect  an  elector  to  fill  up  the  num 
ber  to  which  the  State  is  entitled.  The  law  of  the  United  States  provides  that  "  when 
ever  any  State  has  held  an  election  for  the  purpose  of  choosing  electors  and  has  failed 
to  make  choice  on  the  day  prescribed  by  law,  the  electors  may  be  appointed  on  a  sub 
sequent  day,  in  such  manner  as  the  legislature  of  the  State  may  direct." 

A  vacancy  was  defined  by  Sawyer,  Chief-Justice,  in  People  vs.  Tilton, 
(37  Cal.,  017,)  as  follows:  "  A  vacancy  in  the  statutory  sense  is  when  the 
party  enters  upon  the  duties  of  the  office,  and  afterwards  dies,  resigns, 
or  in  any  manner  ceases  to  be  an  incumbent  of  the  office  before  the 
expiration  of  the  term." 

In  Miller  vs.  The  Supervisor  of  Sacramento  County,  (25  Cal.,  93,)  it 
was  held  that  "  one  who  has  been  elected  to  an  office  cannot  resign  the 
same  until  the  time  has  arrived  when  he  is  entitled  by  law  to  possess 
the  same,  and  has  given  oath,  filed  the  bond  required,  and  entered  upon 
the  discharge  of  its  duties." 

In  Broom  vs.  Hanley,  (9  Penn.  St.,  513,)  it  was  decided  that  even 
d^ath,  after  a  lawful  election  and  before  qualification,  does  not  create 
an  incumbent  of  the  office,  nor  does  it  create  a  vacancy  which  can  be 
filled  by  appointment,  where  the  law  authorizes  vacancies  to  be  so 
filled. 

Article  1,  section  3,  of  the  Constitution  provides  that  if  vacancies 
happen  in  the  Senate  by  "  resignation  or  otherwise,  during  the  recess 
of  the  legislature  of  any  State,  the  executive  thereof  may  make  tem 
porary  appointments  until  the  next  meeting  of  the  legislature,  which 
shall  then  fill  such  vacancies." 

Under  this  power,  it  has  been  held  that  the  State  executive  cannot 
fill  a  vacancy  in  the  Senate  unless  there  has  been  an  incumbent  of  the 
term,  and  the  incumbent  has  ceased  to  hold  during  the  recess  of  the 
legislature. — Lanmarts  case,  Clarke  &  Hall,  871;  Story  on  the  Consti 
tution,  sec.  1559 ;  Sergeant's  Const.  Law,  (2d  ed.,)  373.  See  also  Schenck 
vs.  Peay,  1  Dillon,  267;  State  vs.  Benedict,  15  Minn.,  199;  Battle  vs. 
Mclver,  08  N.  C.,  409;  People  vs.  Stratton,  28  Cal.,  382;  Stratum  vs. 
Oultou,  2  Cal.,  51;  People  vs.  Parker,  37  Cal.,  639;  Dodd  ex  parte,  0 
Eug.,  (Ark.,)  152;  State  vs.  Jenkins,  43  Mo.,  201. 

The  statutes  of  Oregon  contemplate  but  one  election  of  electors.  The 
provision  in  this  regard  is  express  and  peremptory: 

On  the  Tuesday  next  after  the  first  Monday  in  November,  1864.  and  every  four  years 
thereafter,  there  shall  be  elected,  by  the  qualified  electors  of  this  State,  as  many  electors 
of  President  and  Vice- President  as  this  State  may  be  entitled  to  elect  of  Senators  aud 
Representatives  in  Congress. 


ELECTORAL    COUNT    OF    1877.  787 

"  Shall  ~be  elected,"  "  as  many  electors" — this  is  the  mandate  of  Oregon. 
But  there  were  not  on  November  7,  1876,  (unless  Cronin  was  duly 
elected,  of  which  hereafter,)  elected  "as  many  electors"  as  Oregon  was 
entitled  to  elect  of  Senators  and  Representatives  in  Congress.  There 
were  elected  but  two  electors;  whereas  Oregon  is  entitled  to  elect  two 
Senators  and  one  Representative  in  Congress.  It  follows  that  on  Nov 
ember  7,  1876,  there  was  in  Oregon  a  case  falling  directly  within  section 
134  of  the  Revised  Statutes.  Oregon  had  "  held  an  election  for  the 
purpose  of  cboosiug  electors"  and  had  "failed  to  make  a  choice  on  the 
day  prescribed  by  law." 

But  while  Oregon  has  provided  by  law  for  "  the  filling  of  vacancies 
which  may  occur  in  its  college  of  efectors  when  said  college  meets  to 
give  its  electoral  vote,"  as  contemplated  in  section  133,  it  has  taken  no 
steps  whatever  to  meet  the  contingency  which  actually  happened — hap 
pened  on  November  7, 1876,  by  the  non-election  of  the  third  elector — 
happened  twenty-nine  days  before  its  college  of  electors  met  to  give  its 
electoral  vote. 

This  provision  of  Oregon  law  is  to  be  found  in  the  compilation  of  the 
general  laws,  page  849,  chapter  45,  section  2,  as  follows  : 

The  electors  of  President  and  Vice-President  shall  convene  at  the  seat  of  govern 
ment  on  the  first  Wednesday  of  December  next  after  their  election,  at  the  hour  of  12 
of  the  clock  at  noon  of  that  day,  and  if  there  shall  be  any  vacancy  in  the  office  of 
an  elector,  occasioned  by  death,  refusal  to  act,  neglect  to  attend,  or  otherwise,  the  elect 
ors  present  shall  immediately  proceed  to  fill,  by  viva  voce  and  plurality  of  votes,  such 
vacancy  in  the  electoral  college,  and  when  all  the  electors  shall  appear,  and  the 
vacancies,  if  any,  shall  have  been  filled,  as  above  provided,  such  electors  shall  proceed 
to  perform  the  duties  required  of  them  by  the  Constitutiou  ana  laws  of  the  United 
States. 

Had  the  legislature  of  Oregon  intended  to  authorize  any  vacancy, 
however  caused,  to  be  filled  by  the  electors  present,  they  would  not 
have  used  the  words :  "  If  there  shall  be  any  vacancy  in  the  office  of 
an  elector,  occasioned  by  death,  refusal  to  act,  neglect  to  attend,  or 
otherwise,"  for  the  words  "  occasioned  by  death,  refusal  to  act,  neg 
lect  to  attend,  or  otherwise,"  are  entirely  superfluous  upon  this  theory. 
For  the  sentence  would  then  have  read  :  "If  there  shall  be  any  vacancy 
in  the  office  of  an  elector,  the  electors  present  shall  immediately  proceed 
to  fill  by  viva  voce  and  plurality  of  votes  such  vacancy  in  the  electoral 
college."  The  use  of  these  words,  ll  occasioned  by  death,  refusal  to 
act,  neglect  to  attend,  or  otherwise,"  indicates  that  there  are  cases  of 
vacancy  which  the  electors  may  not  fill,  and  this  view  is  strengthened 
by  the  character  of  the  vacancies  thus  described,  the  three  named, 
death,  refusal  to  act,  and  neglect  to  attend,  being  all  the  results  of 
events  occurring  after  the  election.  The  words  "or  otherwise,"  upon 
canons  of  interpretation  well  known  to  every  lawyer,  cannot  enlarge 
the  preceding  words  so  as  to  make  them  apply  to  every  case  of  va 
cancy,  but  only  refer  to  other  like  cases  depending  upon  conditions 
similar  to  the  enumerated  cases.  The  maxim  applicable  is  noscitur  a 
sociis.  So  a  statute  treating  of  "  deans,  prebendaries,  parsons,  vicars, 
'and  others  having  spiritual  promotion,"  is  held  not  to  extend  to  bishops, 
though  they  have  spiritual  promotion,  deans  being  the  highest  persons 
named,  and  bishops  being  of  a  still  higher  order.  (1  Blackstone's 
Coinm.,  88.) 

The  word  "otherwise"  here  means  "other  causes;"  but  whether  all 
other  causes,  or  only  some  other  causes,  is  the  question.  If  u  some  other 
causes"  is  meant,  as  has  been  already  shown,  then  the  maxim  already 
quoted  indicates  what  other  causes.  "  Ex  antecedentibus  et  consequenti- 
bus  fit  optima  interpretation 


788  ELECTORAL   COUNT    OF    1877. 

If  it  be  said  that  u otherwise"  is  a  general  term,  we  answer,  "  Verba 
generalia  restringuntur  ad  habilitatem  rei  vel  personam." 

Broom's  Legal  Maxims,  565,  620. 

Coe  vs.  Columbus,  Piq.  &  Ind.  E.  K.  Co.,  10  Ohio  St.,  377,  378. 

In  point  of  fact,  Odell  and  Cartwright  did  not  assume  to  appoint 
Watts  to  a  vacancy  under  the  "  otherwise  "  clause  of  the  statute,  but 
accepted  his  resignation,  and  then  elected  him  to  fill  a  vacancy  created 
by  his  voluntary  assumption  or  pretense  of  office  and  resignation. 

Thus  far  we  have  been  considering  this  claim  of  vacancy  as  if  the 
quoted  section  of  the  Oregon  laws  were  the  only  statutury  provision 
thereto  relating. 

It  may  be  claimed,  however,  that  this  vacancy  is  controlled  by  chap 
ter  13,  title  7,  u  Of  vacancies/'  sec.  45 : 

Every  office  shall  become  vacant  on  the  happening  of  either  of  the  following  events, 
before  the  expiration  of  the  term  of  such  office : 

1.  The  death  of  the  incumbent. 

2.  His  resignation. 

*  ****** 

7.  The  decision  of  a  competent  tribunal  declaring  void  his  election  or  appointment. 

We  do  not  consider  this  provision  of  law  applicable  to  electors  for 
vacancies  in  whose  offices  special  provision  is  made  by  chapter  44,  sec 
tion  2,  but  if  it  be,  we  answer^rsZ,  that  Watts  was  never  "the  incum 
bent  ;"  and,  secondly,  that  there  was  and  could  have  been  no  competent 
tribunal  declaring  void  his  appointment  after  he  became  incumbent;  and, 
thirdly,  the  constitutional  inhibition  does  not  operate  through  the  in 
strumentality  of  a  judgment  of  conviction  or  ouster,  but  works  by  self- 
enforcement,  (as  we  shall  more  fully  show  hereafter,)  rendering  nugatory 
the  conflicting  appointment. 

5.  The  resignation  of  Watts  did  not  take  effect  so  as  to  relieve  him  from 
"  holding  an  office  of  trust  or  profit  under  the  United  States"  until  his  suc 
cessor  icas  elected  and  qualified,  ichich  icas  after  he  had  cast  his  vote  as  an 
elector. 

Kevised  Statutes,  section  3836 : 

Whenever  the  office  of  any  postmaster  becomes  vacant,  the  Postmaster-General  or 
the  President  shall  supply  such  vacancy  without  delay,  and  the  Postmaster-General 
shall  promptly  notify  the  Sixth  Auditor  of  the  change ;  and  every  postmaster  and  his 
sureties  shall  be  responsible  under  their  bond  for  the  safe-keeping  of  the  public  prop 
erty  of  the  post-office,  and  the  due  performance  of  the  duties  thereof,  until  the  expira 
tion  of  the  commission,  or  until  a  successor  has  been  duly  appointed  and  qualified,  and 
has  taken  possession  of  the  office  ;  except,  that  in  cases  where  there  is  a  delay  of  sixty 
days  in  supplying  a  vacancy,  the  sureties  may  terminate  their  responsibility  by  giving 
notice,  in  writing,  to  the  Postmaster-General,  and  the  Postmaster-General  may,  when 
the  exigencies  of  the  occasion  require,  place  such  office  in  charge  of  a  special  agent 
until  the  vacancy  can  be  regularly  rilled ;  and  when  such  special  agent  shall  have 
taken  charge  of  such  post-office,  the  liability  of  the  sureties  of  the  postmaster  shall 
cease. 

ARE  THE  INHIBITORY  CLAUSES  OF  THE  CONSTITUTION  SELF-ENFORC-. 

ING? 

We  had  not  supposed  that  the  negative  of  this  proposition  would  be 
maintained,  but  Groves  vs.  Slaughter  has  been  referred  to  as  if  it  coun 
tenanced  such  denial. 

But  Groves  vs.  Slaughter  did  not  relate  to  an  inhibitory,  but  to  a 
mandatory  clause,  and,  what  is  even  more  significant,  mandatory  upon 
the  legislature.  The  clause  construed  was  in  the  constitution  of  Missis 
sippi  : 


ELECTORAL    COUNT    OF    1877.  789 

The  introduction  of  slaves  into  this  State  as  merchandise  or  for  sale  shall  be  pro 
hibited  from  and  after  the  first  day  of  May,  1833. 

And  the  passage  quoted  from  Groves  vs.  Slaughter  admits  "  that  the 
constitution  is  mandatory  upon  the  legislature.7'  But  inhibitions  are 
not  merely  mandates;  they  are  limitations  of  power,  thrown  into  the 
negative  and  inhibitory  form  for  the  very  purpose  of  rendering  them 
self-enforcing,  so  that  no  legislation  might  be  needed  (not  but  that  it 
might  be  appropriate  in  proper  cases)  for  their  enforcement,  and  so  that 
all  legislation  or  public  or  private  action  in  conflict  with  them,  might 
be  absolutely  null  and  void  to  all  intents  and  purposes,  de  jure  et  de 
facto. 

The  express  inhibitions,  such  as  ex  post  facto  laws,  laws  impairing  the 
obligation  of  contracts,  treaties  between  States,  export  duties,  titles  of 
nobility,  bills  of  credit  emitted  by  States,  State  tariffs,  these  and  the 
like  are  inhibited,  and  by  reason  of  the  inhibitions,  are  utterly  without 
legal  force,  nee  jure  neque  facto. 

In  like  manner  with  the  implied  inhibitions.  When  was  it  ever  held 
that  a  State  law  taxing  Federal  agencies  protected  anybody  ?  These, 
also,  need  no  aid  of  legislation,  but  all  laws,  or  public  or  private  action 
in  conflict  with  them,  are  void  dejure  et  de  facto. 

The  inhibitions  relating  to  office  are  in  like  manner  self-enforcing. 
They  differ  only  in  this,  that  they  point  to  and  operate  at  different 
stages,  and  therefore  render  the  action  they  inhibit  either  absolutely 
void  or  voidable  according  to  the  time  at  which  it  may  be  impugned. 
Th  us- 
No  person  shall  be  a  Representative  who  shall  not  have  attained  to  the  age  of 
twenty-five  years,  &c. 

No  person  shall  ~be  a  Senator  who  shall  not  have  attained  to  the  age  of  thirty 
years,  &c. 

No  person  shall  be  a  Senator  or  Representative  in  Congress  or  elector  of  President 
and  Vice-President,  &c.,  who,  having  personally  taken  an  oath,  &.C.,  to  support  the 
Constitution  of  the  United  States,  shall  have  engaged  in  insurrection  or  rebellion,  &c. 

In  these  cases,  the  operation  of  the  Constitution  is  to  render  the 
original  election  voidable,  action  under  it  void ;  in  other  words,  to 
render  the  election  void,  uule-s  the  condition  of  disability  be  removed 
before  the  candidate  shall  be  Representative,  Senator,  or  elector. 

This  is  rendered  very  plain  by  reference  to  article  1,  section  6. 

No  Senator  or  Representative  shall,  during  the  time  for  which  he  was  elected,  be 
appointed  to  any  civil  office  under  the  authority  of  the  United  States,  which  shall  have 
been  created,  or  the  emoluments  whereof  shall  have  been  increased  during  such  time  ; 
and  no  person  holding  any  office  under  the  United  States,  shall  be  a  member  of  either 
House  during  his  continuance  in  office. 

Eead  now  in  connection  with  this  the  clause  under  discussion,  and 
what  room  is  left  for  controversy? 

But  no  Senator  or  Representative,  or  person  holding  an  office  of  trust  or  profit  under 
the  United  States,  shall  be  appointed  an  elector. 

In  Morgan  vs.  Vance,  4  Bush,  323,  the  court  of  appeals  of  Kentucky 
held  (p.  330)  that— 
So  far  as  the  constitution  requires  of  all  officers  to  take  the  prescribed  oath,  and  so 
far  as  it  provides  disqualifications  upon  acts  and  not  upon  judgment  of  conviction,  the 
constitution,  as  the  supreme  law  of  the  land,  executes  itself  without  any  extraneous 
aid  by  way  of  legislation,  nor  can  its  requirements  be  so  defeated. 

The  view  we  are  presenting  derives  strong  support  from  there-exami 
nation  of  this  subject  by  the  court  of  appeals  of  Kentucky,  in  the  case 
of  Commonwealth  vs.  Jones,  10  Bush,  725.  Section  20  of  the  article  of 
the  constitution  of  Kentucky  provides  that — 

Any  person,  who  shall    *    *     either  directly  or  indirectly  give,  accept,  or  knowingly 


790  ELECTORAL   COUNT    OF    1877. 

carry  a  challenge  to  any  person  or  persons  to  fight  in  single  combat  with  a  citizen 
of  this  State    '  :     shall  be  deprived  of  the  right  to  hold  any  office  of  honor  or 

profit  in  this  commonwealth,  and  shall  be  punished  otherwise  in  such  manner  as  this 
general  assembly  shall  prescribe  by  law. 

The  court  held  this  provision 

Not  self-executing,  except  to  the  extent  that  persons  who  cannot  or  will  not  take 
the  constitutional  oath  are  thereby  prevented  from  holding  office. 

Upon  page  738,  the  court  (Lindsay,  J.,)  say : 

Upon  the  other  hand,  if,  instead  of  the  phrase  "shall  be  deprived,"  the  word  "  ineli 
gible,"  or  the  phrase  "shall  not  be  eligible,"  had  been  used  in  section  20,  sdme  of  the 
difficulties  attending  the  argument  to  show  that  it  is  self-executing  would  have  been 
obviated.  We  have  already  shown  that  the  change  of  language  or  phraseology  in 
this  regard  was  deliberate  and  intentional,  and  that  apt  and  appropriate  words  are 
used  to  show  that  participation  in  a  duel  between  citizens  of  the 'State  was  intended 
to  be  treated  as  a  public  oft'euse,  and  that  the  deprivation  of  the  right  to  hold  office  is 
a  penalty  or  punishment  to  be  inflicted  upon  those  who  may  be  guilty  of  said  oifeuse. 

Even  the  third  clause  of  article  4,  section  2,  providing  for  the  rendi 
tion  of  fugitives  from  slavery  was  held  by  no  less  an  authority  than 
Joseph  Story  to  be  self-enforcing. 

Prigg  vs.  Pennsylvania,  16  Peters,  613. 

See,  also,  Dill  vs.  Ellieot,  Taney's  Decisions,  233. 

Upon  this  principle  only  can  be  preserved  in  its  full  vigor  the  author 
ity  which  the  second  clause  of  the  sixth  article  declares :  "  This  Consti 
tution  *  *  *  shall  be  the  supreme  law  of  the  land  ;  and  the  judges 
in  every  State  shall  be  bound  thereby,  anything  in  the  constitution  or 
laws  of  any  State  to  the  contrary  notwithstanding.77 

How  can  legislation  add  to  the  force  of  the  inhibition  ?  Of  what 
character  shall  it  be?  Would  the  repetition  of  the  inhibition  or  the 
addition  of  penalties  lend  it  more  vigor?  Would  an  act  antecedently 
passed  enable  the  proof  of  violation  to  be  more  clearly  made  than  the 
powers  of  Congress  and  the  act  creating  this  Commission  already  pro 
vide  ? 

If  it  be  sought  to  support  the  action  of  the  disqualified  candidate  by 
the  judgment  of  the  canvassing  officer,  we  answer  in  the  language  of 
the  court  of  appeals  of  Keutuckv,  in  Patterson  vs.  Miller,  &c.,  2  Mete. 
Ky.,  497  : 

The  certificate  which  the  examining  board  issues  to  a  candidate  that  he  is  elected  to 
the  office  of  sheriff — although  conclusive  evidence  that  he  was  elected  thereto,  unless 
his  election  be  contested  before  the  proper  board — is  not  sveuprima  facie  evidence  that 
be  was  eligible  to  the  office. 

II 

E.  A.  Cronin  was  duly  appointed,  and  had  the  right  to  cast  his  vote  as  an 
elector  of  the  State  of  Oregon. 

Watts  received  15,206  and  Cronin  14,157  votes  at  the  election  held 
upon  November  7,  1876.  Watts  having  been  shown  to  have  been  dis 
qualified,  and  the  votes  cast  for  him  therefore  being  null  and  void,  our 
contention  is  that,  by  the  laws  of  Oregon,  Cronin  was  elected  and  en 
titled  to  cast  his  vote  as  an  elector. 

It  will  not  be  contended  that  it  was  necessary  for  Cronin  to  receive 
the  votes  of  a  majority  of  all  the  legal  voters  casting  their  vote  at  the 
November  election.  Such  is  the  law  in  some  of  the  New  England  States 
at  elections  for  Representatives  in  Congress  and  State  and  county  offi 
cers;  such  is  the  law,  also,  in  the  election  of  United  States  Senators, 
(Revised  Statutes,  sec.  15,)  and  this  principle  explains  in  part  the  judg 
ment  of  the  Senate  in  the  case  of  Abbott  and  Vance.  But  such  is  not 


ELECTORAL    COUNT    OF    1877.  791 

the  rule  at  presidential  elections.  It  has  often  happened  that  the  mi 
nority  of  the  people  have  by  plurality  of  votes  chosen  electors  in  the 
States.  Thus,  in  1848,  in  Ohio  and  several  other  States,  theCass  elect 
ors  were  elected  by  a  plurality  of  votes  in  preference  to  the  Taylor  elect 
ors,  the  Van  Bureu  electors  receiving  a  much  larger  number  of  votes 
than  their  plurality.  There  is,  therefore,  nothing  in  American  public 
law  to  prevent  the  choice  of  electors  by  a  minority  of  popular  votes  in 
a  State  any  more  than  to  forbid  the  choice  of  a  President,  as  in  the  case 
of  Mr.  Lincoln's  first  election,  by  a  minority  of  the  total  popular  vote. 

Nor,  according  to  our  antagonists,  is  a  majority  voting  for  an  ineligi 
ble  candidate  required  to  defeat  an  election.  On  the  contrary,  our 
learned  opponents  must  contend  that  even  if  the  majority  of  qualified 
voters  desire  to  elect,  and  so  vote,  yet  if  they  divide  their  votes  among 
several,  so  that  a  mere  plurality,  less  than  a  majority,  has  supported  the 
disqualified  candidate,  this  plurality,  if  insufficient  to  elect,  suffices  to 
defeat  the  next  highest  competitor,  and  to  force  a  new  election  upon  the 
majority. 

It  may  also  happen  that  more  than  the  number  of  electors  to  which  a 
State  is  legally  entitled  may  receive  each  more  than  a  majority  of  the 
votes  cast. 

Thus,  we  may  suppose,  that  in  the  State  of  Oregon,  where  there  are 
three  electors  to  be  chosen,  twenty  thousand  votes  may  be  cast,  divided 
among  six  candidates :  A,  B,  and  C  receive  each  9,800  votes  ;  D,  E,  and 
F  receive  9,700  votes.  The  remaining  500  votes  may  be  thus  distrib 
uted  :  To  A,  B,  and  D  200  votes ;  to  A,  0,  and  D  200  votes  5  and  toB, 
C,  and  D  100  votes.  The  result  will  be:  For  A,  10,200 ;  for  B,  10,100; 
for  0,  10,100,  and  for  D,  10,200  votes.  Supposing,  now,  that  A  were 
disqualified  by  holding  a  Federal  office,  who  would  be  elected,  and  which 
rule  ought  to  be  adopted!  that  which  rejects  A  as  disqualified,  and  B 
and  C  as  not  elected,  by  reason  of  the  votes  for  them  having  resulted  in 
a  tie,  and  only  D  elected ;  or  that  which  rejects  A  as  disqualified,  and 
returns  B,  C,  and  D  as  elected  I 

We  submit  these  questions  to  assist  in  elucidating  the  principle  which 
should  govern  us.  Under  our  present  plan,  by  which  the  electors,  are 
mere  automata,  registering  the  decrees  of  party  conventions,  this  case 
may  be  said  to  be  unlikely,  although  the  actual  state  of  the  vote  in  Or 
egon  shows  variations  in  the  total  number  of  votes  given  for  the  several 
candidates,  thus  indicating  preferences  among  the  voters  even  of  the 
same  party.  And,  according  to  the  plan  of  our  forefathers,  by  which 
the  office  of  elector  was  to  be  a  personal  trust,  confided  to  the  wisest 
citizens,  best  qualified  to  judge  of  presidential  capacity  and  the  fitness 
of  candidates,  it  would  not  have  been  at  all  unlikely  that  such  a  result 
might  be  developed  by  the  counting  of  the  ballots. 

The  principle  to  govern  us  must  be  consistent,  first,  with  the  con 
stitutional  mandate,  "each  State  shall  appoint ;"  secondly,  with  the  con 
stitutional  inhibition,  "  but  no  person  holding  an  office  of  trust  or 
profit  under  the  United  States  shall  be  appointed ;w  thirdly,  with  the 
rule  that  a  majority  vote  is  not  necessary,  but  a  plurality  suffices  for 
election ;  fourthly ',  with  the  possibility  that  a  majority  of  the  voters  may 
vote  for  more  than  the  legal  number  of  electors ;  and  fifthly,  with  the 
fact  that  upon  the  views  of  their  work  entertained  by  those  who  made 
the  Constitution,  the  candidates  for  electors  do  not  run,  like  rivals  for 
the  office  of  sheriff,  against  each  other,  but  the  choice  is  made  by  selec 
tion  of  the  successful  candidates  out  of  the  whole  list  of  those  nomi 
nated  in  that  connection. 

We  respectfully  submit  that  the  only  rule  which  fulfills  these  demands 


792  ELECTORAL    COUNT    OF    1377. 

is  that  which  treats  votes  given  in  violation  of  the  constitutional  pro 
hibition  as  null  and  void,  and  not  to  be  used  for  any  purpose,  and  we 
believe  this  proposition  to  be  sustained  by  the  greater  weight,  if  not  the 
greater  number,  of  both  the  American  and  English  authorities. 

The  mandate  is  explicit,  "  each  State  shall  appoint."  Are  we  to  adopt 
a  principle  which  will  permit  the  majority  or,  it  may  be,  the  minority, 
being  a  plurality,  of  the  voters  to  prevent  the  execution  of  this  man 
date,  to  refuse  obedience  to  this  command?  Were  this  majority  or 
plurality  to  stay  away  from  the  polls,  the  minority  attending  and  per 
forming  the  duty  of  voting,  as  good  citizens,  would  constitute  the  State, 
at  least  for  this  purpose.  If  the  majority  or  plurality  attend,  and  insist 
on  doing  that  which  is  null  and  void  in  law,  by  casting  blank  pieces  of 
paper  as  votes,  or  those  which  are  equivalent  to  blanks,  by  not  having 
force  to  elect  because  bearing  the  name  of  a  disqualified  candidate, 
should  not  the  law-obeying  minority  still  be  considered  the  State? 

In  Oldknow  vs.  Wainwright,  1  W.  Black,  228,  S.  0.,  2  Burr.  1017,  it 
was  held  by  the  King's  Bench,  (Lord  Mansfield  delivering  the  judgment,) 
that  where  a  majority  dissent  from  the  election,  but  vote  for  no  one  else, 
an  election  by  the  minority  is  good. 

The  mandates  of  the  Federal  Constitution,  "each  State  shall  appoint ;" 
of  the  act  of  Congress,  (Revised  Statutes,  section  131,)  "the  electors  of 
President  and  Vice-President  shall  be  appointed,  in  each  State,  on  the 
Tuesday  next  after  the  first  Monday  in  November ; "  and  of  the  State  of 
Oregon,  "  on  the  Tuesday  next  after  the  first  Monday  in  November, 
1864,  and  every  four  years  thereafter,  there  shall  be  elected,"  &c.,  are 
equally  peremptory.  The  principle  to  be  adopted  must  secure,  or  at 
least  be  consistent  with  obedience  to  this  command.  And  for  this  rea 
son,  to  enforce  easy  and  certain  obedience  to  the  command,  the  public 
law  of  the  United  States  has  adopted  the  plurality  principle  in  the  choice 
of  electors. 

The  inhibition  is  equally  explicit.  "  But  no  person  holding  an  office 
of  trust  or  profit  under  the  United  States  shall  be  appointed  an  elector." 
The  principle  to  be  adopted  must  enforce  this  inhibition  in  its  full  vigor 
and  effect. 

No  other  rule  has  this  effect,  except  that  which  treats  the  votes  case 
for  an  ineligible  candidate  as  in  law  blanks,  which,  not  having  been 
given  in  obedience  to  the  mandate  "  shall  elect,"  and  having  been  cast 
in  disobedience  to  the  inhibition,  have  no  legal  force  to  elect  an  ineligi 
ble,  nor  to  defeat  an  eligible  candidate,  and  counts  only  the  efficient 
votes,  votes  given  to  elect,  not  to  defeat  an  election,  to  obey,  not  to  frus 
trate  the  execution  of  the  constitutional  mandate. 

And  such  is  the  weight  of  American  authority,  and  to  this  conclusion, 
as  one  of  general  public  law,  would  this  Commission  be  forced  to  come, 
were  the  question  directly  before  them  for  consideration,  unaided  by  the 
action  of  the  competent  political  authority  in  Oregon,  which,  as  we  shall 
show,  is  decisive  of  the  rule  as  it  prevails  in  that  State. 

The  earliest  American  decision  upon  this  subject  was  made  by  one  of 
the  greatest  lawyers  of  the  revolutionary  period,  one  of  the  signers  of 
the  Declaration  of  Independence,  Chief  Justice  Samuel  Chase,  of  Mary 
land,  the  attempt  at  whose  impeachment  when  a  judge  of  the  Supreme 
Court  of  the  United  States  furnishes  such  a  large  item  in  the  early  ju 
dicial  history  of  this  country.  That  Chief  Justice  Samuel  Chase  was  a 
lawyer  of  the  first  rank  nobody  has  ever  ventured  to  deny ;  but  his  vio 
lent  temper  exposed  him  to  an  attack  which  nearly  cost  him  his  high 
judicial  position.  In  the  case  of  Hutcheson  vs.  Tilden  and  Bordley,  (4 
Harris  &  McHenry's  Kep.,  279, )  the  defendants,  being  judges  of  the 


ELECTORAL    COUNT    OF    1877.  793 

sheriffs'  election,  on  the  first  Monday  of  October,  1794,  declared  Jones 
and  Hall  duly  elected  sheriffs  of  the  county  of  Kent,  although  Hutche- 
son  had  more  votes  than  either  of  them,  on  the  ground  that  he  was  in 
eligible  to  election  by  want  of  sufficient  qualification  in  real  and  per 
sonal  estate,  as  required  by  law,  whereupon  Hutcheson  sued  Tildeii  and 
Bordley  in  an  action  on  the  case  for  damages  for  refusing  to  return  him 
as  sheriff  elect.  Chief  Justice  Chase,  after  stating  the  qualification  re 
quired  by  the  constitution,  says: 

All  votes  given  for  a  candidate  not  having  such  qualifications  are  to  be  thrown  away 
and  rejected  as  having  no  force  or  operation  in  law.  The  plaintiff  can  only  be  entitled 
to  such  votes  as  were  given  after  he  received  the  necessary  qualifications,  all  votes  in 
his  favor  previous  being  illegal  and  void. 

The  report  says  that — 

The  plaintiff  had  received  the  necessary  qualifications  about  12  o'clock  on  the  third 
day  of  the  election,  and,  from  the  state  of  the  polls,  if  he  had  received  all  the  votes 
taken  after  that  time,  he  could  not  be  elected.  Therefore  there  was  verdict  and  judg 
ment  for  the  defendants. 

This  decision  is  the  law  of  Maryland  to-day,  and  has  been  applied  in 
several  cases,  in  more  recent  times,  by  the  legislative  department  of  that 
State. 

In  the  constitution  of  Maryland,  as  it  was  in  1865,  was  contained  the 
following  provision  of  disqualification; 

If  any  person  has  given  any  aid,  comfort,  countenance,  or  support  to  thoso  engaged 
in  armed  hostility  to  the  United  States,  or  has,  by  any  open  deed  or  word,  declared  his 
adhesion  to  the  cause  of  the  enemies  of  the  United  States,  or  his  desire  for  the  triumph 
of  said  enemies  of  the  United  States,  he  is  disqualified  from  holding  any  office  of  honor, 
profit,  or  trust  under  the  laws  of  this  State. 

In  1865,  Hart  B.  Holton  contested  the  seat  of  Littleton  Macliu  as  a. 
senator  from  Howard  County,  and  claimed  the  same  for  himself.  It  was 
referred  to  the  Committeeon  Elections,  who  reported,  first,  that  although 
Maclin  had  received  the  highest  number  of  legal  votes,  nevertheless, 
being  disqualified  under  the  quoted  provision,  he  was  not  entitled  to 
the  seat;  and,  secondly,  "that  Hart  B.  Holton,  having  received  the 
highest  number  of  votes  cast  for  any  duly-qualified  candidate  for  sena 
tor  for  Howard  County,  is  declared  duly  elected,  and  entitled  to  a  seat 
in  this  body  as  senator  from  said  county." — (Senate  Journal,  1865,  ap 
pendix,  document  E.) 

And  on  February  14,  1865,  this  report  was  adopted  by  the  senate, 
Maclin  unseated  and  Holton  inducted  into  office. — (Senate  Journal,  1865, 
116.) 

In  1866,  in  the  house  of  delegates,  Thomas  A.  Spence,  now  assistant 
attorney  -general  for  the  Post  Office  Department  in  this  city,  successfully 
contested  the  office  of  John  R.  Franklin  as  circuit  judge  of  the  twelfth 
judicial  circuit  of  Maryland,  on  the  double  ground  of  disloyalty  and  the 
want  of  the  necessary  majority  of  legal  votes. — (House  Journal  01  I8(i6, 
412,  and  appendix,  document  H.) 

In  1866,  before  the  house  of  delegates,  George  E.  Gambrill  contested 
the  office  of  Sprigg  Harwood  as  clerk  of  the  circuit  court  for  Anne 
Arundel  County,  on  the  ground  of  constitutional  iueligibility  caused  by 
an  increase  in  the  profits  of  this  clerkship  while  Harwood  was  a  senator 
from  Anne  Arundel  County,  in  1865.  Hurwood  had  received  the 
majority  of  the  legal  votes,  but  the  committee  on  elections  reported 
that  Harvv7ood  was  ineligible;  that  it  "  must  be  presumed  to  have  been 
known  by  every  voter;"  and  that  Gambrill,  the  candidate  of  the 
minority,  was  entitled  to  the  place. 


ELECTORAL    COUNT    OF    1877. 
And  we  think — 

Say  the  committee,  after  stating  the  rule  as  we  claim  it,  proceeding 
to  show  its  convenience — 

in  a  Cease  like  this,  it  would  be  highly  inexpedient  to  submit  this  matter  to  another 
election.  The  result  of  the  election  of  an  ineligible  person  is  that  he  enjoys  the  office 
until  the  legislature  meets;  then,  if  he  is  declared  out  of  office,  he  may  a^ain  offer 
himself  and  hold  until  the  legislature  may  again  assemble,  receiving  the  'emoluments 
until  again  unseated,  and  perhaps  again  offer  himself  as  a  candidate  with  the  same 
thing  to  go  through. 

The  house  of  delegates,  before  which  contests  of  this  kind  are  judi 
cially  prosecuted  in  Maryland,  sustained  this  report,  ousted  Harwood? 
voted  down  a  resolution  that  the  office  was  vacant,  and  inducted  Gam- 
brill.— (House  Journal,  186<>,  279,  280,  281,  282,  document  G.) 

The  same  rule  prevails  in  the  State  of  Maine,  where  it  was  first  de 
cided  in  1831.  It  was  in  Maine  that  Governor  Grover,  of  Oregon,  was 
born  and  received  his  education,  and  thence  he  bore  to  Oregon  the  prin 
ciples  of  law  which  guided  his  action  in  this  case.  The  first  elucidation 
of  law  upon  this  subject  in  Maine  may  be  found  in  the  opinion  of  all  the 
judges  of  the  supreme  judicial  court,  viz,  Chief-Justice  Prentiss  Mellen 
and  Justices  Nathan  Weston  and  Albion  K.  Parris,  published  in  the 
appendix  to  the  seventh  volume  of  Greeuleaf's  Eeports,  (pages  497  and 
501.) 

The  governor  and-council  submitted  to  the  judges  the  following  among 
other  questions  : 

Question  4.  Can  ballots  having  the  names  of  persons  on  them  who  do  not  possess  the 
constitutional  qualifications  of  a  representative  be  counted  as  votes  under  the  fifth  sec 
tion  of  fourth  article,  part  first,  of  the  constitution  of  Maine,  so  as  to  prevent  a  majority 
of  the  votes  given  for  eligible  persons  constituting  a  choice? 

To  which  the  judges,  in  June,  1831,  submitted  the  following  answer, 
(side  page  501 :) 

To  the  fourth  question  proposed,  without  a  particular  statement  of  reasons,  we  merely 
answer  in  the  negative. 

The  fifth  section  of  the  fourth  article,  part  first,  of  the  constitution  of 
Maine,  (adopted  in  1819,)  then  in  force,  was  as  follows : 

The  meetings  for  the  choice  of  representatives  shall  be  warned  in  due  course  of  law 
by  the  selectmen  of  the  several  towns  seven  days  at  least  before  the  election,  and  the 
selectmen  thereof  shall  preside  impartially  at  such  meetings,  receive  the  votes  of  the 
qualified  electors  present,  sort,  count,  and  declare  them  in  open  town  meeting  and  in 
the  presence  of  the  town  clerk,  who  shall,  from  a  list  of  the  persons  voted  for,  with 
the  number  of  votes  for  each  person  against  his  name,  make  a  fair  count  thereof  in  the 
presence  of  the  selectmen  and  in  open  town  meeting,  and  a  fair  copy  of  this  list  shall 
be  attested  by  the  selectmen  and  town  clerk  and  delivered  by  said  selectmen  to  each 
representative  within  ten  days  next  after  such  election.  And  the  towns  and  planta 
tions  organized  by  law,  belonging  to  any  class  herein  provided,  shall  hold  their  meet 
ings  at  the  same  time  in  the  respective  towns  and  plantations,  shall  be  notified,  held, 
and  regulated,  the  votes  received,  sorted,  counted,  and  declared  in  the  same  manner. 
And  the  assessors  and  clerks  of  plantations  shall  have  all  the  powers  and  be  subject  to 
all  the  duties  which  selectmen  and  town  clerks  have  and  are  subject  to  under  this  con 
stitution.  And  the  selectmen  of  such  towns,  and  the  assessors  of  such  towus,  and  the 
assessors  of  such  plantations  so  classed,  shall,  within  four  days  next  after  such  meet 
ing,  meec  at  some  place,  to  be  prescribed  and  notified  by  the  selectmen  or  assessors  of 
the  eldest  town  or  plantation,  in  such  class,  and  the  copies  of  said  lists  shall  be  then 
examined  and  compared;  and  in  case  any  person  shall  be  elected  l)y  a  majority  of  all 
the  vot(S,  the  selectmen  or  assessors  shall  deliver  the  certified  copies  of  such  lists  to  the 
person  so  elected  within  ten  days  next  after  such  election  ;  and  the  clerks  of  towns 
and  plantations  respectively  shall  seal  up  copies  of  such  lists  and  cause  them  to  be 
delivered  into  the  secretary's  office  twenty  days  at  least  before  the  first  Wednesday  iu 
January  annually;  but  in  case  no  person  shall  have  a  majority  of  votes,  the  selectmen 
and  assessors  shall,  as  soon  as  may  be,  notify  another  meeting,  and  the  same  proceed 
ings  shall  be  had  at  every  future  meeting  until  an  election  shall  have  been  effected  : 


ELECTORAL    COUNT    OF    1877.  795 

Provided,  That  the  legislature  may  by  law  prescribe  a  different  mode  of  returning, 
examining,  and  ascertaining  the  election  of  the  representatives  in  such. 

(Constitution  of  Maine,  article  4,  section  5,  October  29, 1819.) 
Spear  vs.  Robinson,  29  Maine,  531,  (decided  in  1849,)  is  to  the  same 
effect.    At  a  town  meeting  in  the  town  of  Warren  it  was — 

Voted  to  choose  a  fish  committee;  voted  to  choose  three  for  said  committee;  chose 
Robert  Spear  2d,  John  G.  Hoffses,  and  Waldo  Brackett ;  voted  that  two  more  be  added 
to  the  fish  committee;  Larkin  Bogs  and  Joseph  Vaughan  were  chosen.  It  being 
ascertained  that  John  G.  Hoffses  was  not  a  freeholder,  Robert  Mclntyre  was  chosen 
one  of  the  fish  committee  in  his  stead.  (Page  532.) 

The  court  held  (page  541)  that — 

The  case  shows  that  the  town  voted  to  choose  five  as  their  fish  committee,  and 
they  made  choice  of  five  persons ;  but  it  appearing  that  one  of  those  elected  was  not  a 
freeholder,  another  was  chosen  in  his  stead,  and  that  the  plaintiffs  are  those  who 
were  freeholders,  and  have  acted  as  that  committee. 

The  choice}  of  the  man  who  was  not  a  freeholder  was  a  nullity,  and  the  one  last 
elected  was  chosen  in  conformity  with  the  provisions  of  the  act. 

The  opinion  of  the  judges,  published  in  the  appendix  to  38  Maine, 
597,  given  in  1855,  in  answer  to  questions  submitted  by  the  governor, 
does  not  bear  upon  the  question  under  discussion. 

The  last  governor  and  council  had  issued  a  commission  to  Abel  C. 
Dinslow  as  county  commissioner  of  Sagadahoc  county.  It  subsequently 
appeared  that  there  was  no  such  man  as  Abel  C.  Dinslow,  but  there 
was  one  whose  name  was  "Abel  E.  Dinslow,"  and  for  whom  there  was 
good  reason  to  suppose  the  voters  intended  to  throw  their  votes,  instead 
of  Abel  C.  Dinslow. 

Upon  this  state  of  facts  the  succeeding  governor  submitted  four 
questions  to  the  judges,  viz:  First.  Whether  the  governor  and  coun 
cil  could  revise  the  doings  of  the  last  governor  and  council  so  as  to 
receive  proof  of  the  eligibility  to  said  office  of  such  a  man  as  Abel  0. 
Dinslow?  Secondly.  If  they  found  there  was  no  such  man  as  Abel 
C.  Dinslow,  but  that  the  voters  intended  their  votes  for  Abel  E.  Dins- 
low,  it  was  competent  to  issue  a  new  commission  to  him?  Thirdly.  If 
not,  could  they  throw  out  the  votes  for  Abel  C.  Diuslow,  and  issue  a  new 
commission  to  "such  person  who  is  eligible  to  said  office  as  hall  appear 
to  have  the  highest  number  of  votes!"  And,  fourthly.  If  not,  was  there 
a  vacancy  in  the  office  which  the  governor  might  fill  ? 

The  judges  reported,  in  reply,  that  the  new  governor  and  council 
could  not  review  the  proceedings  of  their  predecessors;  that  they  were 
not  authorized  by  the  act  to  receive  any  other  evidence  of  the  number 
of  votes  or  names  of  the  persons  voted  for  than  what  is  contained  in  the 
copies  of  the  records  of  votes  given  in  the  cities,  towns,  and  plantations 
of  the  county.  They  "  therefore  answered  the  first,  second,  and  third 
questions  in  the  negative,  and  the  fourth  in  the  affirmative." 

Indeed,  it  is  not  possible  that  Spear  vs.  Robinson,  and  the  opinion  re 
ported  in  38  Maine,  could  have  any  effect  adverse  to  our  views,  for  the 
reason  that  the  principle  of  public  law  enunciated  by  the  judges  in  1831, 
as  reported  in  7  Greeuleaf,  was  adopted  by  the  legislative  department, 
and  is  now  the  law  of  that  State,  as  shown  by  the  Revised  Statutes  of 
Maine  of  1840,  page  05.  section  27,  and  the  Revised  Statutes  of  1871, 
page  98,  section  32,  in  the  following  words : 

And  in  all  returns  of  elections  the  whole  number  of  ballots  given  in  shall  be  dis> 
tinctly  stated  ;  but  blank  pieces  of  paper,  and  votes  for  persons  not  eligible  to  office,  shall  not 
be  counted  as  ballots. 

The  same  rule  prevails  in  the  commonwealth  of  Massachusetts. 


796  ELECTORAL   COUNT   OF   1877. 

By  resolves  approved  May  18, 1852,  Luther  S.  Cashing,  C.  W.  Storey, 
and  Lewis  Josselyu  were  "appointed  commissioners  to  prepare  and 
publish  a  new  edition  of  the  lieports  of  Contested  Elections,  prepared 
and  published  by  said  dishing  in  pursuance  of  an  order  of  the  house 
of  representatives  of  March  1, 1831.  including  therein  reports  of  all  cases 
which  have  occurred  since  the  time  of  said  publication.-7 

From  this  work,  a  volume  of  757  pages,  we  find,  on  page  576,  that,  in 
1849,  it  was  decided,  on  a  petition  against  the  election  of  the  member 
returned  from  the  town  of  Somerset,  that  a  a  vote  for  a  candidate  who 
is  constitutionally  ineligible  is  not  to  be  counted.'7  The  committee  to 
whom  the  subject  was  referred  made  an  elaborate  report,  which  was 
agreed  to  April  10,  1849.  They  state  (p.  578)  that  they— 

Believe  the  question  to  have  been  settled  by  the  'decision  of  the  house  in  the  case 
of  the  town  of  Whately,  (reported  on  page  439  of  the  same  volume,)  in  1843,  but  as 
that  decision  is  perhaps  of  doubtful  authority,  having  been  made  at  a  time  of  much 
party  excitement,  and  as  it  seems  desirable  that  a  question  so  important  should  be 
finally  settled,  they  venture  to  suggest  a  few  reasons  in  favor  t)f  rejecting  votes  given 
for  ineligible  candidates  at  elections  for  representatives. 

In  the  first  place,  it  is  to  be  presumed  that  such  votes  are  cast  by  mistake,  as,  when 
ever  the  names  of  the  persons  giving  such  votes  have  been  ascertained,  it  has  gen 
erally  been  found  that  their  votes  had  been  cast  inadvertently. 

Again,  the  policy  of  the  law  requires  that  such  a  construction  should  be  put  upon 
all  proceedings  at  elections  as  to  make  such  proceedings  valid  rather  than  nugatory. 
An  election  is  always  attended  with  trouble,  inconvenience,  and  expense,  and  should 
not  be  set  aside  for  light  or  frivolous  causes.  If  votes  cast  by  mistake  for  persons 
not  eligible  are  to  be  counted,  then  the  intention  and  will  of  the" voter  is  defeated;  if, 
on  the  other  hand,  such  votes  are  wilfully  put  into  the  ballot-box,  the  person  who 
thus  votes  indicates  so  clearly  his  disregard  of  the  value  of  the  elective  franchise  that 
it  is  only  a  deserved  punishment  for  his  delinquency  to  deprive  his  vote  of  all  weight 
and  influence  at  such  election.  By  so  doing  a  voter  is  not  deprived  of  any  legitimate 
exercise  of  his  right,  because  he  can  always  manifest  his  opposition  to  any  one  candi 
date  by  voting  for  some  other. 

Finally,  it  seems  to  the  committee  thafc  there  is  no  reason  why  a  person  who  votes 
for  an  ineligible  candidate  should  not  be  put  upon  the  same  footing  with  one  who 
does  not  vote  at  all,  as  in  both  cases  the  parties  show  a  disposition  to  prevent  an  elec 
tion,  and  both  of  them  show  an  unwillingness  to  perform  their  duty  by  aiding  to 
promote  those  elections  which  are  absolutely  essential  to  the  existence'of  the  govern 
ment.  For  if  every  voter  refrained  wholly  from  voting,  or  voted  for  an  ineligible 
candidate,  the  result  would  be  the  same — no  choice;  and,  although  it  is  true  that  no 
penalty  is  attached  by  law  to  a  neglect  of  this  obligation  of  voting,  yet  the  obligation 
is  not  the  less  plain  for  that,  and  the  committee  believe  it  to  be  a  duty  too  important 
to  be  neglected  and  too  sacred  to  be  trilled  with  by  voting  for  fictitious  persons  or  in- 
eligil  le  candidates.  It  may  be  urged  that,  since  the  Revised  Statutes  provide  that 
blank  pieces  of  paper  shall  not  be  counted  as  votes,  the  absence  of  any  provision  to 
reject  votes  for  ineligible  candidates  is  a  strong  argument  that  the  legislature  did  not 
intend  that  they  should  be  so  rejected.  The  committee,  however,  believe  that  it  was 
not  jit  that  time  contemplated  that  any  provision  could  be  necessary,  it  being  sup 
posed  that  the  practice  of  rejecting  such  votes  by  the  legislature  was  so  uniform  as  to 
have  taken  the  place  of  law ;  otherwise,  it  is  difficult  to  see  why  the  same  section 
was  not  made  to  comprehend  both  cases. 

The  voter  who  puts  into  the  ballot-box  a  blank  piece  of  paper  as  clearly  indicates 
his  opposition  to  all  the  candidates  as  he  who  puts  in  a  vote  for  an  ineligible  candi 
date,  and  there  seems  to  be  no  reason  why  the  opinion  of  one  should  not  be  entitled 
to  consideration  as  well  as  that  of  the  other. 

New  York,  by  the  unanimous  judgment  of  her  court  of  appeals,  has 
approved  the  same  rule  in  the  case  of  People  on  the  relation  of  Furinan 
vs.  Clute,  50  N.  Y.,  451,  in  an  elaborate  opinion,  of  which  this  is  the 
summary : 

A  minority  of  the  whole  body  of  qualified  electors  may  elect  to  an  office  where  the 
majority  decline  to  vote,  or  where  they  may  vote  for  one  who  is  ineligible  to  the  office, 
knowing  of  tin-  disqualification.  Notice  of  the  disqualifying  fact  and  of  its  legal  effect 
may  be  given  f-o  directly  to  the  voter  as  to  charge  hi  ID  with  actual  knowledge  of  the 
disqualification,  or  the  disqualifying  fact  may  be  so  patent  or  notorious  as  that  his 
knowledge  of  the  iueligibility  may  be  presumed  as  matter  of  law  ;  but  not  only  the  fact 


ELECTORAL    COUNT    OF    1877.  197 

which  disqualifies,  but  also  the  rule  or  enactment  of  law  which  makes  it  thus  effectual, 
must  be  brought  home  so  clearly  to  the  knowledge  or  notice  of  the  elector  as  that  to 
give  his  vote  therewith  indicates  his  intent  to  waste  it,  in  order  to  render  his  vote  a 
nullity.  Where  a  majority  of  the  electors,  through  ignorance  of  the  law  or  the  fact, 
voted  for  one  ineligible  to  the  office,  the  votes  are  not  nullities;  but  while  they  fail  to 
elect,  the  office  cannot  be  given  to  the  qualified  person  having  the  next  highest  num 
ber  of  votes.  The  election  is  a  failure,  and  a  new  election  must  be  had. 

Three  times  has  Indiana  spoken  in  emphatic  approbation  of  the  doc 
trine  for  which  we  contend :  Gulick  vs.  New,  14  Ind,  93,  decided  in  1860  ; 
Carson  vs.  McPhetridge,  15  Ind.,  327;  Price  vs.  Baker,  governor,  41  Incl., 
572,  decided  in  1873. 

In  Gulick  vs.  New,  the  principle  decided  is  summarized  by  the  reporter 
in  these  words : 

The  governor  may  determine,  even  against  the  decision  of  a  board  of  canvassers, 
whether  an  applicant  is  entitled  to  receive  a  commission  or  not,  where  the  objection 
to  his  right  to  receive  it  rests  upon  the  ground  that  tho  constitutional  prohibition  is 
interposed.  If  the  governor  should  ascertain  that  he  has  commissioned  a  person  who  is 
ineligible  to  the  office,  he  may  issue  another  commission  to  the  person  legally  entitled 
thereto.  Where  a  majority  of  the  ballots  at  an  election  were  for  a  person  not  eligible 
to  the  office  under  the  constitution,  it  was  held  that  the  ballots  cast  for  such  ineligible 
person  were  ineffectual,  and  that  the  person  receiving  the  greatest  number  of  legal 
votes,  though  not  a  majority  of  the  ballots,  was  duly  elected  and  entitled  to  the  office. 
The  mayor  of  a  city,  under  the  general  law,  has  jurisdiction  as  a  judicial  officer  through 
out  the  county,  and  the  voters  of  the  county  are  therefore  chargeable  with  notice  of 
his  ineligibility  under  the  constitution  to  any  office  other  than  a  judicial  one  during 
the  term  for  which  he  was  elected. 

Of  Price  vs.  Governor  Baker,  the  syllabus  is  as  follows : 

Where  a  majority  of  the  ballots  at  an  election  are  given  to  a  candidate  who  is  not 
eligible  to  tho  office,  the  ballots  so  cast  are  not  to  be  counted  for  any  purpose.  They 
cannot  elect  the  ineligible  candidate  or  defeat  the  election  of  the  opposing  candidate 
by  showing  that  he  did  not  receive  a  majority  of  the  votes  cast  at  such  election.  It 
follows  that  the  eligible  candidate  will  receive  an  office,  although  less  than  a  majority 
of  the  votes  are  cast  for  him. 

The  same  principle  is  supported  by  the  cogent  reasoning  of  the  dis 
senting  opinion  of  Chief-Justice  Thompson  in  Commonwealth  vs.  duly, 
56  Penn.  St.,  277: 

But  I  confess  my  inability  to  see,  if  it  must  be  treated  as  a  preliminary  question, 
why,  if  the  constitutional  disqualification  of  the  defendant  be  established,  the  relator 
is  not  entitled  to  the  office.  .  He  had  votes  enough  to  elect  him,  if  the  votes  for  the 
defendant  be  regarded  as  thrown  away.  This  cannot  be  disputed.  It  seems  to  me 
this  proposition  cannot  be  controverted  ;  that  if  the  votes  cast  for  the  defendant  would 
not  confer  the  office  on  him,  they  do  not  possess  the  faculty  or  capacity  of  depriving 
the  plaintiff  of  his  election,  having,  as  already  said,  enough  votes  to  elect  him.  The 
majority  of  votes  operates  only  in  one  direction,  namely,  to  elect,  and,  by  electing, 
defeat  any  competitor  ;  but  without  electing,  I  deny  that  the  effect  is  to  elect  a  com 
peting  candidate.  The  thing  is  not  possible.  If  it  were,  a  majority  of  votes  for  a  fic 
titious  candidate,  or  one  notoriously  ineligible,  would  defeat  an  eligible  candidate. 
The  elective  franchise  cannot  operate  in  such  a  way.  If  people  do  not  vote,  generally 
they  consent  that  those  that  do  may  elect.  This  is  the  rule  in  all  popular  elections. 
If,  therefore,  people  do  not  vote  for  candidates  who  can  by  law  exercise  the  offices 
voted  for,  it  sieems  to  me  to  follow  that  they  tacitly  consent  that  those  who  do  vote  for 
such  as  are  eligible  shall  elect  on  equivalent  principles.  If  such  an  excuse  were  good 
for  anything,  it  ought  to  be  good  to  render  effective  the  votes  for  the  ineligible  candi 
date,  and  thus  give  him  the  office  in  spite  of  the  existing  disqualification." 

An  analogous  proposition  was  adopted  and  acted  upon  in  Common- 
wealth  vs.  Read,  2  Ashmead,  264;  where  the  defendant  [Read]  was  held 
to  have  been  elected  treasurer  by  the  county  board,  having  received  but 
one  legal  vote  out  of  twenty  cast.  The  other  nineteen  were  decided  to 
have  been  void  and  ineffectual,  because  they  were  cast  viva  voce,  and  the 
single  vote  by  ballot  to  have  controlled  the  election,  that  being  the  mode 
prescribed  by  law. 

The  view  we  present  has  the  support  of  the  best  text-writers  in 
England  and  America. 


798  ELECTORAL    COUNT    OF    1877. 

Judge  Luther  S.  Gushing,  in  his  standard  work  upon  the  law  and 
practice  of  legislative  assemblies,  states  the  rule  thus: 

SEC.  177.  In  England,  where  a  plurality  only  is  necessary  to  an  election,  and  where 
the  votes  are  given  orally,  it  is  also  held  that  if  the  electors  have  notice  of  the  dis 
qualification  of  a  candidate,  every  vote  given  for  him  afterward  will  be  thrown  away 
and  considered  as  not  having  been  given  at  all.  The  effect  of  this  rule  is  that  not  only- 
will  the  election  of  a  disqualified  person  be  held  void  ;  but  if  such  election  takes  place 
after  notice  of  the  disqualification  is  given  to  the  electors,  the  candidate  having  the 
highest  number  of  votes  will  be  elected.  This  doctrine,  however  hard  it  may  seem,  is 
founded  in  the  familiar  principle  that  every  man  is  bound  to  know  the  law  with  refer 
ence  to  any  act  which  he  undertakes  to  do,  and  consequently  that  when  an  elector  is 
apprised  of  the  fact  of  disqualification  of  a  candidate,  and  notwithstanding  gives  his 
vote  for  him,  the  elector  takes  upon  himself  the  risk  of  losing  his  vote  if  his  construc 
tion  of  the  law  turns  out  to  be  wrong. 

SEC.  178.  In  this  country  it  is  equally  true  that  an  election  of  a  disqualified  person 
is  absolutely  void,  and  in  those  States  where  a  plurality  elects  and  where  the  votes  are 
given  orally,  as  in  England,  votes  given  for  a  candidate  after  notice  of  his  disqualifica 
tion  are  thrown  away,  and  the  candidate  having  the  next  highest  number  of  votes  is 
elected. 

SEC.  179.  In  reference  to  elections  by  ballot,  in  which  secrecy  is  the  distinguish 
ing  feature,  and  in  which,  consequently,  neither  the  returning  officers  nor  the  elect 
ors  themselves  are  supposed  to  know  for  whom  the  votes  ate  given  until  the  re 
sult  is  declared,  it  seems  not  unreasonable  to  consider  the  votes  for  ineligible  candi 
dates  to  be  thrown  away  in  all  cases,  and  the  opposing  candidate  elected  where  the 
electors  know,  or  must  be  presumed  to  know,  the  disability,  and  in  all  cases  where 
there  is  no  such  actual  or  presumed  knowledge  to  hold  the  whole  proceeding  merely 
void. 

And  we  are  supported  by  an  unbroken  array  of  the  expositions  of  the 
law  made  in  our  mother  country,  as  we  shall  presently  show,  as  well  as 
the  approval  of  her  best  text-books. 

Mr.  Grant,  in  his  work  on  corporations,  at  page  208,  says : 

A  disqualification  patent  or  notorious,  at  once  causes  the  votes  given  for  the  candi 
date  laboring  under  it  to  be  thrown  away  ;  the  same  would  probably  be  held  to  be  the 
case  where  the  electors  had  the  means  of  knowledge  of  the  candidate's  qualification, 
or  the  contrary,  and  might  have  ascertained  the  facts  if  they  had. pleased. 

These  judgments  also  find  a  large  measure  of  support  in  the  legisla 
tive  practice  of  the  country,  as  may  be  learned  by  examination  of  the 
speech  of  Senator  Carpenter,  of  Wisconsin,  at  the  second  session  of  the 
Forty-second  Congress,  in  the  case  of  the  disputed  senatorial  election 
in  North  Carolina.  See  Congressional  Globe,  part  3,  March  19  to  April 
23,  1872,  appendix. 

What  can  be  produced  to  the  contrary  ? 

Pennsylvania  is  vouched  in  aid,  but  presents  herself  with  the  broken 
voice  of  a  divided  court,  speaking  however  only  obiter,  and  conceding 
that  a  vote  given  with  knowledge  for  an  ineligible  candidate  cannot  be 
counted.  Commonwealth  vs.  duly,  ut  supra. 

California  is  cited  in  aid  of  the  proposed  rule  that  a  plurality  may, 
by  voting  for  an  ineligible  candidate,  defeat  the  constitutional  mandate 
to  elect. 

People  ex  rel.  Malony  vs.  Whitman,  10  Cal.,  38. 

Saunders  vs.  Haynes,  13  Cal.,  145. 

In  Malony  vs.  Whitman  the  question  did  not  require  or  receive  de 
cision.  The  majority  of  the  court  held  that  Maudeville,  the  officer  whose 
qualification  was  in  dispute,  was  not  ineligible.  The  dissenting  opinion 
of  Mr.  Justice  Field  abstained  from  discussion  of  the  question  now  under 
debate.  He  says :  "As  we  hold  that  Maudeville  was  eligible,  we  refrain 
from  the  expression  of  any  opinion  whether,  if  he  were  ineligible,  the 
votes  given  for  him  should  be  thrown  out  as  so  many  blanks,  and  Whit 
man  declared  elected,  as  contended  by  counsel.  Much  argument  may 
be  had  against  the  propriety  of  a  rule  which  would,  in  a  popular  gov 
ernment,  give  an  office  to  a  person  who  was  clearly  not  the  choice  of 


ELECTORAL    COUNT    OF    1877.  799 

the  people,  as  shown  by  the  election."  (See  State  of  Wisconsin  vs. 
Giles,  1  Chandler,  117;  opinion  of  the  judges  of  the  supreme  court  of 
Maine  in  answer  to  the  questions  propounded  by  the  governor,  38 
Maine,  597.) 

In  Saunders  vs.  Haynes,  the  opinion  was  pronounced  by  Baldwin,  J., 
who,  as  counsel,  had  argued  the  case  of  Maloriy  vs.  Whitman  on  the 
same  side,  Terry,  0.  J.,  concurring.  It,  however,  assumes  that  the 
"  majority  of  those  voting,  by  mistake  of  laic  or  fact,  happen  to  cast  their 
votes  upon  an  ineligible  candidate,"7  and  thus  justifies  the  conclusion  that 
an  opposite  rule  would  have  been  applied,  if  the  result  had  not  been 
produced  u  by  mistake  of  latv  or  fact" 

The  decision  in  State  of  Wisconsin  vs.  Giles,  1  Chandler,  112,  is  mere 
gratis  dictum.  The  court  held  the  majority  candidate  qualified,  but 
added  (p.  117): 

Such  being  the  opinion  of  the  court,  it  is  unnecessary  to  pass  upon  the  second  question — 
whether  in  the  event  of  the  person  receiving  the  highest  number  of  votes  being  ineligible,  the 
person  receiving  the  next  highest  number  is  elected.  But  as  the  question  was  fully  argued, 
and  as  it  is  one  that  may  arise  again,  it  is  proper  to  say,  that  we  are  all  of  the  opin 
ion  that  the  mere  iueligibility  of  a  candidate  does  not,  as  the  law  now  is,  render  void 
the  votes  cast  for  him  ;  that  such  votes  should  not  be  rejected,  but  should  be  counted 
by  the  canvassers,  and  in  the  event  of  such  ineligible  person  having  the  highest  num 
ber  of  voles,  the  person  having  the  next  highest  number  is  not  thereby  elected.  If 
any  public  embarrassment  is  apprehended  from  this,  such  as  that  an  office  may  remain 
indefinitely  vacant,  by  reason  of  a  majority  of  the  electors  obstinately  persisting  in  vot 
ing  for  an  ineligible  person,  it  is  within  the  undoubted  power  of  the  legislature  to  pre 
vent  it,  by  enacting  that  all  such  votes  shall  be  deemed  void,  and  not  to  be  counted. 

This  decision  was  followed  by  the  case  of  The  State  of  Wisconsin  on 
the  relation  of  Off  vs.  Smith,  14  Wise.  497,  in  which  the  gratuitous  and 
unnecessary  observations  just  quoted  were  treated,  without  re-examina 
tion,  or  any  even  the  most  superficial  consideration,  as  having  settled 
the  law  in  Wisconsin.  The  court  say,  (page  498,)  and  this  is  all  of  their 
opinion  upon  this  question  : 

The  last  question  has  been  already  settled  in  this  State  by  the  case  of  The  State  vs. 
Giles,  1  Chand.,  112.  It  was  there  held,  by  the  unanimous  judgment  of  the  court, 
that  in  the  absence  of  a  statute  declaring  it  so,  the  mere  ineligibility  of  a  candidate 
does  not  render  void  the  votes  cast  for  him ;  that  such  votes  should  not  be  rejected, 
but  should  be  counted  by  the  canvassers  ;  and  that  in  the  event  of  such  ineligible  per 
son  having  the  highest  number  of  votes,  the  person  having  the  next  highest  number 
would  not  be  thereby  elected. 

Georgia  is  supposed  to  have  pronounced  against  our  proposition, 
State  ex  rel.  Hardwick  vs.  Swearingen,  12  Geo.,^23.  In  this  case,  also, 
the  remarks  of  the  court  upon  the  matter  now  under  debate  are  purely 
obiter  dicta,  for  the  majority  candidate  was  found  to  have  been  free 
from  disqualification.  The  objection  to  him  was  that  he  was  not  a  cor 
porator  and  resident  within  the  city  of  Oglethorpe,  as  clerk  and  treas 
urer,  of  which  he  claimed  to  have  been  elected.  But  the  court,  (Lump- 
kin,  J.,)  pronouncing  the  opinion,  held  that  the  objection  was  not  well 
taken,  in  that — 

No  such  restriction  was  imposed  upon  the  voters  of  the  young  and  rapidly  growing 
town  in  their  selection  of  a  suitable  person  to  rill  the  offices  of  clerk  and  treasurer. 
They  are  at  liberty  to  select  from  Macon,  Columbus,  or  any  other  part  of  the  State, 
the  person  in  their  judgment  best  qualified  to  discharge  these  functions. 

And  thus  having  decided  and  disposed  of  the  case,  added : 

Under  no  circumstances  could  we  permit  the  informant  to  be  installed  into  these  ap 
pointments,  he  not  having  received  a  majority  of  the  legal  votes  of  the  city.  Under 
such  circumstances,  if  the  incumbent  be  removed,  a  new  eletiou  will  be  ordered. 

Which  addition  is  about  as  valuable,  without  being  as  true,  as  this, 


800  ELECTORAL    COUNT    OF    1877. 

with  which  Judge  Lumpkin's  wisdom  follows  and  concludes  the  opion- 
ion,  viz : 

These  municipal  corporations  are  the  germs  and  miniature  models  of  free  govern 
ment ;  and  their  internal  police  and  administration  should  not  be  interfered  with  for 
slight  causes  ;  not  unless  some  great  right  has  been  withheld  or  wrong  perpetrated. 

Missouri  is  claimed  to  have  dissented  from  our  proposition. 

State  exrel.  Kempf  vs.  Boal,  46  Mo.,  5U8. 

State  ex  rel.  Attorney-General  vs.  Vail,  53  Mo.,  97. 

But  the  lirst  of  these  cases  sustains  the  principle  for  which  we  con 
tend.  Both  relator  and  defendant  were  disqualified,  and  therefore  judg 
ment  could  not  be  rendered  in  the  relator's  favor,  but  the  court  say  in 
addition : 

As  regards  the  votes  cast  for  the  defendant,  they  were  nugatory.  It  was  as  though 
no  such  votes  had  been  cast  at  the  election.  The  constitution  distinctly  prohibited 
their  being  cast  up  or  treated  as  votes  at  all,  as  it  also  prohibited  the  issuing  a  certifi 
cate  of  election  because  of  them.  The  evident  intention  of  the  constitution  is  that  the 
party  receiving  the  majority  of  the  available  votes  should  have  the  certificate  of  elec 
tion  ;  that  is,  the  majority  of  votes  that  "  it  was  permissible  for  the  canvassers  to  cast 
up." 

The  provisions  of  the  constitution  of  Missouri,  here  referred  to,  are 
the  following,  (article  2:) 

SEC.  7.  "Within  sixty  days  after  this  constitution  takes  effect,  every  person  in  this 
State  holding-  any  office  of  honor,  trust,  or  profit,  under  the  constitution  or  laws 
thereof,  or  under  any  municipal  corporation,  or  any  of  the  other  offices,  positions, 
or  trusts  mentioned  in  the  third  section  of  this  article,  shall  take  and  subscribe  the 
said  oath.  If  any  officer  or  person  referred  to  in  this  section  shall  fail  to  comply  with 
the  requirements  thereof,  his  office,  position,  or  trust  shall  ipso  facto  become  vacant, 
and  the  vacancy  shall  be  filled  according  to  the  law  governing  the  case. 

SEC.  8.  No  vote,  in  any  election  by  the  people,  shall  be  cast  up  for,  nor  shall  any 
certificate  of  election  be  granted  to,  any  person  who  shall  not,  within  fifteen  days  next 
preceding  said  election,  have  taken,  subscribed,  and  tiled  said  oath. 

State  vs.  Tail  does  not  withdraw  this  affirmation  of  the  view  for 
which  we  contend,  although  it  does  limit  it  to  disqualifications  other 
than  those  personal  and  latent.  The  syllabus  No.  6  is  this: 

The  candidate  who  at  an  election  receives  the  greatest  number  of  votes,  except  the 
successful  candidate,  is  not  entitled  to  the  office  when  the  successful  candidate  is  in 
eligible,  owing  to  personal  disqualifications  and  such  as  were  not  patent  to  the  coters. 

In  the  course  of  the  very  elaborate  opinion  of  Judge  Napton,  he  com 
ments  upon  and  distinguishes  the  case  of  Gulick  vs.  New,  without  dis 
approving  it,  in  these  words: 

But  in  the  case  in  Indiana,  it  is  conceded  that  where  the  candidate  receiving  the 
highest  number  of  votes  is  ineligible  by  reason  of  a  cause  which  the  voters  were  not 
bound  to  know,  such  as  non-age,  want  of  naturalization,  &.C.,  the  result  is  a  failure  to 
elect.  (P.  1J5.) 

And  afterward  added,  (p.  116:) 

To  declare  a  candidate  elected,  who  has  received  but  few  votes,  on  the  ground  that 
his  competitor  who  received,  perhaps,  twice  as  many,  was  disqualified,  would  not 
accomplish  the  will  of  the  electors.  The  object  of  an  election  is  to  ascertain  the 
choice  of  the  majority.  [Query,  plurality?]  If  a  disqualified  candidate  receives  a 
thousand  votes  and  his  competitor  only  a  hundred,  to  pronounce  the  latter  elected  is 
not  in  accordance  with  any  ascertained  will  of  the  electors,  unless  it  may  be  inferred 
that  the  votes  for  the  disqualified  candidate  were  cast  with  a  knowledge  of  his  inabil 
ity  to  take  the  office — an  inference  which  could  not  be  drawn  where  the  disqualifications 
are  such  as  are  enumerated  in  the  pleadings  in  this  case.  [Not  a  citizen  for  five  years,  nor 
a  qualified  voter,  non-age,  and  disloyalty.]  It  is  unnecessary  to  determine  whether  it 
would  l)e  the  rule,  in  any  case  of  disqualifications,  whether  patent  or  latent. 

The  case  of  Pearce  vs.  Hawkins,  2  Swan,  87,  sometimes  cited  in  argu 
ment  against  the  view  we  present,  really  sustains  it.  Two  sentences  in 
the  opinion  of  the  court  contain  all  that  is  said  upon  the  subject: 

But  as  he  was  a  resident  in  the  tenth  civil  district  when  elected  constable  for  the 


ELECTORAL    COUNT    OF    1877  801 

eleventh,  he  was  ineligible  to  the  office,  and  his  appointment  was  void.  And  in  an, 
action  against  him  for  an  alleged  trespass,  he  cannot  defend  and  justify  the  act  as 
being  done  in  virtue  of  his  office,  when  it  is  made  to  appear  that  he  has  no  title  thereto, 
and  that  his  asumed  appointment  was  illegal  and  void. 

The  case  of  The  People  on  the  relation  of  L.  O.  Crawford  vs.  Moliter, 
23  Mich.,  341,  was  disposed  of  by  an  admission  in  pleading.  It  was  a 
quo  warranto  to  inquire  into  respondent's  title  to  the  office  of  supervisor. 
His  plea  set  up  that  one  hundred  and  fifty  votes  were  cast  at  the  election, 
of  which  relator,  Leonard  Crawford,  had  two  votes,  respondent  sixty- 
nine  votes,  and  that  seventy -two  ballots  contained  the  name,  "  L.  C. 
Crawford,77  whereby  the  relator  claimed  to  be  duly  elected.  The  court 
say  they  can — 

Consider  any  admissions  in  the  plea  as  binding  on  the  respondent,  and  as  showing 
all  he  can  aver  in  his  own  behalf;  and  this  plea  is  an  admission  that  respondent  has 
no  title,  because  it  shows,  affirmatively,  that  he  did  not  receive  the  greatest  number 
of  votes  cast.  The  statute  in  relation  to  town  elections  is  substantially  like  those 
governing  other  elections.  It  provides  that  "the  persons  having  received  the  great 
est  number  of  votes  given  for  any  office  at  such  election  shall  be  deemed  and  declared 
duly  elected."  It  does  not,  under  any  circumstances,  allow  a  minority  candidate  to  be 
deemed  elected — whether  the  person  for  whom  the  majority  appear  to  have  voted  can 
or  cannot  be  installed.  The  majority  here  are  alleged  by  the  plea  to  have  voted  for  some 
one  whom  they  designated  as  "  L.  C.  Crawford."  Whether  there  is  in  fact  a  person  of 
that  name  or  not  does  not  change  the  state  of  the  canvass,  nor  make  69  a  larger  number 
than  72. 

Fish  vs.  Collins,  21  La.  Ann.,  289,  may  be  claimed  to  be,  but  is  not, 
against  us.  All  things  considered,  the  modesty  with  which  it  refrains 
rom  deciding  this  question  is  remarkable.  Ludeling,  C.  J.,  says: 

The  plaintiif  does  not  allege  that  he  received  a  larger  number  of  votes  cast  at  the 
election  than  either  of  his  competitors  ;  but,  on  the  contrary,  he  admits  that  the  defendant 
received  a  greater  number  of  votes  than  he  did.  *  *  It  is  unnecessary  in  this  case  to 
express  any  opinion  as  to  whether  the  votes  cast  for  a  person  ivlio  is  notoriously  known  to  be 
ineligible  should  be  rejected  or  not,  as  no  such  allegations  are  made  in  the  petition. 

In  State  ex  rel.  Staes  vs.  Gastinel,  18  La.  Ann.,  517 ;  S.  C.  20  La.,  114, 
it  was  shown  that  Gastinel  was  not  of  sufficient  age  (thirty  years)  to  be 
eligible  to  the  office  of  recorder  and  justice  of  the  peace,  and  he  was 
accordingly  ousted.  The  court  said: 

We  cannot  adopt  the  theory  of  the  relator,  that  the  ousting  of  the  defendant  by 
means  of  this  proceeding  inures  to  his  benefit.  What  might  have  been  his  rights  had  he 
contested  the  election  of  defendant  in  accordance  with  law,  we  are  not  called  on  to  say  ;  but 
we  are  of  the  opinion  that,  having,  as  a  candidate,  acquiesced  in  the  result  of  that 
election,  we  must  in  these  proceedings  consider  him  only  as  a  citizen  before  us,  seek 
ing  to  have  the  law  enforced  against  the  recorder  de  facto;  and,  under  the  provisions 
of  the  C.  P.  arid  the  loth  section  of  the  city  charter,  notify  the  corporation  of  the  neces 
sity  of  a  new  appointment.  The  law  does  not  authorize  us  to  declare  the  relator,  under 
the  circumstances,  to  be  the  choice  of  the  people.  Upon  his  own  showing,  he  did  not 
receive  a  majority  of  the  votes  cast,  and  but  for  some  action,  on  the  part  of  some  one 
authorized,  the  present  incumbent  would  have  continued  in  the  performance  of  the 
duties  of  the  office,  as  the  duly-elected  recorder  of  the  second  district  of  New  Orleans. 

In  Sublett  vs.  Bidwell,  47  Miss.,  273,  where  the  candidate  was  dis 
qualified  by  having  been  a  registrar  of  voters  at  the  registration  pre 
liminary  to  the  very  election,  it  was  held  that — 

It  cannot  be  said  that  the  candidate  has  been  elected  unless  he  has  received  a 
majority  of  the  legal  votes  cast;  he  is  not  the  choice  of  the  people.  If  the  majority 
make  choice  of  candidate  under  some  personal  disability,  disqualifying  him- from  taking 
and  enjoying  the  office,  the  utmost  that  can  be  said  of  it  is,  that  there  has  been  no 
election.  The  election,  by  a  majority  or  plurality  of  votes,  (as  the  law  may  be,)  is  the 
foundation  of  the  "  right"  to  the  office.  The  certificate  or  the  commission  is  only  evi 
dence  of  that  fact. 

If  the  majority  candidate  is  disqualified,  it  does  not  follow  that  he  who  has  received 
the  next  highest  vote  and  is  qualified  shall  take  the  office.  *  *  *  The  general  prin 
ciple  pervading  our  election  system  is  that  the  highest  vote  entitles  to  the  office,  if  its 
•recipient  can  take.  There  is  by  implication  a  negation  of  the  office  to  the  minority 
candidate  in  all  cases,  except  those  covered  by  the  last  section  of  the  schedule  to  the 
51  E  C 


802  ELECTORAL    COUNT    OF    1877. 

constitution  (sec.  15.)  *  *  *  The  section  is  as  follows  :  "  If  any  candidate  receiv 
ing  the  highest  number  of  votes  cannot  take  the  oath  of  office  prescribed  in  this  con 
stitution,  then  the  candidate  receiving  the  next  highest  vote  shall  be  entitled  to  enter 
the  office."  *  The  constitution  does  establish  the  rule  that  votes  cast  for  a 

person  thus  disqualified  are  void  and  of  no  eifect,  unless  the  disfranchisement  has  been 
removed.  The  practical  interpretation  put  upon  the  section  has  been  that  it  is  a  per 
sonal  disability  to  "hold  office,"  and  if  that  be  removed  before  the  term  begins,  the 
election  is  made  good,  and  the  person  may  take  the  office.  *  *  *  Without  going 
into  the  general  reasoning,  the  great  weight  of  American  authority,  and,  as  we  think, 
upon  the  soundest  consideration,  is,  that  although  the  majority  vote  for  a  disqualified 
person,  the  votes  so  cast  are  not  illegal,  and  therefore  to  be  treated  as  naught;  but 
the  result  is,  if  the  ineligible  candidate  cannot  take  the  office,  the  electors  have  failed  to 
make  a  choice.  In  truth,  there  has  been  no  election  at  all,  and  the  minority  candidate  has 
no  right  to  the  office. 

The  cases  cited  are  State  of  Georgia  vs.  Swearingen ;  State  ex  rel.  Off 
vs.  Smith;  State  vs.  Giles;  Saunders  vs.  Haynes ;  2,'i  Louisiana,  314, 
and  the  opinion  of  the  supreme  court  of  Maine  in  38  Maine,  597. 

And  again,  (p.  277  :) 

The  votes  are  ineffective  to  confer  the  office,  not  because  of  any  legal  infirmity  in  the 
electors,  but  because  the  individual  has  not  himself  the  capacity  for  the  office.  In  such 
cases  as  already  observed,  upon  the  fact  being  ascertained,  there  has  been  a  failure  to 
fill  the  office,  and  it  is  vacant  dejure. 

Ehode  Island  is  the  last  State  which  can  be  cited  against  us.  We  re 
fer  to  the  case,  in  the  matter  of  George  H.  Corliss,  ut  supra.  To  the 
fourth  question,  the  judges  of  the  supreme  court  of  Ehode  Island  made 
answer : 

"We  think  the  disqualification  does  not  result  in  the  election  of  the  candidate  next  iu 
vote,  but  in  a  failure  to  elect. 

In  England  it  has  been  held  that  where  electors  vote  for  an  ineligible  candidate, 
knowing  his  disqualification,  their  votes  are  not  to  be  counted  any  more  than  if  they 
were  thiown  for  a  dead  man  or  the  man  in  the  moon  ;  and  that  in  such  a  case  the  op*- 
posing  candidate  being  qualified,  will  be  elected,  although  he  has  had  a  minority  of 
the  votes.  (King  vs.  Hawkins,  10  East.,  210 ;  Reg.  vs.  Coaks,  3  Ell.  &  Bl.,  253.)  But 
even  in  England,  if  the  disqualification  is  unknown,  the  minority  candidate  is  not  en 
titled  to  the  office,  the  election  being  a  failure.  (Queen  vs.  Hiorns,  7  Ad.  &  E.,  960  ; 
Rex  vs.  Bridge,  1  M.  &  Selw.,  76.)  And  it  has  been  held  that  to  entitle  the  minority 
candidate  to  the  office,  it  is  not  enough  that  the  electors  know  of  the  facts  which 
amount  to  a  disqualification,  unless  they  likewise  know  that  they  amount  to  it  in  point 
of  law.  (The  Queen  vs.  The  Mayor,  &c.,  Law  Eep.,  3  Q.  B.,  629'.) 

In  this  country  the  law  is  certainly  not  more  favorable  to  the  minority  candidate. 
(Staters.  Giles,!  Chandler,  Wis.,  112  ;  Staters.  Smith,  14  Wis.,  497;  Saunders  vs.  Hay  nes, 
13  Cal.,  145  ;  People  vs.  Clute,  50  N.  Y.,  451.)  The  question  sulmitted  to  us  does  not  allege 
or  imply  that  the  ekctGrs,  knowing  the  disqualification,  voted  for  the  ineligible  candidate  in 
icilljul  defiance  of  the  law  ;  and  certainly,  in  the  absence  of  proof,  it  is  not  to  be  presumed 
that  they  so  voted.  The  only  effect  of  the  disqualification,  in  our  opinion,  is  to  render 
void  the  election  of  the  candidate  who  is  disqualified,  and  to  leave  one  place  in  the  elect 
oral  college  unfilled. 

That  this  was  purely  obiter,  that  it  was  wholly  unnecessary  for  the  gov 
ernor  to  have  submitted  such  a  question  to  the  judges,  is  shown  by  the 
following  passage  from  a  letter  written  by  that  eminent  publicist,  Will 
iam  Beach  Lawrence,  to  Senator  Kernau,  published  in  the  New  York 
World,  January  27,  1877 : 

OCHRE  POINT,  NEWPORT,  E.  I.,  January  26,  1877. 

DEAR  SENATOR  KERNAN  :  When  it  became  known,  some  weeks  since,  that  one  of  the 
republican  candidates  who  had  been  voted  for  as  an  elector  was  disqualified  in  conse 
quence  of  holding  an  "  office  of  profit  or  trust,"  it  was  supposed  that  the  same  question 
might  arise  here  as  is  now  before  you  in  regard  to  the  Oregon  electoral  vote.  Having  been   , 
myself  at  the  head  of  the  Rhode  Island  democratic  electoral  ticket,  I  looked  into  the  sub 
ject  with  the  intention  of  claiming  the  place  for  the  democratic  candidate  who  might  have  i 
the  highest  number  of  votes.    The  canvass  showed,  however,  that  excluding  the  votes 
for  Mr.  Corliss,  there  had  been  no  election,  inasmuch  as  three  of  us  had  the  same  num-  ! 
ber  of  votes,  and  the  fourth  man  one  less  than  his  colleagues — a  case  for  which  express  , 
provision  is  made  by  our  State  law,  which  requires  the  place  to  be  filled  by  the  gen-  j 
eral  assembly  <l  when  the  votes  are  divided  equally  among  any  of  the  candidates,  or  | 


ELECTORAL    COUNT    OF    1877.  803 

otherwise  there  shall  not  be  an  election  of  the  number  of  electors  to  whichfthe  State 
may  be  entitled."  As  in  the  act  of  Congress  of  1845,  there  is  in  our  law  a  distinction 
between  a  failure  to  elect  and  a  vacancy  arising  from  the  electors  chosen  declining  to 
serve  or  failing  to  attend  after  the  election,  in  which  cases  the  vacancies  are  to  be  filled 
by  the  other  electors.  I  note  this,  because  in  the  Oregon  law  there  is  but  one  provision 
as  to  vacancies,  and  they  are  to  be  filled  by  the  electoral  college.  This  provision  can 
not  apply  to  cases  of  failure  to  elect,  the  term  "otherwise"  being  controlled  by  the 
context. 

I  shall  not  trouble  you  with  the  distinctions  between  original  vacancies  and  those 
occurring  after  an  office  is  filled — a  matter  so  often  discussed  in  connection  with  the 
respective  powers  of  the  President  and  Senate  in  relation  to  nominations — but  I  merely 
allude  to  the  fact  that  the  electoral  colleges  are  in  no  sense  continuous  bodies,  but 
that  they  are  created  de  novo  for  each  presidential  election.  The  powers  of  the  canvassers 
are  in  the  two  States  substantially  the  same.  In  Rhode  Island,  "  the  governor,  in  the 
presence  of  the  secretary  of  state,  shall  examine  and  count  the  votes,  and  give  notice  to 
the  electors  of  their  election."  In  Oregon  the  votes  are  to  be  canvassed  by  the  secretary  of 
state  in  the  presence  of  the  governor.  "The  secretary  of  state  shall  prepare  two  lists 
of  the  names  of  the  electors  elected  and  affix  the  seal  of  the  State  to  the  same.  Such 
lists  shall  be  signed  by  the  governor  and  secretary,  and  by  the  latter  delivered  to  the 
college  of  electors  at  the  hour  of  their  meeting  on  such  first  Wednesday  of  December." 

The  supreme  court  of  Rhode  Island  are  by  the  constitution  required"  to  "  give  their 
written  opinion  on  any  question  of  law  whenever  requested  by  the  governor  or  by 
either  house  of  the  general  assembly."  The  governor  is  not,  however,  bound  by  it.  I 
inclose  the  opinion  given  by  the  judges  under  which  the  governor  and  general  assem 
bly  acted  on  the  recent  occasion.  So  much  of  it  as  shows  that  a  person  cannot  decline 
or  resign  an  office  to  which  he  is  ineligible  or  incapable  of  being  elected,  that  the  dis 
qualification  is  not  removed  by  the  resignation  of  the  office  of  trust  unless  the  office 
is  resigned  before  the  election,  and  that  under  our  law  the  election  by  the  people  con 
stitutes  the  appointment  in  the  sense  of  the  Federal  Constitution,  is  applicable  to  the 
case  before  you.  For  the  reason  already  mentioned — the  equality  of  the  votes  between 
the  highest  democratic  candidates — the  discussion  whether  the. disqualification  resulted 
in  the  election  of  the  candidate  next  in  the  vote  or  in  a  failure  to  elect  any  one  was 
wholly  irrelevant,  as  confessedly  under  the  circumstances  there  was  no  minority  can 
didate  chosen. 

The  opinion  was  not  published  till  it  was  laid  before  the  legislature,  and  I  was 
surprised  to  find  that  a  question  depending  on  the  fact  of  one  of  the  democratic  can 
didates  having  more  votes  than  his  colleagues  was  passed  on  by  the  judges  or  that  ifc 
had  been  submitted  to  them  by  the  governor,  inasmuch  as  he  was  well  aware  that,  had 
there  been  any  occasion  for  considering  it,  we  should  have  been  asked  to  have  been 
heard  on  it.  As  it  is,  so  far  as  the  "  opinion  "  touches  on  the  effect  of  Mr.  Corliss's  disa 
bility  on  the  claim  of  the  next  eligible  candidate,  it  must  be  regarded  in  the  nature  of 
obiter  dictum. 

Another  passage  from  the  letter  we  desire  to  submit,  because  it  is  in 
the  nature  of  original  and  very  valuable  historical  testimony,  with  ref 
erence  to  the  cases  of  Albert  Gallatin  and  Mr.  Bailey,  referred  to  in 
Commonwealth  vs.  duly : 

In  the  debates  in  Congress  as  to  the  effect  of  the  election  of  a  disqualified  candi 
date,  the  cases  of  Mr.  Gallatin  and  Mr.  Bailey  are  frequently  cited.  The  one  occurred 
in  the  Senate,  the  other  in  the  House  ;  and  in  neither  case  did  the  question  arise  on 
the  claim  of  a  competing  candidate.  Mr.  Gallatin's  case  dates  back  as  far  as  1793.  Ow 
ing  to  the  position  which  I  occupied  toward  him  many  years  afterward  in  the  diplo 
matic  service,  I  became  entirely  familiar  with  it.  Arriving  in  this  country  fourteen 
years  previously  to  his  election  and  consequently  during  the  war  of  the  Revolution, 
and  many  years  before  the  adoption  of  the  present  Constitution,  Mr.  Gallatin  had  be 
come  identified  with  the  American  people  in  every  way  known  to  the  laws  of  that  day. 
He  had  as  early  as  1780  acquired  a  legal  domicile  in  the  State  of  Massachusetts,  the  only 
way  in  which  naturalization  could  then  be  effected. 

The  articles  of  the  Confederation,  which  were  the  existing  Constitution,  provided 
that  "  the  free  inhabitants  of  the  different  States  in  the  Union  shall  be  entitled  to  all 
privileges  and  immunities  of  all  citizens  in  the  several  States,"  thus  making  the  terms 
"inhabitants"  and  "citizens"  equivalent  to  one  another. 

Mr.  Gallatin,  having  invested  his  patrimony  in  lands  which  were  then  supposed  to 
be  in  Virginia,  but  were  afterward  decided  to  be  in  Pennsylvania,  as  a  matter  of  abund 
ant  caution  in  reference  to  those  lands,  went  through  the  form  of  naturalization  ac 
cording  to  the  laws  of  the  State  of  Virginia,  and  nine  years  had  not  elapsed  from  the 
date  of  that  act,  which  was  the  assumed  ground  of  disqualification,  before  he  took  his 
seat  in  the  Senate.  Even  dating  from  the  period  of  that  naturalization,  he  had  been 
a  citizen  some  five  years  before  the  adoption  of  the  Constitution.  That  the  restric- 


804  ELECTORAL    COUNT    OF    1877. 

tions  in  that  instrument  were  not  intended  to  be  retrospective,  may  well  be  inferred 
from  the  fact  that  for  the  office  of  President  no  one  who  was  then  a  citizen  was  dis 
qualified,  and  Mr.  Gallatin  at  the  time  that  he  was  unseated  as  a  Senator  was  eligible 
to  the  Presidency.  These  facts  I  take  from  what  may  be  deemed  an  autobiographical 
notice  of  Mr.  Gallatin.  as  the  paper,  though  prepared  by  me,  was  submitted  to  his 
revision.  No  competitor,  as  has  been  stated,  petitioned  against  his  return,  nor,  as  far 
as  I  am  aware,  had  he  any,  for  he  was  elected  by  a  legislature  the  majority  of  which 
were  his  political  opponents.  In  all  probability,  had  he  been  an  ordinary  man,  there 
would  have  been  no  objection  to  his  election.  The  petition  was  made  by  federalists, 
who  feared  the  force  of  his  abilities,  and  he  was  declared  ineligible  by  a  strict  party 
vote  of  14  to  12. 

Mr.  Bailey's  case  arose  several  years  later.  He  was  chief  clerk  of  the  State  De 
partment,  and  notwithstanding  the  fact  that  he  was  at  Washington  in  the  public  ser 
vice,  and  that  no  residence  there  could  give  him  more  political  rights  than  would  be 
derived  from  living  in  a  fort  or  an  arsenal  of  the  United  States,  he  was  decided  to  have 
lost  his  Massachusetts  citizenship  and  to  be  disfranchised  so  as  not  to  be  competent  to 
be  elected  a  Representative  from  that  State. 

We  have  thus  cited,  and  endeavored  fairly  to  represent,  every  Amer 
ican  case  of  which  we  have  any  knowledge,  and  we  submit  that  while 
there  may  be  obiter  dicta  contrary  to  the  proposition  for  which  we  con 
tend,  in  no  one  American  case  has  it  been  ruled  that  the  plurality  or 
majority  of  voters,  by  voting  with  knowledge,  actual  or  presumed,  for 
an  ineligible  candidate,  can  defeat  an  election.  In  most  of  the  cases  the 
observations  upon  this  subject  were  entirely  gratuitous  and  uncalled 
for ;  and  others  simply  adopt  the  former  without  any  examination  what 
ever.  We  find,  for  instance,  the  significant  fact  that  the  opinions  of 
the  judges  in  38  Maine  are  repeatedly  referred  to  as  sustaining  a  doc 
trine  contrary  to  that  which  we  maintain  upon  this  subject,  although  in 
Maine  the  law  has  been  long  settled  by  the  concurring  and  harmonious 
action  of  the  judicial  and  executive  departments  that  votes  for  an  ineli 
gible  candidate  are  mere  waste  paper,  and  can  perform  no  legal  func 
tion  whatever. 

The  gospel  of  American  political  action,  whatever  else  it  may 
contain,  embraces  two  great  commandments :  first,  thou  shalt  elect; 
and,  secondly,  thou  shalt  not  elect  any  disqualified  person.  The  dis 
qualification  in  this  case  is  attached  to  the  grant ;  the  State,  availing 
itself  of  the  power,  must  take  it  cum  onere,  and  subject  to  the  disquali 
fication.  It  is  not  the  voter  who  appoints  the  elector ;  it  is  the  State ; 
and  the  State  cannot  plead  ignorance ;  she  cannot  appoint  any  disquali 
fied  person.  Even  the  voter,  although  the  Constitution  secures  him  no 
right  to  partake  in  the  appointment,  except  through  the  agency  of  the 
State,  which  does  appoint,  if  he  be  permitted  by  the  legislature  of  the 
State,  in  its  control  over  the  manner  of  appointment,  to  cast  his  ballot 
for  electors,  must  see  to  it  that  they  are  duly  qualified.  He  cannot 
plead  ignorance  of  the  law,  as  perhaps  he  might  of  some  lurking  and 
obscure  statutory  disqualification,  for  the  disqualification  is  in  the  very 
sentence  which  contains  the  grant  by  force  of  which  the  State  is  en 
abled  to  permit  him  to  vote,  and,  except  subject  to  the  disqualification, 
advantage  cannot  be  taken  by  him  of  the  grant  at  all. 

Nor  can  he  plead  ignorance  of  the  fact  in  this  case.  The  rulings  of 
the  Commission  forbid  our  making  the  proof,  and  showing,  as  we  other 
wise  should  endeavor  to  do,  that  of  those  who  voted  for  Watts,  far  more 
in  number  than  his  excess  of  votes  over  Cronin  knew  of  his  disquali 
fication  ;  that  twice,  at  numerously  attended  public  meetings  in  Oregon 
City  and  Portland,  the  fact  was  made  matter  of  public  debate  between 
Watts  and  Cronin ;  that  it  was  considered  and  discussed  in  a  news 
paper  published  at  the  home  of  Watts;  that  Yamhill,  where  Watts  was 
postmaster,  is  the  county -seat  of  La  Fayette  County,  to  which  town  the 
people  of  the  county  resort  for  the  transaction  of  their  legal  business, 


ELECTORAL    COUNT    OF    1877.  805 

marriage  licenses,  the  settlement  of  the  estates  of  their  decedents,  the 
record  of  their  deeds  and  the  payment  of  their  taxes,  as  well  as  the 
purchase  of  their  supplies  and  the  marketing  of  their  produce ;  and 
that  Watts  is  no  insignificant  and  unknown  person,  but  a  public  citizen, 
whose  life  and  character  is  known  of  many — a  doctor,  a  preacher,  a 
politician — a  physician  of  body,  soul,  and  state. 

But  in  lieu  of  this  testimony,  which  we  had  expected  and  hoped  to 
give,  until  the  Commission  decided  it  could  hear  no  proofs  other  than 
such  as  might  be  contained  in  the  certificates  opened  by  the  President 
of  the  Senate,  and  proof  of  ineligibility,  we  have  the  certificate  of  the 
governor  and  secretary  of  state,  under  the  great  seal  of  the  State  of 
Oregon,  that  "  William  H.  Odell  received  15,206  votes,  John  C.  Cartwright 
received  15,214  votes,  E.  A.  Cronin  received  14,157  votes  for  electors  of 
President  and  Yice-President  of  the  United  States.  Being  the  highest 
number  of  votes  cast  at  said  election  for  persons  eligible  under  the  Con 
stitution  of  the  United  States  to  be  appointed  electors  of  President  and 
Vice-Presideiit  of  the  United  States,  they  are  hereby  declared  duly 
elected  electors  as  aforesaid  for  the  State  of  Oregon.'7  The  maxim  ap 
plies,  "  Omnia  prcvsumuntur  rite  et  solemniter  esse  acta  donee  probe tur  in 
contrarium."  (Broom's  Legal  Maxims,  908.) 

As  Watts  was  in  fact  ineligible,  and  if  this  were  known  (both  law  and 
fact)  to  more  than  1,049  voters  who  voted  for  him,  and  we  take  the  New 
York  rule  for  our  guide,  then  it  follows  that  Croniu  was  elected.  This 
being  so,  it  became  the  duty  of  the  governor  and  secretary,  in  such  case, 
as  we  shall  hereafter  more  fully  show,  to  declare  the  result,  and  give 
the  official  lists  to  Cronin.  To  have  given  them  to  Watts  under  such 
circumstances  would  have  been  to  violate  the  Constitution  of  the  United 
States,  which  the  governor  and  secretary  had  each  taken  a  solemn  oath 
to  support,  (Constitution  of  Oregon,  article  15,  section  3,)  and  to  adopt 
a  rule  of  law  which  the  supreme  court  of  Oregon  has  never  announced. 
Therefore  the  fair  and  reasonable  presumption,  from  the  act  of  the  gov 
ernor  and  secretary,  until  the  contrary  is  shown,  is  that  the  facts  existed 
which  justify  the  official  action  taken. 

This,  then,  is  the  established  principle  of  American  public  law, 
that  the  mandate  to  elect,  obedience  to  which  is  essential  to  the  perpe 
tuity  of  republican  self-government,  is  of  such  paramount  importance, 
that  neither  by  protests  against  it,  by  blank  votes,  nor  by  votes  for  dis 
qualified  candidates,  can  it  be  frustrated.  A  plurality  vote  for  an  eligi 
ble  candidate  is  required ;  this  and  nothing  more.  First  expounded  in 
Maryland  by  one  of  the  greatest  of  the  patriotic  jurists  of  the  revolu 
tionary  period,  sanctioned  by  judicial  judgments  in  Maine,  in  Indiana, 
and  (with  limitations)  in  New  York,  and  by  legislative  adoption  in. 
Maine  and  Massachusetts,  it  served  no  inconspicuous  purpose  in  the 
re-organization  of  the  States  after  the  war  of  the  rebellion,  when  it  be 
came  part  of  the  constitutional  guarantees  of  Missouri  and  Mississippi, 
arid  by  legislative  action  served  the  same  end  in  Maryland. 

Shall  this  Commission  say  that  this  is  not  the  law  of  Oregon  ?  The 
judiciary  of  Oregon  have  not  said  so.  The  legislature  of  Oregon  have 
not  said  so.  The  executive  of  Oregon  informs  you  that  this  is  the  law  of 
Oregon.  'Compelled,  in  the  performance  of  his  duty,  to  act  upon  one  or  the 
other  principle,  to  act  as  if  it  were  the  law  of  Oregon  that  ineligible  candi 
dates  might  be  elected,  or  as  if  the  election  failed,  or  as  if  the  next 
highest  competing  candidate  were  chosen,  he  heard  argument,  he  took 
time  to  consider,  and  he  acted.  Had  he  given  the  certificate  to  Watts 
he  would  have  violated  the  Constitution  of  the  United  States,  which  he 
had  sworn  to  support.  Had  he  given  it  to  no  one  he  would  have  given 


806  ELECTORAL  COUNT  OF  U77. 

his  assent  to  the  view  that  the  next  highest  competing  candidate  was 
not  elected.  Hewes  compelled  to  act.  He  found  that  in  his  native 
State  of  Maine,  where  the  constitution  quite  as  emphatically  required  a 
a  majority  of  votes,"  as  the  laws  of  Oregon  require  "  the  highest  number 
of  votes,"  (General  Laws  of  Oregon,  chap.  13,  title  4,  sec.  33,  p.  706,) 
it  was  held  that  just  construction  determines  the  meaning  to  be  a  major 
ity  of  efficient,  available  votes,  cast  for  eligible  candidates,  and  that  this 
interpretation  received  the  approval  of  the  first  chief-justice  of  Maiae, 
that  eminent  magistrate,  Prentiss  Mellen,  and  of  his  successor  in  that 
high  office,  Nathan  Weston,  as  well  as  of  their  associate,  Albion  K.  Par- 
ris.  We  submit  that  he  could  not  have  had  higher  authority  ;  that  he 
could  not  have  acted  more  wisely. 

He  had  the  right  —  it  was  his  duty  —  so  to  act. 

"  It  is  argued,"  said  Chief-Justice  Parsons  in  Kendall  vs.  Inhabitants 
of  Kingston,  5  Mass.,  533,  "  that  the  legislature  cannot  give  a  construc 
tion  to  the  constitution,  cannot  make  laws  repugnant  to  it.  But  every 
department  of  government,  invested  with  certain  constitutional  powers, 
must  in  the  first  instance,  but  not  exclusively,  be  the  judge  of  its  powers, 
or  it  could  not  act." 

See  also  Martin  vs.  Mott,  12  Wheat.,  29  ;  Opinions  of  Judges,  49  Mo., 
216. 

"It  follows,  therefore,  that  every  department  of  the  government. 
and  every  official  of  every  department  may,  at  any  time,  when  a  duty 
is  to  be  performed,  be  required  to  pass  upon  a  question  of  constitutional 
construction."  Cooley  on  Const.  Lim.,  41. 

Taylor  vs.  The  Governor,  1  Arkansas,  21,  was  a  motion  for  an  alter 
native  mandamus  against  the  governor  to  compel  him  to  show  cause 
why  a  peremptory  mandamus  should  not  issue  directing  him  to  deliver 
to  John  A.  Taylor  his  commission  as  sheriff  for  the  county  of  Pulaski, 
to  which  office  he  had  been  elected  by  the  majority  of  the  votes  of  the 
people  of  that  county.  The  clerk  of  the  county  court  had  issued  him  a 
certificate  of  election  ;  he  demanded  his  commission  of  the  governor, 
who  refused  to  deliver  it  upon  the  ground  that  he  was  ineligible  to  the 
office,  because,  in  point  of  fact,  Taylor  was  a  defaulter  to  the  State. 
The  supreme  court  of  Arkansas  sustained  the  governor  and  disallowed 
writ.  They  say,  p.  28  : 


The  executive,  in  common  with  every  other  officer,  is  bound  by  oath  to  support  the 
«e«Qstitution,  and  whenever  an  effort  is  made  to  evade  or  violate  it,  it  is  not  only  his 
privilege  but  his  duty  to  interpose  and  prevent  it. 

See  also  Hawkins  vs.  Conway,  1  Pike,  570. 

In  State  ex  rel.  Bartley  vs.  Fletcher,  governor,  39  Missouri,  388,  a 
mandamus  was  prayed  for  to  compel  the  governor  to  issue  a  commission 
to  Bartley  as  one  of  the  justices  of  the  county  court  of  Galloway  Couoty. 
The  court,  (Wagner  J.,)  after  reciting  (p.  398)  that  it  is  by  the  constitu 
tion  of  the  State  made  the  duty  of  the  governor  to  commission  all  officers 
not  otherwise  provided  by  law,  that  this  is  clearly  an  exercise  of  politi 
cal  power  of  a  ministerial  character,  proceed  to  say  : 

The  governor  is  bound  to  see  that  the  laws  are  faithfully  executed,  and  he  has 
taken  an  oath  to  support  the  constitution.  In  the  correct  and  legitimate  performance 
of  his  duty  he  must  inevitably  have  a  discretion  in  regard  to  granting  commissions  ; 
for  should  a  person  be  elected  or  appointed  who  was  constitutionally  ineligible  to  hold 
any  office  of  profit  or  trust,  would  the  executive  be  bound  to  commission  him  when 
his  ineligibility  was  clearly  and  positively  proven  ?  If  he  is  denied  the  exercise  of  any 
discretion  in  such  case,  he  is  made  the*  violator  of  the  constitution,  not  its  guard 
ian.  Of  what  avail  then  is  his  oath  of  office  ?  Or,  if  he  has  positive  and  satisfactory 
evidence  that  no  election  has  been  held  in  a  county,  shall  he  be  required  to  violate  the 
law,  and  issue  a  commission  to  a  person  not  elected,  because  a  clerk  has  certified  to 
jfche  election  ?  In  granting  a  commission  the  governor  may  go  behind  the  commission 


ELECTORAL    COUNT    OF    1877.  807 

to  determine  whether  an  applicant  is  entitled  to  receive  a  commission  or  not  where 
the  objection  to  the  right  of  the  applicant  to  receive  it  rests  upon  the  ground  that  a 
constitutional  prohibition  is  interposed.  Gnlick  vs.  New,  14  Ind.,  93. 

The  issuing  of  a  commission  is  an  act  by  the  executive  in  his  political  capacity,  and 
is  one  of  the  means  employed  to  enable  him  to  execute  the  laws  and  carry  on  the  ap 
propriate  functions  of  the  State  ;  and  for  the  manner  in  which  he  executes  this  duty 
he  is  in  nowise  amenable  to  the  judiciary.  The  court  can  no  more  interfere  with  execu 
tive  discretion  than  the  legislature  or  executive  can  with  judicial  discretion. 

The  granting  of  a  commission  by  the  executive  is  not  a  mere  ministerial  duty,  but 
an  official  act  imposed  by  the  Constitution,  and  is  an  investiture  of  authority  in  the 
person  receiving  it.  We  are  of  the  opinion,  therefore,  that  mandamus  will  not  lie 
against  the  governor  in  a  case  like  this. 

To  sustain  this  view,  that  mandamus  will  not  lie  in  such  case,  the  court 
<?ite  also — 

Low  vs.  Towns,  8  Geo.,  360. 

People  vs.  Bissell,  19  111.,  229. 

Houston,  &c.,  E.  R.  Co.  vs.  Randolph,  24  Tex.,  317. 

In  the  matter  of  Dennett,  32  Maine,  508. 

Chamberlain  vs.  Sibley,  4  Minn.,  311. 

State  vs.  Governor,  1  Batcher,  331. 

Mauran  vs.  Smyth,  (in  Eh.  Isl.,)  4  Am.  Law  Reg.,  630. 

State  vs.  Chase,  5  O.  St.,  528. 

Cotton  vs.  Ellis,  7  Jones's  Law,  545. 

The  case  of  George  H.  Corliss,  in  Rhode  Island,  sustains  the  action 
taken  by  Governor  Grover  and  Secretary  Chad  wick  in  Oregon.  We 
quote  from  the  letter  of  Mr.  Lawrence,  already  referred  to,  the  follow 
ing  cogent  passage : 

In  repudiating  the  votes  for  Watts,  Governor  Grover  did  precisely  what  Governor 
Lippitt  did  in  Rhode  Island  as  to  Corliss.  The  latter  governor  could  only  have  done 
it  by  virtue  of  the  power  given  to  him  "  to  examine  and  count  the  vote,"  and  it  is  im 
possible  to  discover  any  authority  which  he  had  to  reject  the  ballots  cast  for  Corliss 
that  Governor  Grover  did  not  possess  as  to  Watts.  The  fact  of  there  being  three 
candidates  next  to  him  with  equal  votes,  precluded  the  question  as  to  the  right  of  a 
minority  candidate  in  that  case  ;  but  in  the  case  passed  on  by  Governor  Grover,  the 
votes  for  Watts  being  absolutely  void,  Cronin  had  the  highest  number  of  votes,  and 
was  consequently,  under  the  provision  of  the  constitution  of  the  State  of  Oregon, 
which  requires  that  "  in  all  elections  held  by  the  people,  the  person  or  persons  having 
the  highest  number  of  votes  shall  be  declared  duly  elected,"  legally  appointed  an 
elector. 

Article  10,  section  3,  of  the  constitution  of  Rhode  Island  is  as  follows  : 

The  judges  of  the  supreme  court  shall,  in  all  trials,  instruct  the  jury  in  the  law. 
They  shall  also  give  their  written  opinion  upon  any  question  of  law  whenever  re 
quested  by  the  governor,  or  by  either  house  of  the  general  assembly. 

Chapter  28,  section  4,  of  the  Eevised  Statutes  of  Ehode  Island  reads 
thus: 

The  governor,  in  the  presence  of  the  secretary  of  state,  shall  examine  and  count  the 
same,  and  give  notice  to  the  electors  of  their  election. 

To  the  same  effect  was  the  action  of  the  governor  and  council  of 
Maine  in  1831. 

Gulick  vs.  New,  ut  supra,  is  directly  in  point. 

The  governor  may  determine,  even  against  the  decision  of  a  board  of  canvassers 
•whether  an  applicant  is  entitled  to  receive  a  commission  or  not,  where  the  objection 
to  his  right  to  receive  it  rests  upon  the  ground  that  the  constitutional  prohibition  is 
interposed. 

If  the  governor  should  ascertain  that  he  has  commissioned  a  person  who  is  ineligible 
to  the  office,  he  may  issue  another  commission  to  the  person  legally  entitled  thereto. 

But  we  need  not  go  out  of  Oregon  for  authority  as  to  the  duty  of  the 
governor  under  these  circumstances.  Only  the  death  of  the  judge  of 
the  supreme  court,  charged  with  the  duty  of  preparing  it,  ( Judge  Thayer,) 


808  ELECTORAL    COUNT    OF    1877 

has  prevented  their  opinion  from  appearing  in  the  volumes  of  Oregon 
Keports.  We  submit  the  following  letter  in  proof  of  our  assertion  : 
(See  testimony  taken  by  subcommittee  of  the  Committee  on  Privileges 
and  Elections  of  the  Senate,  pp.  127,  128.) 

SUPREME  COURT  ROOM, 
Salem,  Oregon,  December  20,  1876. 

SIR:  Your  communication  of  the  18th  instant  was  duly  received,  and,  in  reply 
thereto,  I  beg  leave  to  submit  the  following: 

The  case  of  the  State  of  Oregon  ex  rel.  C.  B.  Bellinger,  appellant,  vs.  A.  C.  Gibbs, 
respondent,  was  heard  and  determined  at  the  January  term,  1373,  of  the  supreme 
court.  The  action  was  instituted  in  the  circuit  court  of  the  State  of  Oregon  for  the 
county  of  Multnomah,  and  was  determined  at  the  March  term,  1872,  of  said  court.  The 
complaint  alleged  in  effect  that  the  respondent  had  been  elected  to  the  office  of 
prosecuting  attorney  in  the  fourth  judicial  district  in  June,  1870,  for  the  term  of  two 
years ;  that  he  entered  upon,  held,  and  exercised  the  office;  that  thereafter,  and  while 
so  holding,  he  was  appointed  to  the  office  of  United  States  district  attorney  for  the  dis 
trict  of  Oregon,  and  that  he  qualified  and  entered  upon  said  office  on  March  2,  1872. 
Allegations  showing  that  both  offices  were  lucrative  were  duly  made,  and  it  was  further 
alleged  that  on  March  6,  1872,  the  governor  of  Oregon  duly  appointed  the  relator  to 
the  office  of  prosecuting  attorney  for  the  said  fourth  judicial  district,  and  that  said 
relator  duly  qualified  on  March  8,  1872,  and  thereupon  made  demand  upon  the  respond 
ent  for  the  office,  which  demand  was  refused. 

Respondent  demurred  to  the  complaint  in  the  court  below,  upon  the  ground,  among 
others,  that  the  complaint  did  not.  state  facts  sufficient  to  constitute  a  cause  of  action. 

The  court  below  (Upton,  J.)  sustained  the  demurrer  and  entered  a  judgment  against 
the  relator  for  costs,  &c. 

An  appeal  was  thereupon  taken  to  the  supreme  court  at  the  term  mentioned.  Upon 
the  argument  in  the  supreme  court,  the  respondent,  in  support  of  his  demurrer,  con 
tended  "that  the  governor  could  not  determine  for  himself  that  a  vacancy  existed  in 
the  office  of  prosecuting  attorney  in  the  fourth  judicial  district  so  as  to  authorize 
the  appointment  of  the  relator,  for  the  reason  that  the  determination  of  that  fact  in 
volved  the  exercise  of  judicial  functions  by  the  executive. 

This  was  the  principal  legal  question  in  the  case,  and  the  court  unanimously  declared 
that  the  governor  was  invested  with  authority,  in  cases  of  the  kind,  to  look  into  the 
facts  and  pass  upon  the  same  without  awaiting  the  action  of  the  courts. 

The  justices  of  the  supreme  court  were,  at  the  time,  Hon.  W.  W.  Upton,  chief  -jus 
tice  ;  Hon.  A.  J.  Thayer,  P.  P.  Prim,  B.  F.  Bouliam,  and  L.  L.  McArthur,  associate  jus 
tices.  As  the  case  was  from  the  fourth  district,  Upton,  chief-justice,  did  not  participate 
in  the  hearing  and  decision  in  the  supreme  court.  The  writing  of  the  opinion  was  as 
signed  to  Hon.  A.  J.  Thayer,  who  died  shortly  after  the  adjournment  of  the  term,  leav 
ing  the  duty  unperformed.  Ex-Chief-Justice  Bonham  and  Justice  McArthur  author 
ize  me  to  say  that  their  recollection  of  the  case  and  the  point  decided  comports  with 
my  own. 

I  have  the  honor  to  be  your  excellency's  obedient  servant, 

P.   P.  PRIM, 
Chief -Justice  of  Oregon* 

His  Excellency  L.  F.  GROVP:R, 

Governor  of  Oregon. 

If  it  be  claimed  that  this  was  judicial  action  of  Governor  Grover,  we 
reply  that  until  the  certificate  had  been  delivered,  judicial  action  could 
not  begin.  Ministerial  political  authority  ascertains  and  certifies  the 
result  of  an  election  $  judicial  authority  revises  and  corrects  it.  Politi 
cal  authority  determines  in  whom  the  color  of  right  shall  rest,  by  the 
delivery  of  the  commission.  Judicial  authority  searches  that  colorable 
title,  and  awards  the  possession  of  the  office  according  to  the  real  title. 

In  addition  to  the  cases  already  cited  upon  this  point,  we  refer  the 
Commission  to  the  case  of  Collins  vs.  Knoblock  et  aL,  25  La.  Ann.,  263  : 

The  adjustment  and  compilation  of  election  returns,  determining  the  number  of 
legal  and  illegal  votes  cast  for  each  candidate,  declaring  the  result  of  an  election  and 
furnishing  the  successful  candidate  with  the  proper  certificate ;  in  short,  superintend 
ing  and  controlling  all  the  details  of  an  election,  belong  properly  to  the  political  de 
partment  of  the  government. 

To  the  same  effect  is  State  upon  the  relation  of  Bonner  vs.  Lynch,  25 
La.  Ann.,  268. 


ELFXTORAL    COUNT   OF    1877.  809 

Except  so  far  as  it  may  have  been  altered  by  statute,  the  common 
law  of  England  is  the  law  of  Oregon. 

The  following  is  believed  to  be  a  fair  statement  of  the  cases  which 
contain  the  exposition  of  the  common-law  doctrine  upon  this  subject. 
They  show  that  the  action  of  the  governor  and  secretary  of  Oregon  was 
consistent  with  the  common  law.  To  save  labor,  we  refer  for  a  sum 
mary  of  many  of  the  cases  to  the  opinion  of  Mr.  Justice  Blackburn  in 
the  case  of  The  Queen  vs.  Tewksbury. 

The  statute  13  Charles  II,  ch.  12,  enacted  that  no  person  should  be 
elected  into  any  corporation  office  who  had  not  received  the  sacrament 
within  a  twelvemonth  preceding  the  election ;  and  in  default  of  doing 
so  the  election,  placing,  and  choice  should  be  void.  And  in  Harrison 
vs.  Evans,  cited  in  Cowper's  Kep.,  393,  note,  and  535,  Lord  Chief- Justice 
Wilmot  said : 

The  Stat.  13  Car.  II,  ch.  12,  is  riot  only  acldessed  to  the  elected  and  a  prohibition  upon 
them,  but  a  prohibition  laid  down  to  the  electors  if  they  have  notice.  The  legislature 
has  commanded  them  not  to  choose  a  nonconformist,  because  he  ought  not  to  be 
trusted.  *  *  Consequently,  with  respect  to  any  legal  effect  or  operation,  it 

is  as  if  there  had  been  no  election. 

In  Eex  vs.  Monday,  Cowper,  536,  (in  1777,)  Serjeant  Buller  laid  down 
the  law  thus : 

Two  requisites  are  necessary  to  make  a  good  election  :  First.  A  capacity  in  the  elect 
ors  ;  Second.  Capacity  in  the  elected ;  and  unless  both  concur  the  election  is  a  nullity. 
With  respect  to  the  capacity  of  the  electors,  *  *  *  their  right  consists  in  an 
affirmative,  not  a  negative  declaration.  Consequently,  there  is  no  effectual  means  of 
voting  against  one  man  but  by  voting  for  another  ;  and  even  then,  if  such  other  person 
be  unqualified,  and  the  elector  has  notico  of  his  incapacity,  his  vote  will  be  thrown 
away. 

This  statement  of  the  law  is  absolutely  accurate. 

In  Kegina  vs.  Boscawen,  cited  by  Burke,  ten  voted  for  Eoberts,  who 
was  a  qualified  person,  and  ten  for  the  defendant,  who  was  incapaci 
tated  on  account  of  non-inhabitancy.  Lord  Chief-Justice  Parker  and 
the  whole  court  held  "  that  the  votes  given  for  the  latter  were  thrown 
away,  and  .Roberts  duly  elected."  That  was  the  case  of  an  equal  num 
ber  ;  but  a  minority  does  not  vary  it. 

For  in  Eex  vs.  Withers,  in  the  King's  Bench,  five  voters  out  of  eleven 
voted  for  the  defendant  upon  a  single  vacancy  of  a  burgess  for  the 
borough  of  Westbury;  six  others  voted  for  two  persons  jointly ;  and 
the  court  held  that  the  double  votes  were  absolutely  thrown  away. 

So  in  Taylor  vs.  Mayor  of  Bath,  in  the  King's  Bench,  28  electors  be 
ing  assembled,  14  voted  for  A,  13  for  B,  and  1  for  C.  A,  who  had  the 
14  votes,  was  unqualified,  and  his  incapacity  known  to  the  electors  at  the 
time.  Lee,  chief-justice,  in  his  direction  to  the  jury,  said  that  the  votes 
given  to  A,  with  notice  of  his  incapacity,  were  thrown  away.  It  after 
ward  came  before  the  court,  when  Lee,  chief-justice,  compared  it  to  the 
case  of  voting  for  a  dead  man,  and  held  that  B  was  duly  elected  j  and 
Page,  justice,  said  "  that  in  such  a  case  a  minority  of  two  only  would 
have  been  sufficient  to  elect  the  other  candidate." 

After  the  argument  in  Eex  'vs.  Monday,  Lord  Mansfield  agreed  that, 
in  the  case  of  an  election  for  member  of  Parliament,  where  the  electors 
must  proceed  to  an  election,  because  they  cannot  stop  for  that  day  or 
defer  it  to  another  time,  there  must  be  a  candidate  or  candidates,  and 
in  that  case  there  is  no  way  of  defeating  the  election  of  one  candidate 
proposed  but  by  voting  for  another,  and  that  other,  he  held,  must  be  a 
person  not  incapacitated  by  law. 


810  ELECTORAL    COUNT    OF    1877. 

In  Oldknow  vs.  Wainwright,  or  Rex  vs.  Foxcroft,  2  Burrow,  1017,  in 
1760,  the  same  great  judge  had  said: 

The  protesting  electors  had  no  way  to  stop  the  election,  when  once  entered  upon, 
but  by  voting  for  some  other  person  than  Seagrave,  or  at -least  against  him. 

And  Mr.  Justice  Wilmot  quoted  Itegina  vs.  Boscawen  and  Taylor  vs. 
Mayor  of  Bath  as  establishing  that  votes  given  for  a  non-inhabitant, 
where  inhabitancy  was  necessary,  were  thrown  away. 

In  Hawkins  vs.  Bex,  2  Don.,  124.  in  the  House  of  Lords,  in  error 
from  the  Court  of  King's  Bench,  in  1813,  the  case  being  quo  warranto, 
calling  on  defendant  to  show  by  what  title  he  claimed  to  be  an  al 
derman  of  a  borough,  notice  of  ineligibility  had  been  given  at  the 
assembly,  he  not  having  taken  the  sacrament  within  a  year.  Abbott, 
for  Hawkins,  said  in  argument : 

There  were  not  many  cases  where  it  had  been  decided  that  the  votes  of  the  majority 
were  so  absolutely  thrown  away  as  to  give  the  election  to  the  minority.  That  was  'a 
strong  measure  in  any  case,  and  it  was  submitted  that  it  could  not  hold  here  unless 
the  notice  of  disqualification  had  been  given  before  the  commencement  of  the  election. 
The  electors  ought  to  have  notice  and  time  to  speak  and  deliberate  before  they  were 
called  on  to  vote. 

He  admitted  that  the  votes  given  after  notice  were  thrown  away,  and 
he  cited  Eex  vs.  Coe,  Hey  wood  County  Elections,  538,  where,  after  nine 
had  voted  for  the  opponent  of  Coe,  he  was  declared  disqualified.  The 
rest  of  his  voters  polled  for  another,  but  there  were  not  enough ;  and 
Coe,  who  would  otherwise  have  been  outvoted,  was,  though  he  had 
only  a  minority,  declared  elected.  But  he  was  ousted  by  the  court. 
And  in  Rex  vs.  Budge,  1  Maule  &  Selwyn,  76,  where  Sparling  had  91 
votes  and  Budge  11,  when  notice  was  given  that  Sparling  was  disqual 
ified,  and  the  poll  proceeding,  the  numbers  were  123  for  him  and  22  for 
Budge,  the  court  held  that  the  91  votes  given  before  notice  were  not 
thrown  away. 

Mr.  Abbott  further  says : 

"  In  two  cases  the  election  by  the  minority  was  held  sufficient;  but  there  the  disqual 
ification  was  very  different  from  that  in  the  present  case.  It  was  one  thing  to  say  that 
votes  were  thrown  away  where  there  was  an  absolute  disqualification,  and  another  to  say  so 
where  the  disqualification  was  not  absolute,"  as  he  contended  it  was  not  in  the  case 
he  was  arguing. 

Our  constitutional  disqualification  is  absolute. 

Moreover,  he  argued  that  a  candidate  had  not  taken  the  sacrament 
within  a  year  was  a  matter  of  no  public  notoriety,  was  within  his  own 
knowledge  alone,  was  not  presumed  to  be  known  to  an  elector  or  to  any 
body,  and  therefore  it  was  right  to  require  notice,  actual  and  personal, 
to  put  the  voter  in  the  position  of  throwing  his  vote  away. 

On  the  other  side  the  counsel  said : 

The  general  doctrine  was  clear  that  after  notice  of  disqualification  the  votes  for  the 
disqualified  person  were  thrown  away.  There  was  no  necessity  for  stating  particularly 
the  cases  where  the  general  doctrine  was  clearly  recognized. 

Lord  Eldon,  giving  his  opinion  to  the  House  of  Lords,  said  that  when 
two  persons  had  voted  for  each  candidate  the  knowledge  of  the  disqual 
ification  appeared.  But  he  said : 

The  election  proceeded,  and  the  great  majority  voted  for  Hawkins;  and  the  election 
of  Hawkins  was  an  absolute  nullity  by  the  act.  (13  Car.,  2,  lib.  I.)  The  majority  know 
ingly  voted  FOR  THIS  DEAD  MAN,  and  that  was  to  be  attended  to. 

The  election  was  held  on  the  18th  of  December,  1806.  When  two 
persons  had  voted  for  each,  Hawkins  admitted  that  he  had  not  taken 
the  sacrament  within  a  year.  Keceiving  a  majority  of  the  votes,  he  was 
sworn  in  by  the  mayor,  and  Spicer  was  sworn  in  by  two  of  the  aldermen. 

The  statute  (47  Geo.  3)  made  valid  the  election  of  Hawkins  if  he  took 


ELECTORAL    COUNT    OF    1877.  811 

the  sacrament  within  a  certain  time  after  the  election.  He  did  that  on 
the  4th  of  October,  1807.  Bat  if  the  office  was  at  the  time  of  passing 
that  act  legally  filled  up  and  enjoyed  by  Spicer,  then  the  act  did  not 
help  Hawkins ;  and  the  Court  of  King's  Bench,  giving  judgment  against 
Hawkins,  held  that  Spicer  was  legally  in  the  office ;  and  this  decision 
the  House  of  Lords  affirmed.  (See  also  Claridge  vs.  Evelyn,  5  B.  & 
A.,  8.) 

The  result  of  the  English  cases  was  well  stated  by  Lord  Den  man,  in 
1847,  in  deciding  the  case  of  Gosling  vs.  Veley,  7  Adoiphus  &  Ellis,  N. 
-S.  437,  in  these  words  : 

The  result  of  the  decisions  appears  to  be  this:  Where  the  majority  of  electors  vot  e 
for  a  disqualified  person  in  ignorance  of  the  fact  of  disqualification,  the  election  may 
be  void  or  voidable,  or  in  the  latter  case  may  be  capable  of  being  made  good,  according 
to  the  nature  of  the  disqualification.  The  objection  may  require  ulterior  proceeding 
to  be  taken  before  some  competent  tribunal  in  order  to  make  it  available  ;  or  it  may 
be  such  as  to  place  the  elected  candidate  on  the  same  footing  as  if  he  never  had  existed, 
and  the  votes  for  him  were  a  nullity.  But  in  no  such  case  are  the  electors  who 
vote  for  him  deprived  of  their  votes  if  the  fact  becomes  known  and  is  declared 
while  the  election  is  still  incomplete.  They  may  instantly  proceed  to  another 
nomination  and  vote  for  another  candidate.  (It  will  be  remembered  that  in 
England  elections  are  all  conducted  viva  voce.)  If  it  be  disclosed  afterward,  the 
party  elected  may  be  ousted  and  the  election  declared  void,  but  the  candidate  in 
the  minority  will  not  be  deemed  ipso  facto  elected.  But  where  an  elector,  before 
voting,  receives  due  notice  that  a  particular  candidate  is  disqualified,  and  yet  will 
do  nothing  but  tender  his  vote  for  him,  he  must  be  taken  voluntarily  to  abstain 
from  exercising  his  franchise,  and  therefore  however  strongly  he  may,  in  fact,  dis 
sent,  he  must  be  taken  in  law  to  assent  to  the  election  of  the  opposing  and  qualified 
-candidate,  for  he  will  not  take  the  only  course  by  which  it  can  be  resisted ;  that  is,  the 
helping  to  the  election  of  some  other  person.  He  is  present  as  an  elector.  His  pres 
ence  counts  as  such  to  make  up  the  requisite  number  of  electors,  where  a  certain 
number  is  necessary,  but  he  attends  only  as  an  elector  to  perform  the  duty  which  is 
cast  on  him  by  the  franchise  he  enjoys  as  elector;  he  can  speak  only  in  a  particular 
language ;  he  can  do  only  certain  acts  ;  any  other  language  means  nothing  ;  any  other 
act  is  merely  null ;  his  duty  is  to  assist  in  making  an  election.  If  he  dissents  from  the 
•choice  of  A,  who  is  qualified,  he  must  say  so  by  voting  for  some  other  also  qualified. 
He  has  no  right  to  employ  his  franchise  merely  in  preventing  an  election,  and  so  de 
feating  the  object  for  which  he  is  empowered  and  bound  to  attend.  And  this  is  a  wise 
and  just  rule  in  the  law.  It  is  necessary  that  an  election  should  be  duly  made  and  at 
the  lawful  time ;  the  electoral  meeting  is  held  for  that  purpose  only ;  and  but  for  this 
rule,  the  interest  of  the  public  and  the  purpose  of  the  meeting  might  both  be  defeated 
by  the  perverseness  or  the  corruption  of  electors  who  may  seek  some  unfair  advantage 
by  postponement.  If,  then,  the  elector  will  not  oppose  the  election  of  A  in  the  only 
legal  way,  he  throws  away  his  vote  by  directing  it  where  it  has  no  legal  force,  and  in 
so  doing  he  voluntarily  leaves  unopposed— L  e.,  assents  to — the  voices  of  the  other 
electors. 

Where  the  disqualification  depends  on  a  fact  which  may  be  unknown  to  the  elector, 
he  is  entitled  to  notice,  for  without  that  the  inference  of  assent  could  not  be  fairly 
drawn,  nor  would  the  consequences  as  to  the  vote  be  just.  But  if  the  disqualification 
be  of  a  sort  whereof  notice  is  to  be  presumed,  none  need  expressly  be  given  ;  no  one 
can  doubt  that  if  an  elector  would  nominate  and  vote  only  for  a  woman  to  fill  the  office 
•of  mayor  or  burgess  in  Parliament,  his  vote  would  be  thrown  away ;  there  the  fact 
would  be  notorious,  and  every  man  would  be  presumed  to  know  the  law  upon  that 
fact. 

It  follows  from  these  observations  that  the  true  ground  of  the  decision  is  that  stated 
'by  Lord  Mansfield  in  the  case  first  cited,  Rex  vs.  Foxcroffc,  2  Burr.,  21041 :  "  Whenever 
electors  are  present  who  do  not  vote  at  all,  they  virtually  acquiesce  in  the  election 
made  by  those  who  do."  In  that  case  the  numerical  majority  contented  themselves 
with  protesting  against  the  election  of  him  for  whom  the  minority  voted.  In  the  case 
of  Taylor  against  the  Mayor  of  Bath,  (3  Luders,  324,)  the  counsel  in  argument  took  the 
•distinction  between  not  voting  at  all  and  voting  for  a  disqualified  candidate.  They 
admitted  that  silence  might  be  held  to  give  consent,  but  that  voting  for  the  other  candi 
date  was  an  express  negative  ;  it  wa8  the  only  way,  they  said,  of  voting  against  one 
to  vote  for  the  other.  But  the  court  overruled  the  distinction ;  to  vote  for  a  person 
not  qualified,  they  said,  was  the  same  thing  as  not  to  vote  at  all,  which  it  was  adruit- 
ed  would  have  been  a  constructive  assent." 


812  ELECTORAL    COUNT    OF    1877. 

Lord  Campbell  held  the  same  doctrine  in  very  vigorous  language  in. 
the  case  of  The  Queen  vs.  Co*aks,  3  Ellis  &  Blackburn,  249  : 

"  I  must  say, "  said  he,  "  that  this  appears  to  me  to  be  a  very  plain  case.  It  is  allowed 
that  it  depends  on  the  right  of  Cundall  to  act  as  a  councilor  on  the  9th  of  Novem 
ber,  1852.  If  he  had  a  right  so  to  act  at  that  time,  the  present  defendant  is  not  duly 
elected.  Now,  as  to  Cundall's  right,  who  was  elected  a  councilor  on  the  1st  of  Novem 
ber,  1851,  the  case  is  just  the  same  as  if  Blake  had  not  been  the  candidate  on  that  occa 
sion.  To  be  sure,  he  did  stand,  but  then  he  was  ineligible,  and  that  fact  was  known 
to  the  voters.  It  is  a  principle  of  all  election  law  and  of  good  sense  that  persons  who 
knowingly  throw  a  vote  for  an  ineligible  candidate  throw  away  their  votes  just  as  muvh 
as  if  they  voted  for  the  man  in  the  moon." 

In  another  report  of  the  same  case,  namely,  18  Jurist,  part  1,  page  378, 
Lord  Campbell's  language  is  reported  thus : 

This  is  clear;  it  is  allowed  that  it  depends  upon  whether  Cundall  had  aright  to 
act  as  city  councilor  of  Norwich  on  the  9th  of  November.  If  he  had  a  right  so  to  act, 
the  present  defendant  was  not  duly  elected  mayor,  and  is  a  usurper,  and  the  quo  war- 
ranto  properly  issued.  Cundall  was  elected  a  city  councilor  on  the  4th  of  November, 
1851 ;  it  is  the  same  as  if  Blake  had  not  been  a  candidate,  because  he  was  ineligible, 
and  that  fact  was  known  to  the  electors,  and  if  the  voters  know  that  a  candidate  ia 
ineligible,  they  throw  away  their  votes  when  they  vote  for  him.  They  do  not  vote.  • 

This  is  good  corporation  law,  good  parliamentary  law,  and  good  sense,  and  there 
is  nothing  in  Statute  6  and  7  William  IV,  chapter  76,  to  alter  it."  Then,  Blake's  votes 
being  disregarded,  Cuudall  had  the  greatest  number  of  votes,  and  being  duly  elected, 
he  ought  to  have  been  returned  as  one  of  the  councilors. 

In  Queen  vs.  Tewksbury,  L.  R.,  3  Q.  B.,  636,  Blackburn,  J.,  says: 

I  take  this  to  be  the  rule  of  law  applicable  to  this  case.  I  think  the  knowledge  that 
Blizard  was  the  mayor  is  clearly  brought  h'ome  to  every  voter,  but  the  question  is  nofc 
merely  whether  every  vote  given  for  him  was  thrown  away,  in  the  sense  that  it  was 
given  for  a  disqualified  candidate — in  that  sense  it  was  undoubtedly  thrown  away ;  but 
whether  it  was  thrown  away  in  the  same  manner  as  if  the  vote  had  been  given  for  a 
dead  man,  or  had  not  been  given  at  all.  I  think  that  where  a  voter  is  informed  that  a 
certain  circumstance  in  point  of  law  disqualifies  a  candidate,  even  although  he  may  hold 
a  different  opinion,  yet  if  he  afterward  votes  for  that  candidate,  his  vote  is  thrown 
away. 

In  the  present  election  a  voter  may  possibly  have  been  told  by  the  one  party  that 
Blizard  being  returning-officer  could  not  be  elected,  by  the  other" party  that  he  could 
be;  if  this  could  be  shown  the  vote  would  be  thrown  away;  but  the  case  merely  shows 
as  a,  fact  that  Blizard  was  returning-officer,  from  which  a  lawyer  would  be  aware  that 
he  was  disqualified,  and,  in  my  opinion,  the  knowledge  that  Blizard  was  returning-officer 
does  not,  in  law," necessarily  involve  the  knowledge  that  he  was  disqualified.  It  must  be 
observed  that  when  a  voter  is  said  to  have  notice  of  disqualification  in  a  candidate,  the 
word  notice  is  ambiguous. 

In  Rex  vs.  Hawkins,  10  East,  at  p.  217,  the  question  is  thus  stated :  "  If  the  law  be 
that  at  the  election  of  corporate  officers,  the  votes  given  for  an  incapable  candidate, 
after  notice  of  such  incapacity,  are  to  be  considered  as  thrown  away,  i.  e.,  as  if  the  voters 
had  not  given  any  vote  at  all,  then  this  will  be  a  good  election  of  Spicer ;  unless  the 
time  when  notice  of  his  incapacity  is  given,  viz,  after  two  persons  had  given  their 
votes  for  each  of  the  candidates,  can  be  considered  as  making  any  difference." 

The  general  proposition  that  votes  given  for  a  candidate  after  notice  of  his  being 
ineligible  are  to  be  considered  as  the  same  as  if  the  persons  had  not  voted  at  all,  is  sup 
ported  by  the  cases  of  Reg.  vs.  Boscawen,  Easter,  13  Anne ;  Reg.  vs.  Withers,  Easter,  8 
Geo.,  2 ;  Taylor  vs.  Mayor  of  Bath,  M.  15  Geo.,  2 ;  all  which  are  cited  in  Cowper,  537,  in 
Rex  vs.  Monday.  In  the  first,  Boscaweu  vs.  Roberts,  the  two  candidates  had  an  equal 
number  of  votes  ;  but  because  Boscawen  was  incapable,  the  votes  given  for  him  were 
considered  as  thrown  away,  and  the  other  duly  elected. 

In  the  second  case  Withers  had  five  votes  out  of  eleven ;  and  the  other  six  refus 
ing  to  vote  at  all,  the  court  held  Withers  duly  elected,  and  that  the  six  who  refused 
to  vote  were  virtually  consenting  to  the  election  of  Withers. 

In  the  third  case,  Taylor,  Biggs,  and  Kingston  were  candidates,  which  Biggs  had  four 
teen  votes,  Taylor  thirteen,  and  Kingston  only  one.  There  Lee,  C.  J.,  at  nisi  print, 
directed  the  jury  that  if  they  were  satisfied  that  the  electors  had  notice  of  Biggs's  want 
of  qualification  they  should  find  for  the  plaintiff,  (that  was  Taylor,  who  had  only  thir 
teen  votes,)  because  Biggs,  not  being  qualified,  was  to  be  considered  a  person  not  in 
esse,  and  the  voting  for  him  a  mere  nullity.  The  jury  found  for  the  plaintiff,  and  the 
court,  on  motion  for  a  new  trial,  agreed  with  the  law  as  laid  down  by  Lee,  C.  J.,  and 
refused  a  new  trial. 


ELECTORAL    COUNT    OF    1877.  813 

The  whole  of  this  reasoning  goes  to  show  that  those  who  voted  for  the  disqualified 
candidate,  knowing  of  his  disqualification,  were  to  be  treated  as  voting  for  a  person, 
not  in  esse,  so  that  there  must  be  an  actual  knowledge  of  his  disqualification  in  law. 
And  Lord  Eldon  similarly  grounds  his  decision  on  the  fact  that  the  majority  knowingly 
voted  for  a  disqualified  candidate,  or,  as  he  terms  it,  "  for  a  dead  man."  Rex  vs.  Haw 
kins,  2  Dou.,  124,  148. 

Certainly  he  seems  to  have  thought  that  the  ratio  decidendi  was  the  knowledge  of  the 
disqualification  in  law,  and  that  the  votes  given  with  that  knowledge  were  mere  nulli 
ties.  In  Reg.  vs.  Coaks,  3  E.  and  B.,  at  pp.  253-'4 ;  23  L.  J.,  (Q.  B.,)  at  p.  136,  Lord  Camp 
bell,  C.  J.,  says :  "  Blake  was,  in  fact,  a  candidate,  but  he  was  an  alderman,  and  there 
fore  ineligible,  and  that  fact  was  known  to  the  electors.  Now,  it  is  the  law,  both  the 
common  law  and  the  parliamentary  law,  and  it  seems  to  me  also  common  sense,  that  if 
an  elector  will  vote  for  a  man  who  he  knows  is  ineligible,  it  is  as  if  he  did  not  vote  at 
all,  or  voted  for  a  non-existent  person,  as  it  has  been  said,  as  if  he  gave  his  vote  for  the 
man  in  the  moon."  It  seems  to  me  that  Lord  Campbell's  opinion  was  this :  The  reason 
why  the  vote  given  for  a  dead  man  is  not  to  be  counted  is  that  the  voter  knowingly  votes 
for  a  person  whom  he  knows  to  be  incapable  of  election,  and  therefore  the  result  is  the 
same  as  if  he  had  not  voted  at  all. 

Voting  for  a  dead  man,  or  for  the  man  in  the  moon,  are  expressions  showing  that  in 
order  to  make  the  vote  a  nullity  there  must  be  willful  persistence  against  actual  knowl 
edge.  But  it  does  not  seem  to  me  consistent  with  either  justice  or  common  sense,  or 
common  law,  to  say  that  because  these  voters  were  aware  of  a  certain  circumstance  they 
were  necessarily  aware  of  the  disqualification  arising  from  that  circumstance,  and  that 
therefore  their  votes  are  to  be  considered  as  mere  nullities.  Upon  this  ground  I  do  not 
think  that  the  votes  given  in  ignorance  that  Blizard  was  in  law  disqualified,  are  made 
out  to  have  been  wholly  thrown  away,  and  that  Moore  is  entitled  to  act  as  town  coun 
cilor.  Under  these  circumstances  the  election  ought  to  be  considered  as  void,  and  a 
new  election  ought  to  be  held. 

In  the  Warwick  election  petition  case,  (19  L.  T.,  GIG,)  Martin,  B.,  said : 

The  fact  that  he  had  forbidden  him  to  bribe  is  utterly  immaterial,  if  the  bribery  is 
committed  by  him,  and  the  effect  would  be  to  destroy  his  status  as  a  candidate,  and  ren 
der  him  by  law  incapable  of  election;  and  every  vote  given  for  him  would  be  void. 

Again : 

The  moment  an  act  of  bribery  was  committed  by  himself  or  a  person  for  whom  he 
was  responsible,  from  that  moment  bis  status  as  a  candidate  was  annihilated. 

Lord  Westbnry,  in  the  case  of  Cooper  vs.  Phibbs,  L.  R.,  2  H.  L.,  170, 
thus  explains  the  maxim  : 

It  is  said  ignorantia  juris  Jiaud  excusat ;  but  in  that  maxim  the  word  "jus  "  is  used  in 
the  sense  denoting  general  law,  the  ordinary  law  of  the  country. 

Lord  Coleridge,  C.  J.,  in  Drinkwater  vs.  Deaken  (L.  E.,  9  C.  P.,  633,) 
draws  the  true  distinction  applicable  to  disqualification  thus : 

Was  Colonel  Deakin  then  disqualified  in  point  of  law  at  the  time  of  the  election  ? 
That  depends  upon  the  meaning  of  the  word  "  disqualified,"  and  in  this  case,  as  so  often 
happens  with  regard  to  the  English  language,  much  argument  would  be  prevented  by 
accurately  defining  the  terms  to  be  employed,  and  always  using  them  in  the  sense  de 
fined.  The  word  "  disqualified  "  may  be  used  in  two  senses  at  least^-either  to  signify  a 
person  disqualified  to  be  elected',  so  that,  although  the  great  majority  of  the  electors 
voted  for  him,  his  election  would  be  void,  or  to  signify  a  person  disqualified  to  be  a 
candidate,  so  that,  upon  notice  of  the  disqualification,  if  the  great  majority  of  the 
electors  voted  for  him,  his  election  would  be  void,  with  this  further  consequence,  as 
regards  the  electors,  that  they  would  be  held  to  have -intentionally  and  deliberately 
abstained  from  voting,  and  to  have  acquiesced  in  the  choice  by  the  other  electors  of 
the  other  candidate,  because  they  would  not  do  what  alone  could  prevent  such  choice — 
vote  themselves  for  a  candidate  duly  qualified  to  be  one. 

The  same  principle  has  been  decided  in  Ireland  in  the  case  of  Trench 
vs.  Nolan,  (Irish  Rep.,  G  Common  Law,  404,)  where  the  court  of  common 
pleas  held  that — 

Votes  given  to  a  candidate  who  is  disqualified,  after  notice  of  that  disqualification 
had  been  given,  are  thrown  away. 

The  same  rule  was  followed  in  1875  in  the  celebrated  case  of  the  Tip- 
perary  election,  (Irish  Rep.,  9  Common  Law,  217,)  where  John  Mitchel 


814  ELECTORAL    COUNT    OF    1877. 

and  Stephen  Moore  were  the  only  candidates  for  member  of  Parliament 
in  the  county  of  Tipperary.  Mitchel  received  3,114  votes  and  Moore 
746.  John  Mitchel  having  been  convicted  in  1848  of  treason-felony  and 
sentenced  to  transportation  for  fourteen  years,  having  escaped  and  been 
naturalized  as  a  citizen  of  the  United  States,  it  was  held  that  he  was  dis 
qualified  to  be  elected  a  member  of  the  House  of  Commons,  and  that 
notice  of  his  disqualification  having  been  brought  home  to  the  electors 
who  voted  for  him,  their  votes  were  thrown  away,  and  the  rival  candidate, 
though  numerically  in  the  minority,  was  entitled  to  the  seat. 

III. 

The  true  and  valid  electoral  college  of  Oregon  is  that  composed  of  Cronin, 
Miller,  and  Parlcer,  and  not  that  composed  of  Odell,  Carticriglit,  and  Watts. 
The  Revised  Statutes  provide  that — 

SEC.  136.  It  shall  be  the  duty  of  the  executive  of  each  State  to  cause  three  lists  of 
the  names  of  the  electors  of  such  State  to  be  made  and  certified,  and  to  be  delivered 
to  the  electors  on  or  before  the  day  on  which  they  are  required  by  the  preceding  sec 
tion  to  meet. 

SEC.  138.  The  electors  shall  make  and  sign  three  certificates  of  all  the  votes  given  by 
them,  each  of  which  certificates  shall  contain  two  distinct  lists,  one  of  the  votes  for 
President  and  the  other  of  the  votes  for  Vice-President,  and  shall  annex  to  each  of  the 
certificates  one  of  the  lists  of  the  electors  which  shall  have  been  furnished  to  them  by 
direction  of  the  executive  of  the  State. 

These  lists  are  attached  to  the  votes  given  by  Cronin,  Miller,  and  Par 
ker.  No  such  lists  are  attached  to  the  votes  given  by  Odell,  Cartwright, 
and  Watts.  Therefore,  at  least  prima  facie,  the  de  facto  electors  are 
Cronin,  Miller,  and  Parker.  They  had  color  of  title,  and,  in  fact,  acted. 

If  it  be  said  that  Odell  and  Cartwright's  names  also  appear  as  chosen 
electors  in  the  certificates  annexed  to  Cronin,  Miller,  and  Parker's  votes, 
we  reply : 

First.  That  the  statement  made  by  Cronin,  Miller,  and  Parker  is,  that 
Odell  and  Cartwright  "refused  to  act  as  such  electors.'7  This  made  a 
case  of  vacancy  under  the  Oregon  statutes ;  "  death,  refusal  to  act,  neg 
lect  to  attend,  or  otherwise,"  being  the  enumerated  contingencies,  in 
each  of  which  cases  "  the  electors  present  shall  immediately  proceed  to 
fill  by  viva  voce  and  plurality  of  votes  such  vacancy  in  the  electoral  col 
lege,"  &c.  Upon  the  refusal  of  Odell  and  Cartwright  to  act  with  Crouiu, 
the  latter,  as  was  his  right,  duly  proceeded  to  fill  the  vacancies  by  the 
appointment  of  Miller  and  Parker. 

Secondly.  The  certificates  filed  by  Odell,  Cartwright,  and  Watts  con 
firm  this  statement,  as  we  suppose.  For  they  show  that  Odell  and  Cart 
wright  accepted  a  resignation  tendered  by  Watts,  and  then  elected  the 
latter  to  fill  the  vacancy  caused  by  his  own  resignation,  acts  which  jus 
tify  the  description,  "refused  to  act"  with  Cronin. 

But  this  is  not  all.  The  Commission  will  notice  that  section  136  does 
not  require  any  attestation  of  the  executive  lists  by  the  secretary  of 
state,  or  authentication  by  the  great  seal  of  the  State. 

Chapter  44,  section  3,  p.  849,  of  the  General  Laws  of  Oregon,  provides 
that: 

SEC.  3.  The  votes  for  electors  shall  be  given,  received,  returned,  and  canvassed  as 
the  same  are  given,  returned,  and  canvassed  for  members  of  Congress.  The  Secretary 
of  State  shall  prepare  two  lists  of  the  names  of  the  electors  elected,  and  affix  the  seal  of  the 
State  to  the  same.  Such  lists  shatl  be  signed  by  the  governor  and  secretary,  and  by  the  latter 
delivered  to  the  college  of  electors  at  the  time  of  their  meeting  on  such  first  Wednesday  of  De 
cember. 

Chapter  13,  title  4,  section  33,  requires  the  secretary  of  state,  in 
presence  of  the  governor,  to  proceed,  within  thirty  days  after  the  elec- 


ELECTORAL    COUNT    OF    1877.  815 

tion,  and  sooner, -if  the  returns  be  all  received,  "  to  canvass  the  votes 
given  for  *  *  members  of  Congress." 

The  two  lists  prepared  by  the  secretary,  and  signed,  under  the  great 
seal  of  the  State,  by  the  governor  and  secretary  of  state,  and  given  to  the 
electors,  are,  therefore,  the  u  official  determination  and  declaration  of  their 
appointments  by  the  board  of  State  canvassers."  They  are  here.  The 
lists  required  by  section  136  of  the  Revised  Statutes,  signed  by  the  gov 
ernor,  and  which  by  that  section  only  the  governor  was  required  to  sign, 
the  secretary  has  made  to  conform  to  section  3  of  chapter  44,  by  adding 
his  signature,  and  the  great  seal  of  the  State,  and  thus  Cronin,  Odell, 
and  Cart wright  were  furnished  at  once  with  the  authoritative  statement 
by  the  secretary  of  the  result  of  the  canvass,  and  the  certificate  of  the 
governor. 

The  case  is  thus  brought  directly  within  the  rulings  of  the  Commis 
sion  in  the  Florida  case.  We  produce  the  muniments  of  title  which  the 
secretary,  upon  completing  the  canvass,  is  required  to  furnish  to  the 
"electors  elected,"  and  those  which  the  governor  is  required  to  cause 
to  be  made,  certified,  and  "delivered  to  the  electors."  The  governor's 
certificate,  based  upon  the  results  of  the  secretary's  canvass,  as  shown 
by  the  signature  of  the  secretary  and  the  great  seal  of  the  State,  vouches 
for  the  election  of  Croniu. 

Article  5,  section  18,  of  the  constitution  of  Oregon,  provides — 

That  all  commissions  shall  issue  in  the  name  of  the  State,  shall  be  signed  by  the 
governor,  sealed  with  the  seal  of  the  State,  and  attested  by  the  secretary  of  state. 

In  Coolidge  vs.  Brigham,  1  Alien,  335,  Bigelow,  C.  J.,  pronouncing 
the  opinion  of  the  whole  court,  said  : 

The  magistrate  before  whom  the  action  was  originally  brought  was  an  officer  de 
facto.  He  was  not  a  mere  usurper,  undertaking  to  exercise  the  duties  of  an  office  to 
which  he  had  no  color  of  title.  He  had  an  apparent  right  to  the  office.  He  had  a  com 
mission  under  the  great  seal  of  the  State,  bearing  the  signature  of  the  governor,  with 
his  certificate  thereon  that  the  oaths  of  office  had  been  duly  administered,  and  in  all 
respects  appearing  to  have  been  issued  with  the  formalities  required  by  the  constitu 
tion  and  laws  of  the  commonwealth.  He  was  thus  invested  with  the  apparent  muni 
ments  of  full  title  to  the  office.  Although  he  might  not  have  been  an  officer  de  jure, 
that  is,  legally  appointed  and  entitled  to  hold  and  enjoy  the  office  by  a  right  which 
could  not  on  due  proceedings  being  had  be  impeached  or  invalidated,  he  was  never 
theless  in  possession,  under  a  commission  prima  facie  regular  and  legal,  and  performing 
the  functions  of  the  office  under  a  color  and  show  of  right.  Thisunade  him  a  justice 
of  the  peace  de  facto. 

Cronin  waS  therefore  dejure  et  de  facto  elector.  Odell  and  Cartwright, 
although  originally  dejure  electors,  were  not  such  de  facto,  for  they  were 
not  clothed  with  the  evidences  of  title,  and  by  refusing  to  act  with 
Cronin  they  divested  themselves  of  their  de  jure  right,  and  made  it  his 
duty  to  appoint  others  to  fill  the  vacancies. 

In  Boardman  &  Perry  vs.  Halliday  et  al.,  10  Paige,  223,  it  was  held 
that— 

Where  there  is  but  one  office,  there  cannot  be  one  officer  de  jure  and  another  officer 
de  facto  in  possession  of  the  office  at  the  same  time. 

To  the  same  effect  is  Morgan  vs.  Quackenbush,  decided  by  Mr.  Justice 
Ira  Harris,  22  Barb.,  79,  thus  : 

Again,  the  common  council  having,  as  a  board  of  canvassers,  declared  Mr.  Perry 
elected  to  the  office,  and  their  decision,  however  erroneous,  remaining  unreversed, 
what  evidence  has  the  defendant  Quackenbush — however  rightfully  he  may  deem  the 
office  to  belong  to  him— even  of  a  color  of  right  ?  Unless  the  returns  of  the  inspectors 
can  be  successfully  attacked,  in  an  action  to  try  the  right  to  the  office,  he  must  suc 
ceed  in  such  an  action.  But  if,  as  I  have  attempted  to  show,  the  recanvassiug  of  the 
returns  by  the  new  board  furnished  no  more  evidence  of  his  right  to  the  office  than  the 
certificate  of  any  other  equal  number  of  respectable  men,  there  is  no  determination 


816  ELECTORAL    COUNT    OF    1377. 

upon  which  he  can  rely  to  give  him  even  iJic  color  of  right.  Indeed  I  do  not  under 
stand  that  two  persons  can  be  in  possession  of  the  same  office  at  the  same  time.  If  the 
certificate  of  the  canvassers  declaring  Mr.  Perry  elected  vested  him  with  colorable  title 
to  the  office,  as  I  think  it  did,  so  that  he  had  a  right  to  enter  upon  the  discharge  of  its 
duties,  another  effect  of  that  decision  was,  to  exclude  the  defendant  Quackenbush,  as 
well  as  everybody  else,  from  the  office.  They  could  not  hold  as  tenants  in  common — 
each  having  a  legal  right  to  perform  its  functions.  If  Mr.  Perry  became  mayor  de  facto, 
the  defendant  Quackenbush,  whatever  his  right,  could  not  be  mayor  in  fact  at  the 
same  time. 

In  the  absence  of  proof  to  the  contrary,  upon  proof  that  he  was  an  officer  de  facto,  the 
court  will  presume  that  he  was  also  an  officer  de  jure.  (Prell  vs.  McDonald,  7  Kans., 
426;  see  also  Willis  vs.  Sproule,  13  Kaus.,  257  ;  Diggs  vs.  State,  49  Ala.,  32.) 

As  to  officers  de  facto  : 

The  authorities  all  concur  in  recognizing  as  such  any  person  who  exercises  the  duties 
of  an  office  under  color  of  an  appointment  or  election  to  that  .office. 

See  also  Bowen  vs.  Hixon,  45  Mo.,  342. 

In  conclusion,  we  claim  to  have  established — 

1.  That  Cronin,  Miller,  and  Parker  constituted  the  electoral  college  of 
Oregon,  and  that  their  votes  should  be  the  votes  counted  for  President 
and  Vice-President  of  the  United  States.   They  were  the  lawful  electors 
dejure  et  de  facto. 

2.  That  if  not,  at  least  the  vote  cast  by  John  W.  Watts  for  Hayes  and 
Wheeler  cannot  be  counted. 

First.  On  the  day  when  by  act  of  Congress  electors  must  be  appointed, 
the  State  of  Oregon  could  not  appoint  him,  nor  could  he  accept  the  ap 
pointment,  because  he  was  then  holding  an  office  of  profit  and  trust 
under  the  United  States. 

Secondly.  Eot  having  attained  to  the  office  dejure,  he  could  not  resign 
it  into  the  hands  of  Odell  and  Oartwright. 

Thirdly.  Odell  and  Cartwright  not  having  themselves  attained  to  the 
office  de  facto,  not  being  in  possession,  or  acting  under  the  muniments 
of  title,  nor  dejure,  having  refused  to  serve  with  Gronin,  who  produces 
the  certificates,  could  not  appoint  him  to  fill  a  vacancy. 

Fourthly.  Watts  could  not  resign  an  office  which  Cronin  de  facto  held. 

Fifthly.  Watts's  original  disqualification  did  not  create  a  vacancy, 
but  a  case  of  failure  to  make  choice,  for  which  the  laws  of  Oregon  did 
not  provide. 

Sixthly.  While  Cronin  held  the  office  de  facto,  Watts's  disqualification 
could  not  make  a  case  of  ab  initio  vacancy.  An  office  cannot  be  vacant 
when  filled,  even  if  filled  nonjure.  Baird  vs.  Bank  of  Washington,  11 
S.  &  E.,  414. 

Seventhly.  Watts  was  not  an  elector  de  facto,  for  Gronin,  who  held  the 
muniments  of  title,  the  proper  certificates,  was  present  and  voted,  and 
his  vote  (sustained  by  evidence  of  his  title)  is  presented  here  for  count. 

Whether,  therefore,  the  voteof  Cronin  be  counted  or  not,  that  of  Watts 
cannot  be. 

GEO.  HOADLY, 
ASHBEL  GREEN, 
E.  T.  MEEEICK, 
ALEX.  POETEE  MOESE, 

Of  Counsel. 


APPENDIX  OF  OPINIONS. 


REMARKS  OF  MEMBERS  OF  THE  ELECTORAL  COMMISSION 
IN  THE  CONSULTATIONS  THEREOF,  AS  REDUCED  TO 
WRITING  BY  THEMSELYES,  IN  ACCORDANCE  WITH  A 
RESOLUTION  OF  THE  COMMISSION. 

The  remarks  of  the  various  members  of  the  Commission,  in  its  con 
sultations,  are  presented  in  the  order  in  which  they  spoke  on  the  Florida 
case. 

[Mr.  Commissioner  Edmunds,  who  was  the  first  speaker  in  the  delib 
erations  on  the  Florida  case,  was  taken  ill  early  in  March  and  obliged 
to  leave  the  Capital  on  account  of  illness,  and  was  unable  to  write  out 
his  remarks  by  the  time  limited  by  the  Commission's  resolution.] 

REMARKS  OF  MR.  COMMISSIONER  MORTON. 

FLORIDA. 

The  Electoral  Commission  having  under  consideration  an  offer  of  evidence  to  im 
peach  the  canvass  of  the  November  election  in  Florida  for  presidential  electors  made 
by  the  State  canvassing-board — 

Mr.  Commissioner  MORTON  said  : 

Mr.  PRESIDENT  :  By  the  statute  of  Florida  enacted  in  1872  the  secre,- 
tary  of  state,  attorney- general,  comptroller  of  public  accounts,  or  any 
two  of  them,  together  with  any  other  member  of  the  cabinet  who  may 
be  designated  by  them,  were  constituted  a  board  of  canvassers  to  can 
vass  the  returns  of  the  election,  and  determine  and  declare  who  have 
been  elected  State  officers  and  presidential  electors.  The  statute  pro 
vides  that — 

If  any  such  returns  shall  be  shown  or  shall  appear  to  be  so  irregular,  false,  or  fraudu 
lent  that  the  board  shall  be  unable  to  determine  the  true  vote  for  any  such  officer  or 
member,  they  shall  so  certify,  and  shall  not  include  such  return  in  their  determination 
and  declaration  ;  and  the  secretary  of  state  shall  preserve  and  file  in  his  office  all  such 
returns,  together  with  such  other  documents  and  papers  as  may  have  been  received  by 
him  or  by  said  board  of  canvassers. 

Under  this  statute  the  secretary  of  state,  the  comptroller  of  public 
accounts,  and  the  attorney- general  acted  as  a  board  of  State  canvass 
ers,  and  on  the  morning  of  the  6th  of  December,  1876,  a  majority  of 
them  returned  and  certified  that  Frederick  C.  Humphreys,  Charles  H. 
Pearce,  William  H.  Holden,  and  Thomas  W.  Long  had  been  chosen  as 
electors.  Afterward,  on  the  same  day,  the  governor  of  the  State,  M. 
L.  Stearns,  issued  to  them,  as  electors,  his  certificate,  and  they  cast  their 
votes  in  due  form  of  law  for  Rutherford  B.  Hayes  for  President  and 
William  A.  Wheeler  as  Vice-President,  and  certified  the  same  to  the 
President  of  the  Senate. 

Afterward,  the  supreme  court  of  the  State  issued  a  mandamus  di- 
52  E  c 


818  ELECTORAL    COUNT    OF    1877. 

recting  the  board  of  canvassers  to  make  another  count  of  the  votes  for 
governor  and  other  State  officers,  rejecting  all  testimony  of  irregularity 
and  fraud  except  such  as  might  appear  upon  the  face  of  the  returns. 
Under  this  order  of  the  court  the  board  of  canvassers  was  reconvened 
and  recounted  the  votes  in  accordance  with  the  order  made  by  the  court, 
and  declared  Drew  and  the  other  democratic  candidates  for  State  offices 
to  have  been  elected.  They  at  the  same  time  made  a  recount  of  the 
votes  for  electors,  and  again  declared  the  Hayes  electors  to  have  been 
chosen.  After  Drew  had  been  inaugurated  governor,  and  the  new  sec 
retary  of  state,  attorney-general,  and  comptroller  of  public  accounts 
had  taken  their  offices,  the  legislature  being  in  session,  in  January, 
1877,  passed  an  act  requiring  the  new  secretary  of  state,  comptroller  of 
public  accounts,  the  attorney-general,  and  such  other  members  of  the 
cabinet  as  they  might  choose,  to  reconvene  as  a  board  of  canvassers  to 
count  the  votes  for  electors.  This  they  did  on  the  19th  day  of  January, 
and  declared  Wilkinson  Call,  James  E.  Yonge,  Eobert  Bullock,  and 
Robert  B.  Hilton  to  have  been  chosen  as  electors.  The  same  persons  had 
assembled  on  the  6th  day  of  December,  and,  assuming  to  have  been 
chosen  as  electors,  voted  for  Samuel  J.  Tilden  as  President  and  Thomas 
A.  Hendricks  as  Vice-President,  and  sealed  up  their  votes  and  sent  them 
to  the  President  of  the  Senate,  inclosing  with  them  a  certificate  from 
William  A.  Cocke,  attorney-general,  certifying  to  their  election  as  elect 
ors. 

On  the  morning  of  the  6th  of  December  an  application  was  made  in 
the  circuit  court  of  Florida  in  the  name  of  the  State  on  the  relation  of 
Wilkinson  Call,  James  E.  Yonge,  Eobert  Bullock,  and  Eobert  B.  Hil 
ton,  to  which  the  Hayes  electors  were  made  defendants  and  upon  whom 
process  was  served  at  one  o'clock  on  the  6th  of  December  before  the 
said  Hayes  electors  had  cast  their  votes  for  President  and  Yice-Presi- 
dent.  By  the  terms  of  the  writ  they  were  required  to  appear  in  the 
court  on  the  18th  of  January,  1877,  to  show  by  what  right  they  claimed 
to  act  as  electors.  This  writ  was  prosecuted  to  final  judgment  on  the 
29th  day  of  January,  1877,  and  judgment  of  the  court  was  rendered  de 
claring  that  the  Tilden  electors  had  been  chosen  as  such  by  the  votes 
of  the  people  on  the  7th  of  November,  and  that  the  Hayes  electors  had 
no  title  whatever  to  the  office. 

The  Constitution  provides : 

The  electors  shall  meet  in  their  respective  States  and  vote  by  ballot  for  President 
and  Vice-President,  one  of  whom,  at  least,  shall  not  be  an  inhabitant  of  the  same 
State  with  themselves ;  they  shall  name  in  their  ballots  the  person  voted  for  as  Presi 
dent,  and  in  distinct  ballots  the  person  voted  for  as  Vice-President,  and  they  shall 
make  distinct  lists  of  all  persons  voted  for  as  President,  and  of  all  persons  voted  for  as 
Vice-President,  and  of  the  number  of  votes  for  each ;  which  lists  they  shall  sign  and 
certify,  and  transmit  sealed  to  the  seat  of  Government  of  the  United  States,  directed 
to  the  President  of  the  Senate ;  the  President  of  the  Senate  shall,  in  the  presence  of 
the  Senate  and  House  of  Representatives,  open  all  the  certificates,  and  the  votes  shall 
then  be  counted  ;  the  person  having  the  greatest  number  of  votes  for  President  shall 
be  the  President,  if  such  number  be  a  majority  of  the  whole  number  of  electors  ap 
pointed  ;  and  if  no  person  have  such  majority,  then  from  the  persons  having  the  highest 
numbers,  not  exceeding  three  on  the  list  of  those  voted  for  as  President,  the  House  of 
Representatives  shall  choose  immediately,  by  ballot,  the  President. 

Leaving  out  of  view  the  disputed  question  who  shall  count  the  votes, 
and  assuming  that  the  power  belongs  to  the  two  Houses,  and  was  by 
them  properly  vested  in  this  Commission,  the  question  still  remains, 
what  is  embraced  in  the  phrase  "  the  votes  shall  then  be  counted." 

And  first,  "  What  votes  shall  be  counted?"  I  answer,  "The  votes 
recorded  in  the  certificates  which  the  President  of  the  Senate  is  re 
quired  to  open  in  the  presence  of  the  two  Houses."  May  the  two  Houses 


ELECTORAL    COUNT    OF    It77.  819 

inquire  whether  the  certificate  is  a  forgery?  Certainly;  because  the 
President  of  the  Senate  is  only  required  to  open  in  the  presence  of  the 
two  Houses  the  certificates  from  the  electors.  If  the  certificate  is  a  for 
gery,  it  is  not  from  the  electors.  The  thing  to  be  ascertained  is  that  the 
certificate  is  from  the  electors  of  the  State,  and  if  it  is,  then  the  votes 
contained  in  it  are  to  be  counted.  If  the  votes  were  cast  by  the  electors 
of  the  State,  is  it  competent  for  the  two  Houses  or  this  Commission  to 
inquire  whether  such  persons  had  the  requisite  qualifications  to  be  elect 
ors  as  prescribed  by  the  laws  of  the  State,  or  were  eligible  under  the 
Constitution  of  the  United  States,  and  if  found  in  the  negative,  re 
ject  their  votes  1?  I  answer,  u  No !"  Such  inquiry  and  rejection  would 
be  inconsistent  with  the  positive  command  of  the  Constitution  that  the 
votes  contained  in  the  certificates  "shall  then  be  counted."  There 
is  no  time  provided  for  such  an  inquiry,  and  it  is  evident  that  it  was 
not  contemplated.  The  injunction  was  placed  upon  the  States  that 
they  should  not  appoint  as  an  elector  a  member  of  Congress  or  any  per 
son  holding  an  office  of  trust  or  profit  under  the  United  States ;  but  if 
the  States  disregard  the  injunction,  there  is  no  time  or  place  for  trial  of 
the  question  when  the  votes  are  counted.  We  should  do  violence  to  the 
intelligence  of  the  framers  of  the  Constitution  if  we  supposed  they  in 
tended  the  result  of  a  presidential  election  might  be  changed  by  the  dis 
covery  after  the  election,  or  after  the  votes  had  been  cast  by  the  electors, 
that  an  elector  was  disqualified.  It  is  a  matter  in  which  the  elector  has 
no  other  interest  than  that  of  the  whole  body  of  citizens,  and  we  are  not 
at  liberty  to  suppose  that  the  wishes  of  a  State  should  be  defeated  by 
the  fact  that  an  elector  was  ineligible  for  some  cause  of  which  the  mass 
of  the  voters,  or  the  appointing  power,  whatever  it  might  be,  had  no 
knowledge.  The  process  of  counting  the  votes  was  intended  to  be  short 
and  simple.  The  States  were  to  appoint  electors  in  the  manner  pre 
scribed  by  their  legislatures,  and  the  electors  were  to  meet  in  the  sev 
eral  States  and  vote  upon  the  same  day ;  the  records  of  their  transac 
tions  were  to  be  sent  to  the  President  of  the  Senate  in  sealed  envelopes, 
and  by  him  to  be  opened  in  the  presence  of  the  two  Houses,  and  the 
votes  were  then  to  be  counted. 

Whether  it  is  competent  for  Congress  to  pass  laws  under  which  the 
title  of  a  President  may  be  tried  in  the  courts  upon  a  writ  of  quo  loar- 
ranto,  in  which  the  very  right  and  truth  of  the  election  may  be  ex 
amined,  is  not  material  for  the  present  inquiry.  We  cannot  by  logic  or 
imagination  enlarge  the  simple  provision  of  the  Constitution,  that  the 
certificates  of  the  electors  from  the  various  States  shall  be  opened  in  the 
presence  of  the  two  Houses  and  the  votes  therein  contained  "  shall  then 
be  counted."  If  it  should  appear  when  the  certificates  were  opened  that 
the  requirements  of  the  Constitution  had  not  been  complied  with,  for 
example,  that  the  electors  did  not  vote  by  ballot,  or  that  they  did  not 
designate  in  distinct  ballots  the  persons  voted  for  as  President  and  Vice- 
President,  or  that  the  electors  were  holding  offices  of  trust  and  profit 
under  the  United  States  and  therefore  ineligible,  it  might  be  the  duty 
of  the  two  Houses — although  upon  this  point  I  give  no  opinion — to  re 
ject  such  votes,  for  there  it  would  appear  affirmatively  in  the  certificate, 
over  the  signatures  of  the  electors,  that  they  had  not  conformed  to  the 
Constitution  or  that  they  were  not  eligible.  To  reject  such  votes  would 
be  going  to  the  limit  of  the  power  of  the  two  Houses  to  disobey  the  ex 
press  command  of  the  Constitution  that  "the  votes  shall  then  be 
counted."  But  if  the  certificates  were  silent  as  to  whether  the  electors 
voted  by  ballot  or  were  ineligible,  then  such  votes  must  be  counted,  and. 
the  two  Houses  have  no  power  to  make  an  inquiry  whether  the  electors 
voted  by  ballot  or  were  eligible. 


820  ELECTORAL    COUNT    OF    1877. 

The  word  " counted"  means  enumerated.  Had  it  been  intended  to 
give  the  two  Houses,  or  whoever  counted  the  votes,  any  judicial  or 
revisory  power  over  them,  beyond  mere  enumeration,  the  purpose 
would  have  been  expressed  in  words.  In  the  several  States  the  can 
vassing  or  returning  officers  are  held  to  a  simple  ministerial  enumera 
tion  of  the  votes,  unless  enlarged  powers  are  expressly  given  by  the 
statute.  Strange  to  say,  in  this  very  case,  those  who  insist  that  this 
Commission  has  power  to  go  behind  the  decision  of  the  Florida  return- 
ing-board,  made  at  the  proper  time,  before  the  6th  of  December,  and 
to  receive  testimony  impeaching  its  truthfulness  and  legality,  are  com 
pelled  to  reverse  the  rule  and  nullify  the  principle  when  considering  the 
action  of  the  returning-board  itself,  acting  under  a  statute  much  broader 
than  the  provision  in  the  Constitution. 

The  statute  under  which  they  acted  contains  the  provision  I  quoted 
at  the  beginning  of  my  remarks,  andf  by  necessary  construction  gives 
the  board  the  power  to  take  testimony  to  show  whether  a  return  was 
"false  or  fraudulent.77 

It  is  insisted  that  this  statute  did  not  permit  the  board  to  look  beyond 
the  mere  face  of  the  papers  and  take  evidence  to  show  that  any  return 
from  a  county  or  precinct  was  irregular,  false,  or  fraudulent.  This  con 
struction  does  violence  to  the  language  and  spirit  of  the  statute,  and  it 
is  hard  to  see  how  any  court  could  maintain  it;  and  yet  those  maintain 
ing  it  insist,  in  the  next  breath,  that  the  constitutional  declaration  that 
"the  votes  shall  then  be  counted77  gives  to  this  Commission  the  most 
enlarged  powers  of  inquiry,  far  beyond  any  attempted  to  be  exercised 
by  the  Florida  canvassing- board. 

If  the  Florida  statute  gives  no  authority  to  take  testimony  or  to  look 
beyond  the  mere  face  of  the  returns,  what  shall  be  said  of  the  Consti 
tution  of  the  United  States,  which  declares  that  when  the  certificates 
are  opened  "the  votes  shall  then  be  counted!77  The  whole  case  in 
favor  of  the  Tilden  electors  consists  in  the  demand  that  the  returns 
from  the  various  counties  and  precincts  of  the  State  of  Florida  shall  be 
received  and  counted,  and  that  no  evidence  shall  be  admitted  to  show 
fraud  or  violence ;  and  this  demand  is  made  in  the  face  of  a  statute 
evidently  giving  to  the  returning-officers  power  to  take  testimony  and 
to  reject  any  return  if  it  be  shown  to  have  been  irregular,  false,  or  fraud 
ulent  ;  and  then,  reversing  the  principle  absolutely,  to  demand  that 
this  Commission,  representing  the  two  Houses,  under  the  brief  com 
mand  of  the  Constitution  "to  count  the  votes,'7  shall  go  behind  the 
decision  of  the  proper  officers  of  Florida  and  make  inquiries,  both  of  law 
and  fact,  and  exercise  the  highest  judicial  powers. 

Aside  from  the  consideration  of  matters  which  might  appear  upon 
the  face  of  the  certificate,  there  is  absolutely  but  one  thing  to  be  dooey 
and  that  is  to  identify  the  certificates  as  coming  from  the  electors  of 
the  States.  If  they  come  from  the  electors  of  the  States,  the  votes  are 
to  be  counted.  How,  then,  shall  it  be  known  that  the  certificate  comes 
from  the  electors  of  the  State  ?  There  is  no  requirement  in  the  Con 
stitution  that  the  electors  shall  be  certified  by  the  governors  of  the 
States.  That  is  a  plan  of  identification,  which  was  not  devised  until 
five  years  after  the  adoption  of  the  Constitution  and  three  years  after 
the  first  presidential  election.  The  positive  requirement  of  the  Con 
stitution  that  the  certificates  from  the  electors  appointed  by  the  States 
shall  be  opened  and  the  votes  therein  counted  cannot  be  defeated  by 
an  act  of  Congress  making  the  certificate  of  a  governor  necessary  to  the 
right  of  the  elector  to  vote  and  to  have  his  certificate  opened  and  his 
vote  counted.  Should  the  certificate  of  the  governor  be  withheld  arbi- 


ELECTORAL    COUNT    OF    1877.  821 

trarily  or  by  accident,  or  be  falsely  given  to  another,  it  could  not  defeat 
the  express  requirement  of  the  Constitution  that  the  certificate  from  the 
electors  appointed  by  the  State  shall  be  opened  and  the  votes  therein 
counted. 

As  before  stated,  the  only  issue  that  can  be  tried  is  that  the  certifi 
cate  is  from  the  electors.  The  only  certificate  which  the  President  of 
the  Senate  is  bound  to  receive,  and  to  open  in  the  presence  of  the  two 
Houses,  is  from  the  electors,  a  fact  which  he  has  a  right,  I  think,  to 
ascertain  in  any  way  that  he  can  ;  but  as  this  law  requires  him  to  open 
all  certificates  purporting  to  contain  electoral  votes,  and  he  acts  under 
it,  it  is  the  duty  of  this  Commission  to  ascertain  which  certificate  comes 
from  the  electors  of  the  State,  and  when  that  is  done  the  duty  is  per 
formed,  and  the  votes  contained  therein  must  be  counted.  The  certifi 
cate  of  the  governor  is  no  part  of  the  appointment  of  an  elector,  nor  is 
its  issue  in  any  sense  the  act  of  the  State.  It  is  issued  by  virtue  of  an 
act  of  Congress,  and  Congress  might  have  devolved  the  duty  upon  the 
secretary  of  state,  the  judge  of  the  district  court  of  the  United  States, 
or  upon  any  other  officer  it  chose  to  select.  The  certificate  of  the  gov 
ernor  is  the  creation  of  the  act  of  Congress,  intended  as  a  convenient 
form  of  evidence,  but  is  not  made  conclusive,  and  could  not  be,  for  Con 
gress  has  no  power  to  make  it  a  condition-precedent  of  the  right  of  an 
elector  appointed  under  the  laws  of  a  State  that  he  shall  obtain  a  cer 
tificate  from  the  governor  before  exercising  his  right  to  vote.  Such  a 
provision  would  clearly  be  an  infringement  of  the  Constitution  by 
attaching  a  new  condition  to  the  office  of  an  elector.  If  it  shall  be  made 
to  appear  that  the  certificate  of  the  governor  has  been  given  to  an 
elector  who  was  not  appointed  in  the  manner  prescribed  by  the  legis 
lature  of  the  State,  the  certificate  is  null  and  void,  and  is  to  be  utterly 
disregarded.  The  certificate  of  the  governor  issued  under  the  act  of 
Congress  is  not  the  act  of  the  State.  The  return  made  by  the  canvass- 
ing-officers  of  the  State  is  the  act  of  the  State  and  cannot  be  questioned. 

How  then  shall  we  know  whether  the  electors  executing  the  certifi 
cate  No.  1  in  this  case  were  the  electors  for  the  State  of  Florida  ?  I 
answer,  first,  by  the  certificate  of  the  governor,  which  is  prima  facie  and 
sufficient  evidence,  if  unim peached,  but  if  impeached  then  by  reference 
to  the  declarations  of  those  officers  who,  by  the  laws  of  Florida,  were 
authorized  to  ascertain  and  certify  who  have  been  appointed  electors ; 
and  when  we  have  found  such  declarations  we  are  at  the  end  of  the  in 
quiry,  and  must  accept  them  as  final  and  conclusive. 

There  are  some  things  in  government  that  must  depend  upon  forms, 
and  some  kinds  of  evidence  that  must  be  received  as  conclusive.  In 
those  particulars  in  which  the  Government  deals  with  States  as  such, 
the  forms  of  expression  and  action  adopted  by  the  States  must  be  ac 
cepted  as  final. 

It  was  intended  that  the  States,  in  the  appointment  of  electors,  should 
be  absolutely  independent  of  each  other  and  of  the  National  Govern 
ment. 

The  action  of  the  State  in  the  appointment1  of  electors  must  be  de 
clared  by  officers  designated  by  the  legislature  for  that  purpose,  and 
when  they  have  declared  it,  their  declaration  must  not  only  be  accepted 
by  Congress  as  final  and  unquestionable,  but  be  final  and  conclusive  as 
to  themselves  and  to  the  State ;  and  they  cannot  afterward,  under  the 
influence  of  temptation,  fear,  or  any  other  motive,  reconsider  their  find 
ing  and  determination. 

If  it  were  attempted  by  an  act  of  Congress  to  take  from  the  State  the 
determination  and  ascertainment  of  the  persons  appointed  electors  in 


822  ELECTORAL    COUNT    OF    1877. 

the  manner  prescribed  by  the  legislature,  it  would  be  clearly  unconsti 
tutional. 

The  right  of  a  State  to  appoint  electors  carries  with  it  necessarily  the 
right  to  ascertain  in  form  of  law  who  have  been  appointed.  The  power 
of  the  State  to  appoint  would  not  be  complete  without  the  power  to  de 
clare  finally  who  have  been  appointed.  If  Congress  may  overrule  the 
State  authorities  and  decide  who  were  elected  by  the  people,  the  inde 
pendence  of  the  States  in  the  appointment  of  electors  would  be  lost, 
and  their  power  amount  to  little  more  than  the  right  to  nominate  a 
number  of  candidates  from  whom  Congress  might  select.  It  is  the  per 
emptory  duty  of  the  governor  to  give  the  certificate  to  those  persons 
who  have  been  decided  in  the  manner  prescribed  by  the  law  of  the  State 
to  have  been  appointed  electors;  and  should  he  give  the  certificate  to 
other  persons,  it  would  be  fraudulent  and  void. 

It  is  provided  in  the  Constitution  that  the  votes  of  the  electors  shall 
all  be  cast  on  the  same  day,  and  the  history  of  the  clause  shows  that 
great  importance  was  attached  to  it. 

The  purpose  was  to  prevent  fraud,  to  prevent  the  electors  in  one  State 
from  waiting  until  the  other  States  had  voted  and  then  so  vote  as  to 
change  or  control  the  result. 

How  completely  would  this  purpose  be  defeated  if  it  were  in  the 
power  of  a  State,  after  the  electors  in  all  the  States  had  voted,  to  have 
a  new  count  of  votes  in  that  State,  so  as  to  invalidate  the  votes  of  the 
electors  and  give  effect  to  the  votes  of  another  set,  who  at  the  time  of 
casting  their  votes  had  no  title  in  law  and  were  mere  pretenders.  This 
would  present  the  greatest  opportunities  and  temptations  to  fraud,  and 
reverse  the  theory  and  purpose  of  the  framers  of  the  Constitution,  who 
intended  that  the  result  of  a  presidential  election  should  be  settled  irrev 
ocably  in  one  day,  and  that  no  opportunity  should  be  left  for  intrigue 
and  cabal  after  that  time. 

When  electors  have  cast  their  votes  on  the  6th  of  December,  and 
have  sealed  them  up  and  transmitted  them  to  the  President  of  the  Sen 
ate,  they  SiT&functus  officio.  Their  office  has  expired  and  their  functions 
are  gone  forever.  The  power  of  the  State  in  the  election  of  a  President  is 
then  exhausted,  and  the  jurisdiction  of  the  State  which  was  absolute 
before,  is  thereafter  absolutely  extinguished.  It  is  not  left  in  the  power 
of  a  State  to  undo  or  impair  what  she  has  done,  by  subsequently  declar 
ing  that  the  electors  who  had  voted  had  not  been  appointed,  and  that 
by  a  recount  of  the  votes,  real  or  pretended,  other  persons  were  shown 
to  have  been  appointed.  Whether  such  subsequent  action  on  the  part 
of  the  State  is  had  through  the  courts,  or  by  the  legislature,  or  by  both 
combined,  can  make  no  diiference.  Either  way,  or  any  way,  such  ac 
tion,  if  allowed  to  prevail,  would  be  fatal  to  our  system  of  government. 
The  certainty  of  political  action  requires  that  an  act  once  performed  in 
the  election  of  a  President  shall  be  irrevocable. 

If  it  be  conceded  that  an  elector  at  the  time  of  the  election  in  No 
vember,  and  at  the  time  he  voted  as  elector  in  December,  held  an  office 
of  trust  under  the  United  States,  and  was  therefore  ineligible,  the  ques 
tion  arises,  what  effect  would  it  have  upon  his  vote?  Having  been  de 
clared  elected  by  the  State  returning-officers,  and  having  received  the- 
certificate  of  the  governor  as  an  elector,  he  certainly  had  the  color  of 
office  and  was  an  officer  de  facto. 

The  act  of  an  officer  de  facto  is  held  to  be  valid  so  far  as  it  affects 
the  rights  of  any  other  person  than  himself.  If  his  iueligibility  had 
subsequently  been  established  by  a  court  of  competent  authority, 
upon  a  writ  of  quo  warranto,  it  could  not  affect  the  validity  of  his  vote. 

The  ineligibility  of  a  person  holding  an  office  of  trust  or  profit  under 


ELECTORAL   COUNT    OF    1677.  823 

the  United  States  to  be  appointed  an  elector  is  not  self-executing,  and 
remains  in  abeyance  until  laws  are  passed  providing  method  and  pro 
cess  for  ascertaining  judicially  such  ineligibility. 

Where  the  action  of  a  State  legislature  is  provided  for  or  required  by 
the  Constitution  of  the  United  States,  such  action  when  performed  can 
not  be  revoked. 

Each  State  is  entitled  to  two  Senators,  to  be  chosen  by  the  legislature 
thereof. 

When  a  Senator  has  been  chosen  in  the  manner  prescribed  by  law,  the 
power  of  the  legislature  is  exhausted,  and  it  cannot  at  a  subsequent 
time,  when  becoming  dissatisfied  with  its  choice,  annul  the  first  election 
and  enter  into  a  new  one,  nor  can  it  accomplish  the  same  purpose  by 
resolving  that  the  votes  at  the  first  election  had  not  been  properly 
counted  and  thereupon  order  a  new  election  or  a  new  count. 

Again,  the  Constitution  provides  that  amendments  to  it  may  be  sub 
mitted  by  two-thirds  of  each  House  of  Congress  to  the  legislatures  of 
the  several  States  for  their  ratification.  When  the  ratification  of  an 
amendment  has  been  made  by  a  legislature,  it  cannot  be  afterward  re 
considered  and  undone.  The  legislatures  of  New  York  and  Ohio  at 
tempted  by  formal  votes  to  reconsider  the  ratifications  before  given  to 
the  fifteenth  amendment,  but  their  action  was  generally  considered  as 
a  nullity  by  the  legal  mind  of  the  United  States. 

Each  House  shall  be  the  judge  of  the  elections,  returns,  and  qualifications  of  its  own 
members. 

Under  this  power  the  House  may  go  behind  the  returns  and  count  the 
actual  number  of  votes  received  by  a  member,  and  the  Senate  may  go 
behind  the  certificate  of  the  governor  and  inquire  whether  a  Senator  re 
ceived  the  number  of  legislative  votes  necessary  to  elect,  whether  he 
has  the  qualifications  required  by  the  Constitution,  or  was  guilty  of 
bribery  or  other  misconduct.  And  here  it  is  claimed  that  the  two 
Houses,  or  this  Commission  in  their  stead,  in  the  absence  of  any  consti 
tutional  provision,  have  the  right  to  inquire  into  the  election,  returns, 
and  qualifications  of  electors ;  that  together  they  have  the  same  power 
over  electors  that  each  House  has  over  its  own  members.  How  mon 
strous  is  this  assumption  when  we  remember  that  the  great  effort  by 
the  trainers  of  the  Constitution  was  to  make  the  executive  independent 
of  the  legislative,  and  to  place  the  election  of  a  President  beyond  the 
reach  or  control  of  Congress.  The  electors  were  to  be  appointed  by  the 
States,  in  such  manner  as  the  legislatures  might  direct,  and  were  thus 
removed  from  Congress  as  far  as  possible.  The  only  mention  of  Con 
gress  in  connection  with  the  subject  is,  that  the  President  of  the  Senate 
shall  open  the  certificates  in  the  presence  of  the  two  Houses ;  and  from 
that  is  inferred  the  vast  power  to  judge  of  the  election,  returns,  and 
qualifications  of  electors. 

The  right  of  each  House  to  judge  of  the  election,  return,  and  qualifi 
cation  of  its  members  was  not  left  to  implication  but  was  expressly  con- 
fe.rred,  notwithstanding  it  was  so  necessary  and  proper  that  each  House 
should  have  that  power.  And  can  it  be  supposed  that  a  similar  power 
in  regard  to  electors,  so  important  and  controlling  in  the  choice  of  a 
President,  would  be  left  to  implication  had  it  been  intended  that  the 
two  Houses  should  have  it  ?  Not  only  is  the  power  not  given,  but  there 
is  no  provision  from  which  it  can  be  implied,  and  the  history  of  the 
Constitution  shows  conclusively  that  the  purpose  was  to  put  the  elec 
tion  of  a  President  beyond  the  control  of  Congress.  The  tenth  article 
of  amendment  to  the  Constitution  declares  that — 

The  powers  not  delegated  to  the  United  States  by  the  Constitution,  nor  prohibited 
by  it  to  the  States,  are  reserved  to  the  States  respectively  or  to  the  people. 


824  ELECTORAL   COUNT    OF    1877. 

The  rale  of  construction  adopted  from  the  first  is  that  the  Govern 
ment  of  the  United  States  possesses  no  powers  except  those  that  are 
expressly  conferred  or  such  as  are  necessary  to  the  due  execution  of 
those  expressly  conferred.  Not  only  is  the  power  on  the  part  of  the 
two  Houses  to  judge  of  the  election,  returns,  and  qualification  of  electors 
not  expressly  conferred,  and  no  provision  from  which  it  can  be  implied, 
but  to  infer  it  would  be  to  violate  the  purpose  entertained  by  the  framers 
of  the  Constitution,  and  so  often  expressed  by  them,  to  preserve  the 
independence  of  the  executive  department  from  the  control  and  absorp 
tion  of  the  legislative. 

As  the  appointment  of  electors  is  to  be  made  by  the  States  in  such 
manner  as  the  legislatures  may  provide,  it  is  clearly  within  the  power 
of  the  States  to  provide  for  contesting  the  election  of  electors  by  the 
people,  or  to  correct  any  errors  or  frauds  in  the  return  or  canvass  of  the 
vote,  provided  such  contest  or  correction  is  made  before  the  6th  day  of 
.December,  when  the  votes  of  the  electors  are  to  be  cast;  but,  because 
the  States  have  failed  to  make  provision  for  such  contest,  or  the  correc 
tion  of  frauds  or  errors,  it  is  absurd  to  argue  that  the  two  Houses  of 
Congress  or  this  Commission  may  step  in  and  do  that  which  the  States 
had  power  but  failed  to  do.  The  powers  of  the  two  Houses  upon  this 
or  any  other  subject  are  riot  made  to  depend  upon  the  failure  of  States 
to  exercise  their  constitutional  power,  but  depend  upon  the  positive 
or  implied  grants  of  power  in  the  Constitution. 

If  the  States  have  a  distinct  and  clearly  defined  right  expressed  in 
the  Constitution,  it  is  their  perfect  freedom  from  all  outside  inter 
ference  in  the  appointment  of  electors.  In  this  they  are  as  free  and 
independent  as  in  the  choice  of  a  governor  or  any  State  officer. 

In  making  an  application  of  the  principles  of  law  to  this  case,  certain 
great  purposes  should  be  kept  in  view : 

First.  That  the  process  of  electing  a  President  shall  be  progressive, 
so  that  when  the  term  of  one  expires  there  shall  be  another  ready  to 
take  his  place  and  no  interregnum  occur;  and  to  cut  off  every  method 
or  purpose  to  retard  the  process  and  defeat  the  great  result. 

Second.  That  it  was  a  leading  purpose  of  the  framers  of  the  Consti 
tution  to  preserve  the  independence  of  each  department  of  Government, 
and  especially  to  protect  and  preserve  the  independence  of  the  Execu 
tive  as  against  the  absorbing  tendencies  of  the  legislative  department. 

Third.  The  judicial  power  of  the  Government  is  vested  entirely  in 
the  courts,  except  where  the  same  is  expressly  given,  or  by  necessary 
implication,  to  another  department,  as  where  each  House  is  authorized 
to  judge  of  the  election,  returns,  and  qualifications  of  its  own  members. 

In  the  organization  of  government  the  certainty  of  political  action  is 
an  indispensable  element,  so  that  every  step  when  taken  shall  be  irrev 
ocable. 

After  the  electors  have  been  appointed  by  the  States,  and  have  voted 
on  the  day  fixed  by  law,  and  their  votes  have  been  sealed  and  trans 
mitted  to  the  President  of  the  Senate,  the  States,  as  such,  have  no  longer 
any  connection  with  the  matter.  They  cannot  reconsider  their  action, 
appoint  new  electors,  and  vote  for  new  candidates,  nor  can  they  accom 
plish  the  same  things  by  declaring  that  although  their  electors  were 
appointed  in  due  form  of  law,  yet  in  fact  the  appointment  was  procured 
by  fraud  or  by  a  mistake  of  law  or  fact  on  the  part  of  some  of  the  State 
officers  while  in  the  process  of  appointment.  The  appointment  of  elect 
ors,  when  once  made,  must,  for  the  very  highest  reasons  of  public  policy, 
be  irrevocable ;  for  if  a  State  should  have  the  power,  after  the  votes 
have  been  cast  honestly,  to  undo  a  fraud,  or  correct  a  mistake3  it  is  man- 


ELECTORAL    COUNT    OF    1877.  825 

ifest  that  parties  or  conspirators,  under  that  cover,  might*  seek  the 
perpetration  of  fraud  to  change  or  control  the  result  of  presidential 
elections. 

For  the  reasons  given,  I  believe  that  the  votes  contained  in  certificate 
No.  1  must  be  counted,  and  that  the  evidence  offered  to  impeach  them 
ought  not  to  be  received.  The  electors  therein  named  were  certified  by 
M.  L.  Stearns,  the  lawful  governor  of  the  State  at  the  time,  and  their 
election  by  the  people  was  declared  in  due  form  of  law  by  the  officers  of 
the  State  expressly  authorized  by  the  laws  of  the  State  to  perform  that 
duty.  That  a  new  governor,  a  new  legislature,  and  a  new  returning- 
board,  coming  into  office  after  the  6th  of  December  and  after  the  juris 
diction  of  the  State  had  passed  away,  with  or  without  the  aid  of  the 
courts,  can  recount  the  vote,  or  in  any  way  change  the  result,  is  a  doc 
trine  most  dangerous  and  absurd. 

LOUISIANA. 

The  electoral  votes  of  Louisiana  being  under  consideration — 

Mr.  Commissioner  MORTON"  said  : 

Mr.  PRESIDENT  :  It  is  not  my  purpose  to  go  over  the  ground  which 
was  discussed  and  decided  in  the  Florida  case.  An  offer  is  made  to 
impeach  the  decision  of  the  returning-officers  of  Louisiana  by  showing 
that  they  threw  out  votes  in  violation  of  law;  that  their  rulings  were 
arbitrary  and  unjust,  and  that  in  point  of  fact  the  Tilden  electors  were 
appointed.  The  question  as  to  the  right  to  go  behind  the  returns  of  the 
proper  officers  and  inquire  what  was  the  actual  result  of  an  election  in 
the  State,  and  to  examine  into  the  conduct  of  such  officers  to  find 
whether  they  acted  within  their  jurisdiction  or  upon  sufficient  evidence, 
was  fully  settled  in  the  negative  in  the  Florida  case.  Without  pretend 
ing  that  it  is  legitimate  in  this  case — for  I  know  it  is  not — to  discuss  the 
actual  condition  of  things  in  Louisiana,  yet  I  wish  here  to  repel  the  charge 
of  fraud  which  has  been  so  persistently  made  by  the  Objectors  and  coun 
sel  who  appeared  in  favor  of  the  Tilden  electors. 

If  I  am  correctly  advised,  I  believe  that  if  we  were  to  go  behind  the 
action  of  the  returning-board  of  Louisiana  we  should  find  that  action 
based  upon  sufficient  evidence,  and  that  the  pretended  majorities  for  the 
Tilden  electors  in  many  parishes  had  been  obtained  by  intimidation 
produced  by  murder,  violence,  and  the  most  dreadful  crimes.  It  is  easy 
to  talk  about  what  could  be  proven  in  the  way  of  fraud  when  it  is  pretty 
•well  understood  that  there  will  be  no  opportunity  or  time  to  make  the 
proof,  and  to  bring  the  parties  making  the  charge  to  the  test.  During 
the  last  ten  years  Louisiana  has  been  the  theater  of  the  most  fearful 
outrages  recorded  in  the  annals  of  our  country.  According  to  the  tes 
timony  taken  by  investigating  committees,  and  collected  by  General 
Sheridan,  thousands  of  men  have  been  killed  and  wounded  on  account 
of  their  opinions.  The  most  terrible  proscriptions  have  been  practiced, 
and  cruelties  inflicted,  compared  to  which  the  warfare  of  the  American 
savage  is  civilized  and  humane. 

But  we  are  here  to  discuss  questions  of  law,  and  I  refer  to  these  feat 
ures  in  the  recent  history  of  Louisiana  only  to  repel  the  constant  charge 
of  fraud  and  to  rebut  the  allegations  that  resistance  is  made  to  going 
behind  the  returns  and  entering  into  the  details  of  the  Louisiana  election 
for  fear  of  the  proof  of  these  frauds.  The  appointment  of  the  Hayes 
electors  was  duly  certified  by  the  governor  of  the  State,  and  their  ap 
pointment  by  the  votes  of  the  people  was  declared  in  due  form  of  law 
by  the  proper  returning-officers  of  the  State,  who  alone  were  duly  au- 


826  ELECTORAL   COUNT    OF    1877. 

thorized  to  canvass  and  determine  the  persons  appointed  electors  by  the 
votes  of  the  people. 

To  investigate  the  question  whether  these  officers  exceeded  their  juris 
diction  or  acted  without  proper  evidence  would  concede  the  whole 
ground,  would  overturn  the  decision  made  in  the  Florida  case,  an  d 
lead  necessarily  to  an  examination  of  the  details  of  the  election  in  every 
parish  in  Louisiana.  If  the  returning-officers  were  authorized  to  can 
vass  the  votes  and  make  the  declaration  of  the  persons  elected,  we  are 
concerned  only  with  that  declaration  and  not  with  the  grounds  upon 
which  it  was  made.  The  declaration  made  by  these  officers  is  the  act 
and  declaration  of  the  State,  and  we  cannot,  under  the  brief  command 
of  the  Constitution,  "and  the  votes  shall  then  be  counted,"  examine  into 
the  evidence  upon  which  it  was  made.  But  to  consider  this  demand  in 
a  practical  point  of  view,  we  know  very  well  that  such  an  investigation 
could  not  be  made  between  this  and  the  4th  day  of  March.  It  would 
take  weeks  and  perhaps  months ;  and  to  enter  upon  it  would  be  to 
defeat  the  presidential  election  altogether,  create  an  interregnum,  and 
bring  confusion,  perhaps  anarchy,  into  the  Government. 

The  length  of  the  investigations  which  would  have  to  be  made,  if  we 
went  behind  the  returns  of  the  State  officers,  is  an  overwhelming  argu 
ment  against  the  soundness  of  the  doctrine  contended  for.  Taking  the 
four  disputed  States,  it  is  not  possible  that  the  investigations  could  be 
made  in  months,  hardly  this  year;  and  it  is  claimed  that  all  this  shall 
be  done  under  the  brief  command  in  the  Constitution,  "and  the  votes 
shall  then  be  counted."  Never  was  so  monstrous  a  burden  suspended 
upon  so  small  a  peg.  It  cannot  be  that  the  framers  of  the  Constitution 
intended  to  authorize  the  two  Houses  of  Congress,  when  the  votes  for 
President  are  being  counted,  to  enter  upon  investigations  in  any  or  all  the 
States  which,  by  means  of  their  length  and  complexity,  would  enable 
cunning  conspirators  to  defeat  the  result  of  an  election  every  time. 

If  it  were  intended  by  the  fathers  of  the  Eepublic  to  plant  a  rock  in 
the  straits  directly  in  the  path  of  the  ship  of  state,  and  upon  which  she 
might  be  wrecked  at  any  time  by  the  carelessness  or  wickedness  of  the 
crew,  it  could  not  be  done  more  effectually  than  by  authorizing  the  two 
Houses  of  Congress  to  enter  upon  investigations  almost  interminable  in 
their  character  and  which  through  their  magnitude  and  nature  could  be 
but  imperfectly  made,  no  difference  how  long  the  time  consumed. 

But  it  is  alleged  that  the  returning-board  of  Louisiana  was  not  a  legal 
body,  not  being  composed  according  to  the  law  of  the  State.  Section  2 
of  the  act  of  1872,  which  is  the  latest  law  upon  the  subject,  contains  the* 
following  provision : 

That  five  persons,  to  be  elected  by  the  senate  from  all  political  parties,  shall  be 
the  returning-officers  for  all  elections  in  the  State,  a  majority  of  whom  shall  consti 
tute  a  quorum  and  have  power  to  make  the  returns  of  all  elections.  In  case  of  any 
vacancy  by  death,  resignation,  or  otherwise,  by  either  of  the  board,  then  the  vacancy 
shall  be  filled  by  the  residue  of  the  board  of  returning-officers.  The  returning-officers. 
shall,  after  each  election,  before  entering  on  their  duties,  take  and  subscribe  to  the^ 
following  oath  before  a  judge  of  the  supreme  or  any  district  court,  &c. 

It  is  charged  that  the  board  at  the  time  it  made  the  canvass  and  declara 
tion  of  votes  had  but  four  members,  and  was  not,  therefore,  a  legal  body. 
There  is  nothing  in  this  objection.  The  law  expressly  provides  that  a 
majority  of  the  five  persons  "shall  constitute  a  quorum,  and  have  power 
to  make  the  returns  of  all  elections."  Three  would  constitute  a  major 
ity  and  be  sufficient  by  the  express  terms  of  the  statute  "  to  make  the 
returns  of  all  elections."  The  law  provides  that  the  Supreme  Court 
shall  consist  of  nine  judges,  but  it  will  not  be  asserted  that  the  exist- 


ELECTORAL    COUNT    OF    1877.  827 

ence  of  even  three  vacancies  in  the  court  would  invalidate  its  charac 
ter  as  a  legal  body.  In  every  deliberative  body  which  is  required  to 
have  a  quorum,  whether  of  a  majority  or  any  other  number,  its  legal  char 
acter  is  not  destroyed  so  long  as  that  quorum  is  maintained.  The  very 
object  of  having  a  quorum  with  which  any  deliberative  body  may  do 
business  is  that  its  legality  and  capacity  for  business  shall  not  be  de- 
troyed  by  vacancies  or  the  absence  of  members  so  long  as  the  number 
fixed  for  a  quorum  is  maintained.  It  is  provided  that  the  Senate  of  the 
United  States  shall  consist  of  two  Senators  from  each  State,  yet  the 
existence  of  a  dozen  vacancies  would  not  impair  the  legal  character  of 
the  body. 

But  it  is  argued  that  this  rule  will  not  apply  in  this  case,  because  the 
remaining  members  of  the  board  have  the  power  to  fill  vacancies  and  it 
is  their  duty  to  do  so.  While  it  may  be  their  duty  to^  do  so  if  they  can 
agree  upon  the  person,  yet  their  failure  to  perform  it  could  no  more 
impair  the  legality  of  the  body  while  a  quorum  remains  than  if  the 
power  to  fill  the  vacancies  belonged  to  the  governor  or  the  legislature. 
It  is  the  duty  of  the  majority  to  canvass  and  determine  the  result  of  an 
election  when  the  votes  have  been  placed  in  their  possession,  and  the 
failure  to  perform  the  duty  of  filling  a  vacancy  could  not  discharge  them 
from  the  performance  of  the  other  duty  to  canvass  and  determine  the 
result  of  an  election.  In  point  of  fact,  they  may  have  been  unable  to 
agree  upon  the  person,  or  have  failed  to  fill  the  vacancy  from  other  cause 
than  a  willful  disregard  of  duty ;  but  whether  that  is  so  or  not  is  wholly 
immaterial. 

But  it  is  said  that  the  board  was  illegal  because  it  was  not  com 
posed  of  men  from  all  political  parties  as  directed  by  the  statute. 
The  statute  in  that  particular  is  merely  directory  and  is  incapable  of 
rigid  enforcement.  How  many  parties  or  factions  there  were  in  the 
State  we  are  not  advised,  although  we  know  as  a  matter  of  general  his 
tory  that  there  were  two  principal  parties,  and  the  injunction  to  make 
up  the  board  from  all  political  parties  is  one  which  rests  upon  the  senate 
of  the  State  and  not  upon  the  board  itself,  and  if  the  senate,  in  electing 
members  of  the  board,  disregard  the  injunction,  there  is  no  power 
lodged  anywhere  in  the  government  of  the  State  or  in  the  courts  to  cor 
rect  the  error. 

The  distinction  between  mandatory  and  directory  statutes  is  very 
broad,  and  this  one  clearly  belongs  to  the  latter  class.  It  is  like  the 
injunction  in  the  statute  creating  the  office  of  attorney-general,  that  the 
person  selected  for  that  office  "shall  be  learned  in  the  law."  The 
legality  of  the  appointment  of  an  attorney-general  could  not  be  ques 
tioned  and  the  validity  of  his  acts  set  aside  by  the  allegation  that  he 
was  not  learned  in  the  law,  as  required  by  the  statute.  The  injunction 
that  the  senate  in  creating  this  board  should  take  the  members  from  all 
political  parties  should  have  been  observed  if  it  were  possible,  but  the 
pretense  that  the  validity  of  the  acts  of  the  board  would  be  affected  by 
proof  that  the  senate  had  failed  to  observe  the  injunction  is  quite  ab 
surd. 

Although  the  speeches  have  been  very  lengthy  and  able,  and  the  ob- 
iections  filed  against  the  validity  of  the  action  of  the  returning- board 
voluminous  and  elaborate,  the  whole  question  comes  down  to  this  simple 
proposition :  Is  it  competent  for  the  two  Houses  of  Congress,  or  for  this 
Commission  acting  in  their  stead,  when  counting  the  electoral  votes  for 
President,  to  go  behind  the  decision  made  by  the  officers  appointed  by 
the  legislature  of  the  State  for  the  purpose  of  canvassing  and  determin 
ing  the  result  of  the  election,  to  inquire  what  was  the  number  of  vote* 


828  ELECTORAL    COUNT    OF    1677. 

cast  for  one  set  of  candidates  or  for  the  other,  whether  the  election  was 
fairly  conducted,  and  whether  the  officers  appointed  by  the  State  to  con 
duct  the  election  or  to  determine  its  results  acted  within  the  limits  of 
the  law  or  upon  sufficient  evidence.  A  majority  of  this  Commission  de 
cided  in  the  Florida  case  that  we  had  no  such  power,  and  I  believe  that 
time  and  the  good  sense  of  the  American  people  will  justify  the  decision 
in  every  respect. 

OREGON. 

The  electoral  votes  of  Oregon  being  under  consideration — 

Mr.  Commissioner  MORTON  said : 

Mr.  PRESIDENT  :  At  the  late  presidental  election  in  Oregon  Dr.  Watts 
was  a  candidate  for  elector  on  the  republican  ticket,  and  received  some 
thing  more  than  one  thousand  majority  over  his  highest  democratic 
competitor.  He  was,  at  the  time  of  the  November  election,  postmaster 
in  the  little  town  of  La  Fayette,  in  which  he  lived.  This  office  he 
resigned  on  the  13th  of  November,  and  on  the  next  day  a  special  agent 
it  the  Post-Office  Department  took  possession  of  the  office  and  removed 
of  to  another  building,  and  his  resignation  was  accepted  by  the  Post 
master-General.  On  the  4th  day  of  December  the  secretary  of  state  of 
Oregon,  in  pursuance  of  law,  canvassed  the  votes  for  presidential  elect 
ors  in  the  presence  of  the  governor,  and  made  out  a  tabulated  statement 
of  the  returns  from  the  various  counties,  which  he  certified  under  the 
seal  of  the  State  as  being  a  complete  and  lawful  canvass,  showing  that 
Dr.  Watts  and  Messrs.  Odell  and  Cartwright  had  been  appointed  electors 
for  the  State  of  Oregon. 

On  the  morning  of  the  6th  of  December  the  governor  issued  three  cer 
tificates,  in  each  of  which  he  stated  that  Messrs.  Odell  and  Cartwright 
and  one  E.  A.  Cronin  were  the  three  eligible  persons  who  had  received 
the  highest  number  of  votes,  and  were  duly  appointed  electors.  These 
certificates  he  placed  in  the  hands  of  Crouin,  who  refused  to  deliver 
them  to  Odell  and  Cartwright,  but  kept  them  in  his  possession,  and 
after  professing  to  read  their  contents,  or  a  part  of  them,  in  the  hearing 
of  Odell,  Cartwright,  and  Watts,  retired  to  another  part  of  the  room  in 
which  they  were  assembled,  and  appointed  two  persons  to  act  as  elect 
ors  instead  of  Odell  and  Cartwright ;  and  assuming  to  act  as  electors, 
the  three  voted,  Cronin  for  Tilden  and  the  other  two  for  Hayes.  When 
Odell  and  Cartwright  met  at  twelve  o'clock  on  the  6th  of  December,  Dr. 
Watts  resigned  the  office  of  elector,  and  was  immediately  thereafter 
elected  by  them  to  fill  the  vacancy  in  the  college  of  electors,  and  the 
three  then  cast  their  votes  for  Hayes  for  President  and  Wheeler  for 
Vice- President. 

The  governor  refused  to  give  the  certificate  of  election  to  Watts  for 
the  alleged  reason  that  Watts  was  ineligible  to  be  voted  for  on  the  7th  of 
November  because  he  was  a  deputy  postmaster,  and  gave  it  to  Cronin 
upon  the  ground  that  he  had  received  the  next  highest  number  of 
votes.  He  assumed  that  he  had  judicial  power  to  judge  as  to  Watts's 
eligibility,  and  decided  that  he  was  ineligible  at  the  time  of  the  elec 
tion  and  that  his  competitor  having  the  next  highest  number  of  votes 
was  elected.  This  assumption  on  the  part  of  the  governor  was  entirely 
erroneous.  His  business  under  the  statute  of  the  United  States  was 
simply  to  give  the  certificate  of  appointment  as  electors  to  those  per 
sons  who  had  been  declared  by  the  proper  returning-officers  of  the 
State  to  have  been  appointed.  He  had  no  more  power  to  pass 
upon  the  question  of  the  eligibility  of  an  elector,  and  refuse  to  give 


ELECTORAL   COUNT   OF    1877.  829 

a  certificate  upon  that  account,  than  he  had  to  pass  upon  the  eligi 
bility  of  a  person  who  had  been  elected  as  a  member  of  Congress. 
His  duty  was  simply  ministerial.  In  the  next  place,  if  he  had  the 
judicial  power  and  the  right  to  pass  upon  the  question,  his  decision 
was  directly  in  conflict  with  the  law.  The  meaning  of  the  Constitution 
is  that  an  elector  shall  not  be  a  member  of  Congress  or  an  officer  under 
the  United  States  at  the  time  he  takes  the  office  and  casts  his  vote.  If 
on  the  6th  of  December,  when  the  electors  voted,  Dr.  Watts  was  eligi 
ble,  having  before  resigned  his  office  as  postmaster,  it  was  of  no  impor 
tance  that  he  had  been  postmaster  when  voted  for  in  November.  This 
question  has  often  been  decided,  and  it  has  always  been  held  that  mem 
bers  of  ^Congress  who  were  ineligible  from  any  cause,  from  want  of  age, 
of  citizenship,  or  disability  under  the  fourteenth  amendment,  at  the  time 
of  their  election  by  the  people  or  by  the  legislature,  but  whose  dis 
abilities  were  removed  at  the  time  the  term  of  office  began  and  they 
took  their  seats,  were  eligible,  and  their  ineligibility  on  the  day  of  the 
election  was  of  no  importance.  But  whatever  may  be  the  law  upon  this 
subject,  it  became  unimportant  from  the  fact  that  on  the  6th  day  of  De 
cember  Watts  resigned  his  office  of  elector  to  the  college  of  electors  and 
was  immediately  re-elected  to  fill  the  vacancy  at  a  time  when  he  was 
unquestionably  eligible.  The  power  of  the  college  of  electors  to  fill  the 
vacancy  occasioned  by  his  resignation  appears  from  the  following  pro 
vision  of  the  Oregon  statute  : 

SEC.  59.  The  electors  of  President  and  Vice-President  shall  convene  at  the  seat  of 
government  on  the  first  Wednesday  of  December  next  after  their  election,  at  the  hour  of 
twelve  of  the  clock  at  noon  of  that  day,  and  if  there  shall  be  any  vacancyjn  the  office  of 
an  elector,  occasioned  by  death,  refusal  to  act,  neglect  to  attend,  or  otherwise,  the  elect 
ors  present  shall  immediately  proceed  to  fill  by  viva  voce  and  plurality  of  votes  such 
vacancy  in  the  electoral  college,  and  when  all  the  electors  shall  appear,  or  the  vacan 
cies,  if  any,  shall  have  been  filled  as  above  provided,  such  electors  shall  proceed  to 
perform  the  duties  required  of  them  by  the  Constitution  and  laws  of  the  United  States. 

By  this  statute  the  college  of  electors  is  expressly  authorized  to  fill 
"  any  vacancy  in  the  office  of  an  elector,  occasioned  by  death,  refusal  to 
act,  neglect  to  attend,  or  otherivise."  So  that  they  could  fill  a  vacancy 
arising  from  non-election  as  well  as  from  death  or  resignation.  The 
object  of  the  statute  is  remedial,  and  it  should  be  liberally  construed,  so 
as  to  give  the  State  her  full  voice  in  the  election  of  a  President  and  Vice- 
President.  In  any  view  of  the  case,  whether  the  vacancy  in  the  col 
lege  of  electors  arose  from  non-election  by  reason  of  Watts's  ineligi 
bility  on  the  7th  of  November,  or  by  reason  of  his  resignation  on  the 
6th  of  December,  the  college  of  electors  had  the  right  to  fill  it.  The 
doctrine  upon  which  the  governor  assumed  to  act,  that  where  a  candi 
date  is  ineligible  the  person. having  the  next  highest  number  of  votes 
is  elected,  is  in  conflict  with  the  general  current  of  judicial  decisions  in 
the  United  States.  Each  House  of  Congress,  after  the  fullest  delibera 
tion,  has  expressly  decided  that  in  such  a  case  the  minority  candidate  is 
not  elected,  and  that  the  election  is  a  failure. 

In  England  it  has  been  held  that  where  it  was  known  to  the  voters 
that  the  majority  candidate  was  ineligible  at  the  time  they  voted  for 
him,  the  minority  candidate  was  elected.  But  these  decisions  were  put 
upon  the  express  ground  of  actual  knowledge  upon  the  part  of  the  voters 
of  the  ineligibility,  and  that  the  voters  not  only  knew  the  fact  which  in 
law  made  the  candidate  ineligible,  but  knew  also  that  the  fact  did  make 
him  ineligible  under  the  law.  The  English  courts  have  held  that  in  such 
a  case  the  voters  are  not  presumed  to  know  the  law,  but  it  must  be  shown 
affirmatively  that  they  knew  not  only  the  fact  which  made  the  candi- 


830  ELECTORAL    COUNT    OF    1877. 

date  ineligible,  but  also  knew  that  under  the  law  the  fact  made  him  in 
eligible.    The  statute  of  Oregon  provides  in  section  60  that — 

The  votes  for  the  electors  shall  be  given,  received,  returned,  and  canvassed  as  the 
same  are  given,  returned,  and  canvassed  for  members  of  Congress.  The  secretary  of 
state  shall  prepare  two  lists  of  the  names  of  the  electors  elected,  and  affix  the  seal  of 
the  State  to  the  same.  Such  lists  shall  be  signed  by  the  governor  and  secretary,  and 
by  the  latter  delivered  to  the  college  of  electors  at  the  hour  of  their  meeting  on  such 
first  Wednesday  of  December. 

Here  it  is  provided  that  "  the  votes  for  the  electors  shall  be  given, 
received,  returned,  and  canvassed  as  the  same  are  given,  returned,  and 
canvassed  for  members  of  Congress.'7  By  turning  to  section  37  we  find 
the  provision  for  canvassing  the  votes  given  for  Kepresentatives  in  Con 
gress  as  follows : 

The  county  clerk,  immediately  after  making  the  abstract  of  the  votes  given  in  his 
county,  shall  make  a  copy  of  each  of  said  abstracts,  and  transmit  it  by  mail  to  the  sec 
retary  of  state  at  the  seat  of  government ;  and  it  shall  be  the  duty  of  the  secretary  of 
state,  in  the  presence  of  the  governor,  to  proceed  within  thirty  days  after  the  election, 
and  sooner  if  the  returns  be  all  received,  to  canvass  the  votes  given  for  secretary  and 
treasurer  of  state,  state  printer,  justices  of  the  supreme  court,  member  of  Congress, 
and  district  attorneys ;  and  the  governor  shall  grant  a  certificate  of  election  to  the 
person  having  the  highest  number  of  votes,  and  shall  also  issue  a  proclamation  declaring 
the  election  of  such  person. 

By  the  above  provision,  the  secretary  of  state  is  made  the  canvass 
ing  and  returning  officer  for  member  of  Congress  and  all  the  State  offi 
cers.  He  is  to  canvass  the  votes  in  the  presence  of  the  governor,  but 
the  governor  is  simply  a  witness  and  takes  no  part  whatever  in  the  can 
vass,  and  is  positively  required  to  issue  a  certificate  of  election  to  the 
person  having  the  highest  number  of  votes  as  certified  by  the  secretary. 
Upon  this  subject  the  governor  has  no  discretion  whatever.  His  duty 
is  purely  ministerial,  and  the  certificate  of  election  for  member  of  Con 
gress  and  every  State  officer  is  to  be  issued  to  the  person  having  the  high 
est  number  of  votes.  All  questions  of  eligibility  are  taken  from  him. 
His  duty  is  imperative  to  certify  to  the  person  having  the  highest  num 
ber  of  votes ;  and  what  he  is  to  do  as  to  the  member  of  Congress  and 
the  State  officers,  he  is  by  the  other  section  required  to  do  as  to  presi 
dential  electors. 

By  section  60,  above  quoted,  the  secretary  is  to  canvass  and  return 
the  persons  appointed  electors ;  is  to  prepare  two  lists  of  the  names  of 
the  persons  appointed,  and  affix  to  them  the  seal  of  the  State.  The 
governor  is  then  commanded  to  sign  these  lists,  and  the  secretary  to 
deliver  them  u  to  the  college  of  electors  at  the  hour  of  their  meeting  on 
such  first  Wednesday  of  December."  When  the  secretary  has  canvassed, 
certified,  and  returned  the  votes  of  electors  to  his  office,  their  appoint 
ment  is  complete.  All  that  the  governor  has  to  do  with  the  matter 
thereafter  under  the  statute  is  purely  ministerial.  He  has  no  judicial 
power  upon  the  subject.  He  has  no  discretion  whatever  reposed  in  him 
by  the  law.  It  is  his  peremptory  duty  to  sign  the  lists  made  out  by  the 
secretary,  and  the  secretary  is  to  certify  to  the  election  of  the  persons 
having  the  highest  number  of  votes.  Taking  the  two  sections  of  the 
statute  together,  it  is  the  absolute  duty  of  the  secretary  to  return  as  ap 
pointed  those  persons  having  the  highest  number  of  votes,  and  the  ab 
solute  duty  of  the  governor  to  give  the  certificate  to  the  persons  thus 
returned  by  the  secretary. 

The  title  of  the  persons  appointed  electors,  as  shown  by  the  certificate 
of  the  secretary  made  out  on  the  4th  day  of  December,  and  deposited  in 
his  office,  was  complete,  and  could  not  be  impaired  or  affected  in  any 
way  by  the  refusal  of  the  governor  thereafter  to  issue  the  certificate  as 
he  was  required  to  do  by  law.  The  secretary  of  state  in  Oregon  is  the 


ELECTORAL    COUNT    OF   1877.  831 

canvassing  officer,  and  has  the  same  duties  devolved  upon  him  as  those 
which  belong  to  the  canvassing-officers  in  Florida  or  to  the  returning- 
board  in  Louisiana,  except  that  he  has  no  judicial  or  discretionary  pow 
ers  given  to  him  as  are  conferred  by  the  statutes  of  Florida  and  Louisi 
ana,  his  duty  in  all  cases  being  to  return  as  elected  the  persons  having 
the  highest  number  of  votes.  The  certificates  signed  by  the  governor 
of  the  appointment  of  electors  having  been  withheld  from  the  electoral 
college,  the  electors  procured  from  the  secretary,  under  the  seal  of  the 
State,  a  copy  of  the  certificate  of  the  vote  of  the  State,  as  tabulated  and 
prepared  by  him  on  the  4th  of  December,  and  inclosed  it  in  the  certifi 
cate  containing  their  votes  and  the  record  of  their  action  on  the  6th  day 
of  December,  transmitted  by  them  to  the  President  of  the  Senate. 

I  may  here  repeat  what  I  said  in  the  Florida  and  Louisiana  cases, 
that  the  question  of  eligibility  of  electors  belongs  to  the  States,  and  if 
it  is  disregarded  by  the  States  there  is  no  way  when  the  votes  are 
counted  in  the  presence  of  the  two  Houses  or  by  tkis  Commission  to  try 
and  settle  such  question.  In  the  case  of  Caesar  Griffin,  Chief-Justice 
•Chase  decided  that  the  fourteenth  amendment  to  the  Constitution  mak 
ing  certain  persons  ineligible  to  office  was  not  self-executing,  and  could 
not  be  carried  into  effect  in  the  absence  of  an  act  of  Congress  providing 
for  the  adjudication  and  settlement  of  questions  arising  under  it.  There 
are  few  provisions  of  the  Constitution  that  are  self-executing,  and  clearly 
this  is  not  one;  but  in  any  point  of  view  the  question  of  eligibility  as  it 
has  been  raised  in  this  and  the  Louisiana  and  Florida  cases  is  wholly 
unimportant.  Here  Dr.  Watts  was  re-elected  elector  by  the  college,  in 
pursuance  of  the  statute,  after  the  alleged  ineligibility  had  been  re 
moved  ;  but  if  at  the  time  of  his  re-election  on  the  6th  of  December  he 
had  still  been  postmaster  it  could  not  have  affected  the  validity  of  the 
vote  which  he  cast  as  an  elector.  It  has  been  held  that  the  official  acts 
of  one  who  was  ineligible  to  hold  the  office  were  valid  although  after  that 
time  a  court  of  law  in  the  proceeding  upon  quo  ivarranto  found  the  fact 
of  ineligibility  and  ousted  him  from  the  office.  In  one  case  the  judgment 
and  findings  of  a  court  were  held  to  be  valid,  although  it  was  subse 
quently  decided  by  the  proper  tribunal  that  the  judge  was  ineligible 
under  the  fourteenth  amendment  to  hold  the  office.  But  this  doctrine 
is  so  well  understood  and  so  universally  applied  that  there  ought  to  be 
no  argument  upon  this  subject. 

The  very  highest  interests  of  society  require  that  the  validity  of  offi 
cial  acts  shall  not  be  disturbed  because  of  the  ineligibility  of  the  persons 
performing  them  to  hold  the  office.  And  the  reasons  for  this  doctrine 
apply  as  strongly  in  this  case  as  in  any  other.  If  the  vote  of  an  elector 
can  be  stricken  out  by  a  subsequent  decision  that  he  was  ineligible,  the 
evil  is  without  remedy,  the  State  has  lost  the  vote,  and  the  spirit  of  the 
Constitution  has  been  violated.  The  theory  of  the  Constitution  when 
it  was  formed  was  that  the  electors  were  to  be  an  independent  body  of 
select  men  who  were  to  be  perfectly  free,  and  without  committals  or  en 
tanglements  of  any  kind,  to  act  as  they  thought  best  for  the  good  of  the 
country;  and  to  secure  this  independence  they  were  to  vote  by  ballot, 
so  that  one  should  not  know  how  the  other  voted.  We  all  know  in 
practice  how  completely  this  purpose  upon  the  part  of  the  framers  of 
the  Constitution  has  been  swept  away.  They  are  pledged  in  every  case 
in  advance  to  cast  their  votes  for  the  candidates  of  a  particular  party, 
and  it  they  should  disregard  this  pledge  they  would  be  infamous,  and 
it  is  a  matter  of  no  importance  whatever  whether  they  are  members  of 
Congress  or  officers  of  the  United  States.  Not  only  are  they  pledged  in 
.  advance  for  whom  they  shall  vote,  but  under  the  practical  working  of 


832  ELECTORAL   COUNT    OF    1677. 

our  institutions  this  previous  pledge  is  the  greatest  security  the  country 
has  against  their  corruption  and  the  improper  exercise  of  so  great  a 
power. 

In  the  State  of  Oregon  there  was  no  dispute  as  to  the  result  of  the 
vote  by  the  people  on  the  7th  of  November.  The  action  of  the  governor 
was  clearly  illegal  and  in  violation  of  the  plainest  provisions  of  the  stat 
utes  of  the  State  as  well  as  of  the  United  States.  The  secretary  in  the 
performance  of  the  duty  imposed  upon  him  counted  the  vote  and  certi 
fied  to  it  under  the  seal  of  the  State,  and  when  he  issued  his  certificate 
showing  who  had  received  the  highest  number  of  votes,  the  law  of  the 
State  declared  that  such  person  was  elected,  and  was  entitled  to  be 
ministerially  certified  toby  the  governor,  and  no  failure  or  refusal  upon  the 
part  of  the  governor  could  affect  his  title.  The  certificate  of  the  governor 
of  the  appointment  of  the  electors  is prima  facie  evidence  of  their  appoint 
ment,  unimpeached,  but  it  may  always  be  impeached  by  showing  that  it  is 
in  conflict  with  the  canvass  and  return  made  by  the  officers  authorized 
by  the  law  of  the  State  to  make  such  canvass  and  return,  and  in  this 
case  the  certificate  of  the  secretary  of  state  inclosed  in  the  certificate 
made  by  the  electors  and  transmitted  to  the  President  of  the  Senate 
shows  clearly  that  the  State  of  Oregon  had  appointed  Watts,  Odell,  and 
Cartwright  as  electors. 

SOUTH   CAROLINA. 

The  electoral  votes  of  South  Carolina  being  under  consideration — 

Mr.  Commissioner  MOETON  said  : 

Mr.  PRESIDENT  :  In  this  case  it  seems  hardly  necessary  to  say  a  word. 
It  is  not  denied  that  the  Hayes  electors  received  a  majority  of  all  the 
votes  at  the  late  election  in  South  Carolina.  This  fact  was  found  by  a 
democratic  investigating  committee  sent  into  the  State  by  the  House  of 
Eepresentatives.  The  republicans  contend  that  but  for  the  most  mon 
strous  frauds  practiced  in  Edgefield  and  Laurens  Counties  and  in  many 
other  localities  in  the  State,  their  majority  would  have  been  thousands 
where  it  is  now  conceded  to  be  hundreds.  There  are  but  two  points 
made  in  the  argument  against  the  validity  of  the  vote  of  the  Hayes 
electors  which  I  will  notice. 

First,  it  is  alleged  that  the  election  in  South  Carolina  was  void  because 
there  had  been  no  registry  made  of  the  voters  as  required  by  the  con 
stitution  of  the  State.  The  provision  of  the  constitution  of  South 
Carolina  has  never  been  executed  by  a  law  passed  by  the  legislature,, 
and  repeated  elections  have  been  had  and  the  legality  of  them  has 
never  been  questioned,  notwithstanding  the  absence  of  a  registry  law. 
If  the  absence  of  such  a  law  invalidates  all  elections  in  the  State,  then 
South  Carolina  has  had  no  legal  government  since  1868,  and  the  recent 
pretended  election  of  Hampton  is  a  fraud. 

But  whatever  might  be  the  legal  effect  of  the  absence  of  a  registry 
law  upon  the  election  of  State  officers,  it  is  absurd  to  pretend  that  it 
could  have  any  upon  the  appointment  of  electors.  They  are  to  be 
appointed  in  the  manner  prescribed  by  the  legislature  of  the  State  and 
not  by  the  constitution  of  the  State.  The  manner  of  the  appointment 
of  electors  has  been  placed  by  the  Constitution  of  the  United  States  in 
the  legislature  of  each  State,  and  cannot  be  taken  from  that  body  by 
the  provisions  of  a  State  constitution.  If  the  constitution  of  a  State 
should  provide  that  electors  should  be  appointed  by  the  supreme  court 
of  the  State,  that  could  not  prevent  the  legislature  from  providing  that 
electors  might  be  appointed  by  the  vote  of  the  people.  The  Constitution 


ELECTORAL    COUNT    OF    1877.  833 

of  the  United  States  provides  that  Senators  shall  be  chosen  by  the 
legislature  of  each  State,  and  it  is  not  competent  in  the  constitution 
of  a  State  to  require  that  Senators  shall  be  elected  by  the  people  at  a 
general  election,  and  thus  take  from  the  legislature  the  right  to  elect. 

The  power  to  appoint  electors  by  a  State  is  conferred  by  the  Constitu 
tion  of  the  United  States  and  does  not  spring  from  a  State  constitution, 
and  cannot  be  impaired  or  controlled  in  any  respect  by  a  State  con 
stitution.  It  is  competent  for  the  constitution  of  the  State  to  provide 
that  State  officers  shall  be  chosen  at  an  election  where  the  voters  have 
been  registered,  but  it  is  not  competent  to  make  any  such  requisition 
as  to  the  appointment  of  electors.  If  the  legislature  provides  that 
electors  may  be  appointed  by  the  people  at  the  polls  without  having 
been  previously  registered,  it  has  a  clear  right  to  do  so. 

Second,  it  is  alleged  that  there  is  no  republican  government  in  the 
State  of  South  Carolina,  and,  therefore^  no  legislature  which  can  pro 
vide  for  the  appointment  of  electors  or  direct  and  control  an  election  by 
the  people.  My  answer  to  this  is,  that  it  is  not  true. 

There  is  and  has  been  a  republican  government  in  the  State  of  South 
Carolina  ever  since  reconstruction  in  18(38,  and.  although  it  has  been 
surrounded  with  great  difficulties  and  has  often  been  disturbed  by 
violence  and  threatened  with  revolution,  it  has  maintained  a  continued 
existence  since  its  re-establishment  after  the  rebellion.  The  Constitu 
tion  provides  that  the  United  States  shall  guarantee  to  each  State  a 
republican  form  of  government.  If  there  is  not  a  republican  form  of 
government  in  South  Carolina  it  is  for  the  two  Houses  of  Congress 
acting  in  a  legislative  capacity  to  declare  that  fact  and  provide  for  the 
establishment  of  one;  but  until  that  takes  place  I  must  assume  that 
South  Carolina  has  a  republican  form  of  government,  and  as  much 
right  as  any  other  State  to  appoint  electors  and  participate  in  the 
presidential  election.  It  seems  to  me  I  should  be  trifling  with  the 
intelligence  of  the  Commission  to  argue  this  question  further. 


EEMAEKS  OF  ME.  COMMISSIOEEE  THUEMAN. 

FLORIDA. 

The  Commission  having  under  consideration  the  electoral  votes  of  the  State  ot 
Florida — 

Mr.  Commissioner  THUEMAN  addressed  the  Commission.  Ill-health 
has  prevented  his  writing  out  his  remarks.  The  following  is  a  synop 
sis  of  them  : 

Mr.  President,  in  the  discharge  of  its  duties,  this  Commission,  by 
the  act  creating  it,  is  vested  with  the  same  powers,  in  the  count  of  the 
electoral  votes,  now  possessed  by  the  two  Houses  of  Congress  acting 
separately,  or  together;  and  it  is  required  to  ascertain  and  decide 
whether- any  and  what  votes  from  a  State  are  the  votes  provided  for  by 
the  Constitution  of  the  United  States,  and  how  many  and  what  persons 
were  duly  appointed  electors  in  such  State.  We  are  thus  brought  to 
the  question,  What  are  the  powers  of  the  two  Houses  of  Congress  in 
counting  the  electoral  vote?  It  has  been  contended  that  we  are  concluded 
by  the  certificate  of  the  governor  that  A  B,  &c.,  were  duly  appointed 
electors  of  the  State  of  Florida,  but  this  proposition  cannot  be  main 
tained.  There  is  nothing  in  the  act  of  Congress  requiring  the  govern 
or's  certificate,  nor  in  any  statute  of  Florida,  that  makes  his  certificate 
53  E  0 


834  ELECTORAL    COUNT    OF    1877. 

conclusive.  It  is,  therefore,  subject  to  be  rebutted,  and  the  question  now 
is  upon  what  grounds  can  it  be  contested.  I  understand  it  to  be  asserted 
by  those  who  claim  the  election  or  the  appointment  of  tbe  Hayes  elect 
ors,  that  the  governor's  certificate  is  not  conclusive  unless  made  in 
accordance  with  the  decision  of  the  canvassing-board ;  but  that,  when 
so  made,  it  is  conclusive.  This  raises  the  question  whether  the  decision 
of  that  board  can  be  impeached.  I  maintain  that  it  can.  I  shall  not  in 
this  case,  because  it  is  unnecessary,  go  into  an  inquiry  as  to  all  the 
causes  for  which  a  decision  of  a  canvassing-board  may  be  impeached. 
It  will  be  found  sufficient  for  the  decision  of  this  case  that  it  is  impeach- 
able  for  want  of  jurisdiction  in  the  board  to  do  that  which  it  did ;  and 
the  effect  of  which  was  to  change  the  apparent  result  of  the  election.  I 
know  of  no  tribunal,  high  or  low,  whose  acts,  without  jurisdiction  or 
beyond  its  jurisdiction,  are  not  absolutely  void. 

Now,  upon  the  county  returns  it  is  not  denied,  and,  indeed,  appears  by 
evidence  already  before  us  and  not  controverted,  that  the  Tilden  elect 
ors  received  a  majority  of  the  votes  of  the  people  of  Florida ;  and  it  also 
appears  that  it  was  only  by  throwing  out  the  votes  of  counties  or  pre 
cincts  that  an  apparent  majority  was  shown  for  the  Hayes  electors. 
Had  the  canvassing-board  of  Florida  any  authority  to  throw  out  these 
votes?  This  question  has  been  decided  by  the  highest  judicial  tribunal 
of  that  State,  interpreting  the  statute  creating  that  board  and  defining 
its  powers.  In  the  case  of  Drew  against  Stearns  the  supreme  court  of 
Florida  held  that  the  canvassing-board  had  no  judicial  powers  what 
soever  5  that  its  powers  were  simply  ministerial;  that  it  was  bound  to 
count  the  votes  given  and  could  not  inquire  into  the  legality  or  illegality 
of  the  votes  thus  given.  Consequently,  the  decision  of  the  canvassing- 
board  that  Stearns  was  elected  governor,  which  decision  was  effected  in 
the  same  manner  by  which  that  board  declared  the  Hayes  electors 
to  be  chosen,  was  declared  by  the  supreme  court  of  the  State  to  be  unau 
thorized  by  the  statute  and  a  plain  usurpation  of  power.  That  decision 
is  as  applicable  to  the  case  of  the  presidential  electors  as  to  the  case  of 
Drew  and  Stearns,  the  rival  candidates  for  governor.  It  is  perfectly 
conclusive  of  the  meaning  of  the  statute,  as  much  so  as  if  it  were  writ 
ten  in  the  statute  in  so  many  words.  It  follows  then  that  if  we  are  to 
respect  the  statute  of  Florida,  which  everybody  admits  must  govern  the 
case,  the  canvassing-board,  in  throwing  out  the  votes  for  the  Tilden 
electors  and  thereby  giving  an  apparent  majority  to  the  Hayes  electors, 
acted  without  jurisdiction,  and  their  act  was,  therefore,  absolutely  null 
and  void. 

But  the  above  is  not  the  only  decision  of  the  Florida  courts.  In 
a  quo  warranto  sued  out  by  the  Tilden  electors  against  the  Hayes 
electors,  the  circuit  court  of  Florida,  having  admitted  jurisdiction,  has 
decided  that  the  Tilden  electors  and  not  the  Hayes  electors  were  duly 
appointed.  Moreover,  the  legislature  of  the  State  has  affirmed  this 
view  of  the  State  statute  and  the  present  governor  of  the  State  has 
given  to  the  Tilden  electors  certificates  of  their  appointment.  So  that 
every  department  of  government  in  Florida,  executive,  legislative,  and 
judicial,  has  decided  against  the  pretension  of  the  Hayes  electors.  And 
I  think  it  is  impossible  for  any  fair-minded  lawyer  to  carefully  examine 
the  Florida  statutes  without  being  brought  to  concur  in  the  correctness 
of  these  decisions  of  her  authorities. 

And  here  it  is  proper  to  remark  that  there  is  nothing  in  the  Constitu 
tion  or  laws  of  the  United  States,  or  in  the  constitution  or  laws  of 
Florida,  that  makes  the  canvassing-board  the  sole  judge  of  its  own  juris 
diction.  On  the  contrary,  the  decisions  to  which  I  have  referred  dis- 


ELECTORAL    COUNT    OF    1877.  835 

tinctly  hold  that  it  is  not  the  sole  judge,  and,  in  Drew  against  Stearns, 
the  supreme  court  compelled  it  to  recount  the  votes  and  reverse  its  first 
decision.  And  here  I  would  further  observe  that  to  remedy  the  injus 
tice  perpetrated  by  that  board  in  the  count  of  the  votes  for  presidential 
electors,  is  not,  as  has  been  suggested,  to  invade  the  right  of  the  State. 
It  is  precisely  the  reverse.  It  is  to  uphold  the  statute  of  the  State  and 
to  protect  her  from  the  consequences  of  a  violation  of  her  laws  and  a 
usurpation  by  her  officers.  The  votes  cast  for  Hayes  by  the  Hayes  elect 
ors  have  not  yet  been  counted.  Effect  cannot  be  given  to  them  until 
they  be  counted.  The  proceeding  is,  therefore,  still  in  fieri  and  the  two 
Houses  of  Congress,  to  whom  it  belongs  to  count  the  votes,  must  of 
necessity  determine — as  this  Commission  is  required  by  the  act  creating 
it  to  determine — 

Whether  any  and  what  votes  from  such  State  are  the  votes  provided  for  by  the  Con 
stitution  of  the  United  States,  and  bow  many  and  what  persons  were  duly  appointed 
electors  in  such  State. 

In  executing  these  powers  the  two  Houses  of  Congress  cannot,  and 
therefore  this  Commission  cannot,  shut  their  eyes  to  the  fact  that  the 
statutes  of  Florida,  as  construed  by  her  courts,  required  the  certificate 
of  election  to  be  given  to  the  Tilden  electors,  and  that  it  was  only  by  a 
gross  usurpation  of  power  that  the  canvassiug-board  decided  in  favor  of 
the  Hayes  electors. 

But  if  it  be  said  that  the  remedy  can  be  provided  by  the  State  alone, 
and  that  if  she  has  not  provided  a  remedy  the  wrong  is  remediless,  I 
answer — 

First.  That  the  electors  being  a  creation  of  the  Federal  Constitution, 
it  is  the  duty  of  the  two  Houses  of  Congress,  who  count  the  votes,  to 
see  that  they  are  appointed  consistently  with  the  provisions  of  the  Con 
stitution.  And,  consequently,  no  State  can,  by  neglecting  to  provide  a 
remedy,  compel  the  Houses  to  count  votes  given  by  usurping  electors 
who  are  not  appointed  in  the  mode  contemplated  by  the  Constitution ; 
that  is  to  say,  in  the  manner  prescribed  by  the  State  legislature. 

Second.  That  the  other  States  and  the  whole  people  of  the  United 
States  are  parties  interested  in  the  proceeding,  and  the  question  whether 
there  shall  be  a  remedy  is  not  left  to  the  discretion  of  the  State  alone. 

Third.  That  if  the  remedy  must  be  a  State  remedy,  it  has  been  applied 
in  this  case,  and  the  decision  is  adverse  to  the  claim  of  the  Hayes  elec 
tors. 

If  I  am  right  in  these  propositions,  it  follows  that  the  testimony  on 
the  question  of  jurisdiction  ought  lo  be  received. 

I  also  think  that  proof  of  fraud  is  admissible.  The  canvassing-board 
was  neither  a  legislature  nor  a  judicial  court,  and  I  know  of  no  principle 
of  law,  or  manifest  public  policy,  that  shields  it  from  an  inquiry  into  the 
bona  fides  or  mala  fides  of  its  acts. 

It  is  said  that  if  we  go  behind  the  decision  of  the  canvassing-board 
we  must  go  to  the  bottom,  and  may  thus  be  led  to  investigate  the  doings 
of  hundreds  of  thousands  of  election-officers  in  the  United  States  and 
the  qualification  of  millions  of  voters.  I  reply,  non  constat.  It  is  not 
sound  logic  to  say,  that  because  we  cannot  investigate  everything  we 
shall  investigate  nothing ;  that  because  we  cannot  correct  all  errors  and 
frauds  we  shall  correct  none.  The  law  never  requires  impossibilities, 
but  it  does  require  what  is  possible. 

But  the  argument  upon  which  the  greatest  stress  has  been  laid  to 
sustain  the  vote  for  Hayes  is  that  the  Hayes  electors  were,  when  they 
cast  their  votes,  electors  de  facto,  and  that  consequently  the  doctrine  in 
relation  to  the  acts  of  officers  de  facto  applies  to  them.  I  deny  that  that 


836  ELECTORAL    COUNT    OF    1877. 

doctrine  has  any  application  in  this  case.  I  am  not  prepared  to  admit 
that  presidential  electors  are  officers  at  all.  They  are  what  the  Consti 
tution  calls  them — "  electors  w  who  have  but  a  single  act  to  perform,  and 
their  existence  as  electors  may  be  as  ephemeral  as  the  life  of  an  insect. 
In  this  case  it  was  so.  The  canvassing-board  declared  the  appointment 
of  the  Hayes  electors  on  the  very  day  that  the  electoral  vote  was  to  be 
cast,  and  in  two  or  three  hours  after  that  declaration  the  vote  was  cast. 
What  time  was  there  to  institute  legal  proceedings  and  carry  them  into 
judgment  between  the  decision  of  the  canvassing-board  and  the  casting 
of  the  electoral  votes?  Manifestly  none  at  all.  To  require,  therefore, 
as  the  argument  does,  that  these  men  should  have  been  ousted  from 
their  office  by  judicial  proceedings  before  they  cast  their  votes,  and  that 
if  not  so  ousted  they  were  officers  de  facto,  and  their  acts  are  valid,  is  a 
simple  mockery  of  justice  that  it  is  difficult  to  contemplate  without  a 
feeling  of  contempt.  All  that  could  be  done  in  the  way  of  judicial  pro 
ceedings  was  done  in  this  case.  A  writ  of  quo  warranto  was  issued  by 
a  court  of  competent  jurisdiction  and  served  upon  the  Hayes  electors 
before  they  cast  their  votes.  Of  course  no  decision  could  be  had  upon 
that  writ  within  the  two  or  three  hours  that  elapsed  after  its  service  and 
before  the  votes  were  cast.  But  the  case  was  prosecuted  to  final  judg 
ment,  and  the  judgment  was  that  the  Hayes  electors  were  usurpers  who 
never  had  any  title  to  be  called  electors  of  Florida,  and  although  no 
judgment  of  ouster  could  be  pronounced,  because  the  votes  had  been 
already  cast,  yet  the  decision  is  a  judicial  determination  that  the  Hayes 
electors  had  no  title  whatsoever. 

The  power  of  the  two  Houses  to  go  behind  the  governor's  certificates 
and  the  decisions  of  cauvassing-boards  has  been  again  and  again  asserted 
by  the  Houses  and  carried  into  execution.  Thus  in  1865  Congress  re 
solved  that  no  votes  for  presidential  electors  should  be  received  from 
the  States  of  Florida,  Louisiana,  Tennessee,  Mississippi,  North  Carolina, 
Virginia,  South  Carolina,  Alabama,  Arkansas,  Texas,  and  Georgia.  In 
1873  the  votes  of  the  States  of  Arkansas  and  Louisiana,  and  certain 
electoral  votes  of  the  State  of  Georgia,  were  rejected.  But  these  in 
stances  are  familiar  to  the  members  of  the  Commission,  and  it  is  un 
necessary  to  dwell  upon  them. 

LOUISIANA. 

The  Commission  having  under,  consideration  the  electoral  vote  of  the  State  of 
Louisiana — 

Mr.  Commissioner  THURMAN  addressed  the  Commission.  Ill-health 
has  prevented  his  writing  out  his  remarks  in  full.  The  following  is  a 
synopsis  of  them : 

Mr.  President,  it  is  my  opinion — 

1.  That  the  votes  for  presidential  electors,  cast  in  the  State  of  Louis 
iana  at  the  last  election,  have  never  been  canvassed  by  any  lawful 
authority.  I  deny  that  the  returuing-board  of  Louisiana  has  any 
lawful  existence.  "l  deny  that  the  constitution  of  that  State,  or  any- 
ting  in  the  Federal  Constitution,  confers  upon  her  legislature  the 
power  to  create  such  a  board.  To  understand  this  proposition  we  must 
look  at  the  constitution  and  powers  of  that  board  as  defined  in  the 
statute  creating  it.  And  we  must  consider  them  not  in  an  abstract 
and  theoretical  manner,  but  with  a  clear  view. of  their  practical  effect. 
It  is  not  true  that  every  law  that  might  upon  its  face  seem  to  be  unob 
jectionable  is  necessarily  constitutional.  Laws  are  not  mere  abstract 
things.  They  are  meant  to  be  practical,  and  if  the  inevitable  practical 


ELECTORAL    COUNT    OF    1877.  837 

result  of  a  law  directly  conflicts  with  the  admitted  principles  or  provis 
ions  of  the  Constitution,  the  law  cannot  stand. 

Let  us  then  see  what  is  the  Louisiana  returning-board.  It  is  a  board 
consisting  of  five  persons  holding  their  offices  without  any  limitation  of 
time  and  filling  all  the  vacancies  that  occur  in  their  own  body.  It  is, 
therefore,  a  kind  of  perpetual,  self-preserving  and  self- perpetuating  cor 
poration.  Neither  its  existence  nor  its  powers  can  be  affected  except 
by  a  repeal  or  modification  of  the  law  creating  it.  But  no  such  repeal 
or  modification  can  take  place  without  its  permission  ;  for,  by  conferring 
upon  it,  in  plain  violation  of  the  constitution  of  the  State,  the  power  to 
canvass  the  votes  for  members  of  the  general  assembly,  the  board  is 
enabled  to  constitute  the  legislature,  whenever  it  sees  fit,  so  as  to  con 
tain  a  majority  of  its  friends.  It  is  of  no  use  to  say  that  it  will  not  cor 
ruptly  or  unlawfully  exercise  this  power.  Again  and  again  it  has  cor 
ruptly  and  unlawfully  exercised  it.  It  has  so  corruptly  and  unlawfully 
exercised  it  after  every  election  that  has  taken  place  since  the  board  was 
created.  In  1872,  a  majority  of  conservatives,  or  fusionists  as  they 
were  then  called,  were  elected  to  the  general  assembly.  The  retuming- 
board  threw  out  large  numbers  of  them  and  gave  their  places  to  men 
who  were  notoriously  not  elected,  and  thus  created  a  republican  majority 
in  both  branches  of  the  assembly.  In  1874  precisely  the  same  thing  oc 
curred.  In  1876  it  occurred  for  the  third  time,  and  these  are  the  only 
years  since  the  creation  of  the  board  in  which  elections  for  members  of 
the  assembly  have  taken  place.  In  the  same  way  the  board  has  de 
feated  the  election  of  State  officers  by  the  people  in  each  one  of  these 
years,  and  to  cap  the  climax  of  its  infamy  it  has  thrown  out  thousands 
of  votes  given  for  the  Til  den  electors,  and  thereby  changing  the  vote  of 
the  people,  has  declared  the  Hayes  electors  to  be  duly  appointed.  And 
if  its  power  can  be  sustained,  there  is  obviously  no  end  to  its  rule  over 
the  people  of  Louisiana.  It  is  made,  by  the  statute  creating  it,  the  re- 
turuing-board  for  all  elections  held  in  the  State  for  all  officers  from  the 
highest  to  the  very  lowest,  and  it  executes  its  powers  in  the  interest  of 
its  party  and  itself  without  shame  and  without  remorse.  Take  a  map 
of  Louisiana,  mark  upon  it  the  democratic  preci.icts  whose  votes  for 
members  of  the  assembly  were  thrown  out  last  December,  and  you  will 
find  as  many  blotches  on  the  map  as  there  are  scars  upon  the  face  of  a 
victim  of  the  small-pox.  Why  was  this  done  ?  Not  merely  to  affect 
the  result  of  the  presidential  election,  or  of  the  election  for  officers  of 
the  State — for  the  republican  electors  and  State  officers  could  have  been 
counted  in  without  running  all  over  the  State  to  throw  out  a  democratic 
precinct  here  and  another  one  there.  It  was  done  to  give  the  republi 
cans  the  majority  in  the  legislature;  and  to  do  it,  precinct  after  precinct 
was  thrown  out  where  there  was  no  pretense  whatever  that  the  election 
was  not  fair  and  peaceable  5  no  pretense  whatever  of  bribery,  intimida 
tion,  or  employment  of  any  corrupt  means.  In  short,  the  powers 
given  to  this  board  are  more  transcendent  in  their  practical  operation 
than  the  powers  of  the  whole  body  of  the  people  of  the  State.  The 
board  is  in  effect  constituted  the  State — to  govern  it  according  to  its 
own  arbitrary  will  and  discretion.  There  is  no  republican  government 
in  Louisiana.  There  can  be  no  republican  government  in  that  State  so 
long  as  this  returniug-board  is  upheld.  An  oligarchy  mo're  corrupt, 
more  odious,  more  anti-republican,  never  before  existed  on  this  globe. 

I  repeat,  that  the  constitution  of  Louisiana  confers  no  authority  upon 
the  legislature  of  that  State  to  create  any  such  board.  Nay,  more,  its 
power  to  canvass  the  votes  for  members  of  the  general  assembly  is  in 
direct  conflict  with  that  constitution,  which  makes  each  house  of  the 


838  ELECTORAL    COUNT    OF    1877. 

assembly  tbe  sole  judge  of  the  election,  returns,  and  qualifications  of  its 
members.  And  such  was  the  view  taken  by  the  Senate  Committee  on 
Privileges  and  Elections  in  1873,  in  the  elaborate  report  presented  by 
Mr.  Carpenter,  and  which  was  dissented  from  by  but  one  member  of 
the  committee.  The  returning-board  of  that  day  was  denounced  as  un 
constitutional  ;  but  if  that  board  was  unconstitutional,  a  multo  fortiori 
is  the  board  of  to-day,  created  by  a  subsequent  statute,  and  with  the 
powers  of  self-perpetuation  to  which  I  have  alluded,  unconstitutional. 
Now,  i  t  is  upon  the  canvass  made  by  this  unconstitutional  returning- board, 
it  is  upon  its  assumption  of  power  to  throw  out  from  six  to  ten  thousand 
votes  given  for  the  Tilden  electors,  that  the  advocates  of  the  Hayes 
electors  claim  the  vote  of  the  State.  I  deny  that  this  decision  of  that 
board  has  any  legal  effect  whatsoever.  Being  unconstitutional,  it  had 
no  right  to  canvass  those  votes,  no  more  than  any  other  four  citizens  of 
the  State  of  Louisiana. 

Another  objection  to  the  constitutionality  of  the  board  was  made  by 
counsel  [Mr.  Carpenter]  and  argued  with  great  force,  and  seems  to  me 
to  deserve  our  serious  consideration.  It  is  the  objection  that  the  statute 
clothes  the  board  with  power  to  disfranchise  voters — the  innocent  as  well 
as  the  guilty — and  to  do  so  without  any  trial  or  hearing  to  which  the 
voter  is  a  party.  That  the  power  to  disfranchise  is  a  judicial  power 
that  could  not  be  conferred  upon  the  board  ;  the  constitution  of  Lou 
isiana  expressly  declaring  (article  94)  that  "No  judicial  powers,  except 
as  committing-magistrates  in  criminal  cases,  shall  be  conferred  on  any 
officers  other  than  those  mentioned  in  this  title,  (title  4,)  except  such  as 
may  be  necessary  in  towns  and  cities;  and  the  judicial  powers  of  such 
officers  shall  not  extend  further  than  the  cognizance  of  cases  arising 
under  the  police  regulations  of  towns  and  cities  in  the  State."  The  offi 
cers  mentioned  in  title  4  are  judges,  justices  of  the  peace,  an  attorney- 
general,  sheriffs,  and  coroners. 

II.  But  if  the  law  creating  the  board  is  not  unconstitutional,  yet  the 
board  that  canvassed  the  votes  in  question  was  not  legally  constituted. 
The  statute  creating  it  required  that  the  board  should  consist  of  Jive 
persons  taken  "/row  all  political  parties,"  and  this  provision  requiring 
the  different  political  parties  to  be  thus  represented  is  of  the  very  essence 
of  the  law.  But  the  board  that  canvassed  the  votes  for  electors  after 
the  late  election  consisted  of  but  four  members,  all  of  the  same  political 
party,  namely,  all  republicans.  These  four  were  applied  to,  again  and 
again,  to  execute  the  statute  by  filling  the  vacancy  in  the  board  with  a 
democrat.  They  utterly  refused  or  neglected  to  do  so,  and,  without  fill 
ing  the  vacancy  at  all,  proceeded  to  canvass  the  returns,  throw  out 
thousands  of  votes,  and  pronounce  a  decision  in  favor  of  the  Hayes 
electors.  It  has  been  argued  that  because  a  majority  of  the  board  con 
stituted  a  quorum,  therefore  the  board  could  proceed  without  filling  the 
vacancy,  and  it  has  been  said  that  if  a  dozen  or  more  members  of  the 
Senate"  of  the  United  -States  were  absent  or  dead,  but  a  quorum  were 
present,  there  would  be  a  lawful  Senate;  or  that  if  four  of  the  judges 
of  the  Supreme  Court  were  absent,  but  five  were  present,  there  would 
be  a  lawful  court.  Nobody  doubts  either  of  those  propositions;  but 
they  have  not  the  remotest  application  to  the  present  case.  If  the  Con 
stitution  required  that  the  Senate  should  consist  of  different  classes  of 
persons  and  gave  to  the  Senate  the  power  to  fill  all  vacancies  in  its  own 
body,  and  there  were  vacancies,  and  the  members  present  refused  to  fill 
them,  there  would  be  some  analogy  between  that  case  and  this.  And 
so  of  the  Supreme  Court.  But  no  such  requisition  or  power  is  contained 
in  the  Constitution,  and  hence  the  illustrations  are  of  no  value  what- 


ELECTORAL    COUNT    OF    1877.  839 

soever.  Here  we  have  a  plain  statute  that  requires  the  returning-board 
to  be  constituted  from  all  political  parties.  The  reason  of  the  require 
ment  is  perfectly  obvious.  It  was  to  secure  fairness  and  justice  in  the 
canvass.  It  was  enacted  for  the  same  reason  that  in  some  of  the  States 
the  judges  or  inspectors  of  election  are  required  to  be  of  different  parties, 
as,  for  instance,  in  Louisiana,  whose  statute  requires — 

That  the  election  at  each  poll  or  polling-place  shall  be  presided  over  by  three  com 
missioners  of  elections,  residents  of  the  parish  for  at  least  twelve  months  next  preced 
ing  the  day  of  election,  who  shall  be  selected  from  different  political  parties,  and  be  of 
good  standing  in  the  party  to  which  they  belong. 

The  requirement  is,  therefore,  as  I  have  already  said,  of  the  very 
essence  of  the  statute.  As  well  might  it  be  said  that  the  jury  known 
to  the  common  law  as  the  jury  de  medietate  linguae  could  be  lawfully  con 
stituted  of  but  one  nationality  and  of  jurors  speaking  but  one  language, 
as  to  say  that  the  returning-board  of  Louisiana  could  be  lawfully  con 
stituted  of  members  of  but  one  political  party.  For  this  reason,  then, 
even  if  the  law  creating  the  board  is  constitutional,  the  board  itself  that 
canvassed  the  votes  in  question  was  not  legally  constituted,  and  its  can 
vass  has  no  legal  effect. 

III.  But  if  I  am  wrong  in  both  these  propositions,  yet  the  canvass  of 
that  board  must  be  rejected.  I  need  not  repeat  here  what  I  said  in  the 
Florida  case,  that  the  doings  of  any  tribunal,  however  high,  acting  with 
out  jurisdiction,  are  absolutely  null  and  void.  This  is  elementary  law, 
and  I  know  of  no  exception  whatever  to  the  rule. 

This  brings  us  to  the  inquiry,  had  the  returning-board  jurisdiction  to 
cast  out  the  thousands  of  votes  given  for  the  Tilden  electors  which  it 
did  cast  out,  and  by  the  casting  out  of  which  the  majority  in  the  State 
was  reversed?  To  answer  this  question  we  must  recur  to  the  election 
law  of  that  State.  By  section  2  of  that  law  the  returning-board  is 
created.  Section  26  at  that  law  provides  as  follows : 

That  in  any  parish,  precinct,  ward,  city,  or  town  in  which,  during  the  time  of  regis 
tration  or  revision  of  registration,  or  on  any  day  of  registration,  there  shall  be  any  riot, 
tumult,  acts  of  violence,  intimidation,  and  disturbance,  bribery,  or  corrupt  influences 
at  any  place  within  said  parish  or  at  or  near  any  poll  or  voting-place  or  place  of  regis 
tration  or  revision  of  registration,  which  riot,  tumult,  acts  of  violence,  intimidation, 
and  disturbance,  bribery,  or  corrupt  influences  shall  prevent  or  tend  to  prevent  a  fair, 
free,  peaceable,  and  full  vote  of  all  the  qualified  electors  of  said  parish,  precinct,  ward, 
city,  or  town,  it  shall  be  the  duty  of  the  commissioners  of  election,  if  such  riot,  tumult, 
acts  of  violence,  intimidation,  and  disturbance,  bribery,  or  corrupt  influences  occur  on 
the  day  of  election,  or  of  the  supervision  of  registration  of  the  parish,  if  they  occur 
during  the  time  of  registration  or  revision  of  registration,  to  make  in  duplicate  and 
under  oath  a  clear  and  full  statement  of  all  the  facts  relating  thereto  and  of  the  effect 
produced  by  such  riot,  tumult,  acts  of  violence,  intimidation,  and  disturbance,  bribery 
or  corrupt  influences  in  preventing  a  fair,  free,  peaceable,  and  full  registration  or 
election,  and  of  the  number  of  qualified  voters  deterred  by  such  riots,  tumult,  acts  of 
violence,  intimidation,  and  disturbance,  bribery  or  corrupt  influences  from  registering 
or  voting ;  which  statement  shall  also  be  corroborated  under  oath  by  three  respectable 
citizens,  qualified  electors  of  the  parish.  When  such  statement  is  made  by  a  commis 
sioner  of  election  or  a  supervisor  of  registration,  he  shall  forward  it  in  duplicate  to 
the  supervisor  of  registration  of  the  parish,  if  in  the  city  of  New  Orleans  to  the  sec 
retary  of  state,  one  copy  of  which,  if  made  to  the  supervisor  of  registration,  shall 
be  forwarded  by  him  to  the  returuiug-officers  provided  for  in  section  2  in  this  act, 
when  he  makes  the  returns  of  election  in  his  parish.  His  copy  of  said  statement  shall  be 
to  annexed  to  his  returns  of  elections,  by  paste,  wax,  or  some  adhesive  substance,  that  the 
same  can  be  kept  together,  and  the  other  copy  the  supervisor  of  registration  shall  deliver 
to  the  clerk  of  the  court  of  his  parish  for  the  use  of  the  district  attorney. 

Section  8  provides,  as  I  have  already  shown,  that  the  election  at  each 
poll  or  polling  place  shall  be  presided  over  by  three  commissioners  of 
election  of  different  politics. 

Section  13  enacts,  among  other  things,  that — 

The  vote  shall  be  counted  by  the  commissioners  at  each  voting-place,  immediately  after 


840  ELECTORAL    COUNT    OF    1877. 

closing  the  election  and  without  moving  the  boxes  from  the  place  where  the  votes  were 
received,  and  the  counting  must  be  done  in  the  presence  of  any  bystander  or  citizen 
who  may  be  present. 

Section  43  is  as  follows : 

That  immediately  upon  the  close  of  the  polls  on  the  day  of  election,  the  commis 
sioners  of  the  election  at  each  poll  or  voting-place  shall  proceed  to  count  the  votes  as 
provided  in  section  13  of  this  act,  and  after  they  shall  have  so  counted  the  votes  and 
made  a  list  of  the  names  of  all  the  persons  voted  for,  and  the  offices  for  which  they 
were  voted  for,  and  the  number  of  votes  received  by  each,  the  number  of  ballots  con 
tained  in  the  box,  and  the  number  rejected,  and  the  reasons  therefor,  duplicates  of 
such  lists  shall  be  made  out,  signed,  and  sworn  to  by  the  commissioners  of  election  of 
each  poll,  and  such  duplicate  lists  shall  be  delivered,  one  to  the  supervisor  of  registra 
tion  of  the  parish  and  one  to  the  clerk  of  the  district  court  of  the  parish,  and  in  the 
parish  of  Orleans  to  the  secretary  of  state,  by  one  or  all  such  commissioners  in  person 
within  twenty-four  hours  after  the  closing  of  the  polls.  It  shall  be  the  duty  of  the  super 
visor  of  registration,  within  twenty-four  hours  after  the  receipt  of  all  the  returns  for  the 
different  polling -places,  to  consolidate  such  returns,  to  be  certified  as  correct  by  the  clerk 
of  the  district  court,  and  forward  the  consolidated  returns,  with  the  originals  received 
by  him,  to  the  returning-offlcers  provided  for  in  section  2  of  this  act,  the  said  report 
and  returns  to  be  inclosed  in  an  envelope  of  strong  paper  or  cloth,  securely  sealed,  and 
forwarded  by  mail.  He  shall  forward  a  copy  of  any  statement  as  to  violence  or  disturbance, 
bribery  or  corruption,  or  other  offenses  specified  in  section  26  of  this  act,  if  any  there  be,  to 
gether  with  all  memoranda  and  tally-lists  used  in  making  the  count  and  statement  of 
the  votes. 

From  these  provisions  it  appears — 

1.  That  if  any  statements  of  riot,  tumult,  acts  of  violence,  intimida 
tion  and  disturbance,  bribery  or  corrupt  influences,  are  made  by  the 
commissioners  of  election,  they  must  be  made  before  the  commissioners 
make  their  return  to  the  supervisor  of  registration  and  must  accompany 
that  return,  and  that  return  must  be  made  within  ticenty-four  hours  after 
the  closing  of  the  polls. 

2.  That  the  supervisor  of  registration  within  ticenty-four  hours  after 
the  receipt  of  all  the  returns  for  the  different  polling-places  shall  consol 
idate  such  returns,  to  be  certified  as  correct  by  the  clerk  of  the  district 
court,  and  forward  the  consolidated  returns,  with  the  originals  received 
by  him,  to  the  returning- board,  and  therewith  "shall  forward  a  copy  of 
any  statement  as  to  violence  or  disturbance,  bribery  or  corruption,  or  other 
offenses  specified  in  section  26  of  this  act,  if  any  there  be." 

3.  That  the  statement  of  violence*  &c.,  shall  be  so  annexed  to  the  returns 
of  the  supervisor,  by  paste,  wax,  or  some  adhesive  substance.,  that  the  same 
can  be  kept  together. 

It  is  thus  apparent  that  all  statements  of  violence,  &c.,  made  by  com 
missioners  of  election  must  be  made  within  twenty -four  hours  after  the 
close  of  the  polls,  and  that  all  such  statements  made  by  supervisors  of 
registration  must  be  made  not  later  than  forty-eight  hours  after  the 
close  of  the  polls.  The  reasons  for  this  requirement  are  very  apparent 
and  very  weighty.  The  jurisdiction  of  the  retuming-board  to  throw 
out  votes  depends,  as  I  will  presently  show,  upon  these  statements  be 
ing  made;  but  it  would  obviously  open  a  wide  door  to  fraud  if  such 
statements  could  be  made  after  it  was  ascertained  what  was  the  general 
result  of  the  election  in  the  State,  and  an  inducement  thereby  created 
to  throw  out  the  votes  of  particular  parishes  or  precincts  in  order  to 
change  that  result.  And,  therefore,  the  statute  requires  the  statements, 
or  protests,  as  they  are  sometimes  called,  to  be  made  as  soon  as  possible 
after  the  election — by  the  commissioners  within  twenty-four  hours  after 
the  close  of  the  polls,  by  the  supervisors  of  registration  not  later  than 
forty-eight  hours  after  such  closing.  The  practical  effect  of  this  pro 
vision  is  to  require  the  statements  to  be  made  before  the  general  result 
of  the  State  election  can  be  known,  and  thus  to  avoid  any  inducement 


ELECTORAL    COUNT    OF    1877.  841 

to  make  false  and  fabricated  statements.  But  not  only  were  the  state 
ments  of  the  commissioners  or  supervisors  necessary;  the  third  section 
of  the  act  also  required  an  affidavit  of  three  or  more  citizens  to  the  fact 
of  riot,  tumult,  &c. 

We  now  come  to  the  powers  of  the  returning-board.  They  are  given 
by  sections  2  and  3  of  the  act,  which  I  will  quote  in  full  as  follows  : 

SEC.  2.  That  five  persons,  to  be  elected  by  the  senate  from  all  political  parties,  shall 
be  the  retnrning-officers  for  all  elections  in  the  State,  a  majority  of  whom  shall  consti 
tute  a  quorum,  and  have  power  to  make  the  returns  of  all  elections.  In  case  of  any  va 
cancy  by  death,  resignation,  or  otherwise,  by  either  of  the  board,  then  the  vacancy 
shall  be  filled  by  the  residue  of  the  board  of  returning-officers.  The  returning-officers 
shall  after  each  election,  before  entering  on  their  duties,  take  and  subscribe  to  the  fol 
lowing  oath  before  a  judge  of  the  supreme  or  any  district  court : 

"I,  A  B,  do  solemnly  swear  (or  affirm)  that  1  will  faithfully  and  diligently  perform 
the  duties  of  a  returning-officer  as  prescribed  by  law  ;  that  I  will  care'rully  and  hon 
estly  canvass  and  compile  the  statements  of  the  votes,  and  make  a  true  and  correct 
return  of  the  election  :  so  help  me  God." 

Within  ten  days  after  the  closing  of  the  election  said  returning-officers  shall  meet  in 
New  Orleans  to  canvass  and  compile  the  statements  of  votes  made  by  the  com  miss  loners 
of  election,  and  make  returns  of  the  election  to  the  secretary  of  state.  They  shall  con 
tinue  in  session  until  such  returns  have  been  compiled.  The  presiding  officer  shall,  at 
such  meeting,  open  in  the  presence  of  the  said  returning-officers  the  statements  of  the 
commissioners  of  election,  and  the  said  returning-officers  shall,  from  said  statements,  can 
vass  and  compile  the  returns  of  the  election  in  duplicate;  one  copy  of  such  returns 
they  shall  file  in  the  office  of  the  secretary  of  state,  and  of  one  copy  they  shall  make 
public  proclamation  by  printing  in  the  official  journal  and  such  other  newspapers  as 
they  may  deem  proper,  declaring  the  names  of  all  persons  and  officers  voted  for,  the 
number  of  votes  for  each  person,  and  the  names  of  the  persons  who  have  been  duly 
and  lawfully  elected.  The  return  of  the  election  thus  made  and  promulgated  shall  be 
prima  facie  evidence  in  all  courts  of  justice  and  before  all  civil  officers,  until  set  aside 
after  contest  according  to  law,  of  the  right  of  any  person  named  therein  to  hold  and 
exercise  the  office  to  which  he  shall  by  such  return  be  declared  elected.  The  governor 
shall,  within  thirty  days  thereafter,  issue  commissions  to  all  officers  thus  declared 
elected,  who  are  required  by  law  to  be  commissioned. 

SEC.  3.  That  in  such  canvass  and  compilation  the  returning-officers  shall  observe 
the  following  order:  They  shall  compile  first  the  statements  from  all  polls  or  voting- 
places  at  which  there  shall  have  been  a  fair,  free,  and  peaceable  registration  .and 
election.  Whenever,  from  any  poll  or  voting-place,  there  shall  be  received  the  statement  of 
any  supervisor  of  registration  or  commissioner  of  election,  in  form  as  required  by  section 
26  of  this  act,  on  affidavit  of  three  or  more  citizens,  of  any  riot,  tumult,  acts  of  violence,  in 
timidation,  armed  disturbance,  bribery,  or  corrupt  influences,  which  prevented,  or  tended  to 
prevent,  a  fair,  free,  and  peaceable  vote  of  all  qualified  electors  entitled  to  vote  at  such  poll 
or  voting-place,  such  returniug-officers  shall  not  canvass,  count,  or  compile  the  state 
ment  of  votes  from  such  poll  or  voting-place  until  the  statements  from  all  other 
polls  or  voting-places  shall  have  been  canvassed  and  compiled.  The  returuing- 
officers  shall  then  proceed  to  investigate  the  statements  of  riot,  tumult,  acts  of  vio 
lence,  intimidation,  armed  disturbance,  bribery  or  corrupt  influences,  at  any  such 
poll  or  voting-place ;  and  if  from  the  evidence  of  such  statement  they  shall  be  convinced 
that  such  riot,  tumult,  acts  of  violence,  intimidation,  armed  disturbance,  bribery  or 
corrupt  influences,  did  not  materially  interfere  with  the  purity  and  freedom  of  the 
election  at  such  poll  or  voting-place,  or  did  not  prevent  a  sufficient  number  of  qualified 
voters  thereat  from  registering  or  voting  to  materially  change  the  result  of  the  elec 
tion,  then,  and  not  otherwise,  said  returning-officers  shall  canvass  and  compile  the 
vote  of  such  poll  or  voting-place  with  those  previously  canvassed  and  compiled  ;  but 
if  said  returning-officers  shall  not  be  fully  satisfied  thereof,  it  shall  be  their  duty  to 
examine  further  testimony  in  regard  thereto,  and  to  this  end  they  shall  have  power 
to  send  for  persons  and  papers.  If,  after  such  examination,  the  said  returning-officera 
shall  be  convinced  that  said  riot,  tumult,  acts  of  violence,  intimidation,  armed  dis 
turbance,  bribery  or  corrupt  influences,  did  materially  interfere  with  the  purity  and 
freedom  of  the  election  at  such  poll  or  voting-place,  or  did  prevent  a  sufficient 
number  of  the  qualified  electors  thereat  from  registering  and  voting  to  materially 
change  the  result  of  the  election,  then  the  said  returniug-officers  shall  not  canvasser 
compile  the  statement  of  the  votes  of  such  poll  or  voting-place,  but  shall  exclude  it 
from  their  returns :  Provided,  That  any  person  interested  in  said  election  by  reason  of 
being  a  candidate  for  office  shall  be  allowed  a  hearing  before  said  returniug-officers 
upon  making  application  within  the  time  allowed  for  the  forwarding  of  the  returns  of 
said  election. 


842  ELECTORAL    COUNT    OF   1877. 

It  is  perfectly  obvious  from  the  provisions  of  section  3,  above  quoted, 
that  the  returning  board  has  no  power  whatever  to  reject  any  vote  un 
less  a  statement  of  riot,  tumult,  &c.,  has  been  received  from  the  officers 
of  election  as  provided  in  the  other  sections  of  the  law  which  I  have 
quoted,  that  is  to  say,  statements  made  within  the  time  and  in  the  man 
ner,  and  transmitted  in  the  mode,  and  supported  by  the  affidavits  of 
three  or  more  citizens,  as  provided  by  the  law.  I  do  not  understand  this 
proposition  to  be  seriously  disputed.  I  have  heard  no  argument  against 
it,  and  it  seems  to  me  that  none  can  be  made  which  would  have  even  a 
show  of  plausibility.  Now,  I  have  said,  and  it  is  not  denied,  that  the 
return  ing-board  threw  out  many  thousand  votes  and  thereby  changed 
the  result  of  the  election.  Were  there  in  each  cf  the  cases,  that  is  to 
say,  in  each  of  the  precincts  or  parishes  whose  votes  were  thus  thrown 
out,  statements  of  violence,  &c.,  made  and  supported  as  required  by  the 
law  ?  We  have  an  offer  to  prove  that  in  no  instance  whatever,  that 
from  no  parish  or  precinct  whatever,  was  any  such  statement  trans 
mitted.  In  other  words,  that  no  such  statement  accompanied  any 
return  transmitted  to  the  returning-board  or  was  made  or  sent  from  any 
precinct  or  parish  in  the  State,  within  the  time  and  in  the  mode  required 
by  law,  to  the  returniug-board.  And,  further,  that  if  any  statements  of 
violence,  &c.,  were  laid  before  the  returuing-board,  they  were  corruptly 
fabricated  in  the  city  of  New  Orleans,  weeks  after  the  election,  and 
known  to  be  so  corruptly  fabricated  by  the  board  when  it  received  them. 
If  such  are  the  facts,  and  upon  the  question  of  admissibility  of  proof  it 
must  be  assumed  that  they  are  facts,  can  there  be  any  doubt  of  the 
illegality  of  the  action  of  the  board  in  throwing  out  the  votes  in  ques 
tion  f  Is  it  not  perfectly  plain  that  the  statements  and  affidavits 
required  by  the  statute  are  necessary  to  give  jurisdiction  to  the  board  to 
throw  out  any  votes  whatever  ?  They  are  the  very  foundation  of  the 
jurisdiction,  without  whose  existence  no  power  to  throw  out  votes  exists. 
It  is  not  a  question  of  error  of  judgment  or  of  bona  fides  or  mala  fides 
on  the  part  of  the  board.  A  question  of  jurisdiction  goes  far  deeper 
than  that.  The  judgment  of  the  tribunal  may  be  ever  so  righteous  and 
correct,  the  tribunal  itself  may  be  ever  so  pure  and  enlightened,  yet  if  it 
lack  jurisdiction  to  pronounce  the  decision  which  it  does  pronounce,  or 
to  do  the  act  which  it  does  do,  its  decision  and  its  acts  are  absolutely 
null  and  void.  It  would  be  vain  to  say  that  the  returning.board  is  the 
sole  judge  of  its  own  jurisdiction.  There  is  nothing  in  the  statute  that 
makes  it  such  sole  judge.  On  the  contrary,  the  statute  itself  declares 
that  its  decision  shall  only  be  prima  facie  evidence.  But  I  have  said 
enough  on  this  point,  and  I  proceed  to  consider  another. 

IV.  The  statute,  section  2,  gives  to  the  return  ing-board  the  power  and 
imposes  upon  it  the  duty  "  to  canvass  and  compile  the  statement  of 
votes  made  by  the  commissioners  of  election  and  make  returns  of  the 
election  to  the  secretary  of  state,"  and  provides  that  "they  shall  con 
tinue  in  session  until  such  returns  have  been  compiled."  The  only 
things,  then,  that  the  board  had  authority  to  canvass  and  compile  were 
the  statements  of  votes  made  by  the  commissioners  of  election,  and  it 
was  upon  them  that  they  were  to  decide  and  make  returns  of  the  election 
to  the  secretary  of  state.  They  had  no  right  to  make  their  decision  and 
returns  upon  the  consolidated  statements  of  the  supervisors  of  registra 
tion.  Nowhere  in  the  statute  is  any  such  power  given  to  them.  No 
where  are  they  expressly  required  to  even  look  at  the  consolidated  re 
turns  of  the  supervisors  of  registration.  Certain  it  is  that  in  no  case 
are  they  authorized  to  found  their  decision  upon  any  such  papers. 
Now,  the  objectors  to  the  votes  of  the  so-called  Hayes  electors  offer  to 


ELECTORAL    COUNT    OP    1877.  843 

prove  that  the  board  did  not  canvass  or  compile  a  single  return  made 
by  the  commissioners  of  election  ;  that  the  only  returns  they  looked  at, 
the  only  returns  upon  which  they  formed  their  decision  and  made 
their  return  to  the  secretary  of  state,  were  the  consolidated  returns  sent 
to  them  by  the  supervisors  of  registration.  If  this  be  true,  then  the 
board  have  not  canvassed  the  votes  as  they  were  expressly  required 
by  the  statute  to  canvass  them.  They  have  canvassed  nothing  which 
the  law  required  them  to  canvass.  They  might  as  well  have  canvassed 
the  returns  of  the  election  as  published  in  the  newspapers  and  made 
their  decision  upon  them  as  to  make  it  upon  the  supervisors7  returns 
alone.  No  canvass  known  to  the  law  of  Louisiana  has  taken  place,  and 
the  pretended  return  by  the  board  to  the  secretary  of  state  is  a  fabri 
cation  and  a  falsehood.  In  my  opinion,  evidence  to  prove  these  allega 
tions  ought  to  be  admitted,  and,  if  proved,  they  are  in  my  judgment 
fatal  to  the  so-called  canvass  of  the  board. 

V.  Testimony  is  offered  to  prove  that  the  decision  of  the  returning- 
board  was  procured  by  conspiracy,  forgery,  fraud,  and  bribery.    I  think 
the  testimony  admissible  for  the  reasons  I  stated  in  the  Florida  case. 

VI.  Testimony  is  also  offered  that  two  of  the  Hayes  electors,  Brewster 
and  Levissee,  were,  at  the  time  of  the  election,  officers  of  the  United 
States,  whose  appointment  as  electors  is  expressly  prohibited  by  the 
Constitution.    I  think  this  testimony  should  be  received.    The  Consti 
tution  makes  such  officers  ineligible  to  appointment.    It  is  not  a  mere 
ineligibility  to  hold  an  office  or  trust,  but  it  is  ineligibility  to  be  ap 
pointed  to  the  office  or  trust.    Nor,  if  I  am  correct  in  my  interpretation 
of  the  Louisiana  statutes,  is  the  matter  helped  by  the  appointment  of 
Brewster  and  Levissee,  by  the  remaining  electors,  to  fill  the  supposed 
vacancies  created  by  the  non-attendance  of  Brewster  and  Levissee. 
Upon  a  careful  review  of  those  statutes,  I  am  brought  to  the  conclusion 
that  they  nowhere  confer  upon  a  portion  of  the  electoral  college  the 
power  to  fill  vacancies  occurring  in  that  body. 

Mr.  THUEMAN  here  read  the  provisions  of  the  statutes  relating  to 
this  point,  and  commented  upon  them  at  some  length. 

VII.  But  it  is  argued,  as  it  was  heretofore  argued  in  the  Florida  case, 
that  tiie  Hayes  electors  had  color  of  title  and  that,  unless  ousted  before 
they  cast  their  votes,  they  must  be  regarded  as  electors  de  facto  and  fall 
effect  given  to  their  votes.    I  shall  not  repeat  what  I  said  upon  this 
proposition  in  the  Florida  case.    I  adhere  to  the  opinion  I  then  expressed, 
and  call  attention  to  the  fact  that  here  is  another  case  in  which  it  was 
impossible  to  oust  the  so-called  Hayes  electors  by  any  judicial  proceed 
ing  before  they  cast  their  votes.     They  were  declared  by  the  returning- 
board  to  be  appointed  on  the  very  day  on  which  they  voted,  and  it  was 
manifestly  impossible  in  the  few  hours  that  elapsed  between  that  declar 
ation  and  the  casting  of  their  votes  to  oust  them  by  judicial  proceedings. 
To  hold  then  that  they  had  color  of  title,  were  electors  de  facto,  and  that 
Congress  is  bound  to  count  their  votes,  is  to  declare  that  no  matter  by 
what  usurpation  of  power,  fraud,  or  corruption  a  man  may  be  declared 
by  a  returning-board  to  be  an  elector,  and  no  matter  how  ineligible  he 
may  be  to  receive  an  appointment  as  elector,  or  to  be  an  elector  dejure, 
yet,  unless  he  be  ousted  before  he  casts  his  vote  for  President,  (though  to 
do  so  is  manifestly  impossible,)  that  vote  must  be  counted  5  and  neither 
the  State  nor  Congress  can  right  the  wrong  or  remedy  the  evil.     I  ut 
terly  dissent  from  such  a  proposition.     In  my  humble  judgment,  it  is  de 
structive  of  the  right  of  the  States,  of  the  powers  of  Congress,  of  consti 
tutional  provisions,  of  the  principles  of  justice,  of  purity  in  elections, 
and  of  popular  rule. 


844  ELECTORAL    COUNT    OF    1877. 

In  saying  this  I  attribute  improper  motives  to  no  one;  it  is  not  with 
persons  but  with  judgments  that  I  am  dealing.  Of  them  and  of  what 
appears  to  me  their  probable  effect,  it  is  my  right  and  duty  to  speak ; 
and,  thus  speaking,  I  cannot  help  expressing  the  fear  that  if  this  Com 
mission  shall  decide  in  accordance  with  the  above  proposition  of  de  facto 
title,  its  decision  will  have  the  effect  of  a  proclamation  to  dishonest  re- 
turning-boards  to  perpetrate  whatever  villainies  their  interest  or  their 
inclinations  may  dictate,  with  an  absolute  certainty  that  they  will  prove 
successful. 


REMARKS  OF  MR.  COMMISSIONER  FRELINGHUYSEN. 

The  following  are  the  remarks  and  opinion  of  Mr.  Commissioner  FRE 
LINGHUYSEN  : 

I.  The  important  question  to  be  decided  by  the  Commission,  as  both 
political  parties  distinctly  understood  when  the  bill  creating  the  Com 
mission  was  passed,  is  whether  the  Commission  has  jurisdiction  or  right 
to  look  behind  and  reverse  the  determination  of  that  tribunal  which  in 
the  several  States  has  by  law  been  established  finally  to  decide  who 
have  been  elected  presidential  electors. 

This  Commission  has,  in  the  language  of  the  act  creating  it,  "the 
same  powers,  if  any,  now  possessed  for  that  purpose,  [the  purpose  of 
counting  the  electoral  vote,]  by  the  two  Houses  acting  separately  or  to 
gether.  " 

The  question  then  is,  What  powers  have  the  two  Houses  of  Congress, 
acting  separately  or  together,  when  counting  the  electoral  vote  for  Presi 
dent?  The  Commission  has  the  same;  no  less,  no  more. 

When  ttie  two  Houses  meet  to  count  the  votes  of  the  electors  for 
President,  they  do  not  act  in  their  legislative  capacity,  but  as  a  tribunal 
upon  which  is  imposed  that  special  duty.  The  legislative  powers  of 
Congress  are  specified  in  the  Constitution,  and  counting  the  electoral 
votes  is  not  among  them.  The  President  of  the  United  States,  whose 
concurrence  is  essential  to  all  legislative  action,  has  no  part  in  this  pro 
cedure.  The  two  Houses  in  counting  the  vote  not  only  have  no  legisla 
tive  power,  but  also  have  none  of  those  powers  so  constantly  used,  and 
which  only  exist  as  and  because  they  are  incident  to  the  legislative 
power ;  such  as  sending  committees  of  Congress  to  investigate  the  con 
dition  of  affairs  in  different  parts  of  the  country,  that  Congress  may  pos 
sess  information  on  which  to  base  future  legislation.  Neither  has  Congress 
in  counting  the  votes  such  power  to  investigate  by  committees  or  other 
wise  the  election  of  presidential  electors  as  it  possesses  for  the  purpose 
of  ascertaining  whether  its  members  have  been  fairly  elected,  because 
while  the  Constitution  expressly  declares  that  "  each  House  shall  be  the 
judge  of  the  elections,  returns,  and  qualifications  of  its  own  members," 
it  nowhere  declares,  either  expressly  or  by  implication,  that  Congress 
shall  be  such  judges  as  to  the  election  of  presidential  electors ;  and  this 
clear  provision  conferring  the  power  to  investigate  elections  for  Senators 
and  Representatives,  and  the  absence  of  any  such  provision  as  to  elect 
ors,  is  significant  and  emphatic  of  the  truth  that  no  such  power  exists 
as  to  electors.  Neither  do  the  two  Houses  possess  the  judicial  power 
belonging  to  a  court  when  trying  the  title  to  an  office,  because  by  the 
Constitution  the  judicial,  legislative,  and  executive  powers  of  the  Gov 
ernment  are  carefully  kept  separate  and  distinct.  The  legislative  branch 
possesses  no  judicial  power  excepting  in  the  two  specified  cases  of  judg- 


ELECTORAL    COUNT    OF    1877.  845 

ing  of  the  election  of  members  of  Congress  and  trials  of  impeachment. 
The  two  Houses  when  they  meet  to  count  the  votes  do  not  assemble  as 
a  joint  convention,  but  as  two  distinct  Houses,  and  separate  to  vote  on 
any  question  that  arises;  and  the  very  nature  of  this  special  tribunal, 
consisting  of  two  distinct  Houses,  is  inconsistent  with  having  a  jury, 
with  having  confronting  witnesses;  there  are  no  parties,  and  there  is 
nothing  about  the  procedure  that  is  judicial. 

What  power,  then,  do  the  two  Houses  of  Congress  possess  ?  Just 
that  power  named  in  the  Constitution  when  it  says,  u  the  votes  shall 
then  be  counted."  And  what  votes  are  then  to  be  counted?  Surely 
not  the  votes  that  have  been  given  for  the  presidential  electors  by  some 
seven  millions  of  voters  over  a  vast  continent,  but  the  votes  cast  by  the 
presidential  electors  for  President  and  Vice-President  which  the  Con 
stitution  provides  shall  be  certified  to  the  President  of  the  Senate  and 
by  him  opened  in  the  presence  of  the  two  Houses. 

The  two  Houses  in  counting  the  votes  of  the  electors  may  deter 
mine  whether  the  State  is  in  such  relations  to  the  Federal  Government 
as  to  be  entitled  to  vote;  whether  the  votes  were  cast  on  the  day  pre 
scribed  by  the  statutes  of  the  United  States;  whether  the  governor's  cer 
tificate  is  genuine ;  whether  that  certificate  is  true  in  its  statement  as  to 
who  have  been  appointed  electors  by  the  State;  but  the  truth  of  the  state 
ment  of  the  governor's  certificate  in  this  regard  is  to  be  decided  only  by 
looking  to  the  determination  of  the  tribunal  which  the  laws  of  the  State 
say  shall  finally  determine  that  fact,  and  not  by  a  canvass  of  the  popular 
vote  of  the  State.  The  two  Houses  may  inquire  into  anything  consist 
ent  with  the  nature  of  the  procedure,  and  which  the  Constitution  has 
not  devolved  on  the  States  to  regulate. 

The  reasons  why  the  Constitution  does  not  either  expressly  or  by  im 
plication  provide  or  intend  that  Congress  shall  inquire  into  or  canvass 
the  election  of  presidential  electors  are  apparent. 

The  framers  of  the  Constitution,  as  its  history  shows,  did  first  decide 
that  the  President  and  Vice-President  should  be  chosen  by  Congress; 
but  on  full  debate  and  mature  deliberation  they  saw  the  evil  of  placing 
one  co-ordinate  branch  of  Government  under  the  control  of  another — 
the  executive  under  the  control  of  the  legislative  branch — and  they  de 
termined  that,  except  to  prevent  a  failure  to  elect,  (in  that  event  the 
House  voting  by  States  should  elect,)  Congress  should  have  nothing  to 
do  with  the  choice  of  President  or  Vice-President.  The  Constitution 
casts  that  duty  on  the  States.  It  says  that  each  State,  large  or  small, 
shall  have  two  votes,  and  also  as  many  additional  votes  as  it  has  Repre 
sentatives,  and  that  each  State  shall  appoint  the  electors  in  such  manner 
as  the  legislature  thereof  shall  direct.  Under  this  power,  the  legisla 
ture  might  direct  that  the  electors  should  be  appointed  by  the  legisla 
ture,  by  the  executive,  by  the  judiciary,  or  by  the  people.  In  the  earliest 
days  of  the  Republic,  electors  were  appointed  by  the  legislatures ;  in 
Pennsylvania  they  were  appointed  by  the  judiciary.  Now  in  all  States 
except  Colorado  they  are  appointed  by  the  people.  And  in  contempla 
tion  of  the  Constitution  the  electors  were  not,  as  the  agent  of  a  party,  to 
elect,  but  as  independent  men,  responsible  to  no  one,  were  to  select  the 
President  and  Vice-President. 

More  completely  to  separate  Congress  from  all  connection  with  the 
election  of  President  and  Vice-President,  the  Constitution  provides  that 
no  Senator  or  Representative  or  person  holding  an  office  of  trust  or 
profit  under  the  United  States  shall  be  appointed  an  elector.  And  it 
would  be  an  anomaly  indeed  if,  after  the  Constitution  had  thus  carefully 
excluded  Congress  from  any  intermeddling  with  the  choice  of  the  Presi 


846  ELECTORAL    COUNT    OF    1877. 

dent  further  than  to  ascertain  whom  the  State  said  it  had  appointed,  that 
yet  Congress  had  absolute  control  over  the  whole  subject,  and  could 
while  engaged  in  this  summary  proceeding  of  counting  the  vote  adjudge 
and  determine  who  should  be  President.  If  the  claim  now  put  forth 
was  to  reverse  the  decision  of  New  York  or  Massachusetts  as  to  who 
had  been  appointed  the  electors  of  those  States  respectively,  the  claim 
would  hardly  secure  a  patient  hearing;  but  the  public  have  become  so 
accustomed  to  disorderly  proceedings  in  some  of  the  Southern  States, 
that  the  determinations  of  those  States  do  not  challenge  full  respect, 
and  yet  the  law  is  the  same  as  to  all  the  States. 

The  impracticability  of  the  two  Houses  when  met  to  count  the  votes 
of  the  presidential  electors  going  behind  the  final  decision  of  the 
States,  and  attempting  to  find  out  which  set  of  electors  in  very  truth 
have  received  the  most  votes,  is  a  conclusive  argument  against  the 
existence  of  any  such  power  in  the  two  Houses.  If  Congress  enters 
upon  the  work  of  investigating  which  of  two  or  more  sets  of  electors 
have  been  chosen,  it  must  do  its  work  thoroughly,  or  it  does  gross  in 
justice.  It  would  not  answer  for  Congress  to  examine  the  returns  of  the 
county  canvassing-boards  for  the  purpose  of  reversing  the  decision  of 
the  State  canvassiug-board,  and  then  refuse  to  examine  the  returns  of 
the  precincts  when  invited  to  do  so,  for  the  purpose  of  showing  that  the 
county  boards  were  in  error.  It  would  not  answer  for  the  two  Houses 
to  examine  the  state  of  the  vote  of  Florida,  Louisiana,  and  South  Caro 
lina  for  the  purpose  of  showing  that  the  Hayes  electors  were  not  elected, 
and  then  refuse  to  examine  the  vote  of  Mississippi,  Alabama,  and 
Georgia,  when  so  requested,  for  the  purpose  of  showing  that  the  Tilden 
electors  were  not  chosen.  How,  by  possibility,  could  this  investigation 
into  the  popular  vote  be  effected?  There  are  probably  seven  millions  of 
popular  votes.  On  the  first  Wednesday  of  December  the  electors  give 
votes  as  required  by. the  Constitution  by  ballot,  and  that  imports  their 
secrecy.  The  list  of  the  votes  is  then  transmitted  sealed  (secrecy  again) 
to  the  President  of  the  Senate,  and  these  lists  are  first  to  be  opened  when 
the  two  Houses  meet  to  count  the  votes.  According  to  the  theory  of  the 
Constitution,  no  one  is  to  know  until  the  two  Houses  are  thus  assembled 
what  has  been  the  action  of  the  electoral  college.  And  to  claim  that  in 
the  February  before  the  4th  of  March,  when  the  President  is  to  be  in 
augurated,  the  two  Houses  are  to  go  behind  the  final  determinations  of 
the  States  and  make  a  canvass  to  find  out  the  very  truth  as  to  which 
set  of  electors  have  the  majority  of  lawful  votes,  is  an  absurdity,  because 
an  impossibility.  An  investigation  by  the  two  Houses  behind  the 
final  determination  of  the  States  would  lead  to  anarchy  and  to  nothing 
better. 

It  is  urged  that  without  such  investigation  by  the  two  Houses  the 
President  may  be  elected  by  fraud.  Then  change  the  laws.  It  would, 
however,  be  found  that  the  opportunity  for  fraud  would  be  multiplied 
many  fold  if  the  regulation  of  the  election  was  transferred  from  the 
States  to  the  General  Government. 

It  is  said  that  if  we  take  as  final  the  determination  of  the  State  board 
the  result  may  be  that,  while  one  citizen  has  a  popular  majority,  another 
citizen  will  be  inaugurated  President.  Our  Government  is  not  that  of 
a  mob.  It  is  not  majorities,  but  legal  majorities  that  control.  Under 
our  system  many  complex  functions  are  invoked  to  obtain  an  expression 
of  the  constitutional  will.  Thus  Delaware  casts  one  electoral  vote  for 
every  40,000  inhabitants,  and  New  Jersey  only  one  electoral  vote  for 
every  110,000  inhabitants.  The  democratic  majority  in  New  York  is 
50,000,  and  the  State  government  by  the  same  election  is  republican. 


ELECTORAL    COUNT    OF    1877.  847 

We  have  agreed  to  the  Constitution,  and  if  the  expression  of  the  will  of 
the  people  is  according  to  that  instrument  it  is  right.  The  complaint 
that  one  possibly,  and  I  do  not  say  probably,  having  a  popular  majority 
will  not  be  inaugurated,  seems  a  pretense. 

I  conclude  that  a  State  is  as  sovereign  in  its  right  finally  to  determine 
who  have  been  elected  presidential  electors  as  it  is  to  determine  who  have 
been  elected  legislators  or  governor,  or  to  decide  what  shall  be  the  pun 
ishment  of  crime  within  its  borders,  or  what  law  shall  regulate  the  trans 
fer  of  property ;  and  as  this  nation  extends  and  grows  the  wisdom  of 
making  the  States  the  final  judges  in  this  and  many  other  things  will 
become  year  by  year  more  apparent. 

I  am  confirmed  in  the  correctness  of  ray  conclusions  by  the  impres 
sions  of  distinguished  public  men  who  differ  from  me  in  political  views, 
and  even  by  my  own  opinion  expressed  in  the  Senate  when  the  question 
had  not  possibly  any  partisan  significance. 

Kecently,  when  this  question  was  before  the  country,  Chief-Justice 
Church,  of  the  court  of  appeals  of  the  State  of  New  York,  made  this  ex 
pression  in  a  letter  which  he  gave  to  the  public : 

I  have  always  expressed  the  opinion  that  the  authentication  of  the  election  of  pres 
idential  electors  according  to  the  laws  of  each  State  is  final  and  conclusive,  and  that 
there  exists  no  power  to  go  behind  them. 

And  Senator  Bayard,  on  the  25th  Frebruary,  1875,  when  the  Senate 
had  under  consideration  the  bill  to  provide  for  counting  the  votes  for 
President  and  Vice-President,  after  reading  the  twelfth  amendment  to 
the  Constitution  which  makes  provision  for  counting  the  electoral  vote, 
said: 

There  is  nothing  in  this  language  that  authorizes  either  House  of  Congress  or  both 
Houses  of  Congress  to  interfere  with  the  decision  which  has  been  made  by  the  electors 
themselves  and  certified  by  them  and  sent  to  the  President  of  the  Senate.  There  is  no 
pretext  that  for  any  cause  whatever  Congress  has  any  power,  or  all  the  other  depart 
ments  of  the  Government  have  any  power,  to  refuse  to  receive  and  count  the  result  of 
the  action  of  the  voters  in  the  States  in  that  election,  as  certified  by  the  electors  whom 
they  have  chosen.  That  questions  may  arise  whether  that  choice  was  made,  that 
questions  may  arise  whether  that  election  was  properly  held  or  whether 'it  was  a  free 
and  fair  election,  is  undoubtedly  true  ;  but  there  is  no  machinery  provided  for  contest, 
and  no  contest  seems  to  have  been  anticipated  on  this  subject.  It  is  casus  omissus,  in 
tentionally  or  otherwise,  upon  the  part  of  those  who  framed  this  Government,  and  we 
must  take  it  as  it  is;  and  if  there  be  necessity  for  its  amendment,  for  its  supplement, 
that  must  be  the  action  of  the  American  people  in  accordance  with  the  Constitution 
itself;  and  I  am  free  to  say  that  some  amendment  on  this  subject  should  be  had. 

"Senator  Thurman  in  the  Seriate  on  January  7,  1873,  when  the  reso 
lution  authorizing  an  investigation  as  to  whether  the  election  for  Presi 
dent  and  Yice-Presideut  had  been  conducted  in  Louisiana  and  Arkansas 
in  accordance  with  the  laws  of  the  United  States,  expressed  views  sim 
ilar  to  those  above  quoted  from  Mr.  Bayard's  subsequent  speech. 

It  is  proper  to  state  that  both  of  these  distinguished  Senators  stated 
these  views  as  a  matter  of  first  impression,  reserving  their  final  judg 
ment  on  the  question;  but  first  impressions  with  minds  as  well  furnished 
as  theirs  are  often  more  valuable  than  more  carefully  considered  con 
clusions. 

In  the  debate  of  January  7,  1873,  I  had  the  honor  to  follow  the  Sen 
ator  from  Ohio,  [Mr.  Thurtnau,]  and  said  : 

There  seems  to  be  no  way  provided  by  Congress,  and  no  way  I  believe  that  Con 
gress,  as  the  Constitution  stands,  can  provide  to  try  the  title  of  an  elector  to  his 
office.  *  *  *  I  take  it  that  the  entire  control  over  the  manner  of  appointing 
the  electors  is  one  of  the  reserved  rights  of  the  States  ;  that  they  never  surrendered 
the  right  of  determining  who  should  be  these  electors.  The  States  possess  the  right 
of  determining  who  shall  be  elected  and  who  has  been  elected  as  entirely  as  the  United 
States  Government  has  the  right  to  decide  who  shall  represent  the  country  in  England. 


848  ELECTORAL    COUNT    OF    1877. 

^  These  views  I  had  occasion  to  express  again  in  January  last  when  the 
bill  creating  this  Electoral  Commission  was  before  the  Senate,  and  when 
I  had  no  idea  of  being  a  member  of  this  Commission ;  and  I  have  seen 
110  reason  for  changing  those  views. 

'•  And,  as  still  further  authority  to  show  that  the  final  decision  of  the 
question  whether  electors  have  been  appointed  is  with  the  States,  let 
me  call  attention  to  the  fact  that  those  who  aided  in  framing  and  those 
who  lived  at  the  time  of  the  adoption  of  the  Constitution  did  not  con 
sider  that  Congress,  even  when  acting  with  the  President  as  a  Legisla 
ture,  had  the  constitutional  power  to  pass  a  law  under  which  the  two 
Houses  of  Congress,  or  any  commission  created  by  the  Federal  Legisla 
ture,  could  inquire  into  the  number  of  votes  by  which  electors  have  been 
elected. 

This  whole  subject  was  thoroughly  considered  in  1800,  and  a  bill 
passed  both  Houses  of  Congress,  but  amendments  riot  being  agreed  to, 
did  not  become  a  law.  That  bill  provided  that  a  grand  committee,  in 
its  organization  not  unlike  this  Commission,  might  make  inquiry  and 
decide  as  to  everything  relative  to  the  election  of  President  and  Vice- 
President  over  which  the  Constitution  gave  the  General  Government 
jurisdiction,  but  did  not  provide  for  any  investigation  or  decision  as  to 
the  procedure  which  the  Constitution  has  devolved  upon  the  States. 

It  provided  that  the  grand  committee  should  examine  and  decide: 
(1)  as  to  the  qualifications  of  persons  voted  for  as  President  and  Vice- 
president;  (2)  as  to  the  constitutional  qualification  of  electors;  (3) 
whether  the  appointment  of  the  electors  was  authorized  by  the  State 
legislature;  (4)  whether  the  mode  prescribed  by  the  State  legislature 
had  been  followed ;  (5)  whether  improper  means  had  been  used  to  influ 
ence  the  votes  of  the  electors ;  (6)  as  to  the  truth  of  the  returns  of  the 
electors;  (7)  as  to  the  time  and  place  of  giving  their  votes.  And  that 
is  all.  Congress  did  not  assume  that  it  had  any  constitutional  right  to 
investigate  or  review  the  vote  on  which  the  electors  had  been  appointed, 
further  than  to  see  that  it  was  according  to  the  mode  prescribed  by  the 
States.  On  the  contrary,  fearing  that  the  very  claim  which  is  now  set 
up,  of  making  an  investigation  as  to  whether  the  electors  had  been  duly 
elected  in  the  States,  might  be  inferred,  they  guarded  against  such  in 
ference  by  providing  that  the  grand  committee  should  "  not  draw  in 
question  the  number  of  votes  on  which  any  elector  should  have  been 
appointed." 

If  Congress  when  acting  in  its  sovereign  legislative  capacity  had  not 
the  constitutional  right  to  confer  on  the  two  Houses  of  Congress  when 
performing  the  subordinate  duty  devolved  on  them  of  counting  the 
vote,  or  upon  the  grand  committee,  the  power  "  to  draw  in  question  the 
number  of  votes  on  which  any  elector  should  have  been  appointed," 
a  fortiori  the  two  Houses  of  Congress,  or  this  Commission  without  such 
legislation,  do  not  possess  such  power. 

Thus  authority  fortifies  the  conclusion  that  the  two  Houses  of  Con 
gress,  and  consequently  this  Commission,  cannot  go  behind  or  reverse 
the  determination  as  to  who  has  been  appointed  electors  as  made  by 
the  lawful  tribunal  of  the  State. 

fc  It  has  been  said  that  although  the  Constitution  does  not  give  to  Con 
gress  the  right  to  question  the  determination  of  the  tribunal  which  by 
the  laws  of  the  State  is  finally  to  decide  who  has  been  elected  an  elector, 
in  this  case  the  offer  is  made  to  prove  fraud  in  that  final  decision 
of  the  State  tribunal ;  that  we  must  assume  that  the  offer  is  made  in 
good  faith,  and  that  fraud  vitiates  and  renders  void  everything.  It  is 
true  that  fraud,  when  proven  before  a  tribunal  having  jurisdiction  over 


ELECTORAL    COUNT   OF    1877.  849 

tbe  question  in  controversy,  will  vitiate  all  transactions  except  such  as 
are  judicial  or  legislative.  Without  raising  the  inquiry  whether  the 
counting  the  votes  is  a  procedure  that  comes  within  the  exceptions,  I 
ask  whether  it  was  ever  heard  that  a  charge  of  fraud  made  before  a 
tribunal  that  otherwise  had  no  jurisdiction  over  the  question  at  issue 
conferred  jurisdiction  to  try  the  question  I  Does  fraud  give  power?  I 
knew  that  it  rendered  void,  but  not  that  it  created.  Can  it  be  claimed 
that  while  under  our  system  of  government  the  determination  as  to  who 
has  been  appointed  an  elector  is  with  the  States  and  not  with  the  Fed 
eral  Government,  the  allegation  of  fraud  is  potential  in  changing  our 
system,  and  transfers  the  decision  of  the  question  as  to  who  has  been 
elected  elector  from  the  State  to  the  Federal  Government  ?  I  think 
not. 

II.  The  Constitution  provides  that  "  no  Senator  or  Representative,  or 
person  holding  an  office  of  trust  or  profit  under  the  United  States,  shall 
be  appointed  an  elector,"  and  it  is  claimed  that  some  holding  such  offi 
ces  were  appointed  electors  and  were  therefore  ineligible,  and  that  their 
votes  should  not  be  counted. 

The  real  object  of  this  provision  of  the  Constitution  ceased  when  the 
electors  came  to  exercise  no  volition  in  choosing  a  President  and  became 
the  mere  agents  of  a  party,  but  still  the  Constitution  stands  and  must 
be  enforced  if  it  can  be.  The  provision,  I  think,  is  equivalent  to  say 
ing  that  no  one  who  holds  an  office  of  trust  or  profit  under  the  United 
States  shall  be  an  elector;  and  no  one  has  been.  In  every  instance  the 
elector  who  happened  to  hold  an  office  of  trust  or  profit  under  the 
United  States  resigned  such  office  before  assuming  to  perform  the  func 
tions  of  his  office  as  an  elector,  or  resigned  as  an  elector  and  another 
was  according  to  law  appointed  in  his  stead. 

To  my  mind  it  is  a  sufficient  answer  to  all  the  charges  of  ineligibility 
against  electors  that  the  provision  of  the  Constitution  on  which  the 
charges  are  based  does  not  execute  itself,  and  no  law  has  been  enacted 
to  execute  it.  It  is  said  that  other  provisions  of  the  Constitution  exe 
cute  themselves.  I  think  not.  Courts  are  established  by  law,  where 
the  provisions  can  be  vindicated,  but  this  requirement  of  the  Constitu 
tion  cannot  be  enforced  in  the  courts  after  the  count  before  the  two  Houses 
has  commenced,  and  after  the  electors  have  voted.  Neither  can  the 
two  Houses  stop  the  count  for  the  purpose  of  ascertaining  whether  some 
one  or  more  of  the  three  hundred  and  sixty-nine  electors,  thousands  of 
miles  away,  did  or  did  not  thirty  years  ago  accept  a  commission  as  a 
United  States  commissioner  or  other  unimportant  office  which  he  had 
forgotten  he  held,  and  of  which  his  constituency  were  ignorant.  The 
Houses  of  Congress  have  no  machinery  enabling  them  to  carry  on  such 
an  investigation,  and  if  a  law  should  be  passed  to  enforce  the  provision 
of  the  Constitution  referred  to,  the  penalty  for  its  infraction  would  not 
be  that  the  State  should  be  deprived  of  its  vote.  And  further,  the 
functions  of  the  office  of  elector  are  required  by  law  to  be  performed 
and  in  fact  were  discharged  on  the  first  Wednesday  of  December  last, 
and  if  the  elector  were  subsequently  declared  ineligible  such  decision 
would  not  invalidate  the  act  performed  on  the  day  fixed.  If  a  State 
constitution  required  that  a  sheriff  should  have  a  freehold  estate  worth 
$5,000,  and  if  after  he  had  performed  the  duties  of  his  office  for  a  year 
he  was  on  quo  warranto  ousted  because  of  its  being  proven  that  he  had 
no  estate  of  any  kind  at  any  time,  no  one  would  claim  that  his  acts  as 
de  facto  sheriff  were  invalid.  The  acts  of  the  State  governments  in  the 
States  formerly  in  rebellion,  except  those  acts  that  were  in  hostility  to 
the  United  States  Government,  have  been  recognized  by  the  Supreme 
54  E  c 


850  ELECTORAL    COUNT    OF    1877. 

Court  of  the  United  States  as  valid,  because  they  were  the  acts  of  de 
facto  govern  merits.  1  think  there  is  nothing  in  the  objection  founded  on 
iueligibility. 

III.  Should  the  votes  for  President  and  Vice-President.  given  by 
•what  are  called  the  Hayes  electors,  in  Florida,  Louisiana,  Oregon,  and 
South  Carolina,  duly  authenticated  by  those  States  respectively,  be 
counted  f 

The  legislature  of  Florida,  as  authorized  by  the  Constitution  of  the 
United  States,  directs  that  the  presidential  electors  shall  be  appointed 
by  the  lawful  voters  of  that  State  voting  at  their  respective  precincts  ; 
that  the  inspectors  of  election  at  those  precincts  shall  report  the  result 
to  the  county  board  of  canvassers;  and  in  the  act  of  February  27,  1872, 
it  is  enacted  that  the  board  of  county  canvassers  shall  report  to  a  board 
of  State  canvassers,  who  "shall  proceed  to  canvass  the  returns  of  such 
election,  and  determine  and  declare  who  shall  have  been  elected,  as 
shown  by  said  returns.  If  any  such  returns  shall  be  shown  or  shall 
appear  to  be  so  irregular,  false,  or  fraudulent  that  the  board  shall  be 
unable  to  determine  the  true  vote  for  any  such  officer  or  member,  they 
shall  so  certify,  and  shall  not  include  such  return  in  their  determination 
and  declaration." 

This  board  of  State  canvassers,  which  was  to  that  end  created,  made 
its  final  determination  and  then  declared  that  the  Hayes  electors  had 
been  elected  by  about  nine  hundred  majority;  and  these  electors  on 
December  6,  1870,  cast  their  vote  for  Kutherford  B.  Hayes.  All  of 
which  is  certified  to  us  by  the  electors  and  by  the  undisputed  governor 
of  Florida.  On  this  statement,  the  \7otes  of  the  electors  should  be 
counted  for  Governor  Hayes. 

And  what  reasons  are  urged  against  their  being  so  counted?  They 
are  these:  The  attorney-general  of  Florida  was  by  law  a  member  of 
the  State  board  of  canvassers,  and  he  certifies  that  the  Tilden  and  not 
the  Hayes  electors  were  duly  appointed.  But  it  is  clear  that  his  cer 
tificate  has  in  law  no  more  validity  than  a  letter  from  any  other  citi 
zen  of  Florida  would  have,  and  cannot  be  recognized  by  this  Commis 
sion. 

Another  reason  urged  why  the  vote  of  the  Hayes  electors  should  not 
be  counted  is,  that  after  the  Hayes  electors  had  cast  their  votes  on  De 
cember  6,  1876,  and  about  the  1st  of  January,  1877,  Mr.  George  F.  Drew- 
succeeded  Governor  Stearns  as  governor  of  Florida ;  and  on  the  26th  of 
January,  1877,  fifty  days  after  the  electors  of  Florida  had  and  must,  if 
ever,  have  cast  their  votes,  Governor  Drew  certified  that  the  Tilden 
electors  had  been  elected.  It  is  he  who  is  the  governor  of  Florida  when 
the  electors  were  appointed  who  must  by  law  certify  to  their  appoint 
ment,  and  not  he  who  is  inducted  after  they  have  been  appointed  and 
have  discharged  all  their  duties.  Governor  Drew  bases  the  declaration 
of  his  certificate  that  the  Tilden  electors  had  been  appointed  on  the  ad 
judication  of  the  court  of  Florida  to  that  effect,  given  on  a  proceeding 
in  the  nature  of  a  quo  warranto  on  the  25th  of  January,  1877.  If  a  State 
court  under  a  quo  warranto,  fifty  days  after  the  electors  have  according 
to  the  Constitution  and  laws  of  the  United  States  cast  their  vote,  can 
invalidate  the  acts  of  the  electors,  then  the  State  courts  can  control  the 
succession  to  the  Presidency  of  the  United  States.  It  would  be  strange, 
indeed,  if  this  Commission  should  disregard  the  determination  of  the 
State  board  of  canvassers,  which  the  laws  of  the  State  say  shall  deter 
mine  and  declare  who  have  been  appointed  electors,  and  should  be 
bound  to  adopt  the  conclusions  of  a  State  court  clothed  with  no  such 


ELECTORAL    COUNT   OF    1877.  851 

power.  The  Commission  should,  iti  my  opinion,  count  the  vote  of  Flor 
ida  for  Rutherford  B.  Hayes. 

The  laws  of  the  State  of  Louisiana  as  to  the  election  of  electors  are 
similar  to  those  of  Florida.  The  returning'  officers,  consisting  of  five 
persons  appointed  by  the  State  senate  from  all  political  parties,  consti 
tute  the  tribunal  finally  to  determine  who  has  been  elected,  and  have 
authority  to  reject  returns  from  any  place  in  which  they  are  satisfied 
that  by  reason  of  fraud  or  violence  there  has  not  been  a  fair  election. 

It  has  been  claimed  that  these  returning-officers  have  improperly  re 
jected  certain  returns  so  as  to  change  the  result  in  the  State. 

It  has  been  sufficiently  shown  that  neither  the  two  Houses  of  Con 
gress  nor  this  Com  mission  have  jurisdiction  to  go  behind  and  reverse  the 
determination  of  the  tribunal  which  the  State  has  said  shall  finally  de 
cide  who  has  been  elected,  and  that  the  allegation  of  fraud  in  the  action 
of  the  returning- board  does  not  give  jurisdiction  over  the  subject  to  the 
two  Houses  of  Congress  or  to  this  Commission. 

It  has  been  questioned  whether  there  were  sufficient  laws  in  Louisiana 
to  authorize  the  election  of  electors.  It  has  been  shown  by  others  that 
the  objection  is  not  well  taken.  The  revision  of  the  laws — the  digest 
of  the  laws — the  courts  of  the  State,  and  all  the  people  properly  treat 
their  election  laws  as  sufficient,  and  we,  while  engaged  in  the  summary 
process  of  counting  the  vote,  may  so  accept  it. 

It  is  said  that  affidavits  of  fraud  and  violence  were  not  filed  within 
the  time  fixed  by  the  statutes  of  the  State,  and  that  consequently  the 
returning-officers  had  no  jurisdiction  to  decide  whether  certain  returns 
should  or  should  not  be  rejected.  There  may  have  been  abundant  rea 
sons  why  the  affidavits  were  not  filed  within  the  prescribed  time,  and 
of  that  the  returning-officers  were  to  judge.  The  provision  as  to  time  is 
at  best  only  directory.  The  affidavits  were  not  jurisdictional ;  if  they 
•were,  Louisiana  for  the  want  of  the  affidavits  might  have  been  without 
any  determination  of  the  result  of  the  election,  and  either  anarchy  must 
have  followed  or  the  result  not  have  been  according  to  the  truth  as  in 
tended  by  the  statute. 

It  is  urged  also  that  the  laws  of  Louisiana  require  that  the  final  tri 
bunal,  called  in  this  State  "returning-officers,"  should  consist  of  five 
members,  and  of  different  political  opinions,  and  that  in  fact  it  consisted 
of  only  four  members,  and  these  all  of  the  same  political  opinion. 

If  the  provision  that  the  board  must  consist  of  those  having  different 
political  opinions  were  constitutional,  which  I  much  doubt,  the  require 
ment  is  clearly  only  directory.  It  can  hardly  be  claimed  that  if  one 
member  changed  his  opinion  in  a  night,  the  determination  of  the  board 
thereby  became  void,  and  that  the  confusion  therefrom  resulting  must 
be  accepted. 

If  the  board  should  have  consisted  of  five  members,  the  fact  that 
there  were  only  four  does  not  invalidate  its  decisions;  the  law  says  a 
majority  shall  be  a  quorum.  The  Supreme  Court  of  the  United  States 
consists  of  nine  judges,  but  it  does  not  cease  to  be  a  court  because  by 
death  or  resignation  there  are  only  eight.  It  is  seldom  that  a  board 
of  directors  is  full,  but  no  one  ever  questioned  the  authority  of  the  board 
on  that  account.  If  the  fifth  member  of  the  canvassing-board  was  not 
appointed  from  unworthy  motives,  all  will  condemn  it,  but  no  one  would 
say  that  the  penalty  for  this  impropriety  is  that  the  State  shall  lose  its 
vote. 

It  has  been  urged,  too,  that  the  votes  of  Louisiana  should  not  be 
counted  because,  as  alleged,  it  had  no  State  government,  and  Kellogg, 
•who  signed  the  electors'  certificates,  was  not  in  truth  the  governor  of 


852  ELECTORAL    COUNT    OF    1877. 

that  State.  And  yet,  in  November  and  December,  when  the  electors 
were  appointed,  and  when  the  electoral  vote  was  cast,  a  State  govern 
ment  with  Kellogg  as  governor  existed  by  the  consent  of  both  political 
parties,  was  represented  in  both  Houses  of  Congress,  had  been  recog 
nized  by  every  branch  of  Government,  and  regulated  the  public  affairs 
of  society  in  that  State. 

I  see  no  good  reason  why  the  vote  of  Louisiana,  as  determined  by  the 
State  returning-officers  and  as  certified  by  the  recognized  governor  and 
as  cast  by  the  Hayes  electors,  should  not  be  counted. 

There  are  returned  here  from  the  State  of  Oregon  two  sets  of  electoral 
votes,  one  from  Cartwright,  Odell,  and  Watts,  certifying  that  they  had 
cast  their  votes  for  Governor  Hayes;  the  other  from  Cronin,  Miller,  and 
Parker,  certifying  that  they  had  cast  two  votes  for  Governor  Hayes  and 
one  vote  for  Governor  Tilden.  The  question  is,  which  is  the  true  return? 
I  am  satisfied  the  former  is,  and  for  these  two  reasons: 

First.  By  the  sixtieth  and  thirty-seventh  sections  of  the  election  law 
of  Oregon,  it  is  made  the  duty  of  the  county  clerk  to  send  an  abstract 
of  the  votes  cast  in  the  county  for  electors  to  the  secretary  of  state,  and 
it  is  made  his  duty,  in  the  presence  of  the  governor,  to  canvass  the 
votes.  The  secretary  of  state  is  the  final  and  sole  cauvassing-officer. 

To  ascertain  who  are  the  true  presidential  electors  from  Oregon,  we 
must  discover  whom  the  tribunal  that  the  laws  of  Oregon  enact  shall 
finally  determine  that  question  has  adjudged  to  be  such  electors;  that 
adjudication  may  be  certified  to  us  by  the  governor  or  be  made  known 
to  us  by  the  record  of  such  final  determination.  The  governor's  certificate 
is  only  valuable  as  evidence  of  what  the  final  tribunal  has  adjudicated, 
and  may  have  been  forged,  or  may  from,  design  or  mistake  be  untrue. 
The  two  Houses  of  Congress,  or  this  Commission,  will  be  controlled  by 
the  State's  decision  as  to  who  has  been  elected.  In  this  case  the  can 
vass  of  the  secretary  of  state,  which  is  the  final  determination  of  the 
question  as  to  who  have  been  elected  electors,  has  been  sent  in  the  pack 
age  containing  the  list  of  votes  cast  for  President  and  Vice-President, 
and  the  electoral  bill  has  given  us  authority  to  consider  papers  so  pre 
sented  to  us,  but  without  such  specific  authority,  we  certainly  would 
look  to  a  record  that  is  controlling. 

The  canvass  of  the  secretary  of  state,  the  State's  final  determination, 
being  thus  before  us,  shows  that  Cartwright,  Odell,  and  Watts  received 
15,200  votes,  being  a  thousand  more  votes  than  were  received  by  any 
other  candidates  for  electors.  And  the  fortieth  section  of  the  election 
laws  of  Oregon  provides  as  follows,  namely  : 

That  in  all  elections  in  this  State  the  "person  having  the  highest  number  of  votes  for 
any  office  shall  be  deemed  to  have  been  elected. 

I  am  at  a  loss  to  see  how  this  Commission  can  do  otherwise  than  deem 
Cartwright,  Odell,  and  Watts  elected  electors. 

Second.  By  the  very  showing  of  those  who  claim  one  vote  from  Oregon 
for  Governor  Tilden,  he  is  not  entitled  to  it.  Watts,  one  of  those  who 
had  a  majority  of  votes,  was,  when  elected,  a  postmaster,  and  Governor 
Grover  therefore  concluded  that  he  was  authorized  to  give  a  certificate 
of  election  to  Cronin,  who  had  the  next  highest  vote.  The  governor 
will  find  few  to  agree  with  him  that,  when  a  majority  of  the  people  de 
clare  by  their  ballots  that  they  do  not  want  a  citizen  to  hold  one  of 
their  offices,  such  a  vote  gives  him  a  title  to  the  office.  But  Watts, 
though  a  postmaster,  when  elected,  resigned  that  office  before  December 
6,  1876.  On  that  day  Cartwright  and  Odell  met,  and  as  Oregon  was 
entitled  to  three  votes,  there  was  a  vacancy.  Cronin  met,  and  he  found 
two  vacancies.  All  three  persons  whom  the  governor  certified  were 


ELECTORAL    COUNT    OF    1877.  853 

elected  electors,  Cartwright,  Odell,  and  Cronin,  unite  in  informing  us 
that  there  was  one  vacancy  in  the  college.  Cronin  says  there  were  two. 
Under  this  state  of  facts  Cartwright  and  Odell  filled  the  vacancy  by 
appointing  Watts,  who,  if  ever  ineligible,  had  ceased  to  be  so  by  resign 
ing  the  office  of  postmaster. 

Cronin,  on  the  other  hand,  filled  the  two  vacancies  that  he  found, 
by  appointing  Miller  and  Parker  electors;  and  the  only  question  is 
whether  Cartwright  and  Odell,  or  Cronin,  had  the  right  to  fill  vacan 
cies.  And  that  question  is  solved  by  deciding  whether  two  or  one  is  a 
quorum  and  majority  of  a  college  of  three. 

I  think  the  three  electoral  votes  from  the  State  of  Oregon  for  Gov 
ernor  Hayes  should  be  counted. 

The  first  objection  made  to  the  vote  of  the  Hayes  electors  from  South 
Carolina  is  that  the  Constitution  of  the  United  States  guarantees  to  that 
State  a  republican  government,  which  it  is  claimed  means  a  government 
under  which  the  people  exercise  the  supreme  power,  and  that  the  State 
did  not  have  such  government. 

When  the  Constitution  was  being  framed,  Edmund  Randolph  offered 
this  resolution : 

Resolved,  That  a  republican  gorernment  ought  to  be  guaranteed  by  the  United  States 
to  each  State. 

After  the  debate  this  resolution  was  rejected,  and  the  following 
adopted : 
Resolved,  That  a  republican  form  of  government  shall  be  guaranteed  to  each  State. 

Few  of  the  States  would  consent  to  change  the  Constitution  so  that 
the  Federal  Government  could  constitutionally  interfere  with  the  State 
governments  further  than  to  see  that  their  form  of  government  was  re 
publican.  Such  a  change  would  seriously  affect  the  sovereign  character 
of  the  State.  The  government  of  South  Carolina  was  in  November, 
1876,  unquestionably  republican  in  /orw,  and  that  for  us  is  the  only 
proper  inquiry. 

Another  objection  to  counting  this  vote  is  that  the  constitution  of 
South  Carolina  requires  that  there  shall  be  a  registration  law,  and  that 
there  was  none,  and  that  consequently  the  election  of  electors  is  void. 
It  is  sufficient  answer  to  this  objection  that  the  Constitution  of  the 
United  States  provides  that  the  electors  of  each  State  shall  be  appointed 
"in  such  manner  as  the  legislature  thereof  shall  direct,"  and  not  in  such 
manner  as  the  constitution  of  the  State  shall  direct.  The  legislature  in 
this  regard  acts  under  the  authority  of  the  Constitution  of  the  United 
States,  and  is  entirely  uritrammeled  by  State  constitutions. 

Another  objection  is  that  the  Federal  troops  prevented  a  free  election. 
The  two  Houses  of  Congress  and  this  Commission  will  not  withhold  from 
the  Federal  Government  the  presumption  that  its  high  officers  hava 
acted  in  accordance  with  the  Constitution,  laws,  and  best  interests  of 
the  nation,  a  presumption  which  in  the  summary  procedure  of  counting 
the  vote  for  President  and  Yice-President  will  be  held  to  be  conclusive. 

The  two  thousand  and  second  section  of  the  Revised  Statutes  of  the 
United  States  provides  by  necessary  implication  that  troops  may  be  de 
tailed  to  keep  the  peace  at  the  polls.  If  troops  were  present  at  the 
polls  the  presumption  is,  and  for  the  purpose  of  this  proceeding  the 
conclusive  presumption  is,  that  they  were  so  present  to  keep  the  peace. 
We  are  not  required  to  go  into  evidence  on  this  point;  especially  when 
we  know  that  to  do  so  would  be  to  delay  the  inauguration  of  the  citizen 
who  has  been  elected  President  until  after  the  4th  of  March,  and  thus 
as  the  law  stands  entirely  defeat  his  inauguration. 

My  opinion  is  that  the  votes  of  the  Hayes  electors  of  South  Carolina 
should  be  counted. 


854  ELECTORAL    COUNT    OP    1877. 

EEMAKKS  OF  ME.  COMMISSIONER  BAYAED. 

The  following  remarks  by  Senator  BAYARD,  of  Delaware,  in  the  course 
of  the  private  consultations  of  the  Electoral  Commission,  are  prepared 
for  publication  in  accordance  with  a  resolution  of  the  Commission  and 
by  the  aid  of  such  notes  as  were  made  during  its  sessions.  The  action 
ot  the  majority  of  the  Commission  prohibited  the  presence  of  a  steno 
grapher  during  these  debates,  and  as  a  consequence  but  a  comparatively 
imperfect  and  unsatisfactory  report  can  now  be  given. 

The  case  of  the  State  of  Florida  was  the  first  which  was  transmitted 
by  the  two  Houses  of  Congress  for  the  consideration  of  this  tribunal 
under  the  electoral  act,  and  two  returns  purporting  to  be  certificates  of 
electoral  votes  cast  in  that  State  for  President  and  Vice-President  hav 
ing  been  made  to  the  President  of  the  Senate,  and,  in  accordance  with 
the  provisions  of  the  law,  submitted  by  him  on  the  1st  day  of  February 
to  the  Commission, 

On  the  motion  of  Mr.  Justice  MILLEE,  it  was  resolved  that  the  Com 
mission  should  hear  counsel  on  the  question  whether  any  evidence  will 
be  considered  by  the  Commission  that  was  not  submitted  to  the  two 
Houses  by  the  President  of  the  Senate,  and,  if  so,  what  evidence  can 
properly  be  considered;  and  also  the  question,  What  is  the  evidence 
now  before  the  Commission  ? 

Alter  debate  by  counsel,  Mr.  Justice  MILLEE  moved  the  following 
order,  on  the  7th  of  February: 

That  DO  evidence  will  be  received  or  considered  by  the  Commission  which  was  not 
§« "bruit ted  to  the  joint  convention  of  the  two  Houses  by  the  President  of  the  Senate 
with  the  different  certificates,  except  such  as  relates  to  the  eligibility  of  F.  C.  Hum 
phreys,  one  of  the  electors. 

Which  order  was  determined  in  the  affirmative — yeas  8,  nays  7.  In 
the  affirmative:  Messrs.  Bradley,  Edmunds,  Frelinghuysen,  Garlield, 
Hoar,  Miller,  Morton,  and  Strong;  in  the  negative:  Messrs.  Abbott, 
Bayard,  Clifford,  Field,  Hunton,  Payne,  and  Thurman. 

On  the  9th  of  February  Mr.  Representative  HUNTON,  of  Virginia, 
offered  the  following  resolution  : 

That  the  electors  named  in  certificate  No.  2,  to  wit,  Wilkinson  Call,  J.  E.  Yonge, 
Robert  Bullock,  and  Robert  B.  Hilton,  are  the  four  persons  who  were  duly  appointed 
electors  by  the  State  of  Florida  on  the  7th  day  of  November,  1876,  and  that  their  votes 
as  certified  in  such  certificate  are  the  votes  provided  for  by  the  Constitution  of  the 
United  States. 

This  was  decided  in  the  negative — yeas  7,  nays  8.  In  the  affirmative: 
Messrs.  Abbott,  Bayard,  Clifford,  Field,  Hunton,  Payne,  and  Thurman; 
in  the  negative:  Messrs.  Bradley,  Edmunds,  Frelinghuysen,  Garfleld, 
Hoar,  Miller,  Morton,  and  Strong. 

On  the  9th  of  February  the  following  order  was  adopted  by  a  vote  of 
8  yeas  to  7  nays : 

That  the  following  be  adopted  as  the  final  decision  and  report  on  the  matters  sub 
mitted  to  the  Commission,  as  to  the  electoral  vote  of  the  State  of  Florida  : 

ELECTORAL  COMMISSION, 
Washington,  D.  C.,  February  9,  A.  D.  1877. 

To  the  President  of  the  Senate  of  the  United  States,  presiding  in  the  meeting  of  the 
two  Houses  of  Congress,  under  the  act  of  Congress  entitled  "An  act  to  provide  for 
and  regulate  the  counting  of  votes  for  President  and  Vice-President,  and  the  de 
cision  of  questions  arising  thereon,  for  the  term  commencing  March  4,  A.  D.  Id77," 
approved  January  29,  A.  D.  1H77  : 

The  Electoral  Commission  mentioned  in  said  act  having  received  certain  certificates 
and  papers  purporting  to  be  certificates,  and  papers  accompanying  the  same,  of  the 
electoral  votes  from  the  State  of  Florida,  and  the  objections  thereto  submitted  to  it 
under  said  act,  now  report  that  it  has  duly  considered  the  same,  pursuant  to  said  act, 


ELECTORAL    COUNT    OF    1877.  855 

and  has  decided,  and  does  hereby  decide,  that  the  votes  of  Frederick  C.  Humphreys, 
Charles  H.  Pearce,  William  H.  Hold  en,  and  Thomas  W.  Long,  named  in  the  certificate 
of  M.  L.  Stearns,  governor  of  said  State,  which  votes  are  certified  by  said  persons,  as 
appears  by  the  certificate  submitted  to  the  Commission,  as  aforesaid,  and  marked 
tl  number  one,"  by  said  Commission,  and  herewith  returned,  are  the  votes  provided 
for  by  the  Constitution  of  the  United  States,  and  that  the  same  are  lawfully  to  be 
counted  as  therein  certified,  namely:  Four  (4)  votes  for  Rutherford  B.  Hayes,  of  the 
State  of  Ohio,  for  President,  and  four  (4)  votes  for  William  A.  Wheeler,  of  the  State  of 
New  York,  for  Vice-President. 

The  Commission  also  has  decided,  and  hereby  decides  and  reports,  that  the  four  per 
sons  first  before  named  were  duly  appointed  electors  in  and  by  said  State  of  Florida. 

The  brief  ground  of  this  decision  is,  that  it  appears,  upon  such  evidence  as  by  the 
Constitution  and  the  law  named  in  said  act  of  Congress  is  competent  and  pertinent  to 
the  consideration  of  the  subject,  that  the  before- mentioned  electors  appear  to  have 
been  lawfully  elected  such  electors  of  President  and  Vice-President  of  the  United 
States,  for  the  term  beginning  March  4,  1877,  of  the  State  of  Florida,  and  that  they 
voted  as  such  at  the  time  and  in  the  manner  provided  for  by  the  Constitution  of  the 
United  States  and  the  law. 

The  Commission  has  also  decided,  and  does  hereby  decide  and  report,  that,  as  a  con 
sequence  of  the  foregoing  and  upon  the  grounds  before  stated,  neither  of  the  papers 
purporting  to  be  certificates  of  the  electoral  votes  of  said  State  of  Florida  numbered 
two  (2)  and  three  (3)  by  the  committee,  and  herewith  returned,  are  the  certificates 
or  the  votes  provided  for  by  the  Constitution  of  the  United  States,  and  that  they  ought 
not  to  be  counted  as  such. 

Done  at  Washington  the  day  and  year  first  above  written. 

The  question  being  on  the  adoption  of  the  report  of  the  committee,  it  was  decided 
in  the  affirmative : 

Yeas 8 

Nays 7 

Those  who  voted  in  the  affirmative  were:  Messrs.  Bradley,  Edmunds,  Frelinghuy- 
sen,  Gai field,  Hoar,  Miller,  Morton,  and  Strong — 8. 

Those  who  voted  in  the  negative  were :  Messrs.  Abbott,  Bayard,  Clifford,  Field,  Hun- 
ton,  Payne,  and  Tlmrinau — 7. 

So  the  report  of  the  committee  was  adopted;  and  said  decision  and  report  was 
thereupon  signed  by  the  members  agreeing  therein,  as  fo  lows  : 

SAM.  F.  MILLER, 

W.  STRONG, 

JOSEPH  P.  BRADLEY, 

GEO.  F.  EDMUNDS, 

O.  P.  MORTON, 

FRED'K  T.  FRELTNGTIUYSEN, 

JAMES  A.  GARFIELD, 

GEORGE  F.  HOAR, 

Commissioners. 

CASE   OF  FLORIDA. 

In  the  course  of  the  private  deliberations  of  the  Commission,  Senator 
BAYARD  said: 

Mr.  President  and  gentlemen  of  the  Commission,  I  would  not  conceal 
from  yon,  even  if  I  could,  the  deep  anxiety  with  which  I  have  approached 
the  decision  of  this  question,  the  difficulties  surrounding  which  have  been 
apparent  since  the  foundation  of  our  Government,  and  their  consideration 
postponed  from  generation  to  generation  until  we  find  ourselves  now  com 
pelled  for  the  first  time  to  make  a  decision  which  includes  in  its  conse 
quences  the  possession  of  the  executive  power  of  the  Government  of  the 
United  States  for  the  ensuing  four  years;  and  to  the  natural  and  constitu 
tional  difficulties  surrounding  this  much  debated  question  is  superadded 
the  fact  that  we  are  acting  not  in  view  of  an  uncertainty  yet  veiled  by 
the  future,  but  upon  facts  exhibited  in  the  clear  light  of  the  past,  after 
an  exciting  and  heated  controversy  between  two  great  political  parties, 
the  result  of  which  when  established  must  be  full  of  disappointment 
to  one  or  the  other.  I  can  only  say  that  while  I  feel  a  just  and  natural 
distrust  in  my  powers  to  deal  competently  with  such  issues,  yet  I  am 
at  least  conscious  that  I  approach  the  duties  imposed  upon  me  by  the 


856  ELECTORAL    COUNT    OF    1877. 

oaths  I  have  taken,  both  as  a  Senator  of  the  United  States  and  a  mem 
ber  of  this  Commission,  in  a  spirit  deeply  solicitous  to  act  worthily  in  my 
place. 

In  order  properly  to  consider  the  question  of  receiving  evidence  other 
than  that  contained  in  the  papers  submitted  by  the  President  of  the 
Senate  to  the  two  Houses,  and  by  them  sent  to  this  Commission,  we 
must  examine  the  constitution  of  this  tribunal. 

I  hold  that  for  the  purpose  of  this  decision  the  two  Houses  of  Con 
gress  are  now  present  in  this  tribunal.  I  am  here  not  only  as  a  member 
of  this  Commission  but  as  a  Senator,  and  come  here  with  all  the  knowl 
edge  which  I  have  derived  as  a  member  of  the  Senate  from  the  testimony 
taken  by  committees  appointed  by  both  the  Senate  and  the  House  for  the 
investigation  of  affairs  in  the  State  of  Florida  during  the  past  winter. 
I  cannot  divest  myself  of  this  knowledge;  to  do  so  were  impossible  and 
in  direct  violation  of  my  duty.  The  knowledge  so  obtained  by  me  is 
incidental  to  the  powers  and  duties  of  a  member  of  either  House;  and 
this  Commission  and  every  member  of  it  are  by  the  express  language 
of  the  second  section  of  the  law  under  which  it  is  organized,  invested 
"  with  the  same  powers  *  *  *  now  possessed  *  *  *  by  the  two 
Houses  acting  separately  or  together."  Whatever,  therefore,  is  open  to 
the  knowledge  or  inquiry  of  one  Commissioner,  whether  Senator,  Rep 
resentative,  or  judge  of  the  Supreme  Court,  is  open  to  all.  Their  func 
tions  and  powers  are  equal  in  all  respects.  Under  the  language  of  the 
law  creating  this  Commission  "  all  the  certificates  and  papers  purport 
ing  to  be  certificates  of  the  electoral  votes'7  shall  be  opened  by  the  Pres 
ident  of  the  Sentate  and  by  him  presented  to  the  two  Houses,  whose 
tellers  shall  read  the  same  in  the  presence  and  hearing  of  the  two 
Houses. 

Upon  such  reading  of  any  such  certificate  or  paper,  when  there  shall  be  only  one 
return  from  a  State,  the  President  of  the  Senate  shall  call  for  objections,  if  any. 
Every  objection  shall  be  made  in  writing,  and  shall  state  clearly  and  concisely,  and 
without  argument,  the  ground  thereof,  and  shall  be  signed  by  at  least  one  Senator 
and  one  member  of  the  House  of  Representatives  before  the  same  shall  be  received. 
When  all  objections  so  made  to  any  vote  or  paper  from  a  State  shall  have  been  re 
ceived  and  read,  the  Senate  shall  thereupon  withdraw,  and  such  objections  snail  be  sub 
mitted  to  the  Senate  for  its  decision;  and  the  Speaker  of  the  House  of  Representative! 
shall,  in  like  manner,  submit  such  objections  to  the  House  of  Representatives  for  its  decision; 
and  no  electoral  vote  or  votes  from  any  State  from  which  but  one  return  has  been 
received  shall  be  rejected  except  by  the  affirmative  vote  of  the  two  Houses.  When 
the  two  Houses  have  voted  they  shall  immediately  again  meet,  and  the  presiding  offi 
cer  shall  then  announce  the  decision  of  the  question  submitted. 

As  a  member  of  the  Senate,  it  will  be  observed,  I  am  thus  called  upon 
to  vote  in  cases  of  single  returns  from  a  State  upon  objections  so  made. 
The  jurisdiction  of  the  two  Houses  over  the  question  of  receiving  or 
rejecting  electoral  votes  is  unmistakably  and  clearly  assumed  by  the 
language  of  the  law  which  I  have  read.  It  recognizes  the  power  of  the 
Senate  and  the  House,  by  the  action  of  a  single  member  of  each  body, 
to  raise  objections  to  the  reception  of  an  electoral  vote,  and  it  provides 
for  the  decision  of  the  two  Houses  upon  those  objections.  If  there  was 
no  jurisdiction  and  power  in  the  two  Houses  over  the  question  of  recep 
tion  or  rejection  of  the  votes  sent  up,  it  would  have  been  worse  than  au 
idle  form  to  have  enacted  this  law  calling  for  objections  and  providing 
for  their  decision.  When,  therefore,  members  of  the  Senate  or  the 
House  are  called  upon  to  vote  intelligently  and  conscientiously  upon 
objections  to  the  reception  of  electoral  votes,  what  are  they  necessarily 
"to  take  into  view,"  and  what  is  to  guide  them  in  the  decision  they  are 
to  make?  Necessarily  everything  that  is  known  as  evidence  in  par 
liamentary  law  and  usage,  all  public  facts  of  which  both  Houses  inusfc 


ELECTORAL    COUNT    OF    1877  857 

have  knowledge,  all  reports  of  committees  of  either  House,  all  deposi 
tions  accompanying  the  same,  petitions,  and  such  other  papers  as  con 
tain  information  necessary  and  proper  for  the  consideration  and  deter 
mination  of  the  question.  This  course  of  proceeding  and  scope  and 
character  of  information  is  essential  for  the  performance  of  the  duties 
assumed  by  the  two  Houses  of  Congress  and  each  member  thereof  under 
the  first  section  of  the  act. 

Let  us  now  consider  the  duty  of  this  Commission  under  the  second 
section  of  the  act,  which  provides — 

That  if  more  than  one  return,  or  paper  purporting  to  be  a  return  from  a  State,  shall 
have  been  received  by  the  President  of  the  Senate,  purporting  to  be  the  certificates  of 
electoral  votes  given  at  the  last  preceding  election,  *  *  *  all  such  returns  and 
papers  shall  be  opened  by  him  in  the  presence  of  the  two  Houses  when  met  as  afore 
said,  and  read  by  the  tellers,  and  all  such  returns  aud  papers  shall  thereupon  be  sub 
mitted  to  the  judgment  and  decision,  as  to  which  is  the  true  and  lawful  electoral  vote  of 
$uch  State,  of  a  Commission  constituted  as  follows. 

The  composition  and  formation  of  this  Commission  is  then  set  forth 
The  section  provides  for  the  opening  and  reading  by  the  tellers  of  all 
such  certificates  aud  papers  ;  and  the  President  of  the  Senate  is  directed 
to  call  for  objections,  and  the  description  of  the  objections  so  called  for 
is  in  precisely  the  same  language  as  is  provided  in  the  first  section  in 
case  of  single  returns.  All  such  objections,  together  with  the  certificates, 
votes,  and  papers  so  objected  to,  and  all  papers  accompanying  the  same 
shall  forthwith  be  submitted  to  this  Commission — 

Which  shall  proceed  to  consider  the  same,  with  the  same  powers  *  *  *  now  possessed 
for  that  purpose  by  the  two  Houses  acting  separately  or  together,  and,  by  a  majority  of 
votes,  decide  whether  any  and  what  votes  from  such  State  are  the  votes  provided  for 
by  the  Constitution  of  the  United  States*,  and  how  many  and  what  persons  were  duly 
appointed  electors  in  such  State,  and  may  therein  take  into  view  such  petitions,  depo 
sitions,  and  other  papers,  if  any,  as  shall  by  the  Constitution  and  now  existing  law,  b« 
competent  and  pertinent  in  such  consideration. 

The  section  also  provides  that  when  such  decision  by  a  majority  of 
the  Commission  shall  have  been  read  and  entered  in  the  Journal  of  each 
House,  "  the  counting  of  the  votes  shall  proceed  in  conformity  there 
with,  unless,  upon  objection  made  thereto  in  writing  by  at  least  five 
Senators  and  five  members  of  the  House  of  Representatives,  the  two 
Houses  shall  separately  concur  in  ordering  otherwise." 

Thus  it  will  be  observed  that  on  the  part  of  those  who  have  denied 
that  evidence  of  any  character  can  be  considered  by  the  Commission 
which  was  not  contained  in  the  certificates  submitted  to  the  two  Houses 
by  the  President  of  the  Senate,  the  following  result  would  be  reached  : 
that  members  of  this  Commission  being  also  members  of  the  Senate  and 
the  House,  shall  be  at  liberty  to  receive,  and  in  fact  must  receive  and 
consider,  evidence  in  relation  to  objections  to  single  returns  of  electoral 
votes  when  voting  in  their  respective  Houses  which  they  will  not  re 
ceive  or  consider  when  sitting  in  this  Commission  in  cases  of  double  re 
turns  ;  that  evidence  of  the  truth  shall  be  brought  home  to  my  mind  and 
bind  itself  on  my  conscience  in  the  case  of  a  single  return  that  is  to  be 
denied  to  me  in  case  of  a  double  return.  It  will  scarcely  be  denied  that 
the  extent  of  inquiry  and  difficulties  of  ascertainment  as  to  which  is  the 
true  return  of  two  returns  involves  an  equal  or  indeed  much  greater  dif 
ficulty  in  the  investigation  than  where  a  single  return  is  alone  under 
consideration  ;  and  it  will  also  be  observed  that  after  the  Commission 
shall  have  refused  to  receive  any  evidence  outside  of  the  papers  submit 
ted  by  the  President  of  the  Senate,  and  have  thus  made  their  decision  in 
the  dark  and  without  information,  ten  of  its  members  withdrawing  to 
their  places  in  the  Senate  and  the  House  and  being  called  upon  to  vote 


858  ELECTORAL    COUNT    OF    1877. 

upon  the  question  of  concurring  or  non  concurring  in  the  decision  of  the 
Commission,  shall  have  both  the  power  and  the  duty  to  receive  and  con 
sider  as  Senators  and  Representatives  evidence  which  as  Commissioners 
they  had  excluded. 

This  statement  of  the  case  would  seem  to  me  to  make  it  apparent 
that  this  Commission  must  necessarily  have  opened  to  them  all  avenues 
and  means  of  information  which  were  open  to  either  or  both  Houses 
of  Congress  ;  and  that  the  members  cannot,  by  taking  seats  in  the  Com 
mission,  denude  themselves  of  the  powers  and  duties  and  the  means  of 
information  which  belong  to  them  as  members  of  either  House  of  Con 
gress. 

It  is,  therefore,  my  judgment  that  when  I  entered  this  chamber  as  a 
member  of  the  Commission  I  brought  with  me  all  the  knowledge  con 
cerning  the  late  election  in  Florida  of  which  I  had  become  possessed  as 
a  member  of  the  Senate 5  and  whatever  were  my  powers  or  duties  as  a 
member  of  the  Senate  in  relation  to  this  subject  of  counting  the  electo 
ral  votes,  they  are  not  diminished  or  altered  by  my  becoming  a  member 
of  this  Commission  ;  and  as  a  corollary  of  this  proposition,  I  hold  the 
power  and  jurisdiction  of  each  and  all  members  of  the  Commission  to 
be  necessarily  equal  in  every  respect. 

It  has  been  alleged  as  a  reason  for  not  hearing  evidence  that  injustice 
would  follow  if  every  possible  topic  of  inquiry  were  not  pursued  and 
every  fact  probed  to  its  very  bottom.  So  unqualified  a  proposition 
cannot  be  received  without  the  risk  of  reducing  our  proposed  duties  to 
impossibility,  if  not  absurdity. 

As  I  have  stated,  the  duty  devolved  upon  the  two  Houses  in  relation 
to  single  returns  in  section  i  of  the  act  is  in  precisely  the  same  frame  of 
words  as  in  section  2  is  provided  for  cases  of  double  returns  when  sub 
mitted  to  this  Commission.  In  the  case  of  single  returns  two  hours  are 
given  for  debate,  followed  by  a  peremptory  order  to  vote  at  the  termi 
nation  of  that  time;  and  then  "immediately"  the  two  Houses  are  to 
meet  and  announce  the  result.  Certain  it  is  the  two  Houses  will  not 
vote  in  ignorance  of  the  facts  upon  which  their  action  is  to  be  taken. 
They  have  and  will  certainly  u  take  into  view  such  petitions,  deposi 
tions,  and  other  papers"  as  are  on  their  tiles.  They  will  consider  the 
reports  of  their  committees  and  listen  to  the  debates,  before  reaching  a 
decision.  To  this  Commission  is  expressly  confided  the  same  means  of 
information,  of  the  same  knowledge  in  extent  or  character  which  is  pos 
sessed  by  the  two  Houses,  with  this  addition,  that  the  Commission  is 
not  limited  as  to  time  for  its  ascertainment  and  determination  of  facts, 
but  more  time  and  infinitely  better  opportunities,  after  listening  to  ob 
jectors  and  counsel  on  both  sides,  are  allowed  to  us  in  coming  to  our  de 
cision. 

For  what  object,  let  it  be  asked,  was  this  enlarged  opportunity  for 
examination,  hearing,  and  determination  given  to  this  Commission  f 
Plainly  because  the  questions  submitted  to  us  were  of  a  more  compli 
cated  nature  than  cases  of  single  returns.  It  was  because  the  law  and 
the  facts  were  supposed  to  be  more  in  controversy  in  cases  of  double 
returns  that  this  Commission  was  formed  for  the  purposes  of  justice  and 
convenience  deliberately  and  fully  to  examine  and  justly  to  decide  the 
vexed  questions  of  law  and  fact  raised  by  the  objections  called  for  by 
the  Presiding  Officer  and  made  by  the  members  of  the  Senate  and  the 
House.  If  no  evidence  was  to  be  received,  then  argument  would  be 
useless,  objections  would  be  useless;  the  two  hours  given  to  the  two 
Houses  for  debate  in  single  retains  would  have  been  reasonably  sufficient 


ELECTORAL    COUNT    OF    1877.  859 

for  this  Commission,  who  in  the  seclusion  of  this  court-room  could  more 
rapidly  reach  a  decision  than  the  two  Houses  in  general  debate. 

What  is  meant  by  "objections"  and  the  provision  that  they  are  to  be 
"called  for"  and  be  "submitted  for  decision"  and  "  be  decided  ?"  Ob 
jections  must  be  to  the  form  or  the  substance  of  the  return.  It  is  diffi 
cult  to  state  a  valid  objection  as  to  the  form  of  a  return,  because  no  form 
is  prescribed  by  the  Constitution,  and  as  to  "  the  State"  is  confided  "  the 
manner"  of  appointment  of  the  electors,  it  is  to  a  failure  to  obey  her 
statutes  prescribing  form  of  certificate  that  consideration  alone  could  be 
given,  and  an  inspection  of  the  State  constitution  and  laws  would  settle 
that.  To  be  of  substance  the  objections  must  arise  under  the  provisions 
of  the  Constitution,  and  be  based  upon  a  violation  of  the  requirements 
of  that  instrument  and  the  limitations  imposed  by  it  upon  the  State  in 
the  selection  of  persons  to  vote  or  to  be  voted  for. 

The  call  for  objections  is  a  distinct  recognition  in  the  law  under  which 
we  are  now  proceeding  of  the  fact  that  valid  objections  can  exist,  and 
when  presented  must  be  decided,  and  that  electoral  votes  may  for  just 
cause  be  excluded  "under  the  Constitution  and  existing  law." 

The  Constitution  requires  in  mandatory  phrase  that — 

First.  "Each  State  shall  appoint17 — 

Second.  "In  such  manner  as  the  legislature  thereof  may  direct" — 

Third.  "A  number  of  electors — equal  to  the  whole  number  of  Senators 
and  Representatives  to  which  the  State  may  be  entitled  in  the  Congress." 

Fourth.  "But  no  Senator  or  Representative,  or  person  holding  an  office 
of  trust  under  the  United  States,  shall  be  appointed  an  elector." 

Fifth.  The  electors  shall  meet  in  their  respective  States. 

Sixth.  They  shall  vote  by  ballot  for  President  and  Vice-President — 

Seventh.  One  of  whom  shall  not  be  an  inhabitant  of  the  same  State 
with  themselves. 

Eighth.  They  shall  make  distinct  lists  of  all  the  persons  voted  for  as 
President  and  Vice-President — 

Ninth.  And  of  the  number  of  votes  for  each — 

Tenth.  Which  lists  they  shall  sign  and  certify,  and  transmit  sealed 
to  the  seat  of  Government  of  the  United  States,  directed  to  the  Presi 
dent  of  the  Senate. 

Eleventh.  The  Congress  may  determine  the  time  of  choosing  the 
electors,  and  the  day  on  which  they  shall  give  their  votes,  which  day  shall 
be  the  same  throughout  the  United  States. 

Twelfth.  The  qualifications  of  the  President  and  Vice-President  are 
prescr.bed. 

Is  it  not  manifest  that  in  calling  for  "objections"  to  the  count  of  the 
electoral  votes,  constitutional  objections,  such  as  a  disregard  of  any  of 
the  foregoing  requirements,  were  plainly  contemplated? 

What  votes  are  to  be  counted  ?  "  The  votes  provided  for  by  the  Consti 
tution  of  the  United  States."  (See  section  2  of  electoral  bill.)  And  what 
votes  are  to  be  rejected  from  the  count  t  Plainly  the  votes  not  provided 
for  by  the  Constitution ;  and  "objections"  to  such  votes  and  for  such 
reasons  are  the  only  objections  "  called  for"  by  the  terms  of  the  act,  and 
are  to  be  decided  under  its  provisions. 

It  seems  to  me,  therefore,  that  upon  the  very  face  of  this  act  we  are 
called  upon  to  exercise  a  jurisdiction  involving,  first  inquiry,  and  next 
determination  of  facts  and  law,  which  we  cannot  abdicate  or  avoid  with 
out  rendering  the  law  under  which  we  act  a  sham  and  a  dead  letter. 
Unless  the  two  Houses  nave  the  power  to  decide  upon  objections,  it  is  an. 
idle  waste  of  time  and  a  mockery  of  law  to  call  for  objections.  Unless 
his  Commission  has  the  power  and  the  duty  to  consider  and  determine 


860  ELECTORAL    COUNT    OF    1877. 

objections  in  cases  of  double  returns,  it  was  an  idle  form  to  refer  those 
returns  to  us.  If  limitation  upon  the  time  allowed  us  for  investigation, 
argument,  and  consideration  was  not  removed  for  the  purpose  of  giving 
us  full  and  ample  opportunity  to  inquire,  to  ascertain  the  truth  both  of 
law  and  fact  involved  in  these  questions  of  double  returns  and  suggested 
by  the  objections  filed,  then  the  formation  of  this  Commission  and  its 
sessions  were  worse  than  a  mere  waste  of  time ;  they  were  a  deception  of 
honest  and  reasonable  public  expectation;  and  the  submission  of  our 
decision  to  the  two  Houses  of  Congress  was  an  idle  preliminary  which 
might  as  well  or  better  have  been  dispensed  with. 

Our  duties  upon  this  Commission  are  those  of  substance  or  else  of 
mere  form  only ;  and  holding  them  to  be  of  substance,  and  that  substance 
to  consist  in  the  ascertainment  of  which  is  u  the  true  and  lawful  electoral 
vote  of  such  State,"  it  seems  to  me  impossible  that  we  can  reach  such  a 
decision  without  prior  inquiry;  and  inquiry  involves  the  reception  and 
consideration  of  all  that  is  evidence  "  competent  and  pertinent  under 
the  Constitution  and  existing  law." 

It  is  plain  that  the  object  and  intent  of  this  law  is  to  reach  a  decision, 
and  that  this  is  not  to  be  defeated  by  delay  or  prolongation  of  examina 
tion  and  debate  so  as  to  spin  out  the  month  allotted  to  us.  The  case  is 
not  inter  paries,  in  a  legal  sense.  It  is  a  public  res.  The  two  Houses 
have  been  the  known  and  public  tribunal  for  the  consideration  and 
decision  of  these  vexed  questions  for  months  past.  They  have  severally 
recognized  and  acted  upon  this  assumption,  and  sent  forth  their  com 
mittees  during  the  past  winter,  who,  after  laborious  sessions,  have  come 
back  with  full  reports  and  testimony  of  the  transactions  in  question  and 
have  reported  their  conclusions.  In  the  State  of  Florida  the  courts  of 
that  State  have  themselves  taken  jurisdiction  of  the  question  now  before 
us,  as  under  the  constitution  and  laws  of  that  State  they  were  empow 
ered,  and  have  reached  a  decision.  The  record  of  those  judicial  pro 
ceedings  is  before  us,  and  tells  its  own  story.  It  is  true,  this  fact 
appears  in  the  papers  submitted  for  our  consideration  by  the  two  Houses, 
but  it  is  asked  that  no  other  or  further  evidence  be  received. 

It  is  plain  to  me  that  from  the  very  nature  of  this  proceeding  all  the 
testimony,  all  the  information  known  to  parliamentary  law  and  usage 
which  was  and  is  in  the  possession  of  either  or  both  Houses  of  Congress, 
must  necessarily  be  considered  as  being  to-day  before  this  Commission 
and  subject  to  its  examination  ;  and  also  that  if  other  and  further  testi 
mony  is  needed  by  us  in  relation  to  any  fact  to  satisfy  our  minds  prior 
to  reaching  a  decision,  it  is  our  duty  and  power  to  take  it,  having  always 
in  view  that  it  shall  be  competent  and  pertinent,  and  regulating  our 
action  so  that  the  law  under  which  we  proceed  will  not  be  defeated  bj 
prolonged  delays. 

I  recognize  expedition  as  a  necessary  feature  in  our  proceedings.  This 
duty  is  marked  all  over  the  law,  curtailing  as  it  does  debate  in  the  two 
Houses,  preventing  adjournments,  limiting  the  hours  of  recess,  and  pro 
viding  that  no  separation  of  the  two  Houses  shall  take  place  during  the 
execution  of  the  law  except  as  expressly  provided.  Expedition  is  in 
herent  in  the  very  nature  of  the  act  and  its  objects.  Therefore  the 
time  allowed  by  this  Commission  for  taking  testimony,  hearing  counsel 
and  objectors,  all  will  be  measured  by  a  due  sense  of  proportion  to  the 
great  end  in  view,  which  is  a  decision  between  all  the  contested  returns 
by  the  3d  day  of  March  next.  It  is  no  answer  to  say  that  because  we 
cannot  hear  everything  we  must  therefore  hear  nothing  ;  and  the  hear 
ing  in  each  case  will  be  regulated  by  reason  and  a  sense  of  the  fitness  of 


ELECTORAL    COUNT    OF    1877.  861 

things  which  is  supposed  to  accompany  the  intelligent  execution  of 
every  duty. 

The  very  statement  of  the  question  submitted  in  section  2  of  the  act 
for  the  decision  of  this  Commission  is,  as  I  have  said,  indicative  of  the 
duty  and  in  great  degree  of  the  power  which  is  vested  in  the  Commission 
for  the  performance  of  that  duty.  We  are  to  decide  "  how  many  and 
what  persons  were  duly  appointed  electors  in  such  State.'7  These  are 
the  precise  facts  set  forth  in  the  Constitution  of  the  United  States,  which 
provides  that  each  State  shall  appoint  a  certain  number  (u  how  many  ") 
of  electors,  but  certain  persons  holding  office  ("  what  persons  ")  shall  not 
be  appointed. 

By  the  Constitution  so  many  persons  only  and  such  persons  only  shall 
be  appointed  electors,  and  no  more.  No  other  persons  than  those  au 
thorized  by  the  Constitution  can  be  appointed.  If  a  greater  number  be 
appointed,  the  appointment  is  absolutely  void  quoad  the  excess  beyond 
the  number  prescribed.  If  persons  prohibited  be  appointed,  such  ap 
pointment  is  absolutely  void.  The  regulation  by  the  Constitution  as  to 
numbers  and  qualifications  of  the  electors  is  contained  in  the  same 
•entence,  and  by  no  warrant  can  its  grammatical  construction  be  de 
stroyed  or  the  natural  alliance  of  the  words  used  be  severed  so  as  to 
alter  its  effect  or  meaning.  Its  obligation  is  equal  throughout,  and  no 
more  force  can  be  ascribed  to  one  of  its  mandates  than  to  the  other. 
The  duty  of  obedience  by  the  States  to  these  two  limitations  upon  the 
number  and  qualification  of  electors  is  equally  plain  and  distinct.  There 
is  no  more  power  in  a  State  to  disregard  one  limitation  than  the  other. 
The  breach  of  the  Constitution  by  a  State  in  appointing  a  person  for 
bidden  is  equally  unwarranted  and  dangerous  as  to  appoint  more  persons 
than  the  Constitution  permits.  The  action  of  any  State  in  the  appoint 
ment  of  electors  is  directly  of  importance  to  all  her  sisters  of  the  Union. 
The  offices  in  view  are  the  chief  executive  offices  of  the  entire  Union. 
The  safety,  rights,  and  welfare  of  each  State  are  directly  affected  by  the 
action  of  every  other  State.  It  is  the  right  and  it  is  the  duty  of  all  the 
other  States  to  see  that  no  State  shall  have  a  more  numerous  or  different 
college  of  electors  than  the  Constitution  provides. 

It  will  scarcely  be  urged  that  any  State  can  at  its  will  send  up  to  be 
counted  a  greater  number  of  electoral  votes  than  the  Constitution  allows, 
and  that  there  is  no  "  counting  power  "  in  the  Senate  or  House  of  Rep 
resentatives  to  arrest  and  defeat  such  an  attempt.  To  admit  the  power 
of  any  State  to  increase  at  its  will  the  number  of  its  electoral  votes  is 
surely  to  reduce  the  Constitution  and  our  system  of  government  to  an 
absurdity.  i4No  Senator  or  Representative  shall  be  appointed  an 
elector.'7  Can  it  be  that  such  votes  would  be  counted  in  the  presence 
and  with  the  aid  of  the  very  persons  who  in  defiance  of  the  Constitution 
have  assumed  to  act  as  electors  f  The  exclusion  of  such  persons  is  con 
tained  in  the  very  sentence  which  limits  the  number  of  electors;  yet  if 
a  State  can  violate  the  mandate  of  the  Constitution  as  to  the  qualifica 
tions  of  electors  and  appoint  persons  electors  who,  holding  offices  of 
trust  and  profit  under  the  United  States,  have  used  their  official  powers 
as  stepping-stones  to  exalt  themselves  and  the  President,  who  is  the 
fountain  of  all  executive  power  of  the  Government,  to  a  renewed  lease 
of  authority,  it  is  evident  the  wound  inflicted  upon  the  Constitution 
and  upon  free  government  is  equally  deep  and  dangerous. 

There  can  be  no  safety  unless  all  the  avenues  to  places  of  power  under 
the  Contitution  shall  be  equally  well  guarded,  and  the  same  measure  of 
duty  and  with  it  the  same  measure  of  power  be  given  to  the  two  Houses 
over  the  count  of  electoral  votes  to  "  decide  whether  any  and  what  vote* 


862  ELECTORAL    COUNT    OF    1877. 

from  such  State  are  tile  votes  provided  for  by  the  Constitution  of  the 
United  States,  and  bow  many  and  what  persons  were  duly  appointed 
electors  in  such  State." 

Nothing  in  this  proposition  detracts  from  the  jnst  powers  of  the  State, 
•whose  voice  alone  is  to  be  heard  and' obeyed  in  the  choice  of  her  elect 
ors.  All  interference  by  the  citizens  of  one  State  with  the  elections  in 
another,  or  by  the  Government  of  the  United  States  with  the  elections 
or  manner  of  election  by  a  State,  is  clearly  in  violation  of  the  letter  and 
spirit  of  the  Federal  Constitution.  The  confusion  and  dangers  which 
now  surround  us  in  connection  with  the  late  election  have  their  real 
origin  in  the  mischievous  and  utterly  unwarranted  interference  by  the 
President  of  the  United  States  and  his  subordinates  in  office  with  the 
process  of  election  in  Florida  and  other  Southern  States.  The  official 
powers  and  emoluments  of  the  Government  have  been  openly  used  as 
an  engine  of  party  influence  in  the  late  canvass;  and  finally  the  mili 
tary  arm  of  the  Government  has  been  sent  down  upon  partisan  applica 
tion  to  overawe  the  political  opponents  of  the  present  administration 
and  abet  and  enoourage  its  party  friends  and  agents  in  the  commission 
of  violations  of  the  laws  of  the  State.  It  never  was  intended  that  the 
Federal  power  should  be  felt  in  the  State  elections,  whether  for  presi 
dential  electors  or  State  officers.  There  never  will  be  peace  and  safety 
to  the  people  individually  or  in  their  communities  as  States  until  the 
pretensions  to  the  exercise  of  such  power  on  the  part  of  the  Federal 
administration  shall  have  been  abandoned. 

1  have  always  voted  against  inquisition  by  the  Federal  Government 
into  the  management  of  their  affairs  by  the  States,  and  would  no  more 
do  it  in  case  of  presidential  electors  than  of  State  officers.  No  one  can 
be  more  averse  than  I  to  the  invasion  of  the  powers  of  the  State  to  elect, 
and  then  to  authenticate  according  to  its  own  laws  the  result  of  its  free 
choice,  as  provided  by  the  Constitution  of  the  United  States.  But  the 
very  question  in  the  case  of  Florida  is,  did  the  State  appoint  any  and 
what  persons  electors'?  Two  sets  of  votes  are  before  us  and  only  one 
can  be  the  lawful  return.  Which  shall  we  accept?  Surely  that  which 
the  State  has  declared  to  be  true.  Both  sets  certainly  cannot  be  counted 
and  the  State  has  a  right  to  have  one  set  counted. 

Florida  has  by  the  Constitution  the  power  and  duty  of  appointing 
four  electors,  no  more.  Two  certificates  are  before  us,  one  of  Humph 
reys  and  his  three  associates,  certifying  that  as  electors  they  had  voted 
on  December  6,  1876,  for  Hayes  and  Wheeler,  which  is  accompanied  by 
the  certificate  of  Stearns,  the  late  governor,  pursuant  to  the  laws  of  the 
United  States,  that  Humphreys  and  his  associates  were  chosen  electors. 
Certificate  No.  2  is  by  Wilkinson  Call  and  his  three  associates,  that  they 
on  the  6th  of  December,  1876,  had  voted  for  Tilden  and  Hendricks. 
This  is  accompanied  by  the  certificate  of  William  Archer  Cocke,  attor 
ney-general  of  Florida  and  one  of  the  board  of  State  canvassers,  that  by 
the  returns  of  the  votes  cast  in  the  State  of  Florida  at  the  general 
election  held  on  November  7,  1876,  Call  and  his  associates  were  chosen 
electors  for  President  and  Vice-President.  Accompanying  the  certifi 
cates  of  Call  is  a  duly  authenticated  copy  of  the  act  of  the  legislature  of 
Florida,  reciting  the  judicial  proceedings  in  the  courts  of  that  State, 
whereby  it  appears  that  upon  a  canvass  of  the  true  votes  of  the  State, 
made  under  order  of  the  court,  Call  and  his  associates  had  been  duly 
chosen  electors  on  the  7th  day  of  November,  1870 ;  and  these  proceed 
ings  are  accompanied  by  the  certificate  of  Drew,  the  present  governor  of 
Florida,  verifying  the  same. 

This  double  return  is  an  abnormal  fact,  and  one  that  has  been  caused 


ELECTORAL    COUNT    OF    1877.  863 

not  by  the  State  of  Florida  or  her  people,  but  by  the  mischievous  and 
unlawful  intervention  of  the  exterior  power  to  which  I  have  before 
alluded.  The  power  of  self-government  is  awarded  to  the  State  to  hold 
her  elections  free  from  exterior  influences.  If  her  citizens  and  officials 
shall  send  up  two  returns,  then  they  have  necessarily  sought  a  decision 
at  the  hands  of  a  third  party  and  made  it  necessary  by  their  own  act. 
The  Constitution  provides  that  the  electoral  votes  shall  be  counted  in 
the  presence  of  the  two  Houses  of  Congress,  and  not  otherwise.  When 
this  count  shall  have  been  completed  the  result  is  to  be  ascertained,  and 
by  whom?  Necessarily  by  the  two  Houses  of  Congress,  because  it  is 
made  their  duty  to  recognize  and  declare  the  persons  found  by  the 
count  of  the  electoral  votes  to  have  been  duly  elected ;  and  if  no 
such  election  shall  be  by  them  found  to  have  been  accomplished,  then 
in  the  event  of  a  majority  of  persons  appointed  electors  not  having  been 
found  to  have  voted  for  any  candidate,  u immediately"  upon  the  House 
of  Representatives  is  devolved  the  high  duty  of  doing  what  the  electoral 
colleges  have  failed  to  do,  i.  e.,  elect  a  President,  and  simultaneously  a 
like  duty  is  devolved  upon  the  Senate  to  elect  a  Vice-President,  as  pro 
vided  by  the  twelfth  article  of  amendment  to  the  Constitution.  The 
two  Houses  of  Congress  have  thus  in  a  certain  contingency,  of  the  ar 
rival  of  which  they  must  inform  themselves,  the  duty  of  tilling  the  chief 
executive  offices  of  the  Republic.  If  this  shall  become  their  great  and 
high  duty,  must  they  not  necessarily  inquire  and  ascertain  whether 
events  have  justified  their  proceeding?  To  this  end  the  Constitution 
provides  that — 

The  President  of  the  Senate  shall,  in  the  presence  of  the  Senate  and  House  of  Rep 
resentatives,  open  all  the  certificates,  aud  the  votes  shall  then  be  counted. 

It  must  be  in  the  presence  of  the  two  Houses,  who,  in  order  to  per 
form  their  duty  and  protect  the  avenues  to  the  great  offices  in  question, 
must  carefully  scrutinize  and  supervise  this  "  count."  To  this  end  the 
two  Houses  must  see  that  the  count  is  true;  true  in  all  that  the  word 
implies;  accurate  in  number  and  lawful  in  itself ;  not  more  votes  than 
should  be  counted  :  not  other  votes  than  should  be  counted  ;  no  votes 
to  be  counted  for  a  prohibited  person ;  no  votes  to  be  counted  when  cast 
by  persons  forbidden  by  law  to  cast  such  votes. 

The  choice  of  electors  is  by  the  Constitution  confided  to  the  State. 
The  language  is  plain  : 

Each  State  shall  appoint,  in  snch  manner  as  the  legislature  thereof  may  direct,  a 
number  of  electors,  equal  to  the  whole  number  of  Senators  and  Representatives  to 
which  the  State  may  be  entitled  in  the  Congress. 

The  two  Houses  of  Congress  have  no  right  or  power  to  question  the 
choice  of  the  State,  but  they  have  a  right  and  a  duty  to  insist  that  the 
Constitution  shall  be  obeyed  by  the  State  in  the  performance  of  the  act 
of  appointment. 

I  have  been  unable  to  discover  any  better  chart  ot  tne  power  which 
may  be  and  which  must  be  exercised  by  the  two  Houses  of  Congress  in 
scrutinizing  the  votes  which  are  brought  before  them  to  be  counted 
under  their  supervision,  than  to  hold  that  the  States  whose  electoral 
votes  are  sent  up  to  be  counted  shall  be  controlled  by  the  same  limita 
tions  of  the  Constitution  as  control  the  two  Houses  themselves  when 
called  upon  to  elect  a  President  and  Vice  President  in  the  absence  of  a 
majority  of  the  electoral  votes  having  been  found  to  be  cast  for  any 
candidate.  Thus,  if  the  Constitution  of  the  United  States  forbids 
Congress  to  elect  any  one  President  except  a  natural  born  citizen,  or  a 
citizen  of  the  United  States  at  the  time  of  the  adoption  of  the  Consti 
tution,  or  any  person  "  who  shall  not  have  attained  to  the  age  of 


864  ELECTORAL    COUNT    OF    1877. 

thirty-five  years,  and  been  fourteen  years  a  resident  within  the  United 
States,"  they  surely  will  not  be  at  liberty  to  count  votes  tor  candidates 
so  rendered  ineligible,  and  for  whom  they  would  themselves  have  been, 
debarred  from  voting ;  and  their  duty  in  this  regard  is  based  upon  the 
inhibitions  of  the  Constitution. 

Tbe  obligation  to  support  the  Constitution  is  equal  as  respects  all  its 
provisions.  No  one  provision  can  be  selected  from  its  context  and  sup 
ported  and  held  sacred  and  those  which  surround  it  be  treated  with 
contempt  and  disregard.  If  the  qualifications  of  the  persons  to  be 
voted  for  as  President  and  Vice-President  are  to  be  respected  by  the 
two  Houses  of  Congress  when  they  are  called  upon  to  elect  them,  it  is 
their  right  and  duty  to  insist  that  they  shall  be  respected  by  the  elect 
oral  colleges.  The  obligation  is  not  greater  to  support  the  provisions 
of  the  Constitution  which  prescribe  qualifications  for  the  candidate,  than 
to  support  those  equally  express  qualifications  of  the  officials  who  can 
vote  to  elect  a  candidate.  If  the  two  Houses  cannot  vote  for  a  person 
of  foreign  birth  for  President,  they  have  no  power  to  count  electoral 
votes  for  such  a  person.  Whether  the  provisions  of  the  Constitution 
define  the  qualifications  of  the  person  who  shall  vote  or  the  person 
who  shall  be  voted  for,  they  are  equally  obligatory  upon  those  who  have 
the  supervision  of  the  ultimate  fact  of  ascertaining  and  declaring  the 
lawful  President  and  Vice-President  of  the  United  States. 

In  the  case  before  us  two  voices  pretend  to  speak  for  the  State  of 
Florida.  To  us  is  confided  the  duty  of  discovering  which  is  the  true 
and  which  is  the  false.  We  cannot  avoid  this  duty,  and  all  that  is  im 
plied  in  its  performance.  The  organic  act  of  this  Commission  expressly 
provides  for  a  count  of  the  votes  by  the  two  Houses,  and  by  no  one 
else.  To  count  means  to  count  truly,  and  to  count  truly  we  must  have 
knowledge  of  what  is  the  truth. 

The  question  before  us  is  whether  we  will  hear  proof  tending  to  show 
that  one  and  not  the  other  of  these  returns  is  the  true  return.  How 
can  we  execute  this  duty  without  hearing  the  facts?  The  Constitution 
has  directed  the  State  to  "  appoint,  in  such  manner  as  the  legislature 
thereof  may  direct,  a  number  of  electors."  If  this  essential  fact  be 
brought  in  question,  then  the  constitution  and  the  laws  of  the  State 
must  be  consulted  in  order  to  ascertain  what  is  the  "  manner  directed." 
This  Commission  is  invested  with  all  the  powers  of  the  two  Houses  of 
Congress  acting  separately  or  together.  It  is  in  its  essence^  therefore, 
and  in  the  purview  of  its  power  and  contemplated  action,  a  parliament 
ary  body,  with  parliamentary  powers  and  methods.  We  are  not  sitting 
as  a  judicial  court  of  general  or  statutory  jurisdiction,  but  to  exercise 
judgment  undoubtedly,  and  to  that  end  to  prosecute  inquiry  into  the 
subject-matter,  not  by  technical  methods,  but  by  the  general  methods  and 
usages  well  known  to  the  history  of  parliamentary  proceeding,  to  take 
such  views  as  are  a  fit  basis  for  legislation,  and  to  be  governed  in  our 
judgments  here  by  the  same  kind  of  proofs  as  would  enlighten  legisla 
tive  discretion  and  judgment.  The  very  language  of  the  section  of  the 
act  creating  this  Commission  commands  that  we  shall  proceed  to  con 
sider  and  decide  "  what  votes  from  such  State  are  the  votes  provided 
for  by  the  Constitution  of  the  United  States,  and  how  many  and  what 
persons  were  duly  appointed  electors  in  such  State,  and  may  therein 
take  into  view  such  petitions,  depositions,  and  other  papers  *  *  * 
as  shall,  by  the  Constitution  and  now-existing  law,  be  competent  and 
pertinent  in  such  consideration."  Where,  except  in  legislative  bodies, 
are  "petitions"  used  as  evidence?  Where  are  "other  papers"  re 
ceived  as  means  of  information?  The  technical  rules  of  evidence 


ELECTORAL   COUNT    OF    1877.  865 

would  exclude  all  such,  and  yet  this  law  clearly  contemplates  their  re 
ception  and  use.  The  very  word  "law"  is  advisedly  in  the  singular, 
because  it  is  used  in  its  broadest  and  most  embracing  sense,  which 
would  not  be  extended  if  the  additional  words  "parliamentary,  com 
mon,  or  statutory"  had  been  annexed. 

It  will  be  observed  that  I  have  omitted  in  my  citations  the  words  "it 
any,"  which  are  to  be  found  in  many  places  throughout  the  act.  I  have 
done  so  because  in  proceedings  such  as  this  no  one  will  gravely  con 
tend  that  such  words  are  to  have  the  slightest  force  in  giving  or  exclud 
ing  jurisdiction.  No  one  has  said,  here  or  elsewhere,  that  such  words 
would  impair  or  assist  the  operation  of  law.  If,  in  the  jurisdiction  of  a 
justice  of  the  peace  over  the  property  in  a  shilling,  such  words  would 
be  without  force  to  control  jurisdiction,  surely  their  furtive  and  petty 
presence  will  hardly  be  recognized  in  the  consideration  of  such  issues 
as  confront  us  now  and  upon  which  the  executive  power  over  a  nation 
of  forty  millions  of  people  may  be  said  to  depend.  This  Commission 
stands  admittedly  in  the  place  of,  and  armed  with  all  the  powers  and  dis 
cretion  over  this  subject  which  are  vested  in,  the  Senate  of  the  United 
States  representing  the  people  in  their  organized  polities  called  States, 
and  in  the  ^Representatives  in  Congress  representing  every  individual 
person  in  the  United  States. 

I  say  nothing  here  of  the  new-fangled  claim  for  power  in  the  Presi 
dent  of  the  Senate  to  count  the  electoral  votes.  Such  a  pretension  had 
late  birth  and  a  speedy  death.  It  was  advanced  in  opposition  to  the 
unbroken  line  of  precedent  of  the  history  of  the  Government  from  its 
foundation.  It  had  no  warrant  in  the  express  or  implied  meanings 
of  the  Constitution.  It  was  in  opposition  to  the  nature  and  the  spirit 
of  our  popular  government.  Discussion  and  public  opinion  soon  set 
tled  its  fate.  It  no  longer  exists  as  a  subject  for  consideration. 

An  examination  of  the  history  of  congressional  precedent  over  this 
subject  of  the  count  of  the  votes  has  given  me  more  knowledge  than  I 
had  when  the  discussions  took  place  in  the  Senate  two  years  ago. 
Since  that  time  the  proceedings  of  the  two  Houses  in  the  year  1800  in 
relation  to  "  a  bill  prescribing  the  mode  of  deciding  disputed  elections 
of  President  and  Yice-Presideut  of  the  United  States"  have  been  dis 
interred  from  the  archives  of  the  Senate.  The  bill  in  question  origi 
nated  in  the  Senate,  and  proposed  that  either  House  of  Congress 
should  have  power  to  reject  an  electoral  vote.  It  provided  for  the 
creation  of  an  electoral  commission  of  which  the  elements  were  the 
same  as  the  present,  consisting  of  members  of  the  House  and  Senate 
and  presided  over  by  the  Chief-Justice  of  the  Supreme  Court.  This 
"  grand  committee,"  as  it  was  then  called,  in  the  eighth  section  of 
the  bill  was  invested  with  "power  to  inquire,  examine,  decide,  and 
report  upon  the  constitutional  qualifications  of  the  persons  voted 
for  as  President  and  Vice-President  of  the  United  States,  upon  the 
constitutional  qualifications  of  the  electors  appointed  by  the  different 
States,  and  whether  their  appointment  was  authorized  by  the  State 
legislature  or  not;  upon  all  petitions  and  exceptions  against  corrupt, 
illegal  conduct  of  the  electors,  or  force,  menaces,  or  improper  means 
used  to  influence  their  votes  ;  or  against  the  truth  of  their  returns,  or 
the  time,  place,  or  manner  of  giving  their  votes;  provided,  always, 
that  no  petition  or  exception  shal  granted  or  allowed  by  the  grand  com 
mittee  which  shall  have  forjits  object  to  draw  into  question  the  number  of 
votes  on  which  any  elector  in  any  of  the  States  shall  have  been  declared 
appointed." 
55  E  c 


866  ELECTORAL    COUNT    OF    1877 

Arid  the  preceding  section,  6,  was  as  follows  : 

That  the  grand  committee  shall  have  power  to  send  for  persons,  papers,  and  records, 
to  compel  the  attendance  of  witnesses,  to  administer  oaths  or  affirmations  to  all  per 
sons  examined  before  them,  and  to  punish  contempts  of  witnesses  refusing  to  answer 
as  fully  and  absolutely  as  the  Supreme  Court  of  the  United  States  may  or  can  do  in 
causes  depending  therein  ;  and  the  testimony  of  all  witnesses  examined  before  the 
committee  shall  be  reduced  to  writing  by  the  secretary  of  the  committee,  and  shall  be 
signed  by  the  witness  after  his  examination  is  closed.  And  if  any  person,  sworn  and 
examined  before  this  committee,  shall  swear  or  affirm  falsely,  such  person  thereof 
convicted  shall  incur  the  pains,  penalties,  and  disabilities  inflicted  by  the  laws  of  the 
United  States  upon  willful  and  corrupt  perjury. 

At  the  close  of  the  seventh  section  is  a  proviso  that  the  number  of 
votes  on  which  any  elector  in  any  of  the  States  shall  have  been  declared 
appointed  should  not  be  inquired  into.  By  the  ordinary  rules  of  con 
struction,  it  would  appear  that  the  power  of  inquiry  would  have  embraced 
this  subject  but  for  the  express  exception. 

The  bill  passed  the  Senate  and  was  reported  to  the  House  of  Bep- 
resentatives,  by  which  body  it  was  also  passed  with  an  amendment 
requiring  the  concurrence  of  the  two  Houses  to  reject  a  vote.  It  was 
upon  this  point  of  difference,  to  wit,  whether  the  Houses  acting  sepa 
rately  should  have  power  to  reject  a  vote  or  whether  it  required  their 
concurrent  action  to  reject  a  vote,  that  the  disagreement  took  place  and 
became  final.  But  the  claim  of  power  over  the  counting  of  the  votes 
and  of  instituting  inquiry  as  to  the  lawfulness  of  the  electoral  votes 
was  upheld  in  both  Houses  of  Congress  by  large  majorities.  Among 
those  so  voting  to  exercise  the  jurisdiction  by  Congress  over  this  ques 
tion  were  found  many  persons  who  had  sat  in  the  convention  which 
framed  the  Constitution  of  the  United  States.  Among  the  chief  actors 
was  Mr.  John  Marshall,  soon  after  the  Chief-Justice  of  the  United 
States 5  and  the  record  of  the  vote  discloses  the  names  of  well-known 
characters  in  American  history  who  as  constitutional  lawyers  are  enti 
tled  to  gieat  weight.  It  is  proper  to  say  that  the  argument  of  Mr. 
Charles  Cotesworth  Piuckney  was  strongly  in  opposition  to  the  exercise 
of  such  power  by  Congress,  and  his  speech  is  more  fully  reported  than 
any  other,  to  which  may  be  added  that  it  is  the  only  speech  in  the  same 
direction.  The  concession  of  power  in  Congress  to  control  the  count  of 
the  electoral  votes  according  to  the  Constitution,  and  to  institute  such 
inquiries  and  take  such  evidence  as  would  be  necessary  to  secure  the  end 
in  view,  was  apparently  affirmed  by  a  great  majority  of  both  House. 

In  1824  a  bill  was  introduced  in  the  Senate  by  Mr.  Van  Buren,  of  New 
York,  to  regulate  the  count  of  the  votes,  and  providing  that  the  con 
currence  of  both  Houses  should  be  necessary  for  the  rejection  of  a  vote. 
£*o  provision  dealing  with  double  returns  is  made  in  the  bill.  The  bill 
introduced  by  Mr.  Van  Buren  passed  the  Senate  without  amendment, 
was  referred  to  the  Committee  on  the  Judiciary  of  the  House,  and  re 
ported  back  without  amendment  by  Mr.  Webster,  but  no  further  action 
was  ever  taken  on  it,  and  it  never  became  a  law. 

February  8,  1865,  President  Lincoln  sent  the  following  message  to 
Congress,  which  is  to  be  found  on  page  229  of  the  compilation,  of  the 
action  of  Congress  on  this  subject: 

To  the  honorable  the  Senate  and  House  of  Representatives : 

The  joint  resolution  entitled  "Joint  resolution  declaring  certain  States  not  entitled 
to  representation  in  the  electoral  college  "  has  been  signed  by  the  Executive  in  defer 
ence  to  the  view  of  Congress  implied  in  its  passage  and  presentation  to  him.  In  his 
own  view,  however,  the  two  Houses  of  Congress,  convened  under  the  twelfth  article  of  the 
Constitution,  have  complete  power  to  exclude  from  counting  all  electoral  votes  deemed  ly  thetfi 
to  be  illegal;  and  it  is  not  competent  for  the  Executive  to  defeat  or  obstruct  that 
power  by  a  veto,  as  would  be  the  case  if  his  action  were  at  all  essentialjMn  the  matter. 


ELECTORAL   COUNT    OF    1877.  867 

He  disclaims  all  right  of  the  Executive  to  interfere  in  any  way  in  the  matter  of  can 
vassing  or  counting  electoral  votes,  and  he  also  disclaims  that,  by  signing  said  resolu 
tion,  he  has  expressed  any  opinion  on  the  recitals  of  the  preamble  or  any  judgment  of 
his  own  upon  the  subject  of  the  resolution. 

ABRAHAM  LINCOLN. 
EXECUTIVE  MANSION,  February  8,  1865. 

The  joint  twenty-second  rale,  adopted  on  the  6th  of  February,  1865, 
by  the  two  Houses  without  di vision ,  assumed  in  either  House  the  exist 
ence  of  the  power  to  reject  at  will  and  without  debate  any  electoral 
vote ;  in  other  words,  the  concurrent  vote  of  the  two  Houses  was  neces 
sary  for  the  counting  of  any  electoral  vote.  This  rule  continued  in  force 
until  February,  1875,  and  was  then  rescinded  by  the  action  of  the 
Senate.  Under  it  the  count  of  electoral  votes  had  been  thrice  made,  in 
1865,  in  1869,  and  in  1873  ;  and  the  power  of  excluding  electoral  votes 
was  claimed  and  exercised  by  each  House  acting  separately  on  these 
three  occasions. 

On  the  6th  of  January,  1873,  on  the  motion  of  Mr.  Sherman,  of  Ohio, 
the  following  resolution  was  adopted  : 

Resolved,  That  the  Committee  on  Privileges  and  Elections  is  directed  to  inquire  and 
report  to  the  Senate  whether  the  recent  election  of  electors  for  President  and  Vice- 
President  has  been  conducted  in  the  States  of  Louisiana  and  Arkansas  in  accordance 
with  the  Constitution  and  laws  of  the  United  States  and  with  the  laws  of  said  States, 
and  what  contests,  if  any,  have  arisen  as  to  who  were  elected  as  electors  in  either  of 
said  States,  and  what  measures  are  necessary  to  provide  for  the  determination  of  such 
contests  and  to  guard  against  and  determine  like  contests  in  the  future  election  of 
electors  for  President  and  Vice-President.  That  for  the  purpose  of  speedily  executing 
this  resolution  the  said  committee  shall  have  power  to  send  for  persons  and  papers,  to 
take  testimony,  and  at  their  discretion  to  send  a  subcommittee  of  their  own  number 
to  either  of  said  States  with  authority  to  take  testimony  ;  and,  if  the  exigency  of  this 
service  demands,  the  said  committee  may  appoint  and*  employ  suitable  disinterested 
and  unprejudiced  persons  not  resident  in  either  of  such  States,  with  authority  to  take 
such  testimony  as  may  be  material  in  determining  any  pending  contest  growing  out 
of  the  election  of  electors  in  either  of  said  States. 

Under  this  resolution  the  committee,  presided  over  by  Mr.  Morton, 
of  Indiana,  one  of  the  present  Commission,  made  investigation,  and  on 
the  10th  of  February  following  made  a  report  accompanied  by  volum 
inous  testimony  on  the  subjects  embraced  in  the  resolution,  in  the 
course  of  which  report  it  is  said  : 

The  certificate  of  the  secretary  of  state  is  not  required,  and  the  certificate  of  the 
governor,  as  provided  for  in  this  section,  seems  to  be  the  only  evidence  contemplated 
by  the  law  of  the  election  of  electors  and  their  right  to  cast  the  electoral  vote  of  the 
State.  If  Congress  chooses  to  go  behind  the  governor's  certificate,  and  inquire  who 
has  been  chosen  as  electors,  it  is  not  violating  any  principle  of  the  right  of  the  States 
to  prescribe  what  shall  be  the  evidence  of  the  election  of  electors,  but  it  is  simply 
going  behind  the  evidence  as  prescribed  by  an  act  of  Congress ;  and,  thus  going  behind 
the  certificate  of  the  governor,  we  find  that  the  official  returns  of  the  election  of  elect 
ors,  from  the  various  parishes  of  Louisiana,  had  never  been  counted  by  anybody  hav 
ing  authority  to  count  them. 

Under  the  twenty-second  joint  rule  and  this  report  the  electoral  vote 
of  the  State  of  Louisiana  was  not  counted,  there  being  two  returns  from 
said  State. 

On  December  6,  1876,  the  following  resolutions,  introduced  by  Mr. 
Edmunds,  of  Vermont,  a  member  of  this  Commission,  passed  the 
Senate : 

Resolved,  That  the  Committee  on  Privileges  and  Elections,  when  appointed,  bo,  and 
it  hereby  is,  instructed  to  inquire  and  report  as  soon  as  may  be — 

1.  Whether  in  any  of  the  elections  named  in  said  amendment,  in  said  States,  in  the 
years  1875  or  1876,  the  right  of  any  portion  of  such  inhabitants  and  citizens  to  vote  as» 
aforesaid  has  been  in  any  wise  denied  or  abridged. 

2.  To  what  extent  such  denial  or  abridgment  has  been  carried. 

3.  By  what  means  such  denial  or  abridgment  has  been  accomplished.) 


868  ELECTORAL    COUNT    OF    1877 

4.  By  whom  has  such  denial  or  abridgment  been  effected. 

5.  With  what  motives  and  for  what  purposes  has  such  denial  or  abridgment  been 
carried  on. 

6.  By  what  authority  or  pretended  authority  has  such  denial  or  abridgment  been 
exercised. 

Resolved  further,  That  the  said  committee  have  power  to  employ  such  number  el 
stenographers  as  shall  be  needful,  and  to  send  for  persons  and  papers,  and  have  leave 
to  sit  during  the  sessions  of  the  Senate,  and  to  appoint  subcommittees  with  full  power 
to  make  the  inquiries  aforesaid,  and  report  the  same  to  the  committee. 

Resolved  further,  That  said  committee,  in  order  to  the  more  speedy  performance  of 
its  duties,  have  power  to  provide  for  the  taking  of  affidavits  on  the  subjects  aforesaid 
before  any  officer  authorized  by  the  laws  of  the  United  States  to  take  affidavits  j  and 
to  receive  and  consider  the  same. 

Resolved  further,  That  the  said  committee  be,  and  is  hereby,  instructed  to  inquire 
into  the  eligibility  to  office  under  the  Constitution  of  the  United  States  of  any  persons  alleged 
1o  have  been  ineligible  on  the  7th  day  of  November  last,  or  to  &e  ineligible  as  electors  of  Presi 
dent  and  Vice- President  of  the  United  States,  to  whom  certificates  of  election  have  been 
or  shall  be  issued  by  the  executive  authority  of  any  State  as  such  electors,  and  whether 
the  appointment  of  electors,  or  those  claiming  to  be  such  in  any  of  the  States,  has  been 
made  either  by  force,  fraud,  or  other  means  otherwise  than  in  conformity  with  the  Consti 
tution  and  laws  of  the  United  States  and  the  laws  of  the  respective  States;  and  whether  any 
such  appointment  or  action  of  any  such  elector  has  been  in  any  wise  unconstitutionally 
or  unlawfully  interfered  with ;  and  to  inquire  and  report  whether  Congress  has  any 
constitutional  power,  and,  if  so,  what  and  the  extent  thereof,  in  respect  of  the  appoint 
ment  of,  or  action  of,  electors  of  President  and  Vice-President  of  the  United  States,  or 
over  returns  or  certificates  of  votes  of  such  electors  ;  and  that  said  committee  have 
power  to  send  for  persons  and  papers,  and  to  employ  a  stenographer,  and  have  leave 
to  sit  during  the  sessions  of  the  Senate. 

These  resolutions  are  embodied  in  report  No.  611  of  the  Forty-fourth 
Congress,  second  session,  made  by  Mr.  Sargent,  of  California,  from  the 
Committee  on  Privileges  and  Elections,  and  which  (a  significant  com 
mentary  upon  the  argument  of  those  who  have  denied  the  right  or 
power  of  this  Commission  to  hear  any  evidence  not  contained  in  the 
papers  presented  by  the  President  of  the  Senate  to  the  two  Houses) 
has  been  used  as  a  paper-book  in  the  course  of  the  debates  before  this 
Commission,  and  copies  of  which  are  now  and  have  been  throughout 
the  consideration  of  this  case  in  the  hands  of  every  member  of  the 
Commission.  Mr.  Sargent's  report,  made  to  the  Senate  on  the  29th  of 
January,  1877,  contains  thirty  printed  pages,  which  embody  abundant 
extracts  from  the  testimony  in  relation  to  the  election  of  electors  in  the 
State  of  Florida  in  November  last.  Mr.  Sargent  reports,  on  page  2, 
that,  in  pursuance  of  these  resolutions  introduced  by  Mr.  Edmunds,  the 
committee  had  "  thoroughly  examined  all  returns  of  the  election,  the  evi 
dence  received  and  considered  by  the  State  canvassing -board,  having  espe 
cially  investigated  the  contested  cases  before  the  board,  and  having 
taken  the  testimony  of  four  hundred  and  forty-two  witnesses  concerning 
the  election,  the  canvassing  of  the  votes  thereof,  the  denial  or  abridg 
ment  of  the  right  of  any  portion  of  the  inhabitants  of  Florida  to  vote, 
by  force  or  fraud,  and  the  other  objects  named  in,  the  resolution  of  the  Senate." 

No  action  was  ever  taken  by  the  Senate  upon  this  report,  but  the 
report  of  the  committee  of  the  House  of  Eepresentatives  was  accom 
panied  by  a  resolution  declaring  that  the  actual  returns  substantiated 
by  evidence  showed  that  Wilkinson  Call  and  his  three  associates  had 
been  duly  chosen  electors,  and  had  duly  cast  their  votes  for  Tilden  and 
Hendricks  on  December  6,  1876,  which  resolution  was  adopted  by  the 
House  by  a  vote  of  142  yeas  to  82  nays. 

The  resolution  of  December  6,  1876,  from  the  hands  of  Mr.  Edmunds, 
of  Vermont,  contained  these  words : 

That  the  said  committee  be,  and  is  hereby,  instructed  to  inquire  into  the  eligibility 
1o  office  under  the  Constitution  of  the  United  States  of  any  persons  alleged  to  have  been 
ineligible  on  the  7th  day  of  ^November  last,  or  to  be*meligible|as  electors  of  President 


ELECTORAL    COUNT    OF    1877.  869 

and  Vice-President  of  the  United  States,  to  whom  certificates  of  election  have  been  or 
shall  be  issued  by  the  executive  authority  of  any  State,  and  whether  the  appointment 
of  electors  has  been  made  otherwise  than  in  conformity  with  the  Constitution  and  Jaws 
of  the  United  States  and  the  laws  of  the  respective  States. 

Compare  these  last  words  with  the  language  of  the  present  act : 

SEC.  2.  *  *  *  decide  whether  any  and  what  votes  from  such  State  are  the  votes 
provided  for  ~by  the  Constitution  of  the,  United  States,  and  how  many  and  what  persons  were 
duly  appointed  electors  in  such  State. 

The  inquiry  under  the  Senate  resolution  and  under  the  present  law  is 
precisely  the  same,  and  the  exercise  of  the  same  measure  of  power  is 
required  for  a  decision  ujider  either. 

In  the  face  of  this  history  of  congressional  precedent,  disapproving 
of  much  of  it  as  I  do,  especially  as  to  the  claim  of  power  in  the  two 
Houses  under  the  late  twenty-second  joint  rule,  I  cannot  but  be  amazed 
at  the  present  attitude  of  members  of  the  Commission  and  others  in 
denying  all  power,  in  the  name  of  State  rights,  to  investigate  the  facts 
of  an  election  sufficiently  to  ascertain  what  were  its  true  results,  to 
enable  this  Commission  to  come  to  a  decision  as  to  which  of  these  two 
returns  before  us  now  was  the  true  and  lawful  electoral  vote  of  the 
State  of  Florida,  as  settled  by  the  election  on  the  7th  of  November 
last,  according  to  the  Constitution  and  laws  of  the  CJnited  States  and 
of  the  State  of  Florida. 

The  introduction  of  the  Senate  document  to  which  I  have  referred, 
being  the  report  of  one  of  its  committees  and  containing  part  of  the 
testimony  taken  before  it,  and  its  natural  and  apparently  unconscious 
use  by  cdunsel,  by  objectors,  and  members  of  the  Commission,  all  con 
firm  to  me  the  correctness  of  my  opinion  that  all  the  evidence  of  every 
nature  which  was  in  the  possession  of  the  two  Houses  of  Congress,  or 
either  of  them,  was,  ipso  facto,  in  the  possession  of  this  Commission, 
who  are  bound  to  give  due  weight  and  consideration  to  the  same.  Some 
of  the  facts  testified  to  before  these  committees,  both  of  the  Senate  and 
the  House,  in  relation  to  the  Florida  election,  came  to  my  knowledge 
before  I  was  appointed  a  member  of  this  Conrmission.  It  dwells  still 
in  my  memory  and  cannot  be  dismissed.  At  my  table  in  the  Senate  I 
have  several  volumes  of  this  printed  testimony.  It  was  furnished  to 
me  by  order  of  the  Senate,  that  I  might  intelligently  and  conscientiously 
vote  upon  the  subjects  to  which  it  related.  When  I  shall  return  to  the 
Senate  and  vote  upon  any  objection  which  may  be  offered  in  cases  of 
single  returns  from  any  State,  I  must  ca^t  that  vote  in  the  full  light  of 
all  the  knowledge  and  information  within  my  power.  When  I  leave 
this  Commission,  after  its  decision  shall  have  been  made,  and  vote  upon 
the  question  of  concurrence  or  non -concurrence  in  that  decision,  I  shall 
cast  my  vote  in  the  full  light  of  all  the  information  of  every  nature 
which  as  a  Senator  I  have  derived  from  every  paper  and  from  every 
source  competent  and  pertinent  for  the  decision  of  the  case.  If  every 
thing  thus  properly  laid  open  to  me  as  a  member  of  the  Senate,  and 
which  binds  me  as  a  Senator,  is  to  be  shut  out  from  my  mind  as  a  Com 
missioner,  how  anomalous  and  absurd,  how  illogical  must  be  my  posi 
tion  in  one  capacity  or  the  other :  as  a  member  of  the  Senate  bound  to 
receive  evidence  and  information  ;  as  a  member  of  the  Commission  to 
shut  my  eyes  to  all  evidence  except  that  which  the  papers  presented  by 
the  President  of  the  Senate  shall  contain ! 

Mr.  President  and  gentlemen  of  the  Commission,  I  cannot  so  com 
prehend  my  duty  nor  yours.  The  law  under  which  we  act  plainly 
throws  upon  us  the  duty  of  decision.  Inquiry  and  ascertainment 
necessarily  must  precede  that  decision.  We  cannot  justly  decide  with 
out  evidence  and  we  cannot  lawfully  refuse  to  hear  evidence. 


870  ELECTORAL    COUNT    OF    1877. 

I  not  only  consider  the  weight  and  influence  of  this  decision  as  im 
portant  in  defining  the  jurisdiction  of  the  two  Houses  of  Congress  and 
the  rights  of  the  candidates  to  exercise  the  functions  for  which  they 
have  been  lawfully  chosen,  but  I  feel  there  is  a  moral  weight  attending 
the  decisions  of  this  Commission  which  is  to  sink  deeper  into  the  hearts 
and  consciences  of  the  American  people.  The  question  is  one  of  law, 
but  it  is  a  question  of  law  sustained  by  sound  morals.  It  is  justice  and 
truth  under  the  law  which  is  the  object  for  which  this  tribunal  was 
created ;  and  therefore  I  would  open  wide  every  door  and  window  of 
this  case  through  which  light  and  truth  may  enter,  in  order  that  justice 
and  law  may  be  recognized  as  the  same  thing  in  the  minds  of  the 
people  of  this  country,  who  will  respect  and  love  their  Government 
only  when  they  are  satisfied  that  it  is  just. 

I  can  scarcely  suppose  that  this  Commission  would  refuse  to  hear 
evidence  that  the  certificates  of  a  governor  and  of  a  college  of  electors 
were  in  fact  forgeries,  or  that  the  governor  and  electors  had  been  com 
pelled  under  duress  and  coercion  to  sign  their  names  to  those  certificates. 
Why  would  we  receive  such  evidence1?  Because  the  proof  would  be 
that  the  papers  presented  were  not  in  truth  those  which  upon  their 
face  they  professed  to  be.  Go  a  little  further.  Suppose  the  governor 
had  signed  willingly  and  in  good  faith  and  without  force,  but  was  him 
self  the  victim  of  fraud  and  deception  under  which  only  his  signature 
had  been  obtained,  or  that  the  board  of  canvassers  whose  actions  he  cer 
tified  had  also  been  induced  by  the  fraud  and  forgery  of  others  to  make 
a  certificate  of  facts  which  were  afterward  discovered  to  be  false,  is  it 
to  be  said  that  either  or  both  of  these  things  cannot  be  corrected  and 
that  we  have  no  power  to  do  so  ;  that  there  is  no  power  in  the  State  to 
do  so?  Now,  if  the  fraud  shall  be  the  fraud  of  the  governor  and  the 
board  of  canvassers  combined,  does  that  make  it  any  more  binding  on  us 
than  if  they  had  been  the  innocent  victims  themselves  of  the  fraud  or 
force  of  others? 

I  understand  that  proof  is  offered  to  this  Commission  to  show  that 
the  certificate  of  Humphreys  and  his  three  associates,  the  Hayes  elect 
ors,  is  not  the  true  and  lawful  vote  of  the  State  of  -Florida  ;  that  it  is 
the  result  of  the  action  of  a  State  board  of  canvass,  ministerial  only  in 
its  powers,  acting  beyond  its  jurisdiction,  in  fraud  and  in  error  certify 
ing  an  untruth  j  and,  on  the  other  hand,  that  evidence  is  offered  to  show 
that  the  State  of  Florida  at  the  election  held  November  7,  1876,  did 
elect  Wilkinson  Call  and  his  three  associates,  all  duly  qualified  under 
the  Constitution  of  the  United  States,  and  elected  in  accordance  with 
the  constitution  and  laws  of  the  State  of  Florida;  and  that  being  so 
elected  they  did,  on  the  day  appointed  by  act  of  Congress,  in  pursu 
ance  of  the  Constitution,  meet  as  an  electoral  college  and  cast  the  votes 
of  that  State  for  Tilden  and  Hendricks.  This,  it  seems  to  me,  is  the 
question  which  this  tribunal  was  created  to  decide,  and  that  in  the 
power  and  duty  of  the  decision  are  necessarily  embraced  the  power  and 
duty  of  inquiring  and  hearing  before  determination. 

The  order  of  this  Commission  has  been  made  to  hear  testimony  in 
the  case  of  Mr.  Humphreys,  who  was  alleged  to  be  ineligible-to  be  ap 
pointed  an  elector  because  on  the  day  of  election  he  held  an  office  of 
trust  and  profit  under  the  United  States.  I  do  not  comprehend,  as  I 
have  said  before,  why  one  provision  of  the  Constitution  relating  to  this 
subject  should  be  more  obligatory  upon  us  than  another.  I  concur  that 
it  is  our  right  and  duty  to  hear  testimony  on  this  subject,  and  equally 
so  in  all  other  questions  where  the  true  performance  of  the  requirements 
•of  the  Constitution  are  brought  in  question. 


ELECTORAL    COUNT    OF    1877  871 

FLORIDA. 

The  Commission  having  resolved  on  the  7th  of  February  "  that  no 
evidence  will  be  received  or  considered  by  the  Commission  which  was 
not  submitted  to  the  joint  convention  of  the  two  Houses  by  the  Presi 
dent  of  the  Senate,  with  the  different  certificates,  except  such  as  relates 
to  the  eligibility  of  F.  C.  Humphreys,  one  of  the  electors,"  the  case 
was  argued  by  counsel,  and  the  order  heretofore  stated  was  adopted 
on  the  9th  of  February.  Before  the  vote  was  taken  on  the  adoption  of 
this  order  Senator  BAYARD  said: 

After  hearing  the  testimony  of  witnesses  admitted  by  the  Commis 
sion  and  reading  the  documents  produced  by  them,  I  am  satisfied  that 
Mr.  Humphreys  was  not  ineligible  to  the  office  of  elector  on  the  7th  of 
November,  1876.  The  office  of  shipping-commissioner  formerly  held  by 
him  had,  in  my  judgment,  been  resigned  early  in  the  month  of  October 
preceding.  This  resignation  was  not  required  by  law  to  be  in  any  par 
ticular  form,  but  I  believe  that  he  did  in  fact  divest  himself  of  all  official 
power  and  emolument  in  connection  with  the  said  office,  and  that  under 
the  laws  of  the  United  States  the  duties  of  the  said  office  were  assumed 
on  the  5th  of  October,  1876,  by  the  collector  of  customs  at  the  port  of 
Pensacola,  in  Florida,  after  which  time  the  said  Humphreys  did  not 
perform  or  attempt  to  perform  any  of  its  duties.  The  technicality  sug 
gested,  of  want  of  form  in  his  resignation,  or  that  it  was  not  made  to 
the  court  by  whom  he  was  appointed,  but  only  to  the  presiding  judge 
of  that  court,  does  not  seem  to  me  sufficient  to  disqualify  him  from 
being  appointed  an  elector  for  President  and  Vice-President,  as  I  do 
not  consider  that  he  held  the  office  of  shipping-commissioner  after  the 
5th  of  October,  1876. 

The  Commission  having  refused  to  admit  any  evidence  aliunde  the 
certificates,  I  proceed  to  consider  the  law  and  the  facts  of  the  case  as 
so  presented.  The  power  of  choosing  electors  is  vested  in  the  State, 
who,  "  in  such  manner  as  her  legislature  may  direct,"  is  to  appoint  them. 
The  fact  of  the  election  is  not  required  to  be  established  by  any  form 
of  proof.  The  electors  themselves  are  required  to  u  make  distinct  lists 
of  all  persons  voted  for  as  President,  and  of  all  persons  voted  for  as 
Vice-President,  and  of  the  number  of  votes  for  each;  which  lists  they 
shall  sign  and  certify,  and  transmit  sealed  to  the  seat  of  the  Govern 
ment  of  the  United  States,  directed  to  the  President  of  the  Senate." 

On  the  7th  of  November  an  election  was  held  in  the  State  of  Florida 
for  four  persons  as  electors  for  President  and  Yice-President.  Two  sets 
of  candidates  were  voted  for,  one  headed  by  Humphreys  and  one  headed 
by  Call.  The  fact  which  was  elected  will  determine  which  was  entitled 
to  cast  the  vote  of  that  State  for  President  and  Vice-President  on  De 
cember  6,  1876. 

We  have  heard  the  argument  that  because  the  board  of  State  can 
vassers,  whether  in  disregard  and  defiance  of  duty  or  no,  saw  fit  to  cer 
tify  to  Governor  Stearns  that  Humphreys  and  his  associates  had  been 
chosen  electors,  these  last-named  persons  were  thereby  invested  u  with, 
the  insignia  of  office,"  and  that  they  became  officers  de  facto,  if  not  de 
jure,  and  that  their  acts  as  such  officers  de  facto  are  valid  as  to  all  third 
parties  under  the  common  rule.  An  important  qualification  of  this  rule, 
however,  is  that  it  stops  with  preventing  mischief  to  such  as  confided 
in  their  power,  and  it  is  simply  adopted  to  that  extent  as  a  matter  of 
public  policy,  for  the  protection1  of  innocent  third  persons;  but  the  rea 
soning  applicable  to  officers  de  facto  is  entitled  to  no  place  in  the  present 
consideration,  no  such  facts  existing  here. 


872  ELECTORAL    COUNT    OF    1877. 

The  office  of  elector  is  confined  to  a  single  function,  that  of  casting  a 
vote  on  a  certain  day.  In  Florida  there  was  no  such  thing  as  an  elector 
de  facto  as  distinguished  from  an  elector  de  jure.  Two  separate  bodies 
of  men  assumed  the  office  and  executed  the  function  of  voting  for  Presi 
dent  and  Vice-President  on  the  same  day  under  alleged  color  of  law. 
One  body  only  were  the  rightful  electors  dejureauti  de  facto;  the  other 
were  neither  de  facto  nor  dejure  electors.  If  the  certificate  and  the  pos 
session  of  a  certificate  can  be  substituted  for  the  fact  of  election,  then 
we  may  hear  something  of  the  u insignia  of  office."  It  is  the  election 
that  determines  the  right  to  the  office,  and  not  the  certificate,  which  is 
merely  one  form  of  evidence  of  the  election.  The  principle  of  de  facto 
action  and  the  necessity  of  protecting  the  public  who  have  confided  in 
the  aetsofjjhejfe  facto  officer  has  no  place  whatever  in  a  proper  consid 
eration  of  the  case  of  the  State  of  Florida  and  the  two  sets  of  rival 
electors,  both  of  whom  assumed  equally  to  execute  the  office  at  the  same 
time;  and  the  only  question  now  is  which  set  was  elected. 

It  is  manifestly  the  duty  of  the  two  Houses  to  secure  to  the  State  of 
Florida  her  right  of  choice,  as  established  by  the  Constitution.  It  is  a 
case  of  State  action  in  relation  to  a  Federal  or  national  object.  The 
State  of  Florida  is  not  alone  concerned,  but  all  the  other  States  are 
concerned,  and  the  two  Houses  of  Congress  have  been  made  the  verify 
ing;  witnesses  of  the  truth  of  this  national  transaction.  The  meaning 
and  the  nature  of  our  Government  must  not  be  forgotten,  and  we  must 
adopt  no  construction  inconsistent  with  either.  If  we  propose  to  secure 
to  each  State  the  right  to  appoint  its  electors,  do  we  do  it  by  accepting 
the  action  of  a  set  of  conspiring  and  faithless  officials  who,  on  the  eve  ot 
losing  office,  falsify  their  duty  and  deliver  over  the  insignia  of  the  office 
of  electors  to  persons  not  entitled  to  receive  them,  and  who,  being  thus 
fraudulently  clothed  with  robes  of  office,  proceed  to  defeat  the  real  will 
of  the  people?  It  seems  to  me  that  with  as  much  justice  could  it  be 
said  that  if  Colonel  Blood  had  gotten  •  safely  away  with  the  scepter- 
crown,  and  jewels  of  England  and  the  coronation  robes,  he  was  there, 
fore  the  king  of  England,  he  who  was  merely  a  robber  of  her  regalia, 
as  to  say  that  McLin,  the  secretary  of  state,  and  Cowgill,  the  comp 
troller,  conspiring  with  Stearns,  the  governor,  could,  by  falsifying  the 
returns  of  the  election,  and  breaking  the  law  under  which  they  made 
the  canvass,  thereby  say  that  they  spoke  the  voice  of  Florida  in  such 
manner  as  her  legislature  had  directed.  It  is  observed  in  the  certifi 
cate,  No.  2,  of  Call  and  his  associates  that  they  did  notify  Governor 
Stearns,  the  executive  of  the  State,  of  their  appointment  as  electors, 
and  did  apply  and  demand  of  him  to  cause  to  be  delivered  to  them 
three  lists  of  the  names  of  the  electors  of  said  State  according  to  law, 
and  the  said  governor  did  refuse  to  deliver  the  same  to  them. 

There  is  no  doubt  that  by  the  conspiracy  of  McLin,  Cowgill,  and 
Stearns  the  customary  certificate  of  the  election  of  Call  and  his  three 
associates  was  withheld  from  them,  but  did  the  withholding  of  the  certifi 
cate  destroy  the  fact  of  the  election  f  Suppose  no  board  of  canvass  had 
met  and  no  certificates  had  been  issued,  but,  nevertheless,  the  two  sets 
of  electors  had  met  on  December  0,  1876,  and  each  set  assumed  to  dis 
charge  the  functions  of  the  office  by  balloting  for  President  and  Vice- 
President,  and  each  had  sealed  and  certified  and  sent  on  to  Washington 
the  results  of  their  action.  If  it  was  made  subsequently  to  appear  to  the 
satisfaction  of  the  two  Houses  of  Congress,  or  to  the  satisfaction  of  a 
court  of  competent  jurisdiction  in  the  State  of  Florida,  that  one  of  these 
sets  of  electors  had  in  fact  been  lawfully  elected,  and  was  entitled  to 


ELECTORAL   COUNT    OF    1877.  873 

vote  on  the  day  they  did  vote,  would  not  such  vote  and  such  vote  alone 
be  valid,  whether  accompanied  by  certificates  or  not  ? 

The  fact  of  election  and  who  were  really  chosen  by  the  citizens  of 
Florida  as  electors  for  President  and  Yice-President  on  the  7th  of 
November,  1876,  is  certified  to  this  Commission  in  a  manner  conclu 
sive  under  the  Constitution  and  laws  of  the  United  States  and  of  the 
State  of  Florida.  The  power  of  appointment  given  to  the  State  involves 
necessarily  the  power  to  determine  the  manner  in  which  the  act  is  to  be 
done  and  also  the  power  to  verify  its  own  act,  and  showing  that  it 
was  done  in  a  proper  manner.  The  State  is  its  own  best  authority. 
To  adopt  the  language  used  in  argument  before  the  Commission,  the 
State  is  a  political  community  organized  and  existing  under  a  system 
of  law  by  which  the  declaration  of  the  courts  in  matters  submitted  to 
their  jurisdiction  becomes  the  declaration  of  the  State  itself .  The  law  ot 
a  State  is  the  statute  of  a  State  as  construed  and  applied  by  its  courts. 
The  public  laws  of  a  State  promulgated  by  its  authority,  bind  with  ab 
solute  notice  all  persons  within  the  State,  and  form  the  very  highest 
means  of  proof  of  the  action  of  the  State.  By  the  constitution  of  the 
State  of  Florida,  the  circuit  court  and  the  judges  thereof  shall  have 
power  to  issue  writs  of  quo  warranto.  The  election  in  Florida  was  held 
under  the  laws  of  the  State,  controlled  and  managed  by  officers  of  the 
State ;  the  canvass  of  the  votes  of  the  State  was  under  the  laws  of  the 
State  performed  by  officers  of  the  State.  Over  those  officers  and  under 
those  laws,  the  courts  of  the  State  had  by  its  constitution  jurisdiction 
to  examine  and  determine  whether  those  laws  had  been  construed  and 
executed  properly  by  its  executive  and  ministerial  officers. 

To  use  the  definition  of  these  powers  of  the  State  board  of  canvass 
as  given  by  the  supreme  court  of  Florida  in  the  case  of  The  State  ex  rel. 
Drew3  in  December,  1876: 

They  are  authorized  to  enter  no  judgment,  and  their  power  is  limited  by  the  ex 
press  words  of  the  statute,  which  gives  them  being,  to  the  signing  of  a  certificate 
containing  the  whole  number  of  votes  given  for  each  person  for  each  office,  and  therein, 
declaring  the  result  as  shown  by  the  returns. 

The  action  of  the  board  of  canvassers  in  certifying  that  Humphreys 
and  his  associates  had  been  chosen  electors  was  brought  under  review 
in  the  circuit  court  for  the  second  judicial  circuit  of  the  State  of  Florida 
by  information  in  the  nature  of  a  writ  of  quo  warranto ,  wherein  Wil 
kinson  Call  and  his  three  associates  were  relators,  and  Humphreys 
and  his  three  associates  were  respondents,  and  the  circuit  court,  after 
full  consideration  and  proofs  produced  on  behalf  of  the  parties,  in 
cluding  a  careful  and  accurate  recanvass  of  all  the  votes  cast,  deter 
mined  that  the  said  relators  were  in  fact  and  in  law  elected  said  elect 
ors  as  against  the  said  respondents  and  all  other  persons. 

By  the  record  of  the  judicial  proceedings  in  the  courts  of  Florida 
having  jurisdiction  of  the  subject-matter,  and  having  all  these  parties 
claiming  to  have  been  chosen  electors  for  President  and  Vice-President 
before  them,  it  is  made  known  to  this  Commission  that  the  certificate 
of  a  majority  of  the  State  board  of  canvass  of  Florida  that  Hum 
phreys  and  his  three  associates  had  been  chosen  electors  was  not  true ; 
but  by  the  circuit  court  of  said  State  it  was — 

Therefore  considered  and  adjudged  that  said  respondents,  Frederick  C.  Humphreys, 
Charles  H.  Pearce,  William  H.  Holden,  and  Thomas  W.  Long,  were  not,  nor  was  any 
one  of  them  elected,  chosen,  or  appointed,  or  entitled  to  be  declared  elected,  chosen, 
or  appointed  as  such  electors  or  elector,  or  to  receive  certificates  or  certificate  of  elec 
tion  or  appointment  as  such  electors  or  elector,  and  that  the  said  respondents  were  not, 
upon  the  said  6th  day  of  December,  or  at  any  other  time,  entitled  to  assume  or  exer 
cise  any  of  the  powers  and  functions  of  such  electors  or  elector ;  but  that  they  were, 


874  ELECTORAL    COUNT    OF    1877. 

upon  the  said  day  and  date,  mere  usurpers,  and  that  all  and  singular  their  acts  and 
doings,  as  such,  were  and  are  illegal,  null,  and  void. 

And  it  is  further  considered  and  adjudged  that  the  said  relators,  Robert  Bullock, 
Robert  B.  Hilton,  Wilkinson  Call,  and  James  E.  Yonge,  all  and  singular,  were  at  said 
election  dnly  elected,  chosen,  and  appointed  electors  of  President  and  Vice  President 
of  the  United  States,  and  were,  on  the  said  6th  day  of  December,  1876,  entitled  to  be 
declared  elected,  chosen,  and  appointed  as  such  electors,  and  to  have  and  receive  cer 
tificates  thereof,  and  upon  the  said  day  and  date,  and  at  all  times  since,  to  exercise  and 
perform  all  and  singular  the  powers  and  duties  of  such  electors,  and  to  have  and  enjoy 
the  pay  and  emoluments  thereof. 

It  is  further  adjudged  that  said  respondents  do  pay  to  the  relators  their  costs  by 
them  in  this  behalf  expended. 

By  the  Constitution  of  the  United  States,  article  4,  section  1,  it  is  pro- 
Tided  that : 

Fall  faith  and  credit  shall  be  given  in  each  State  to  the  public  acts,  records,  and 
judicial  proceedings  of  every  other  State.  And  the  Congress  may  by  general  laws 
prescribe  the  manner  in  which  such  acts,  records,  and  proceedings  shall' be  proved,  and 
the  effect  thereof. 

In  section  905  of  the  Revised  Statutes  of  the  United  States,  it  is  pro 
vided  that: 

The  said  records  and  judicial  proceedings  so  authenticated  shall  have  such  faith 
and  credit  given  to  them  in  every  court  within  the  United  States  as  they  have  by  law 
or  usage  in  the  courts  of  the  State  from  which  they  are  taken. 

The  courts  of  the  United  States  have,  from  the  origin  of  the  Govern 
ment,  regarded  as  final  all  judgments  of  the  highest  State  courts  over 
matters  and  persons  within  their  jurisdiction.  It  is  not  necessary  for 
me  in  this  presence  to  review  the  authorities  in  the  Supreme  Court 
decisions  from  Mills  vs.  Duryee,  7  Cranch,  481,  to  Township  of  Elmwood 
vs.  Macy,  2  Otto,  289,  in  their  unbroken  effect. 

The  opinion  of  the  court  in  the  last-named  case  was  delivered  by  Mr. 
Justice  Davis,  who  said  : 

We  are  not  called  upon  to  vindicate  the  decisions  of  the  supreme  court  of  Illipois 
in  these  cases,  or  approve  the  reasoning  by  which  it  reached  its  conclusions.  If  the 
questions  before  UH  had  never  been  passed  upon  by  it,  some  of  my  brethren  who  agree 
to  this  opinion  might  take  a  different  view  of  them.  But  are  not  these  decisions  bind 
ing  upon  us  in  the  present  controversy  ?  *  *  *  We  have  always  followed  the 
highest  court  of  the  State  in  its  construction  of  its  own  constitution  and  laws. 

Striking  out  the  name  of  u  Illinois "  and  inserting  the  name  of 
"  Florida "  in  this  last  citation,  what  effect  must  be  given  by  this 
Commission  to  the  judgments  of  the  courts  of  that  State  to  which  I 
have  referred,  and  the  record  of  which  attached  to  the  certificate  is 
now  before  us  ?  How  can  the  laws  of  a  State  be  expounded  with  more 
authority  than  by  its  courts  of  law?  The  judiciary  of  the  State  is  one 
of  the  co-ordinate  branches  of  its  government.  The  interpretation  of 
the  statutes  of  a  State  by  its  superior  court  is  binding  everywhere,  if 
the  judgment  is  conclusive  in  the  State  where  it  was  pronounced. 

Did  the  jurisdiction  attach  in  Florida  in  the  proceeding  against 
Humphreys  and  others  ?  There  can  be  no  doubt  that  under  the  consti 
tution  and  laws  of  Florida  the  court  had  jurisdiction,  had  the  parties 
before  it,  and  entered  judgment  in  accordance  with  the  law  and  the 
facts.  This  proceeding  was  commenced  on  the  day  on  which  both  sets 
of  electors  assumed  to  act,  on  which  day  the  board  of  canvass  rendered  , 
a  decision  which  was  declared  by  the  courts  to  be  erroneous  and  fraudu 
lent,  but  which  did  not  prevent  the  true  electors  from  acting  upon  the 
fact  of  their  election  and  casting  the  votes  according  to  the  Constitution 
and  laws  of  the  United  States.  There  was  in  this  case  no  retroactive 
force  of  law.  The  fact  had  been  determined  on  the  7th  of  November, 
1876,  by  the  citizens  of  Florida  at  tbe  polls,  who  were  the  electors  ;  the 


ELECTORAL    COUNT    OF    13  7.  875 

function  of  elector  was  discharged  by  those  whom  that  election  has 
proven  to  have  been  elected,  on  the  6th  of  December.  It  is  no  case,  as 
has  been  suggested,  of  reconsideration  by  the  tribunals  and  legislature 
of  a  State,  changing  the  result  of  an  election  ;  it  is  no  question  of  viola 
tion  of  the  requirement  of  the  Constitution  that  the  votes  should  all  be 
cast  upon  the  same  day  throughout  the  United  States.  The  votes  were 
cast  on  the  day  named  by  act  of  Congress,  and  shall  it  be  because  some 
false  votes  were  cast  by  pretended  electors  on  the  same  day  that  the 
true  votes  were  cast  by  the  real  electors,  that,  therefore,  the  action  of 
the  latter  is  to  be  nugatory  ?  There  is  no  want  of  performance  of  every 
constitutional  and  legal  requirement  by  Call  and  his  three  associates. 
By  the  judgment  of  the  courts  of  Florida  the  fact  is  conclusively  fast 
ened  upon  the  knowledge  of  this  tribunal,  and  its  effect  is  binding  upon 
them,  that  on  the  7th  day  of  November,  1876,  Wilkinson  Call  and  his 
three  associates  were  duly  and  truly  chosen,  in  the  manner  prescribed 
by  the  legislature  of  the  State  of  Florida,  electors  for  President  and 
Vice- President,  and  that  on  December  6,  1876,  they  lawfully  performed 
the  functions  of  their  said  office,  which  they  certified  duly  to  the  two 
Houses  of  Congress. 

The  subsequent  action  of  the  legislature  of  Florida  in  ordering  a  re- 
canvass  of  the  votes  and  confirming  the  action  of  the  board  of  canvass 
under  the  decree  of  the  court  does  not  change  in  any  degree  the  result 
of  the  election  held  on  the  7th  of  November,  nor  is  it  claimed  that  the 
result  of  that  election  could  be  in  any  respect  changed  by  the  subse 
quent  action  of  the  judiciary  or  the  legislature ;  but  it  is  plain  that  by 
the  certificates  and  records  before  this  Commission  the  State  of  Florida 
has  done  all  in  her  power  to  rid  herself  of  the  fraud  perpetrated  by  a 
board  of  ministerial  officers  in  falsely  canvassing  and  certifying  the 
votes  cast  at  the  election  held  on  November  7,  1876.  By  proceedings, 
in  her  courts  the  same  board  of  canvass  in  Florida,  under  the  order  of 
the  supreme  court  in  the  case  of  the  State  of  Florida  ex  rel.  George  F. 
Drew,  were  compelled  to  return  the  true  vote  showing  the  election  of 
George  F.  Drew  as  governor  and  the  other  State  officers.  Prior  to  the 
action  of  the  supreme  court,  this  canvassiug-board  had  erroneously  and 
fraudulently  returned  Stearns  as  governor,  two  republican  members  of 
Congress,  and  a  republican  legislature.  The  recauvass  being  ordered 
by  the  supreme  court  has  resulted  in  seating  Drew,  the  governor,  a  ma 
jority  of  the  legislature,  and  the  entire  board  of  State  officers,  who  are 
now  regularly  and  peaceably  in  the  control  of  that  State.  The  construc 
tion  given  by  the  supreme  court  of  the  State  to  the  statute  under  which, 
the  State  board  of  canvass  has  assumed  to  act  has  defined  their  duties 
and  their  powers,  and  declared  in  substance  that  they  were  ministerial 
and  not  judicial,  and  that  in  the  rejection  of  the  "  true'7  votes  returned 
to  them  they  had  exceeded  their  authority,  and  their  action  was  conse 
quently  void.  It  is  not  necessary  here  to  recite  the  decision  of  the  court 
in  respect  to  all  the  powers  of  this  board,  except  to  say  that  they  bad 
assumed  powers  not  given  to  them  by  the  statute  under  which  they 
acted,  and  in  regard  to  which  their  action  was  absolutely  void  ;  and 
upon  review  of  their  action,  under  the  statute  as  construed  and  inter 
preted  by  the  court,  the  certificate  made  by  them  of  the  election  of 
Humphreys  and  his  associates  (the  Hayes  electors)  was  found  to  be  un 
warranted  in  law  and  false  in  fact. 

If  the  State  of  Florida  is  to  be  held  to  have  the  power  to  choose 
these  electors,  how  shall  the  voice  of  that  State  be  expressed  I  It  was 
expressed  by  the  election  on  the  7th  of  November  and  the  votes  of  her 
citizens  cast  thereat.  What  that  vote  was,  and  who  were  elected,  are 


876  ELECTORAL    COUNT    OF    18771. 

proven  to  this  Commission  by  the  judgment  of  the  judicial  branch  of 
the  government  of  Florida.  They  have  reached  conclusions  of  law  and 
of  fact  in  relation  to  that  election  which  bind  this  tribunal  as  much  as 
they  bind  every  citizen  of  the  State  of  Florida.  In  confirmation  of  the 
truths  disclosed  by  an  honest  examination  of  the  votes  actually  cast  at 
the  late  election  for  presidential  electors  in  the  State  of  Florida,  comes 
the  public  law  of  the  legislature  of  Florida,  not  assuming  to  change  the 
result  of  that  election,  but  to  declare,  after  careful  canvass  made,  what 
the  result  was  when  the  polls  closed  on  the  7th  of  November,  1876. 

Thus  this  State  has  struggled  to  have  its  own  voice  heard.  Her  peo 
ple  have  spoken  through  the  ballot-box ;  the  State  has  spoken  through 
her  courts ;  the  State  has  spoken  through  the  legislature,  and  the  present 
governor  has  joined  his  certificate  of  regularity  as  to  all  these  proceed 
ings.  The  electors,  declared  by  the  courts  to  have  been  the  true  electors 
on  the  6th  day  of  December,  1876,  Wilkinson  Call  and  his  three  associ 
ates,  have  certified  to  you  the  result  of  their  votes  for  President  and 
Yice-President.  I  know  not  how  a  State  can  speak  save  as  Florida  has 
spoken.  Her  laws  have  been  construed  by  her  courts.  The  facts  of  the 
election  of  November  7,  1876.  have  been  adjudicated  according  to  that 
interpretation  of  her  laws.  The  record  of  those  judicial  proceedings  in 
due  form  is  now  before  this  Commission  and  appended  to  the  certificates 
of  the  Tiki  en  electors.  Shall  they  be  received  or  shall  they  be  rejected  ? 
Will  this  Commission  take  heed  of  the  true  fact  of  election,  or  will  they 
hold  themselves  bound  by  a  certificate  of  ministerial  officers,  which  has 
been  proven  in  the  judicial  courts  of  the  State  to  be  erroneous,  if  not 
fraudulent,  and  which  by  the  laws  of  the  State  is  declared  to  beprima- 
facie  evidence  only  1  Whatever  of  force  that  certificate  would  have  had 
prima  facie  has  disappeared  forever  under  the  judgment  of  a  court  ot 
competent  jurisdiction,  in  which  the  facts  set  forth  in  that  certificate 
were  brought  into  controversy  and  have  been  determined  according  to 
the  laws  of  the  State  of  Florida. 

It  seems  to  me  that  in  deciding  which  of  these  two  returns  is  the  true 
and  lawful  return,  there  cannot  be  in  the  mind  of  lawyer  or  layman  any 
reasonable  doubt.  If  a  State  cannot  succeed  by  the  united  voices  of  its 
three  branches,  executive,  legislative,  and  judicial,  in  establishing  a  fact 
transacted  under  its  own  laws  and  within  its  own  limits,  it  is  idle  to  talk 
of  State  existence  or  State  rights.  By  the  three  departments  of  her 
government  Florida  has  essayed  to  make  her  will  known.  Those  mute 
witnesses  of  the  truth  of  the  late  election  in  Florida,  those  silent  pieces 
of  paper  upon  which  were  written  or  printed  the  names  of  the  persons 
voted  for,  are  in  existence.  They  have  been  canvassed  and  compiled, 
and  the  result  is  before  this  tribunal ;  and  that  result  proclaims  that  in 
fact  and  in  law  Call  and  his  three  associates  did  receive  a  majority  ot 
the  true  votes  cast  on  November  7,  1876,  for  the  office  of  electors  of 
President  and  Vice-President.  The  question  is  whether  the  State  of 
Florida  shall  have  her  vote  received  or  not.  At  any  rate  I  would  ask 
if  this  Commission  will  not  suffer  Florida  to  be  represented  by  those 
votes  which  by  every  department  of  her  government  she  has  certified  to 
you  to  be  true ;  will  you  not  at  least  spare  her  the  additional  wrong  of 
misrepresentation  ?  If  her  true  voice  is  to  be  smothered,  do  not,  I  beg 
of  you,  permit  the  false  voice  to  be  heard. 

CASE   OF  LOUISIANA. 

On  Tuesday,  February  13,  the  Commission  met  at  eleven  o'clock  to 
consider  the  case  of  the  electoral  votes  of  the  State  of  Louisiana,  two 


ELECTORAL    COUNT    OF   1877  877 

certificates  purporting  to  be  the  certificates  of  electoral  votes  having  been 
opened  by  the  President  of  the  Senate  in  the  presence  of  the  two  Houses, 
certificate  No.  1  of  William  Pitt  Kellogg  and  his  seven  associates  claim 
ing  to  have  been  duly  chosen  electors  for  President  and  Vice-President 
for  that  State,  certified  by  the  said  Kellogg  as  governor  of  the  State, 
and  certificate  No.  2  of  Robert  0.  Wickliite  and  his  seven  associates, 
certified  by  John  McEuery  as  governor  of  the  State  of  Louisiana.  Ob 
jections  to  the  Kellogg  certificate  were  duly  made  by  members  of  the 
Senate  and  House  of  Representatives,  stating  in  substance  that  there  was 
on  the  7th  day  of  November,  1876,  no  law  or  joint  resolution  of  the  legis 
lature  of  Louisiana  in  force  directing  the  manner  in  which  the  electors 
for  said  State  should  be  appointed,  because  if  any  law  was  in  existence 
clirecting  the  appointment  of  electors  it  was  an  act  of  the  legislature 
which  directed  that  the  electors  should  be  appointed  by  the  people  ot 
the  State  in  their  primary  capacity  at  an  election  held  on  a  day  certain 
at  particular  places  and  in  a  certain  way:  that  the  people  of  the  State, 
in  accordance  with  the  legislative  direction,  had  elected  Robert  0.  Wick- 
liffe  and  his  seven  associates  by  a  very  large  majority  of  the  votes  5 
that  the  said  William  Pitt  Kellogg  and  his  seven  associates  were  not  in 
fact  and  in  law  chosen  electors,  but  that  the  said  certificate  of  their 
election  by  the  said  Kellogg  was  false  in  fact  and  fraudulently  made  by 
him  with  the  full  knowledge  of  his  seven  associates  claiming  to  be 
electors  ;  that  the  pretended  canvass  of  the  votes  of  the  people  of  the 
State  of  Louisiana,  made  by  Madison  Wells,  Anderson,  Casanave,  and 
Kenner,  as  returning-officers  of  said  election,  was  without  jurisdiction 
and  void ;  that  the  statutes  under  which  the  said  returning-officers 
claimed  to  have  derived  their  authorit3r  gave  them  no  jurisdiction  what 
ever  to  make  the  returns  or  canvass  and  compile  the  statements  of  votes 
cast  for  electors  for  President  and  Vice-President;  that  even  if  the  statutes 
should  be  construed  as  conferring  such  jurisdiction  upon  the  returning- 
officers  to  appoint  electors,  they  are  in  conflict  with  the  constitution  of  the 
State  of  Louisiana,  which  requires  the  electors  to  be  appointed  by  the 
State;  that  the  said  returning- board  was  not  constituted  according  to  law, 
because  it  did  not  contain  the  elements  required  by  law ;  that  the  action 
of  the  said  returning-officers  was  false  and  fraudulent;  that  perjury 
was  committed  with  their  knowledge,  and  at  their  instance,  by  which 
the  lawful  vote  of  the  people  of  Louisiana  was  overthrown  and  disre 
garded  ;  that  the  lawful  returns  of  votes  were  subtracted  and  suppressed 
and  their  places  supplied  by  forged  returns  made  at  the  instance  and 
request  of  the  said  members  of  the  returning-board  ;  that  two  of  the  per 
sons  claiming  to  have  been  appointed  electors,  A.  B.  Levissee  and  O. 
H.  Brewster,  were  at  the  time  of  their  alleged  election,  on  the  7th  of 
November  and  subsequently,  persons  holding  offices  of  trust  and  profit 
under  the  United  States;  that  there  was  no  canvass  of  votes  of  the 
State  of  Louisiana  made  in  accordance  with  the  constitution  and  laws 
of  that  State  on  which  certificates  of  election  were  issued  unto  the  said 
Kellogg  and  his  seven  associates;  and  that  the  alleged  canvass  on 
which  the  certificates  were  issued  to  said  Kellogg  was  founded  on  an 
act  of  usurpation  by  the  board  of  returning-officers,  and  was  fraudulent 
and  void. 

Senator  BAYARD  said: 

The  Constitution  of  the  United  States  provides  that  "  each  State  shall 
appoint,  in  such  manner  as  the  legislature  thereof  may  direct,  a  number 
of  electors."  The  same  Constitution  requires  that  each  State  of  this 
Union  shall  have  a  government  republican  in  form,  which  is  guaranteed 
by  the  United  States.  The  power  to  appoint  electors  is  thus  plainly 


878  ELECTORAL    COUNT   OF    1877. 

vested  in  that  political  entity  of  our  system  called  a  republican  State, 
a  government  popular  in  form  and  representative  in  its  character, 
and  which  can  speak  only  by  its  agents  and  through  its  laws.  The 
fundamental  law  of  a  State  exists,  under  our  system,  in  a  written  consti 
tution,  which  is  created  by  the  sovereign  power  of  the  people  acting  in 
their  primary  capacity  of  self-government,  and  represented  under  our 
republican  theory  by  a  majority  of  the  citizens.  Until  the  fundamental 
law  represented  in  the  written  constitution  of  a  State  shall  have  been 
repealed,  it  must  be  accepted  as  the  highest  expression  of  the  will  of 
the  State  upon  the  subjects  to  which  it  relates.  The  limitations  it  con 
tains  over  the  powers  of  the  various  departments  and  officers  of  the 
State  are  all  to  be  maintained  and  respected. 

In  this  view  the  execution  of  the  power  and  duty  of  the  State  to  ap 
point  electors  for  President  and  Vice-President  is  the  substantial  fact, 
and  the  action  of  the  State's  legislature  is  the  mere  modus  or  manner  of 
the  State's  performance.  I  do  not  hold  that  the  Constitution  of  the 
United  States  contemplated  the  deposit  in  the  "  legislature  n  of  a  State 
of  the  control  of  the  appointment  of  electors  as  a  body  distinct  from  the 
State  itself,  with  power  to  act  independently  and  regardless  of  the  ar 
rangements  of  the  constitution  of  the  State.  All  power  vested  in  the 
legislature  of  a  State  is  defined  and  limited  by  the  State  constitution, 
and  all  laws  passed  by  any  State  legislature  in  violation  of  the  consti 
tution  of  the  State  are  as  absolutely  void  as  if  passed  in  violation  of  the 
Constitution  of  the  United  States,  which  is  the  supreme  law  of  the  land. 
The  legislature  of  a  State,  being  therefore  merely  one  department  of  the 
State  government,  and  clearly  subordinate  to  the  will  of  the  State,  as 
expressed  in  its  constitution,  cannot  give  validity  to  any  statute  which 
violates  the  principles  of  republican  government  in  the  State  or  deprives 
the  people  of  that  State  of  their  rights  intended  to  be  secured  against 
encroachment  by  any  of  their  rulers  or  officials  by  the  terms  of  their 
written  constitution  and  charter  of  powers. 

The  constitution  of  the  State  of  Louisiana,  in  article  98,  prescribes 
that— 

Every  male  person,  of  the  age  of  twenty-one  years  or  upward,  born  or  naturalized 
in  the  United  States,  and  subject  to  the  jurisdiction  thereof,  and  a  resident  of  this 
State  one  year  next  preceding  an  election,  and  the  last  ten  days  within  the  parish  in 
\vhich  he  offers  to  vote,  shall  be  deemed  an  elector,  except  those  disfranchised  by  this 
constitution,  and  persons  under  interdiction. 

Article  103  prescribes  that — 

The  privilege  of  free  suffrage  shall  be  supported  by  laws  regulating  elections,  pro 
hibiting  under  adequate  penalties  all  undue  influence  thereon  from  bribery,  tumult,  or 
other  improper  practice. 

Under  these  safeguards  and  qualifications  the  right  of  suffrage  in  Lou 
isiana  is  intended  to  be  exercised,  and  cannot  lawfully  be  diminished  or 
destroyed  by  the  action  of  the  legislature  or  its  agents.  The  right  to 
vote  would  be  an  empty  and  idle  form  if  not  accompanied  by  the  right 
to  have  such  vote  counted;  and  yet  the  result  of  the  arguments  to  which 
we  have  listened,  and  the  examination  of  the  constitution  and  laws  of 
the  State  of  Louisiana  which  it  has  induced  me  to  make,  has  been  to 
satisfy  me  that  the  provisions  of  the  constitution  of  Louisiana  intended 
to  secure  and  promote  the  privilege  of  free  suffrage  in  that  State  are 
utterly  nugatory  if  the  law  of  November  20, 1872,  entitled  "An  act  to 
regulate  the  conduct  and  to  maintain  the  freedom  and  purity  of  elec 
tions,"  &c.,  shall  be  executed  as  it  evidently  has  been  by  the  State  board 
of  canvass  created  by  the  second  section,  simply  because  it  is  shown  by 
the  oilers  of  evidence  made  in  this  case  to  this  Commission,  and^hich, 


ELECTORAL    COUNT    OF    1877.  879 

for  the  purpose  or  the  present  argument,  must  be  considered  as  proven, 
that,  notwithstanding  upward  of  five  thousand  State  officials,  registrars, 
and  commissioners  of  election  were  appointed,  being  an  average  of 
nearly  one  official  for  every  thirty  voters  in  the  State,  all  selected  un 
der  the  authority  of  the  governor  of  the  State  and  removable  at  his 
will,  all  selected  to  obey  and  represent  the  will  of  one  only  of  the  polit 
ical  parties  in  the  State,  notwithstanding  that  in  addition  to  this  force 
nearly  twenty-five  hundred  United  States  marshals  were  selected  from 
the  same  party  and  for  the  same  political  interest,  notwithstanding  the 
presence  of  large  detachments  of  troops  of  the  United  States  under  the 
same  control;  having  thus  entire  control  of  the  registration  of  all  the 
voters  of  the  State,  in  which  no  interference  by  the  courts  was  per 
mitted,  having  every  voting-place,  every  registration-list,  and  all  police 
authority  exclusively  in  the  hands  of  their  own  party,  a  returning-board, 
imperfect  in  its  numbers  and  still  more  imperfect  in  its  political  com 
position  under  the  law  was  enabled  not  only  to  obstruct  but  wholly  to 
overthrow  the  results  of  the  exercise  of  that  free  suffrage  which  the 
constitution  of  the  State  was  intended  to  secure  to  its  citizens,  and  to 
convert  a  majority  of  nearly  ten  thousand  votes  in  favor  of  the  candi 
dates  of  one  of  the  political  parties,  as  clearly  established  by  the  ballots 
cast  and  still  in  existence,  as  well  as  by  the  duplicate  returns  of  the 
elections  which  did  not  reach  the  hands  of  the  State  returning-board  of 
canvass,  into  a  majority  of  three  thousand  and  upward  for  the  defeated 
candidates.  In  such  a  state  of  facts,  which,  let  me  ask,  shall  be  held 
to  represent  the  State  of  Louisiana;  her  constitution,  commanding  "that 
the  privilege  of  free  suffrage  shall  be  supported  by  laws  regulating  elec 
tions,  and  prohibiting  under  adequate  penalties  all  undue  influence 
thereon  from  power,  bribery,  tumult,  or  other  improper  practices,"  or  an 
act  of  the  legislature,  practically  overthrowing  the  constitution  and 
placing  the  whole  power  and  result  of  elections  in  the  hands  of  a  board 
of  returning-officers,  whose  duty  is  succinctly  defined  and  expressed  in 
their  oath  of  office  to  "  carefully  and  honestly  canvass  and  compile  the 
statements  of  the  votes,"  and  from  whom  the  constitution  expressly  with 
held  judicial  powers  I 

What  is  the  "  manner"  in  which  the  State  of  Louisiana  has  directed 
her  electors  for  President  and  Vice-President  to  be  chosen  f  By  the 
popular  vote  according  to  the  provisions  of  her  constitution ;  and  if  it 
shall  appear  that  the  legislature  have  disregarded  and  violated  this  pro 
vision  of  the  constitution,  is  it  not  our  plain  duty  to  respect  the  consti 
tution  and  not  the  law  passed  in  violation  thereof? 

But  in  the  case  before  us  we  are  not  called  upon  by  the  facts  offered 
to  be  proven  to  us  to  decide  between  a  law  and  the  constitution  under 
which  it  is  assumed  to  have  been  passed,  because  we  are  asked  by  those 
who  propose  that  we  should  receive  the  certificate  of  William  Pitt  Kellogg 
and  his  seven  associates  as  being  the  true  and  lawful  electoral  votes  of 
the  State  of  Louisiana  to  shut  our  eyes  to  the  plainest  violations  and 
overthrow,  not  only  of  the  constitution  of  the  State,  and  the  system  of 
free  popular  government  it  was  intended  to  secure,  but  also  of  the  statute' 
under  which  the  returning-board  profess  to  find  warrant  for  their  action. 

It  has  been  admitted  that  the  election  of  November  7,  1876,  in  Louis 
iana  was  held  under  the  law  of  November  20, 1872,  and  1  propose  briefly 
to  consider  the  powers  and  duties  of  the  State  returniug-board  of  can 
vassers  under  that  act.  In  the  first  place,  as  to  the  quorum  who  as 
sumed  to  act.  The  general  object  of  the  law  (see  section  103  of  the 
constitution)  is  alleged  to  be  "to  support  the  privilege  of  free  suffrage." 
Section  2  provides  that  the  number  of  the  board  shall  be  five  persons, 


880  ELECTORAL    COUNT    OF    1877. 

and  that  it  shall  be  composed  of  "  all  political  parties."  A  majority  of  the 
board  "  shall  coostitute  a  quorum,  and  have  power  to  make  the  returns 
of  all  electors." 

In  case  of  any  vacancy  by  death,  resign ation,  or  otherwise,  by  either  of  the  board, 
then  the  vacancy  shall  be  filled  by  the  residue  of  the  board  of  returning-officers. 

It  is  a  public  fact  and  embraced  in  the  offers  of  proof  to  this  Commis 
sion  that  four  persons  only  for  two  years  and  upward  have  composed 
the  board,  which,  by  the  language  of  the  act,  shall  consist  of  five  per 
sons;  that  all  of  these  four  were  members  of  the  republican  party;  and 
that  although  86,000  registered  voters  and  citizens  of  the  democratic 
party  are  in  the  State  of  Louisiana,  not  one  of  them  has  ever  been 
elected  to  fill  the  vacancy,  although  it  is  also  shown  the  demand  has 
been  made  frequently,  and  always  in  vain,  on  the  part  of  the  democratic 
party  to  have  the  vacancy  on  the  board  filled  by  one  of  their  members. 

In  thus  requiring  the  board  to  consist  of  "  all  political  parties,"  there 
was  a  recognition  of  the  usage  and  actual  state  of  affairs  throughout 
the  United  States  as  to  party  lines.  No  one  denies  that  this  country  is 
potentially  governed  by  political  parties,  and  that  party  organization  is 
usually  necessary  for  the  success  of  any  public  object.  The  laws  of 
every  State  in  the  Union,  in  response  to  the  American  demand  for  fair 
play  and  justice,  and  in  recognition  of  the  existence  of  political  parties, 
provide  that  all  parties  shall  be  represented  upon  a  political  board  of 
canvass  or  of  election.  The  laws  of  the  United  States  appointing  super 
visors  by  the  circuit  courts  of  the  United  States  provide  that  they  shall 
be  of  different  political  parties.  It  is  therefore  reasonably  argued  by 
the  objectors  to  the  action  of  the  Louisiana  re  turning-board  that  their 
refusal  to  obey  the  mandate  of  the  law  to  fill  the  vacancy  so  that  all  parties 
should  be  represented  in  the  board  is  of  itself  proof  of  fraud.  The 
law  upon  this  subject  was  well  laid  down  by  Mr.  Justice  Miller,  a  mem 
ber  of  this  Commission,  in  the  case  of  Schenck  vs.  Peay,  1  Woolworth's 
Circuit  Court  Beports,  175  : 

We  understand  it  to  be  well  settled  that  where  authority  of  this  kind  is  conferred 
on  three  or  more  persons  in  order  to  make  its  exercise  valid,  all  must  be  present  and 
participate,  or  have  an  opportunity  to  participate,  in  the  proceedings,  although  some 
may  dissent  from  the  action  determined  on.  The  action  of  two  out  of  three  commis 
sioners,  to  all  of  whom  was  confided  a  power  to  be  exercised,  cannot  be  upheld  when 
the  third  party  took  no  part  in  the  transaction  and  was  ignorant  of  what  was  done,  gave 
no  implied  consent  to  the  action  of  the  others,  and  was  neither  consulted  by  them  nor  had  any 
opportunity  to  exert  his  legitimate  influence  in  the  determination  of  the  course  to  he  pursued. 
Such  is  the  uncontradicted  course  of  the  authorities,  so  far  as  iveare  advised,  where  the  power 
conferring  the  authority  has  not  prescribed  a  different  rule. 

In  order  to  constitute  a  valid  quorum  of  the  returning-board,  which, 
under  the  act,  may  consist  of  three  persons,  such  quorum  shall  contain 
the  different  and  integral  parts  necessary  for  the  composition  of  the 
original  board  ;  in  other  words,  that  the  quorum  of  three  in  order  to  act 
in  accordance  with  the  law  shall  contain  u  all  parties"  in  its  composi 
tion,  and  for  want  of  such  composition  its  action  would  be  invalid.  All 
four  of  the  members  of  the  board  being  republicans  and  no  democrat 
being  allowed  to  take  part  in  its  action,  it  was  defective  in  an  element 
essential  to  its  lawful  existence,  and  which  was  equally  demanded  by 
common  decency  as  well  as  the  law. 

The  duty  of  the  board  when  duly  organized  is  "  carefully  and  honestly 
to  compile  the  statements  of  the  votes,  and  make  a  true  and  correct 
return  of  the  election,"  as  is  set  forth  in  their  official  oath.  They  are 
to  meet  within  ten  days  after  the  closing  of  the  election  to  canvass 
and  compile  u  the  statements  of  votes  made  by  the  commissioners  of  election, 
and  make  returns  to  the  secretary  of  state.  The  canvass  and  compile 


ELECTORAL    COUNT    OF    1877.  831 

tion  shall  be  made  from  the  statements  of  the  commissioners  of  election, 
whose  returns  are  to  be  opened  by  the  presiding  officer  of  the  board  in 
its  presence.  From  such  statements  the  canvass  is  to  be  made ;  and  no 
authority  is  given  for  any  compilation  excepting  from  the  statements  of 
the  commissioners  of  election.  They  shall  canvass  and  compile  the  re 
turns  of  election  from  all  polls  or  voting-places  at  which  there  shall 
have  been  a  fair,  and  free,  and  peaceable  registration  and  election  ;  and 
no  jurisdiction  is  given  to  them  to  question  the  statements  of  the  com 
missioners  of  election  as  returned,  except  as  provided  by  section  26  of 
the  same  act.  By  section  26  it  is  provided  that  if  riot,  tumult,  acts  of 
violence,  intimidation,  and  disturbance,  bribery  or  corrupt  influences 
shall  occur  and  prevent  or  tend  to  prevent  a  fair,  free,  peaceable,  and 
full  vote  of  all  the  qualified  electors,  it  shall  be  the  duty  of  the  commis 
sioners  of  election,  if  such  occurrences  shall  take  place  on  the  day  of 
election,  or  of  the  supervisor  of  registration  of  the  parish,  if  they  have 
occurred  during  the  time  of  registration,  (which  is  sixty  days  prior  to 
the  day  of  election,)  to  make  in  duplicate  and  under  oath  a  clear  and  full 
statement  of  all  the  facts  relating  to  such  riot,  tumult,  &c.,  and  state 
the  effect  produced  by  such  riot,  tumult,  &c.,  and  the  number  of  quali 
fied  voters  who  were  deterred  by  such  acts  of  riot  and  tumult  from 
registering  or  voting ;  and  such  statements  shall  be  corroborated  under 
oath  by  three  respectable  citizens,  qualified  electors  of  the  parish,  and 
shall  be  forwarded  by  the  commissioner  of  election  or  supervisor  of  reg 
istration  in  duplicate  to  the  supervisor  of  registration  in  the  parish,  and 
if  in  the  city  of  New  Orleans,  to  the  secretary  of  state,  one  copy  of 
which  shall  be  forwarded  to  "  the  returning- officers  provided  for  in  sec 
tion  2  of  this  act."  The  commissioner  of  election  shall  annex  his  copy 
of  such  statement  "  to  his  returns  of  election,  by  paste,  wax,  or  some 
adhesive  substance,"  so  that  the  same  can  be  kept  together ;  and  the 
other  copy  shall  be  delivered  to  the  clerk  of  the  court  of  the  parish  for 
the  use  of  the  district  attorney. 

It  will  therefore  be  observed  that,  in  order  to  institute  any  question 
by  the  returning-board  or  to  give  them  any  pretense  for  the  exercise  of 
any  other  than  the  ministerial  power  to  canvass  and  compile  the  votes 
from  the  statements  before  them  under  the  hand  of  the  commissioners 
of  election,  it  is  essential  that  they  shall  have  such  statements  corrob 
orated  under  oath,  as  is  provided  by  the  law,  and  in  the  absence  of 
such  statements  made  and  returned  according  to  law  they  are  wholly 
without  authority  or  jurisdiction  to  examine  into  or  determine  any 
facts  that  occur  on  the  day  of  the  election  in  any  part  of  the  State,  or 
to  exercise  any  power  whatever  in  changing  the  result  of  the  votes  as 
sealed  and  certified  under  the  statements  of  the  commissioners  of  the 
election. 

A  commissioner  of  election,  it  will  be  observed,  can  make  no  state 
ment  of  riot,  &c.,  unless  it  occurs  on  the  day  of  the  election,  and  he  must 
make  it  at  the  time  and  in  the  manner  provided  by  law.  It  must  be 
made  while  the  facts  are  fresh  upon  his  mind,  and  his  statement  must 
accompany  his  return  of  the  vote,  which  shall  be  within  twenty-four 
hours  after  the  closing  of  the  polls.  His  return  shall  be  forwarded  to 
the  supervisor.  The  supervisor  shall  consolidate  and  forward  the  said 
report  and  returns  to  the  returning-board  within  twenty-four  hours ; 
giving  therefore  forty-eight  hours  after  the  close  of  the  election  for  the 
returns  to  be  forwarded  to  the  board  of  canvass,  accompanied  by  the 
statements  of  the  commissioners  of  election,  the  presence  of  which  affi 
davits  and  statements  of  riot  and  disorder  can  alone  create  any  juris- 
56  E  C 


882  ELECTORAL    COUNT    OF    1877. 

diction  or  warrant  for  any  examination  into  the  facts  attending  the 
election  by  the  board  of  State  canvassers. 

The  statements  of  the  registrars  of  election  must  relate  to  occurrences 
within  the  sixty  days  preceding  the  day  of  the  election ;  and  such  state 
ments  must  be  forwarded  within  forty-eight  hours  after  the  polls  have 
closed,  as  is  prescribed  for  the  statements  of  the  commissioners  of  elec 
tion,  and  likewise  a  copy  filed  in  the  office  of  the  county  clerk  for  the 
use  of  the  district  attorney,  and,  it  may  here  be  remarked,  not  only  for 
the  use  of  the  district  attorney,  but  as  a  notification  to  any  person, 
being  a  candidate  for  office  and  interested  in  the  election,  who  shall, 
under  the  provisions  of  section  3,  be  allowed  a  hearing  before  the  re- 
turning-officers  upon  making  application  within  the  time  allowed  for 
the  forwarding  of  the  returns  of  said  election,  that  is,  within  forty-eight 
hours  after  the  close  of  the  election. 

It  is  therefore  obvious  that  in  order  to  warrant  any  examination  as  is 
provided  by  section  3  into  allegations  of  riot,  tumult,  violence,  &c.,  at 
the  different  voting-places  by  the  board  of  returning-officers,  and  justify 
the  slightest  alteration  of  the  returns  or  rejection  of  votes,  it  is  essential 
for  the  protection  of  the  citizens,  of  the  rights  of  the  candidates,  for  the 
purpose  of  public  justice,  that  such  statements  shall  be  made  in  sub 
stance,  and  within  the  time,  and  authenticated  in  the  manner  provided 
by  the  law,  and  not  otherwise. 

Chief-Justice  Marshall,  in  Thatcher  vs.  Powell,  6  Wheaton,  119,  lays 
down  the  rule  for  the  execution  of  statutory  power,  even  when  exercised 
by  a  judicial  court: 

In  summary  proceedings,  where  a  court  exercises  an  extraordinary  power  under  a 
special  statute  prescribing  its  course,  we  think  that  course  ought  to  be  exactly  observed 
and  those  facts  which  give  jurisdiction  ought  to  appear  in  order  to  show  that  its  proceed 
ings  are  coram  judice.  Without  this  act  of  assembly  the  order  for  s?le  would  have  been 
totally  void.  This  act  gives  the  power  only  on  a  report  to  be  made  by  the  sheriff.  This 
report  gives  the  court  jurisdiction,  and  without  it  the  court  is  as  powerless  as  if  the  act 
had  never  been  passed. 

The  offer  of  proof  to  this  Commission  goes  to  the  extent  that  not  a 
single  jurisdictional  fact  existed  to  authorize  the  action  of  the  returning- 
board  in  excluding  votes  in  the  several  parishes. 

In  the  case  before  the  supreme  court,  above  cited,  the  power  of  sale 
could  only  be  exercised  upon  a  "  report  made  by  the  sheriff." 

In  the  case  of  Louisiana  the  investigation  by  the  returning-board  of 
alleged  riot,  &c.,  at  the  polls  could  only  be  made  upon  the  sworn  and 
corroborated  statements  sent  up  within  forty-eight  hours  after  the 
closing  of  the  polls  by  the  commissioners  of  election,  or  the  registrars. 

No  such  sworn  statement  as  is  provided  by  law  accompanied  the  re 
turns  in  a  single  instance,  and  no  jurisdiction  consequently  existed  to 
investigate  and  exclude  polls  or  votes  except  u  in  the  course  exactly  "  pro 
vided  by  the  statute. 

The  proceedings  of  the  returning-board  show  that  they  disregarded 
the  statute  under  which  they  pretended  to  act  and  under  which  alone 
they  had  any  claim  to  jurisdiction,  in  almost  every  particular;  not 
only  did  they  refuse  to  elect  any  member  of  the  democratic  party, 
representing  more  than  one-half  of  the  voters  of  the  State,  to  fill  the 
vacancy  existing  for  two  years  in  the  board ;  but  they  did  not  in 
a  single  case  canvass  and  compile  the  returns  of  election  from  the 
"  statements  of  the  commissioners  of  election"  as  prescribed  by  law; 
in  the  case  of  every  poll  and  voting-precinct  they  compiled  their  re 
turns  from  the  consolidated  statements  of  the  supervisors  of  registra 
tion,  which  they  had  no  right  to  consider,  disregarding  entirely  the 
statements  of  the  commissioners  of  election  which  alone  they  were 


ELECTORAL   COUNT   OF    1877.  883 

warranted  to  consider.  The  powers  of  investigation  given  them  in  sec 
tion  3  of  the  act  could  only  be  exercised  in  such  cases  in  which  the  re 
turns  of  the  commissioners  had  been  accompanied  by  statements  under 
oath  from  the  commissioners  of  election  or  the  supervisors  of  registra 
tion  ;  yet  it  is  proven  that  in  not  a  single  case  were  the  returns  accom 
panied  by  such  statements  as  alone  could  warrant  the  returniug-board 
in  instituting  investigation  into  the  facts  of  alleged  riot  and  disorder  at 
the  voting-places  ;  that  in  fact  the  returning-board  in  making  its  pre 
tended  canvass  did  not  receive  from  any  poll,  voting-place,  or  parish  in 
the  State,  nor  have  before  them  any  statement  as  required  by  section 
26  of  the  law  and  which  was  an  essential  prerequisite  to  the  assumption 
or  exercise  of  any  jurisdiction  whatever  by  the  board  in  the  investiga 
tion  or  consideration  of  any  alleged  disorders  at  the  polls.  Not  only  so, 
but  in  the  prosecution  of  their  unwarranted  investigations  they  refused 
to  receive  or  consider  evidence  which  is  now  offered  to  this  Commission 
to  show  that  the  supervisors  of  registration  fraudulently  omitted  from 
their  consolidated  statements  any  mention  of  votes  given  at  certain 
polls  and  voting-places  within  their  respective  parishes,  so  that  in  can 
vassing  and  compiling  the  returns  of  election  from  the  consolidated 
statements  of  the  supervisors  of  registration,  (for  which  they  had  no 
legal  warrant,)  the  returning-board  carried  into  their  canvass  and  com 
pilation  the  numerous  and  glaring  frauds  committed  by  the  supervisors 
of  registration  in  making  their  consolidated  statements. 

It  is  clear  that  the  law  of  Louisiana  required  the  canvass  and  compi- 
ation  of  the  returns  of  election  to  be  made  from  the  returns  of  the 
commissioners  of  election,  and  which  only  could  be  questioned  by  the  re- 
turning-board  when  they  were  accompanied  by  statements  of  violence, 
riot,  &c.,  made  and  forwarded  in  accordance  with  the  law  5  but  by  un 
lawfully  adopting  the  consolidated  statements  of  the  supervisors  of 
registration  the  returning-board  willfully  adopted  the  known  frauds  of 
omission  of  votes  cast  in  several  parishes  committed  by  the  supervisors  j 
and  when  such  frauds,  contained  in  the  consolidated  statements,  were 
exposed  and  shown  to  the  returuing-board,  and  compared  with  the 
statements  of  the  commissioners  of  election,  they  willfully  and  fraudu 
lently  refused  to  make  any  canvass  of  the  true  majorities  shown  by  the 
statements  of  the  commissioners  of  election  j  that  not  having  any 
statements  by  supervisors  of  registration  or  commissioners  of  election, 
supported  by  affidavit  as  required  by  law,  the  returuing-board,  without 
pretense  of  authority,  threw  out  the  entire  vote  cast  at  different  vot 
ing-places,  and  sometimes  that  of  an  entire  parish ;  and  that  in  fact  the 
only  returns  being  those  of  the  commissioners  of  election,  which  by  the 
laws  of  Louisiana  should  have  been  canvassed  and  compiled,  never 
were  canvassed  or  compiled  by  the  returning-board  at  all. 

The  offers  of  proof  contain  a  catalogue  of  specified  crimes,  embracing 
perjury,  forgery,  subornation  of  perjury,  and  conspiracy,  resorted  to  by 
this  returning-board  for  the  purpose  and  with  the  result  of  defeating 
the  constitution  and  the  laws  of  the  State  of  Louisiana  and  of  depriving 
that  State  of  her  right  under  the  Constitution  to  appoint  electors  for 
President  and  Yice-President. 

The  case  presented  for  our  consideration  is  whether  we  will  sustain 
the  Constitution  and  the  right  of  the  State  of  Louisiana  under  it  to 
have  the  voice  of  her  people,  as  proclaimed  at  the  election  held  on  No 
vember  7, 1876,  hearkened  unto  and  obeyed,  or  whether  we  will  permit 
this  false  personation  of  the  State,  a  band  of  infamous  men  and  treach 
erous  officials,  to  palm  off  upon  the  State  of  Louisiana  and  upon  every 
State  in  this  Union 'eight  false  electoral  votes,  and  by  such  votes  deter- 


884  ELECTORAL    COUNT    OF    1877. 

mine  the  possession  of  the  executive  power  of  this  Government  for  the 
next  four  years,  and  whether  we  as  men  sworn  to  examine  and  consider 
all  questions  submitted  to  this  Commission  agreeably  to  the  Constitu 
tion  and  the  law,  shall  in  the  full  view  of  such  a  condition  of  law  and 
fact  as  I  have  described  set  our  hands  to  the  statement  that  the  electo 
ral  votes  of  Kellogg  and  his  seven  associates,  so  manufactured  by  this 
usurping  and  lawless  returning-board,  are  u  the  votes  provided  for  by 
the  Constitution  of  the  United  States,"  and  that  these  eight  persons  were 
u  duly  appointed  electors  in  such  State." 

It-  is  beyond  my  comprehension  how,  in  the  name  of  the  State  of 
Louisiana  and  the  rights  of  her  people,  such  a  decision  can  be  reached, 
or  how  in  the  name  of  the  people  of  all  the  States  of  this  Union,  under 
the  Constitution  of  the  United  States  we  can  say,  as  members  of  this 
Commission  or  in  our  respective  places  in  either  House  of  Congress, 
that  such  votes  are  the  lawful  votes  provided  for  by  the  Constitution  and 
laws,  and  that  they  should  be  counted.  Such  a  decision,  I  must  frankly 
say,  will  shock  the  moral  sense  of  the  country  and  startle  all  men  who 
believe  in  law  and  justice  as  controlling  influences  in  this  Republic. 

It  has  been  stated  by  counsel  who  appeared  before  this  Commission 
on  behalf  of  the  Kellogg  electors  that  the  gross  and  fraudulent  dis- 
franchisement  of  many  thousands  of  citizens  of  Louisiana  by  the  return- 
iug-board  has  been  equaled  or  surpassed  in  its  effect  upon  the  popular 
vote  in  Louisiana  by  the  bloody  hands  of  the  democratic  party.  With 
out  pausing  to  comment  upon  this  allegation  of  facts,  of  which  no  evi 
dence  has  been  offered — and  certainly  none  is  attached  to  the  papers 
opened  by  the  President  of  the  Senate  in  the  presence  of  the  two  Houses 
and  transmitted  to  this  Commission — without  doing  more  than  merely 
to  note  the  strange  inconsistency  of  nearly  every  speaker,  whether  coun 
sel  or  objector,  whether  Senator  or  Member  of  the  House  of  Represent 
atives,  who  has  appeared  before  us,  whose  arguments  or  speeches  have 
invariably  closed  with  the  most  wholesale  assertions  of  violence  and 
intimidation  throughout  the  State  of  Louisiana,  always  alleged  to  have 
been  committed  by  one  party,  the  democratic,  as  against  the  other  party, 
the  republican,  and  who,  while  protesting  against  the  admission  of  any 
evidence,  whether  of  fraud  or  violence  within  that  State,  yet  have  lost 
no  opportunity  to  assert  and  re-assert  the  existence  of  extreme  violence 
and  intimidation  within  that  State  as  an  excuse,  in  the  nature  of  a  set- 
off  and  compensating  influence  to  the  admitted  frauds  of  the  State 
officers  of  election  and  the  returning-board  acting  in  collusion  with 
them  —  it  seems  to  me  that  the  necessary  logic  of  all  such  state 
ments  and  arguments,  admitting  them  to  be  true,  should  not  be  per 
mitted  in  any  way  to  strengthen  the  claim  of  those  whose  title  is  im 
bedded  in  fraud  as  against  those  whose  title  is  said  to  have  been  created 
only  by  violence,  because  if  the  facts  of  fraud  which  are  offered  to  be 
proven,  and  which  for  the  purposes  of  this  argument  are  to  be  taken  as 
established,  are  to  be  considered,  and  in  connectionw  ith  them  a  whole 
sale  system  of  riot,  violence,  and  bloody  intimidation,  the  result  of  these 
charges  combined,  if  established,  would  be  to  prove  that  there  was  no 
such  thing  as  a  State  government  existing  in  Louisiana;  that  there  was 
no  State,  in  the  American  sense  of  the  word,  existing  there  to  choose, 
in  such  manner  as  the  legislature  thereof  may  direct,  a  number  of  elect 
ors;  but  a  community  in  which  there  is  no  government  of  law,  repub 
lican  in  form  or  otherwise,  which  is  in  a  condition  of  anarchy,  and  can- 
rot  with  safety  to  the  remainder  of  this  Union  be  treated  as  a  State  or 
suffered  to  be  represented  by  electors  in  the  choice  of  a  President.  Such 
electors,  if  these  facts  be  true,  are  the  offspring  and  representatives  of 


ELECTORAL    COUNT    OF    1877.  885 

anarchy,  and  not  of  republican  government;  and  the  argument  of  the 
counsel  and  the  objectors  who  have  here  appeared  for  the  Kellogg 
electors,  if  it  is  to  prevail,  must  necessarily  exclude  from  the  count  of 
electoral  votes  both  of  the  certificates  and  votes  certified  from  the  State 
of  Louisiana  by  the  respective  claimants. 

But  it  is  also  offered  to  be  proven,  and  for  the  purpose  of  this  argu 
ment  must  be  considered  as  proven,  that  two  of  the  Kellogg  electors, 
O.  H.  Brewster  and  A.  B.  Levissee,  held  offices  at  the  time  of  the  elec 
tion  on  the  7th  day  of  November,  1876,  of  profit  and  trust  under  the 
United  States,  the  said  Levissee  being  a  commissioner  of  the  circuit 
court  of  the  United  States  for  the  district  of  Louisiana,  and  the  said 
Brewster  being  the  surveyor-general  of  the  laud  office  of  the  United 
States  for  the  district  of  Louisiana.  By  the  certificate  of  the  Kellogg 
electors  it  appears  that  on  calling  the  roll  at  the  State-house  in  the  city 
of  New  Orleans  on  the  6th  day  of  December,  1876,  Levissee  and  Brew 
ster  were  found  not  to  be  present,  and —  4 

At  the  hour  of  four  p.  m.  the  said  Aaron  B.  Levissee  and  Orlando  H.  Brewster,  hav 
ing  failed  to  attend,  the  electors  present  proceeded  to  supply  such  vacancies  by  ballot, 
in  accordance  with  the  statute  of  the  State  of  Louisiana  in  such  case  made  and  pro 
vided,  which  is  in  words  and  figures  as  follows  : 

"If  any  one  or  more  of  the  electors  chosen  by  the  people  shall  fail,  from  any  cause 
whatever,  to  attend  at  the  appointed  place  at  the  hour  of  four  p.  in.  of  the  day  pre 
scribed  for  their  meeting,  it  shall  be  duty  of  the  other  electors  immediately  to  proceed 
by  ballot  to  supply  such  vacancy  or  vacancies." 

The  six  then  proceeded  to  fill  the  vacancies  occasioned  by  the  failure 
of  Levissee  and  Brewster  to  attend,  and  the  said  Levissee  and  Brewster 
were  declared  unanimously  elected  to  fill  such  vacancy,  and  being  sent 
for,  soon  after  appeared,  and  were  in  attendance  as  electors. 

The  statute  of  the  State  of  Louisiana  under  which  the  alleged  "  vacan 
cies"  were  thus  attempted  to  be  filled  was  the  act  of  3868,  which  was 
re-enacted  in  the  precise  words  on  the  14th  of  March,  1870,  the  date  of 
the  act  of  revision,  which  by  its  terms  was  to  go  into  effect  on  the  1st 
day  of  April,  1870.  Two  days  after  the  passage  of  the  act  of  revision 
and  on  the  16th  day  of  March,  1870,  a  general  election  law  of  the  State 
of  Louisiana  was  passed,  to  take  effect  from  and  after  its  passage. 
There  can  be  no  doubt  that  the  later  act  repealed  the  former  wherever 
the  provisions  of  the  two  were  inconsistent  or  where  the  repeal  shall  be 
found  to  have  been  effected  in  express  terms.  It  cannot  be  doubted 
that  it  was  not  competent  for  the  legislature  by  passing  a  law  to  take 
effect  at  afuture  day  to  prevent  its  repeal  by  subsequent  legislation. 
The  provisions  of  the  act  of  1868  and  of  the  revised  statutes  respecting 
the  election  of  electors  and  the  filling  of  vacancies  have  been  read. 
The  law  of  the  16th  of  March,  1870,  in  section  26,  provides — 

That  all  elections  held  in  this  State  to  fill  any  vacancies  shall  be  conducted  and 
managed,  and  the  returns  thereof  shall  be  made,  in  the  same  manner  as  is  provided 
for  general  elections. 

And  section  35  provides  that  the  election  for  electors  of  President  and 
Vice-Presideut — 

Shall  be  held  on  the  Tuesday  next  after  the  first  Monday  in  the  month  of  November, 
in  accordance  with  an  act  of  the  Congress  of  the  United  States,  approved  January  23, 
1845,  entitled  "An  act  to  establish  a  uniform  time  for  holding  elections  for  electors  of 
President  and  Vice-President  in  all  States  of  the  Union  ;  "  and  such  elections  shall  be 
held  and  conducted,  and  returns  made  thereof,  in  the  manner  and  form  prescribed  by 
law  for  the  general  elections. 

These  are  the  only  two  provisions  respecting  vacancies  or  the  election 
of  presidential  electors  contained  in  the  act.  The  final  section  of  the 
act,  section  85,  provides : 

That  all  laws  or  parts  of  laws  contrary  to  the  provisions  of  this  act,  and  all  laws  re- 


886,  ELECTORAL    COUNT    OF    1877. 

lating  to  the  same  subject-matter,  are  hereby  repealed,  and  that  this  act  shall  take  effect 
from  and  after  its  passage. 

It  appears,  therefore,  that  the  act  of  March  16, 1870,  was  in  pari  mate- 
ria  with  the  act  of  1868,  and  the  act  of  revision  of  March  14,  1870.  It 
provided  for  the  filling  of  vacancies  by  election.  It  provided  for  the 
election  of  electors  for  President  and  Vice-President.  Whether  as  fully 
as  prior  acts  or  not  is  not  the  question ;  but  the  law  controlled  the  sub 
ject,  and  by  the  terms  of  section  85  repealed  expressly  "  all  laws  relating 
to  the  same  subject-matter." 

But  on  November  20, 1872,  was  passed  the  general  election  law  under 
which  the  election  of  November,  1876,  was  held.  The  provisions  of 
this  last  act  which  relate  to  the  subject  of  the  election  of  presidential 
electors,  or  to  the  subject  of  filling  vacancies  in  office,  are  to  be  found 
in  sections  24,  28,  29,  30,  and  32. 

Section  28  provides  only  fo'r  a  new  election  to  be  held  in  case  of 
vacancy  caused  by  deatj  or  otherwise  in  the  office  of  Representative  in 
Congress. 

Section  30  provides  for  filling  by  election  vacancies  in  the  seat  of  any 
senator  or  representative  in  the  general  assembly. 

Section  29  provides — 

That  in  every  year  in  which  an  election  shall  be  held  for  electors  of  President  and 
Vice-President  of  the  United  States,  such  election  shall  be  held  at  the  time  fixed  by 
act  of  Congress. 

Section  32  provides — 

That  the  provisions  of  this  act,  except  as  to  the  time  of  holding  elections,  shall  apply  in 
the  election  of  all  officers  whose  election  is  not  otherwise  provided  for. 

Section  24  provides — 

That  all  elections  to  be  held  in  this  State  to  fill  any  vacancies  shall  be  conducted  and 
managed,  and  returns  thereof  shall  be  made,  in  the  same  manner  as  is  provided  for 
general  elections. 

Section  71  provides — 

That  this  act  shall  take  effect  from  and  aftor  its  passage,  and  that  all  others  on  the 
subject  of  election  laws  be,  and  the  same  are  hereby,  repealed. 

It  cannot  be  denied  that  the  election  of  electors  for  President  and 
Yice-President  was  provided  for  in  the  act  of  1872,  and  that  by  section 
32  the  provisions  of  that  law,  except  as  to  the  time  of  holding  elections, 
were  made  applicable  to  all  officers  whose  election  was  not  otherwise  pro 
vided  for.  There  is  no  other  provision,  whether  for  original  election  or 
filling  vacancies,  than  those  to  which  I  have  referred.  It  is  therefore 
subsequent  legislation  in  relation  to  the  same  subject  as  to  the  acts  of 
1868  and  1870  and  the  act  of  revision  of  1870 ;  and  hence  it  would 
appear  by  the  ordinary  rules  of  construction  that  a  repeal  had  been 
effected  of  all  the  provisions  of  the  earlier  acts  which  related  to  the 
same  subject.  But  how  can  we  escape  the  force  of  the  repealing  clause 
of  section  71  (which  provides  that  all  other  acts  on  the  subject  of  election 
laws  shall  be  and  hereby  are  repealed)  construed  in  connection  with 
sections  24,  29,  and  32  ? 

If  this  view  of  the  statutes  of  Louisiana  be  correct  and  the  act  of 
November  20,  1872,  is  to  be  considered  the  sole  and  complete  regulation 
of  the  subject  of  the  appointment  of  electors  and  filling  vacancies,  should 
any  exist,  an  inspection  of  its  terms  will  show  that  it  contains  no  pro 
visions  whatever  on  the  subject  of  filling  vacancies  in  the  post  of  elector 
except  by  new  elections,  and  no  authority  whatever  for  the  remaining 
electors  to  fill  vacancies  in  their  college. 

But  the  Constitution  of  the  United  States,  as  I  have  before  stated 


ELECTORAL    COUNT    OF    1877.  887 

when  considering  the  case  of  the  State  of  Florida,  in  authorizing  the 
appointment  by  each  State  of  its  number  of  electors,  inhibits  the  ap 
pointment  of  either  more  or  different  persons  than  is  there  described. 
The  State  of  Louisiana  shall  appoint  eight  electors,  "  but  no  Senator 
or  Representative,  or  person  holding  an  office  of  trust  or  profit  under  the 
United  States,  shall  be  appointed."  The  inhibition  is  plain  and  unmis 
takable.  If  an  appointment  be  made  by  the  State  in  violation  of  this 
provision  of  the  Constitution,  such  appointment  is  absolutely  void. 
The  State  can  no  more  appoint  a  disqualified  person  an  elector  than, 
she  can  appoint  a  person  in  excess  of  her  constitutional  number  of 
electors ;  and  those  who  count  the  electoral  votes  can  no  more  disre 
gard  the  provisions  of  the  Constitution  in  respect  of  qualification  than 
they  can  in  regard  to  number.  The  votes  of  Levissee  and  Brewster, 
both  being  holders  of  offices  of  trust  and  profit  under  the  United  States 
on  the  7th  of  November,  the  time  of  their  appointment,  can  no  more  be 
counted  than  if  they  had  both  died  the  week  previous.  They  are  not 
eligible.  The  Constitution  of  the  United  States  in  affixing  the  qualifi 
cation  of  Senators  and  Representatives  distinguishes  between  iueligi- 
bility  at  the  time  of  election  and  iueligibility  at  the  time  of  filling  the  office. 
Thus : 

No  person  shall  be  a  Representative  who  shall  not  have  attained  the  age  of  twenty- 
five  years,  and  been  seven  years  a  citizen  of  the  United  States,  and  who  shall  not,  when 
elected,  be  an  inhabitant  of  that  State  in  which  he  shall  be  chosen. 

And  so  of  a  Senator : 

No  person  shall  le  a  Senator  who  shall  not  have  attained  to  the  age  of  thirty  years, 
and  been  nine  years  a  citizen  of  the  United  States,  and  who  shall  riot,  ivhen  elected,  be 
an  inhabitant  of  that  State  for  which  he  shall  be  chosen. 

Frequent  decisions  by  either  House  of  Congress  have  shown  that  if 
when  the  person  elected  comes  forward  "to  be"  a  Representative  or  Sen 
ator  he  shall  then,  by  that  time,  have  attained  the  constitutional  age,  he  is 
considered  as  qualified  ;  but  if  it  should  be  shown  that  when  elected  he 
was  not  an  inhabitant  of  that  State  for  which  he  was  chosen  he  could 
not  be  admitted. 

So,  in  the  sixth  section  of  the  first  article  of  the  Constitution: 

No  Senator  or  Representative  shall,  during  the  time  for  ivhich  he  ivas  elected,  be  appointed 
to  any  civil  office  under  the  authority  of  the  United  States,  which  shall  have  been 
created  or  the  emoluments  whereof  shall  have  been  increased  during  such  time. 

We  find  an  absolute  prohibition  of  the  appointment  during  the  time 
in  question.  Therefore  it  is  plain  that  as  Levissee  and  Brewster  both 
held  offices  of  trust  and  profit  under  the  United  States  on  the  7th  of 
November,  1876,  and  for  some  days  subsequently,  the  State  of  Louisiana 
was  inhibited  by  the  Constitution  from  making  such  appointment. 

As  to  the  suggestion  that  these  inhibitory  clauses  of  the  Constitu 
tion  are  not  self-enforcing,  it  would  be  very  difficult  to  imagine  how  legis 
lation  can  add  to  the  force  of  the  inhibition.  Its  repetition  in  a  differ 
ent  frame  of  words  would  not  make  it  clearer  or  more  powerful.  In  the 
clause  under  consideration  it  is  a  limitation  upon  the  power  of  the 
State  to  do  a  certain  act.  Each  State  shall  appoint  a  number  of  electors, 
but  she  shall  not  appoint  certain  classes  of  persons.  It  has  been  held 
too  often  by  the  Supreme  Court  of  the  United  States  that  the  inhibitory 
clauses  of  the  Constitution  are  all  mandatory  and  self- executing,  to  rnako 
it  necessary  to  produce  the  various  cases  affirmative  of  this  doctrine. 
Perhaps  it  may  be  said  that  by  far  the  greater  number  of  the  clauses  of 
the  Constitution  are  self-executing,  such  as  the  power  of  the  two  Houses 
over  their  respective  members,  the  power  of  impeachment,  and  the  inhi 
bitions  upon  States : 

No  State  shall  enter  into  any  treaty,  alliance,  or  confederation ;    grant  letters  of 


883  ELECTORAL    COUNT    OF    1877. 

marque  and  reprisal ;  coin  money  ;  emit  bills  of  credit ;  make  anything  but  gold  and 
silver  coin  a  tender  in  payment  of  debts  ;  pass  any  bill  of  attainder,  ex  post  facto  law, 
or  law  impairing  the  obligation  of  contracts,  or  grant  any  title  of  nobility. 

All  these  inhibitory  clauses  and  many  others  have  been  held  self-exe 
cuting,  and  are  recognized  by  every  court  in  the  land,  State  and  Federal, 
as  controlling  legislation.  It  can  scarcely  be  treated  as  an  invasion  of 
the  rights  of  the  State  of  Louisiana  in  the  count  of  the  electoral  votes 
to  see  that  the  Constitution,  which  controls  the  subject,  has  not  been 
violated.  There  is  no  difference  in  the  result  of  voting  for  an  ineligible 
man,  or  voting  for  a  dead  man,  or  voting  in  blank.  The  result  in  all 
such  cases  is  the  same,  to  wit,  a  failure  to  elect.  It  has  been  lately  de 
termined  in  a  case  growing  out  of  the  late  election  in  the  State  of  Ehode 
Island,  in  which  a  centennial  commissioner  of  the  United  States  re 
ceived  a  majority  of  the  votes  cast  in  the  State  of  Ehode  Island  for 
the  office  of  presidential  elector,  and  in  response  to  the  inquiry  of  the 
governor  the  judges  of  the  supreme  court  of  the  State  advised  him  that, 
having  held  an  office  of  trust  under  the  United  States,  Mr.  Corliss  was 
ineligible  to  be  appointed  on  November  7,  and  that  the  failure  to  elect 
had  not  created  a  vacancy,  but  that,  under  the  provisions  of  section  134 
of  the  Revised  Statutes  of  the  United  States,  whenever  any  State  has 
held  an  election  for  the  purpose  of  choosing  electors  and  has  failed  to 
make  a  choice  on  the  day  prescribed  by  law,  the  electors  may  be  ap 
pointed  on  a  subsequent  day  in  such  manner  as  the  legislature  of  such 
State  may  direct;  and  under  this  authority  the  legislature  of  the  State 
of  Ehode  Island  was  convened  by  the  governor  and  an  eligible  person 
appointed  elector  to  supply  the  failure  to  elect  on  the  7th  of  November. 

Section  133  of  the  Eevised  Statutes  provides  that — 

Each  State  may,  by  law,  provide  for  the  filling  of  any  vacancies  which  may  occur  in 
its  college  of  electors  when  such  college  meets  to  give  its  electoral  vote. 

From  the  review  just  made  of  the  statutes  of  Louisiana,  I  am  of  opin 
ion  that  no  statute  exists  authorizing  the  filling  of  a  vacancy  in  the 
office  of  elector ;  and  even  should  it  be  held  that  the  statute  of  1868  is 
still  in  force  as  respects  the  office  of  presidential  elector,  yet  it  is  manifest 
that  there  were  no  vacancies  in  the  case  of  Levissee  and  Brewster,  who 
being  ineligible  at  the  time  of  their  original  appointment  such  attempted 
appointment  was  utterly  void ;  and  that  if  the  failure  to  elect  which  had 
thus  occurred  in  these  two  cases  was  to  be  remedied,  it  was  under  the 
authority  of  section  134,  and  not  otherwise. 

The  constitutional  limitation  upon  the  power  of  the  State  to  appoint 
as  electors  such  office-holders  as  Levissee  and  Brewster  is  equally  bind 
ing  upon  this  Commission  in  exercising  the  powers  of  the  two  Houses  of 
Congress  over  the  count  of  the  electoral  vote.  I  do  not  see  how  we  can 
decide  that  these  votes  are  to  be  counted  "agreeably  to  the  Constitution 
and  laws,"  when  they  are  so  plainly  forbidden  by  both. 

In  full  view  therefore  of  the  combined  and  separate  exercise  of  pow 
ers  by  the  Senate  and  House  of  Eepresentatives  over  the  acceptance  or 
the  rejection  of  electoral  votes,  I  cannot  comprehend  the  abdication  of 
all  power  whatever  by  a  commission  so  plainly  and  expressly  endowed 
with  powers  over  this  subject,  and  the  issues  plainly  framed  and  sub 
mitted  for  their  consideration  and  decision  under  the  terms  of  their  or 
ganic  law  and  under  the  Constitution  and  existing  law.  To  "  take  into 
view n  petitions,  not  petitions  to  this  Commission,  but  petitions  to  either 
or  both  Houses  of  Congress;  to  "take  into  view"  depositions,  not 
merely  depositions  taken  under  the  order  of  this  Commission,  but  depo 
sitions,  which  include  affidavits  (held  by  both  Houses  to  be  synonymous 
therewith)  taken  under  the  order  of  either  or  both  Houses  of  Con- 


ELECTORAL    COUNT    OF    1877.  889 

gress  ;  "  and  other  papers,"  such  papers  as  parliamentary  bodies  create 
and  receive  and  consider,  which  may  "  be  competent  and  pertinent," 
for  what  and  to  what  ?  To  the  decision  of  parliamentary  and  legisla 
tive  subjects;  for  it  is  with  the  powers  and  duties  of  two  parliamentary 
bodies  that  this  Commission  is  invested.  To  circumscribe  these  meth 
ods  of  broad  and  substantial  examination  to  the  proportions  of  mere 
technical  proceedings  in  courts  of  common  pleas,  would  be  simply  to  ig 
nore  the  law  and  to  refuse  to  exercise  our  plain  duties  and  powers  under 
it.  I  will  not  assume  that  this  Commission  will  commit  so  grave  an 
offense. 

I  have  felt  very  deeply  the  necessity  of  not  only  deciding  this  case  ac 
cording  to  law  and  justice,  but  also  of  satisfying  the  moral  sense  of  our 
fellow-countrymen.  Montesquieu  has  told  us  that,  as  honor  is  of  vital 
essence  to  a  monarchy,  so  is  morality  to  a  republic.  I  am  perfectly  aware 
of  the  real  condition  of  the  State  of  Louisiana.  I  am  aware  that  what 
they  are  pleased  to  term  u  the  rights  of  the  State  of  Louisiana  "  have 
been  most  loudly  proclaimed  and  sought  to  be  protected  in  argument 
before  this  Commission  against  the  slightest  invasion  by  many  who  view 
with  complacency  her  government  and  her  people  to  day  in  absolute 
subjection  to  the  Army  of  the  United  States  and  its  official  head.  I 
recognize  fully  the  abnormal  condition  of  affairs  that  grew  out  of  and 
has  succeeded  a  period  of  civil  war  and  wide-spread  revolution.  I  have 
had  no  object  so  near  to  my  heart,  and  none  which  has  drawn  from  me 
more  of  my  energies,  than  the  restoration  of  all  parts  and  sections  of 
this  country  to  their  former  harmonious  and  normal  relations  to  each 
other  and  to  their  common  government.  I  cannot  shut  my  eyes  to  the 
fact  that  the  disorder  and  crime  of  all  grades  which  mark  the  history 
of  the  last  few  years  in  Louisiana,  and  yet  which  I  believe  have  been 
shockingly  and  shamelessly  exaggerated  for  political  purposes,  has  been 
chiefly,  almost  wholly,  the  result  of  the  destruction  of  local  self-govern 
ment  in  that  State  by  the  constant  interference  of  Federal  power,  inva 
riably  in  favor  of  that  one  of  the  political  parties  of  that  State  whose 
interest  it  has  thus  been  made  to  produce  disorder  in  order  to  procure 
that  armed  assistance  without  the  aid  of  which  it  would  long  since  have 
disappeared.  The  eyes  of  the  American  people  must  not  be  closed  to 
the  fact  that  if  the  voting  material  of  a  community  is  corruptible,  it  will 
be  corrupted ;  if  it  is  purchasable,  it  will  be  bought;  if  ignorant,  it  will 
be  deceived ;  and  if  timid,  it  will  be  intimidated  ;  if  elections  are  put 
up  at  auction  by  placing  their  control  in  vile  hands,  whom  will  you 
blame  ?  Those  who  have  created  such  an  order  of  things ;  surely  not 
those  who  seek  to  abolish  it.  On  the  one  hand  you  see  property 
seeking  protection  from  plunder  in  the  garb  of  law,  and  on  the  other 
plunderers  in  the  garb  of  law  offering  to  sell  their  official  powers ;  and 
thus  property  seeks  to  buy  immunity  from  plunder  by  bribing  men  in 
office,  or,  impoverished  and  despairing,  strikes  down  the  robbers  with 
fierce  blow. 

Tribute  was  paid  to  the  Moors  on  the  rock  of  Tarifa,  and  was  only 
held  disgraceful  on  the  part  of  the  merchant  or  trader  who  paid  it  be 
cause  it  implied  want  of  manhood  in  him  to  submit.  If  the  men  of 
Louisiana  rise  up  and  overthrow  Kellogg  and  his  crew,  thrust  them  out 
of  their  places,  as  they  did  in  September,  1874,  they  are  instantly  to  be 
denounced  and  suppressed  with  a  strong  hand.  If  they  undertake  to 
buy  their  peace  and  protect  the  remnant  of  their  property  by  paying 
part  of  it  to  their  plunderers,  they  are  denounced  as  corrupt,  and  the 
results  of  their  purchase  are  taken  away  from  them  in  the  name  and  for 
the  sake  of  honesty  in  elections ! 


890  ELECTORAL    COUNT    OF    1877. 

The  people  of  the  United  States  have  witnessed  this  tor  years.  They 
have  desired  to  test  the  real  will  of*  the  people  of  that  State  and  give  it 
an  opportunity  for  fair  exhibition  in  public  election  according  to  the 
rules  of  honest  republican  government. 

The  election  has  been  held  ;  and  under  every  disadvantage  which  the 
official  power  of  the  State  and  the  United  States  combined  could  create 
to  overcome  the  public  sentiment,  the  result  is  known  to  have  been  a 
clear  and  undoubted  majority  of  from  six  to  ten  thousand  votes  in  favor 
of  the  entire  democratic  or  conservative  ticket,  including  the  electors 
for  President  and  Vice-President.  And  in  the  face  of  this  fact  the  con 
trary  is  formally  certified  by  Kellogg  and  his  associates.  The  frauds — 
open,  glaring,  and  astounding — which  have  been  committed  by  this  re- 
turning-board  and  other  officials  into  whose  hands  the  entire  control  of 
the  election  has  been  delivered,  stink  in  the  nostrils  of  the  public.  The 
election  in  Louisiana  no  longer  is  confined  in  its  effects  to  the  people  of 
the  State.  It  has  become  a  national  scandal  and  shame.  The  prolonged 
interference  by  the  Federal  Government  in  the  affairs  of  that  State  has 
been  all  on  one  side  and  always  with  the  same  bad  results ;  and  now 
the  people  of  the  United  States  demand  that  the  question  shall  be  de 
cided  by  the  two  Houses  of  Congress  according  to  law  and  justice. 

In  this  case  1  believe  that  the  certificates  of  Kellogg  and  of  the  re- 
turning-board  are  absolutely  and  thoroughly  false  and  fraudulent.  I 
believe  that  the  will  of  the  State  of  Louisiana  has  been  misrepresented 
and  falsified  by  the  action  of  her  officials,  and  that  the  means  of  proof 
as  to  what  was  the  choice  of  that  State  in  the  election  of  November  7 
are  attainable,  capable  of  production,  capable  of  reduction  to  a  cer 
tainty,  and  that  we  have  no  right  in  law  or  morals  to  declare  that  elec 
toral  votes  in  such  palpable  defiance  of  the  constitution  and  laws  of  the 
State,  in  defiance  of  the  express  and  proven  will  of  the  lawful  voters  of 
the  State,  in  defiance  of  the  plain  inhibitions  of  the  Constitution  of  the 
United  States,  should  be  counted  in  the  choice  for  President  and  Vice- 
President  of  the  United  States. 

THE   CASE   OF  OREGON. 

On  Wednesday,  the  21st  of  February,  the  case  of  Oregon  came  be 
fore  the  Commission.  There  were  two  certificates,  one  signed  by  Odell, 
Watts,  and  Cartwright,  certified  by  themselves  alone  as  presidential 
electors ;  the  other  return  signed  by  Cronin,  Miller,  and  Parker  as  elect 
ors,  accompanied  by  the  certificate  of  La  Fayette  Grover,  the  governor 
of  Oregon,  stating  that  William  H.  Odell,  John  C.  Cartwright,  and  E. 
A.  Crouin  had  received  the  highest  number  of  votes  cast  at  the  general 
election  held  in  Oregon  on  the  7th  day  of  November,  1876,  for  persons 
eligible  under  the  Constitution  of  the  United  States  to  be  appointed  elect 
ors  of  President  and  Vice-President  of  the  United  States.  This  certi 
ficate  was  attested  by  S.  F.  Chadwick,  secretary  of  state  of  Oregon,  and 
to  it  was  affixed  the  great  seal  of  the  State. 

Senator  BAYAKD  said : 

The  facts  of  the  case  are  that  J.  W.  Watts,  who  was  voted  for  as  one 
of  the  Hayes  electors,  received  15,206  votes,  W.  H.  Odell  received 
15,206  votes,  J.  C.  Cartwright  received  15,206  votes,  E.  A.  Cronin  re 
ceived  14,157  votes.  These  facts  do  not  appear  in  either  the  governor's 
certificate  of  electors  provided  by  act  of  Congress  or  the  certificate 
of  the  electors  themselves  required  by  the  Constitution  of  the  United 
States,  but  are  derived  from  papers  and  evidence  on  file  in  the  office  of 
the  secretary  of  state  of  Oregon,  who  by  law  is  made  the  custodian  of 


ELECTORAL    COUNT    OF    18/7.  891 

the  same,  and  has  certified  to  their  existence  and  correctness  in  the 
usual  manner,  having  been  applied  to  by  Odell,  Cartwright,  and  Watts 
for  copies  of  the  same,  and  the  same  having  been  furnished  by  him  in 
accordance  with  their  request. 

In  the  cases  of  Florida  and  Louisiana,  this  Commission,  by  a  vote  of 
8  to  7,  refused  to  receive  any  evidence  aliunde  the  certificates  of  the 
officials  of  the  State  containing  what  has  been  characterized  as  "  the 
final  determination  w  of  the  State  by  its  board  of  canvassing-officers  of 
the  result  of  the  election.  Therefore,  after  argument  and  deliberation 
in  the  cases  of  Florida  and  Louisiana,  it  was  decided  that  the  certificate 
of  a  State  board  of  canvass  must  be  taken  as  conclusive  of  the  facts  it 
alleged,  and  could  not  be  in  any  way  impeached  either  for  fraud  or  error, 
nor  would  they  permit  investigation  and  proof  to  be  made  of  the  tabu 
lated  returns  from  the  various  precincts  of  the  State  upon  which  the 
compilation  and  canvass  by  the  board  had  been  made.  Offers  of  proof 
were  made  to  this  Commission  to  show  that  the  board  of  canvass  in 
Florida  had  reached  an  erroneous  result  by  exceeding  their  jurisdiction, 
and  that  the  courts  of  Florida  having  competent  jurisdiction  had  de 
cided  this  fact ;  but  this  Commission  refused  to  hear  or  consider  any 
evidence  tending  to  show  the  erroneous  basis  upon  which  the  board  of 
canvass  in  Florida  had  proceeded. 

In  the  case  of  Louisiana  this  Commission  refused  to  hear  or  consider 
evidence  showing  that  the  board  of  canvass  in  that  State  had  proceed 
ed  wholly  outside  of  their  statutory  jurisdiction,  had  made  their  pre 
tended  canvass  without  any  regard  whatever  to  the  law  under  which 
they  should  have  acted,  had  been  guilty  of  the  grossest  frauds  in  mak 
ing  their  returns,  and  that  the  result  of  their  action  was  wholly  fraud 
ulent  and  unjust,  completely  defeating  the  will  of  the  people  of  the  State 
of  Louisiana  as  expressed  by  them  at  the  polls.  This  refusal  to  con 
sider  evidence  aliunde  the  certificates  was  based  by  the  majority  of  the 
Commission  upon  the  ground  that  the  rights  of  the  State  should  be  sed 
ulously  guarded  and  protected  against  the  counting  power  of  the  two 
Houses  of  Congress,  and  that  even  were  it  to  be  admitted  that  certifi 
cates  were  falsely  and  fraudulently  furnished  to  persons  not  in  law  and 
in  fact  chosen  as  electors,  this  being  done  by  the  official  organs  of 
the  State  for  certifying  the  result  of  elections,  such  persons  so  fur 
nished  with  false  certificates  became  nevertheless  de  facto  if  not  de  jure 
the  possessors  of  the  insignia  of  office,  and  not  being  dispossessed  of 
such  insignia  until  after  the  functions  of  the  office  had  been  executed  on 
the  6th  day  of  December,  1876,  their  acts  as  electors  de  facto  must  on 
the  ground  of  public  policy  be  sustained,  and  that  the  remedy  must  be 
found  elsewhere  than  in  the  two  Houses  of  Congress  to  punish  them  for 
their  misconduct  and  repair  the  injury  they  had  committed. 

The  State  board  of  canvass  in  Florida  consisted  of  three  persons,  the 
attorney-general,  the  secretary  of  state,  and  the  comptroller  of  public 
accounts,  whose  duty  it  is  u  to  canvass  the  returns  of  election  and  declare 
who  shall  have  been  elected,  *  *  *  as  shown  by  such  returns."  The 
supreme  court  of  the  State  of  Florida  have  given  a  construction  to  the 
statute  under  which  the  State  board  of  canvass  acts,  and  held  the 
powers  of  that  board  to  be  ministerial  in  their  nature,  and  that  they 
were  not  invested  with  such  discretion  as  enabled  them  to  make  a  dec 
laration  of  "  the  legal  vote ''  as  distinguished  from  "  the  true  vote  actu 
ally  cast.'7 

Yet  this  Commission  held  itself  bound  by  the  certificate  of  the  State 
board  of  canvass  of  Florida,  and,  refusing  to  regard  or  consider  the  ju 
dicial  proceedings  in  that  State  deciding  the  very  question  and  fact  of 


892  ELECTORAL    COUNT    OF    1877. 

the  true  election  of  electors,  refused  to  go  behind  the  said  certificate  or 
suffer  the  same  to  be  questioned  or  in  any  way  impeached,  because  they 
alleged  that  the  action  of  the  officers  of  the  State  of  Florida  to  whom 
the  duty  of  canvassing  and  certifying  the  result  had  been  committed  by 
the  laws  could  not  be  questioned,  however  erroneous  or  fraudulent  or 
unwarranted  by  the  laws  of  the  State  the  same  may  have  been. 

In  the  State  of  Louisiana  the  board  of  canvass  consists,  under  the 
law,  of  five  persons.  This  Commission  refused  to  hear  or  consider  evi 
dence  showing  that  four  men,  unlawfully  assuming  to  exercise  the  powers 
of  the  said  board,  had  falsely  certified  the  results  of  said  election,  and 
that  their  action  in  pretending  to  canvass  and  compile  the  returns  from 
the  State  of  Louisiana  was,  in  fact,  a  wicked  conspiracy  against  the 
rights  of  the  people  of  that  State,  her  constitution,  and  her  laws ;  and 
this  refusal  to  allow  the  certificate  of  the  returning-board  of  Louisiana 
to  be  impeached  for  fraud  and  other  illegality  was  based  upon  the  fact 
that  it  was  not  competent  for  this  Commission  to  impeach  or  question 
the  final  determination  of  the  officials  to  whom  had  been  committed  the 
canvass  of  the  returns  of  the  election  in  the  State. 

Let  us  now  apply  these  decisions  of  the  Commission  to  the  case  of 
Oregon. 

In  section  37  of  the  election  laws  of  Oregon  it  is  provided  that — 

The  county  clerk,  immediately  after  making  the  abstract  of  the  votes  given  in  his 
county,  shall  make  a  copy  of  each  of  said  abstracts,  and  transmit  it  by  mail  to  the  sec 
retary  of  state  at  the  seat  of  government ;  and  it  shall  be  the  duty  of  the  secretary  of 
state,  in  the  presence  of  the  governor,  to  proceed  within  thirty  days  after  the  election,  and 
sooner,  if  the  returns  be  all  received,  to  canvass  the  votes  given*  for  secretary  and  treas 
urer  of  state,  State  printer,  justices  of  the  supreme  court,  member  of  Congress,  and 
district  attorneys. 

Section  58  of  the  same  law  provides  : 

On  the  Tuesday  next  after  the  first  Monday  in  November,  1864,  and  every  four  years 
thereafter,  there  shall  be  elected  by  the  qualified  electors  of  this  State  as  many  elect 
ors  of  President  and  Vice-President  as  this  State  may  be  entitled  to  elect  of  Senators 
and  Representatives  in  Congress. 

Section  60  provides  that — 

The  votes  for  the  electors  shall  be  given,  received,  returned,  and  canvassed  as  the 
same  are  given,  returned,  and  canvassed  for  members  of  Congress.  The  secretary  of  state 
shall  prepare  two  lists  of  the  names  of  the  electors  elected,  and  affix  the  seal  of  the 
State  to  the  same.  Such  lists  shall  be  signed  by  the  governor  and  secretary,  and  by  the  latter 
delivered  to  the  college  of  electors  at  the  hour  of  their  meeting  on  such  first  Wednes 
day  of  December. 

Thus  it  will  be  observed  that  the  secretary  of  state  in  Oregon  is  the 
canvassing-officer,  whose  duties  are  in  substance  the  same  as  those 
imposed  upon  the  boards  of  canvass  in  Florida  and  Louisiana.  It  is 
provided  that  the  governor  is  to  be  present  at  the  canvass,  but  the  can 
vass  itself  is  to  be  made  by  the  secretary  of  state ;  and  when  he  has 
canvassed  the  votes  he  is  to  prepare  two  lists  of  the  names  of  the  electors 
elected  and  affix  the  seal  of  the  State  to  the  same.  Whatever  powers 
of  judgment  and  discretion  are  incident  to  the  power  to  canvass  re 
turns  and  certify  the  result  are,  therefore,  as  plainly  committed  to  the 
secretary  of  state  of  Oregon,  under  the  laws  of  that  State,  as  to  the 
boards  of  canvass  of  either  Florida  or  Louisiana,  under  the  laws  of  those 
States  respectively. 

"  The  secretary  of  state  shall  prepare,"  not  lists  of  votes  such  as  are 
on  file  in  his  office,  but  "  lists  of  the  names  of  the  electors  elected."  There 
fore  in  the  preparation  of  those  lists,  in  ascertaining  the  names  of  the 
electors  elected,  the  secretary  of  state  necessarily  determines  and  de 
clares  what  persons  were,  by  the  laws  of  Oregon  and  by  the  returns 


ELECTORAL    COUNT    OF    1877.  893 

which  he  has  canvassed,  chosen  the  true  electors  of  that  State.  Such 
lists  so  prepared  by  him  shall  be  signed  by  the  governor  and  by  the  sec 
retary,  have  the  seal  of  the  State  affixed  thereto,  and  be  delivered  by 
the  secretary  to  the  college  of  electors  at  the  hour  of  their  meeting  on 
the  first  Wednesday  in  December. 

The  only  certificate  thus  made  in  accordance  with  the  laws  of  Oregon 
by  the  board  of  canvass  of  that  State,  authorized  to  express  the  final 
determination  of  the  State  of  Oregon,  is  certificate  No.  2,  by  which  it 
appears  that  William  H.  Odell,  John  0.  Cartwright,  and  E.  A.  Cronin 
had  received  the  highest  number  of  votes  cast  at  said  election  for  persons 
eligible  under  the  Constitution  of  the  United  States  to  be  appointed 
electors.  Criticism  has  been  made  upon  the  insertion  of  the  words  "for 
persons  eligible."  These  words  certainly  would  be  mere  surplusage,  and 
the  certificate  would  be  as  true  without  them  as  with  them,  for  if  it  read 
that  they  had  been  "duly  elected"  it  would  have  stated  the  same  fact 
in  a  different  form  of  words. 

Persons  not  eligible  cannot  be  elected ;  but  the  presence  of  these 
words,  "  for  persons  eligible,"  is  mere  surplusage,  not  affecting  the  form 
or  the  substance  of  the  fact  of  election  certified.  Suppose  the  words 
"for  persons  eligible"  to  have  been  omitted,  and  suppose  the  number  of 
votes  stated  to  have  been  cast  for  Cronin  and  the  other  candidates  had 
been  wholly  omitted  (and  no  law  requires  them  to  be  stated)  or  had  been 
falsely  stated,  then  according  to  the  rule  laid  down  by  this  Commission  in 
the  cases  of  Florida  and  Louisiana  we  would  have  been  without  power  to 
hear  evidence  aliunde  the  certificate  or  to  exclude  the  votes  so  falsely 
certified.  The  decision  of  the  Commission  was  to  the  effect  that  no  error, 
intentional  or  unintentional,  on  the  part  of  the  board  of  canvass,  no 
excess  of  jurisdiction,  no  fraud,  however  glaring,  could  be  questioned  or 
redressed  5  yet  it  is  now  proposed  to  examine  the  powers  and  proceedings 
of  the  canvassing-officer  of  final  determination  of  the  State  of  Oregon, 
after  having  refused  to  do  the  same  thing  in  regard  to  the  States  of 
Louisiana  and  Florida. 

To  the  secretary  of  state  of  Oregon  are  confided  the  duty  and  power 
to  make  out  the  lists  of  electors  elected.  To  enable  him  to  ascertain 
who  are  elected,  he  must  canvass  and  decide.  The  proof  of  his  decis 
ion  is  to  be  found  in  the  names  of  the  persons  contained  in  the  lists  so 
prepared  by  him,  and  to  whom,  as  the  college  of  electors,  he  delivers 
such  lists.  No  persons  other  than  those  whose  names  appear  on  such 
lists  are  by  the  laws  of  Oregon  armed  with  the  insignia  of  the  office  of 
elector.  If  by  fraud  or  mistake  the  secretary  of  state  should  insert  the 
wrong  names  upon  the  lists  or  deliver  the  lists  to  the  wrong  parties,  yet 
it  is  done  by  him  under  the  discretion  necessarily  involved  in  the  exe 
cution  of  his  duties,  and  according  to  the  decisions  of  this  Commission 
his  action  cannot  be  impeached  for  error  in  law  or  fraud  or  mistake  in 
fact.  Thus  if  the  secretary  of  state  had  altered  the  abstracts  of  votes 
sent  up  to  him  by  the  clerks  of  the  various  counties,  this  Commission, 
according  to  their  decisions  in  the  Louisiana  and  Florida  cases,  would 
have  refused  to  hear  evidence  to  prove  it.  If  the  clerks  in  the  various 
counties  had  sent  up  forged  and  false  abstracts,  this  Commission,  ac 
cording  to  their  decisions,  would  have  refused  to  allow  it  to  be  proven. 

The  case  may  be  stated  thus:  The  secretary  of  state  of  Oregon, 
seated  at  his  desk  and  having  before  him  the  abstracts  of  votes  from 
the  various  counties,  may  tabulate  and  compile  them  upon  a  sheet  of 
paper,  and  having  finished  this  canvass  and  compilation  he  can  transfer 
the  results  of  his  arithmetical  calculation  to  the  "lists  of  electors 
elected,"  also  prepared  by  him.  If  in  his  canvass  of  the  abstracts  of 


894  ELECTORAL    COUNT    OF    1877. 

votes  lie  shall  commit  the  most  serious  errors  in  adding  up  the  columns 
of  figures  representing  the  votes  cast,  or  if  he  shall  fraudulently  alter 
and  misstate  the  abstracts  of  the  votes  before  him  in  his  canvass,  his 
certificates,  which  if  allowed  to  stand  will  completely  overthrow  the  will 
of  the  people  of  Oregon  as  expressed  at  the  polls,  are,  according  to  the 
decisions  of  this  Commission  in  Louisiana  and  Florida,  unimpeachable 
and  impregnable.  But  it  is  said  his  fraud  or  error  in  the  canvass,  how 
ever  gross,  having  been  completed,  cannot  be  inquired  into,  but  when 
he  comes  to  make  out  his  lists  of  electors  elected  upon  the  basis  of  his 
fraudulent  canvass,  the  accuracy  of  his  transfer  of  figures  from  one 
paper  to  the  other  may  be  inquired  into;  in  other  words,  a  canvassing- 
officer  having  a  consecutive  series  of  acts  to  perform  under  a  statute,  all 
of  which  lead  to  and  form  a  single  result,  can  be  impeached  as  to  one 
of  these  acts  and  not  as  to  any  that  precede  it. 

As  a  matter  of  fact  the  canvass  and  compilation  of  the  votes  of  Oregon 
and  the  preparation  of  the  lists  of  electors  elected  are  performed  by 
the  same  official  at  the  same  time,  and  probably  within  the  space  of  a 
single  hour;  and  yet  if  we  adopt  the  reasoning  of  the  majority  in  the 
Louisiana  and  Florida  cases,  we  may  scrutinize  his  returns  to  see  that  he 
has  correctly  transferred,  from  his  canvass  of  the  votes  to  the  lists  of 
electors  elected,  certain  arithmetical  results,  but  we  have  no  power 
to  scrutinize  the  features  of  the  transaction  which  immediately  preceded 
the  statement  of  those  results,  and  his  final  certificate  is  a  shield  that 
completely  protects  and  covers  any  and  all  fraud  that  lurks  behind  it. 

I  cannot  bring  my  mind  to  assent  to  such  a  proposition. 

In  the  case  of  Louisiana  offers  were  made  to  this  Commission  to  pro 
duce  the  final  canvass  of  the  returns  of  the  election,  but  they  were 
refused.  The  certificate  of  that  board  of  canvass  was  held  to  be  im 
penetrable  to  the  rays  of  truth.  I  cannot  comprehend  why  the  last 
act  of  a  canvass  should  be  more  open  to  impeachment  than  equally 
essential  acts  which  immediately  preceded  it.  Such  a  decision  implies 
that  the  fraud  of  the  same  individual  committed  at  different  stages  of 
his  duty  is  subject  to  different  rules,  although  those  stages  are  immedi 
ately  annexed  to  each  other ;  that  you  can  impeach  one  act  but  not  its 
associates. 

The  certificate  of  the  State  of  Oregon,  under  the  seal  of  the  State, 
and  signed  by  the  secretary  of  state  and  the  governor,  is  as  complete 
and  accurate  in  form  and  in  as  substantial  accord  with  the  laws  of  that 
State  as  that  of  Louisiana  or  Florida  which  this  Commission  has  refused 
to  permit  to  be  inquired  into  or  impeached  ;  and  yet  it  is  now  proposed 
to  impeach  it  and  overthrow  it  because  other  records  of  the  election  of 
the  State  of  Oregon  are  produced  and  certified  in  opposition  to  the  reg 
ular  certificate.  This  evidence  is  in  my  judgment  admissible.  It  is 
both  competent  and  pertinent  for  us  to  know  the  true  facts  attending 
the  Oregon  election,  and  I  shall  vote  in  the  case,  of  Oregon,  as  I  did  in 
the  cases  of  Louisiana  and  Florida,  for  the  admission  and  consideration 
of  all  evidence  tending  to  show  which  are  the  true  and  lawful  electoral 
votes  of  that  State  provided  for  by  the  Constitution  of  the  United 
States. 

One  feature  of  difference  between  the  cases  of  Florida  and  Louisiana 
and  that  of  Oregon  is  that  no  allegation  from  any  quarter  is  made  of 
fraud  in  the  canvassing  officers.  It  is  admitted  on  all  sides,  and  contra 
dicted  nowhere,  that  the  election  was  fair  and  free  in  that  State,  and 
that  a  majority  of  more  than  one  thousand  votes  was  cast  by  the  peo 
ple  of  that  State  for  Oclell,  Watts,  and  Cartwriglit  as  presidential  elect 
ors  ;  but  it  is  proven  to  us  that  John  W.  Watts,  one  of  the  persons  so 


ELECTORAL    COUNT    OF    1877.  895 

voted  and  for  whom  the  highest  number  of  votes  were  cast,  was  on  the 
7th  of  November,  1876,  and  until  the  13th  day  of  the  same  month,  a 
postmaster  of  the  United  States  at  the  town  of  La  Fayette,  in  Oregon. 
Holding,  therefore,  an  office  of  trust  and  profit  under  the  United  States, 
he  could  not  under  the  provision  of  the  Constitution  be  appointed  an 
elector.  Having  already  considered  this  quest  on  in  the  cases  of  ineli 
gible  electors  in  Louisiana,  I  shall  not  repeat  imy  remarks  on  that  sub 
ject. 

I  have  not  yet  been  able  to  comprehend  the  force  of  the  argument 
that  the  provisions  of  the  Constitution  prohibiting  the  appointment  as 
electors  of  certain  official  classes  can  be  held  self-executing  on  the  6th 
of  December  but  not  self-executing  on  the  7th  of  November ;  and  this 
in  the  teeth  of  the  plain  words  affixing  the  disqualification  upon  the 
person  and  the  limitation  upon  the  power  of  the  State.  It  has  seemed, 
however,  satisfactory  to  some  minds  to  hold  that  this  provision  of  the 
Constitution  grows  in  power  and  changes  in  nature  within  the  hirty 
days  which  lie  between  the  appointment  of  the  elector  and  the  time 
fixed  for  the  performance  of  his  single  function  ;  that  the  Constit  ution 
executes  itself  on  the  6th  of  December,  but  cannot  do  so  without  aid  of 
legislation  in  the  month  of  November. 

What  was  the  result  of  a  majority  of  the  people  of  Oregon  casting 
their  votes  for  a  person  thus  holding  office  under  the  United  States  ? 
We  find  in  the  papers  annexed  to  the  certificate  of  Watts  and  his  asso 
ciates  that  on  the  6th  day  of  December,  at  the  meeting  of  Cartwright 
and  Odell  as  electors,  the  resignation  of  Watts  as  an  elector  for  Presi 
dent  and  Vice-President  of  the  United  States  for  the  State  of  Oregon 
was  presented  by  Odell,  and  after  being  duly  read  was  *'  unanimously  n 
accepted  ;  that  by  this  resignation  and  the  acceptance  thereof  a  vacancy 
n  the  electoral  college  was  said  to  have  been  created,  which  vacancy, 
under  the  provisions  of  section  59  of  the  election  laws  of  Oregon,  the 
said  Odell  and  Cartwright  assumed  the  power  to  fill ;  that  they  pro 
ceeded  to  fill  such  "  vacancy"  by  electing  the  said  John  W.  Watts,  and 
the  college  being  so  filled  the  three  proceeded  to  cast  their  votes  by 
ballot  for  Hayes  and  Wheeler  as  President  and  Vice-President  of  the 
United  States. 

According  to  my  views  of  the  Constitution  and  laws  as  heretofore  ex 
pressed,  the  failure  of  the  people  of  Oregon  to  elect  an  eligible  person 
to  the  office  of  elector  did  not  create  a  vacancy  ;  but  they  having  failed 
to  elect  on  the  day  appointed  by  law,  it  was  requisite,  if  the  failure  was 
intended  to  be  remedied,  to  resort  to  the  means  prescribed  by  the  one 
hundred  and  thirty-fourth  section  of  the  Revised  Statutes  of  the  United 
States,  There  has  been  no  legislation  by  the  State  of  Oregon  on  this 
subject,  nor  did  her  legislature  on  any  subsequent  day  appoint  an  elector 
to  till  her  electoral  college. 

Section  48  of  the  election  laws  of  Oregon  provides  for  vacancies  in 
office,  and  is  in  the  words  following: 

Every  office  shall  become  vacant  on  the  occurring  of  either  of  the  following  events 
before  the  expiration  of  the  term  of  such  office  : 

1.  The  death  of  the  incumbent ; 

2.  His  resignation ; 

3.  His  removal ; 

4.  His  ceasing  to  be  an  inhabitant  of  the  district,  county,  town,  or  village  for  which 
he  shall  have  been  elected,  or  appointed,  or  within  which  the  duties  of  his  office  are 
required  to  be  discharged  ; 

5.  His  conviction  of  an  infamous  crime,  or  of  any  offense  involving  a  violation  of  his 
oath  ; 

6.  His  refusal  or  neglect  to  take  his  oath  of  office,  or  to  give  or  renew  his  official 
bond,  or  to  deposit  such  oath  or  bond  within  the  time  prescribed  by  law  ; 

7.  The  decision  of  a  competent  tribunal,  declaring  void  his  election  or  appointmen 


896  ELECTORAL    COUNT    OF    3877. 

None  of  the  vacancies  above  described  is  the  case  now  under  con 
sideration.  It  is  true  that  Mr.  Watts  tendered  his  resignation  of  the 
office  of  elector  claiming  to  have  been  elected  on  the  7th  of  November  ; 
but  in  opposition  to  that  view  is  the  plain  mandate  of  the  Constitution 
of  the  United  States  that  he  should  not  be  appointed,  consequently  he 
could  not  resign  an  office  he  had  never  held,  nor  by  any  act  of  his  could 
he  create  a  vacancy  in  such  office. 

Therefore,  I  hold  that  the  State  of  Oregon  had  no  power  to  appoint 
John  W.  Watts,  holding  then  an  office  of  trust  and  profit  under  the 
United  States,  one  of  her  electors ;  that  his  attempted  election  was  ab 
solutely  void  ;  and  that  the  failure  to  elect  a  third  elector  has  not  been 
remedied  according  to  the  Constitution  and  laws  of  the  United  States 
and  the  laws  of  the  State  of  Oregon. 

The  question  then  arises  as  to  the  right  of  E.  A..  Cronin,  who  by  the 
certificate  of  the  secretary  of  state  and  governor,  attested  by  the  seal 
of  the  State,  is  certified  to  have  been  one  of  the  persons  who  received 
the  highest  number  of  votes  cast  at  the  said  election  for  persons  eligi 
ble  to  be  appointed  electors.  The  certificate  of  Governor  Grover  and 
the  secretary  of  state  is  honest  and  true  according  to  the  facts.  The 
number  of  votes  stated  in  this  certificate  as  having  been  received  by 
Cronin  was  14,157  ;  but  it  is  also  made  known  to  us  by  evidence  aliunde 
the  certificate,  and  in  this  case  received  by  the  Commission,  that  a 
greater  number  of  votes  were  cast  for  John  W.  Watts.  Governor 
Grover  has  been  assailed  in  terms  of  unmeasured  violence  and  reproba 
tion  for  issuing  the  certificate  which  is  before  us,  in  which  he  has 
adopted  a  construction  of  the  sixteenth  section  of  article  2  of  the  con 
stitution  of  Oregon,  which  provides  that — 

In  all  elections  held  by  the  people  under  this  constitution  the  person  or  persons  who 
shall  receive  the  highest  number  of  votes  shall  be  declared  duly  elected. 

Following  the  unbroken  current  of  decision  in  the  courts  of  the 
country  from  which  our  institutions  have  chiefly  been  derived,  and 
the  repeated  decisions  of  courts  of  the  highest  jurisdiction  in  many 
of  the  States  of  this  Union,  Governor  Grover  decided,  in  the  execution 
of  the  discretion  reposed  in  him  as  the  executive  branch  of  the  gov 
ernment  of  Oregon,  that  he  was  bound  to  issue  the  certificate  of  elec 
tion  to  the  next  highest  competing  candidate  in  a  case  like  the  pres 
ent,  where  the  candidate  who  had  received  the  highest  number  of 
votes  was  ineligible  to  be  appointed  ;  and  it  is  very  difficult  to  answer 
the  authorities  and  arguments  by  which  this  position  has  been  supported 
before  us. 

The  very  able  arguments  which  we  have  heard  upon  this  subject  and 
the  elaborate  briefs  of  authorities  submitted  for  our  instruction,  if  they 
are  not  adequate  to  control  us  in  the  adoption  of  the  view  taken  by 
Governor  Grover  in  this  case,  are  more  than  sufficient  to  place  his  action 
upon  a  high  plane  of  conscientious  discretion,  which  lifts  him  to  a  level 
with  as  sound  and  reputable  jurists  as  have  adorned  the  bench  of  En 
gland  or  of  the  United  States.  If  he  has  erred  in  his  decision,  his  error 
has  been  justified  by  learned  and  able  decisions  and  reasoning  which 
must  appeal  strongly  to  the  judgment  of  any  who  have  considered  the 
subject ;  and  yet  I  have  not  been  able  to  find,  under  the  laws  of  Oregon 
or  in  my  conception  of  the  general  American  law  relating  to  popular 
elections,  grounds  which  will  enable  me  to  concur  in  the  decision  reached 
by  him. 

The  underlying  theory  of  our  republican  rule  is  the  residence  of  power 
in  the  majority.  That  minority  candidates  should  fill  places  by  popular 
election  is  contrary  to  our  American  theory,  although  sometimes  by  con- 


ELECTORAL    COUNT    OF    1877.  897 

stitutional  arrangements  such  a  result  is  reached.  But  the  meaning, 
nevertheless,  of  our  popular  elections  is  simple  and  clear,  and  a  vote  by 
one  thousand  men  for  A  and  a  vote  by  five  hundred  men  for  B,  his  op 
ponent,  proves  not  only  that  the  majority  desire  that  A  shall  fill  the 
office,  but  also  that  B  should  not  fiU  it.  Where  election  is  free,  it  is 
plainly  in  the  power  of  the  popular  will  to  express  favor  or  condemna 
tion,  and  if  it  should  turn  out  that  the  candidate  receiving  the  majority 
has  been  ineligible  the  popular  will  is  sufficiently  defeated  without  the 
addition  of  a  still  further  defeat  by  seating  the  person  against  whom 
they  have  cast  their  votes. 

It  is  evident  to  my  mind  that  the  statutes  of  the  various  States,  pro 
viding  as  they  do  tor  the  filling  of  vacancies  and  sometimes  for  failures  to 
elect,  were  all  intended  to  prevent  the  seating  of  minority  candidates ; 
that  the  policy  and  intent  of  our  systems  of  government,  both  State  and 
Federal,  is  in  substance  that  none  but  those  who  represent  the  will  of 
the  majority  are  to  hold  office  under  a  popular  rule.  If  two  men  are 
running  for  the  same  office  and  the  successful  candidate  dies  on  the  day 
after  the  election,  a  vacancy  would  be  thus  created,  and  it  would  have 
to  be  filled  in  some  manner  provided  by  law,  but  the  defeated  candidate 
could  gain  nothing  by  the  death  of  his  opponent.  If  a  candidate 
receives  a  majority  of  the  votes,  and  upon  inspection  turns  out  to  be  in 
eligible,  the  rule  under  the  United  States  statute  and  by  the  statutes  of 
the  States  is  to  provide  for  the  failure  to  elect,  but  not  to  seat  the  mi 
nority  candidate. 

Therefore,  to  give  effect  to  the  will  of  the  people  fairly  expressed  ac 
cording  to  law  at  the  polls,  I  would  not  be  willing  to  vote  to  seat  a 
minority  candidate  because  of  the  ineligibility  of  his  opponent,  unless 
the  laws  of  the  State  should  expressly  provide  that,  in  the  event  of  the 
iueligibility  of  the  successful  candidate,  the  person  who  had  received 
the  next  highest  number  of  votes  should  be  considered  as  elected.  I  do 
not  understand  that  this  is  provided  for  by  the  laws  of  Oregon  or  that 
any  construction  of  her  constitution  to  this  effect  has  been  given  by  her 
courts.  I  repeat  that  there  are  strong  authorities  the  other  way,  in  view 
of  which  Governor  Grover  can  readily  be  understood  to  have  felt  him 
self  justified  in  believing  that  Mr.  Gronin  was  entitled  to  the  place,  and 
certain  it  is  that  his  certificate  that  Cronin  was  one  of  the  three  eligible 
candidates  for  the  office  who  received  the  highest  number  of  votes  is 
precisely  true  and  is  sustained  by  all  the  facts  in  the  case. 

The  Constitution  of  the  United  States  is  the  supreme  law  of  the  land, 
and  Governor  Grover's  official  oath  bound  him  to  sustain  it ;  and  it  was 
his  duty  to  refuse  to  certify  the  fact  of  an  election  of  a  United  States 
official  to  the  office  of  elector  when  the  same  was  distinctly  prohibited 
by  the  Constitution.  As  the  governor  of  the  State  he  represents  in  his 
own  person  the  executive  branch  of  the  State  government,  and  is  bound 
in  all  respects  to  see  that  the  laws  are  faithfully  executed ;  and  I  there 
fore  consider  that,  having  personal  and  official  knowledge  that  Watts 
was  a  postmaster  of  the  United  States,  it  was  his  duty  to  refuse  to  cer 
tify  that  he  had  been  duly  elected  presidential  elector.  It  is,  therefore, 
my  judgment  that  but  two  votes  of  the  State  of  Oregon  can  be  counted, 
and  that  they  are  the  votes  of  Odell  and  Cartwright,  the  Hayes  electors. 

CASE  OF  SOUTH  CAEOL1NA. 

On  the  26th  of  February  the  case  of  the  State  of  South  Carolina  was 
reached,  there  being  two  certificates,  No.  1,  of  C.  C.  Bowen  and  his  six 
associates,  certified  by  D.  H.  Chamberlain  as  governor ;  No.  2,  of  Theo- 
57  E  C 


898  ELECTORAL    COUNT    OF    1877. 

dore  E.  Barker  and  his  six  associates,  the  Tilden  electors,  Dot  having 
any  gubernatorial  certificate  attached.  Objections  were  made  under  the 
law  to  both  of  the  certificates.  It  was  offered  to  be  proven  before  this 
Commission  that  the  free  election  and  power  of  appointment  by  the 
State  of  her  electors  was  interfered  with  and  controlled  by  the  Army  of 
the  United  States  to  the  number  of  several  thousand  men,  and  by  the 
employment  and  presence  at  the  polls  of  an  army  of  United  States 
deputy  marshals. 

Senator  BAYARD  said : 

It  is  a  public  fact  of  which  this  Commission  will  take  notice  that  the 
executive  power  of  the  State  of  South  Carolina  was  wholly  in  the  hands 
of  Governor  D.  H.  Chamberlain,  who  was  himself  a  candidate  for  re 
election  and  had  by  law  the  power  of  appointment  and  removal  of  every 
officer  of  election  throughout  the  State  ;  and  that  it  was  at  his  instance 
and  in  the  absence  of  such  a  state  of  facts  as  under  the  Constitution  of 
the  United  States  alone  would  have  warranted  it,  that  the  State  of  South 
Carolina  was  filled  with  troops  of  the  United  States  for  months  prior 
to  the  election,  which  military  occupation  continues  until  this  day.  The 
presence  and  influence  of  the  troops  were  wholly  lent  to  the  support 
of  the  political  party  to  which  Chamberlain  belongs,  and  were  in  aid  of 
his  re-election  and  the  success  of  the  presidential  electors  who  have 
obtained  his  certificate. 

The  Constitution  provides  that  the  electors  shall  be  appointed  by  the 
State;  and  in  the  present  case  it  is  offered  to  be  proven  to  this  Commis 
sion  that  the  actual  power  which  influenced  the  appointment  of  the 
electors  was  extraneous  to  the  State,  and  that  in  truth  and  fact  the 
result  of  the  election  of  electors  in  the  State  of  South  Carolina,  on  the 
7th  of  November,  1876,  was  caused  and  controlled  by  the  unlawful  pres 
ence  of  the  agents  and  officials  of  the  Government  of  the  United  States; 
so  that  the  choice  was  not  that  of  the  State  or  its  people,  but  of  Federal 
officers  who  had  neither  right  nor  color  of  right  to  interfere  in  the  elec 
tion  of  that  State. 

It  appears  that  the  Tilden  electors,  Mr.  Barker  and  his  six  associates, 
did  endeavor  by  a  writ  of  quo  warranto  to  dispute  the  election  of  Bowen 
and  his  six  associates,  claiming  that  the  board  of  State  canvassers  had 
made  an  erroneous,  imperfect,  false,  and  fraudulent  statement  of  the 
result  of  the  election ;  but  the  said  suit  is  now  pending  in  the  court  and 
undecided.  They  bad  previously  made  application  in  the  supreme  court 
of  the  State  for  a  writ  of  mandamus  to  compel  the  board  of  State  can 
vassers  to  correct  the  count  according  to  the  true  vote  of  the  people  as 
cast  at  the  election ;  but  pending  that  proceeding  the  board  determined 
and  certified  the  persons  elected  upon  their  fraudulent  and  erroneous 
count,  and  after  making  a  return  to  the  court,  and  just  before  the  decis 
ion  thereof,  they  secretly  and  unlawfully  adjourned  in  defiance  and  con 
tempt  of  the  authority  of  the  supreme  court. 

This  Commission  will  also  take  notice  of  the  illegal  and  unwarranted 
interference  by  Judge  Bond,  of  the  circuit  court  of  the  United  States, 
who  by  the  most  flagrant  usurpation  and  outrage,  without  having  any 
jurisdiction  over  the  subject- matter  or  the  persons,  discharged  from  cus 
tody  the  board  of  canvass  while  they  were  imprisoned  for  contempt  of 
the  supreme  court  of  the  State  of  South  Carolina,  having  disregarded 
and  disobeyed  its  mandates  in  respect  of  the  lawful  and  regular  canvass 
of  the  votes  cast  at  said  election. 

While  I  am  making  these  remarks  Senator  Frelinghnysen  lays  before 
me  and  invites  my  present  commentary  upon  certain  expressions  made 
by  me  in  the  course  of  debate  in  the  Senate  two  years  ago  when  the 


ELECTORAL    COUNT    OF    1877.  899 

question  of  the  jurisdiction  and  powers  of  the  two  Houses  of  Congress 
over  the  count  of  the  electoral  votes  came  up  for  consideration.  The 
passage  he  has  marked  is  in  the  Congressional  Record,  February  25, 
1875,  page  160,  volume  3,  part  3 : 

Mr.  President,  froaa  the  foundation  of  the  Government  up  to  the  year  1865  the  Ameri 
can  people  had  managed  to  conduct  the  count  of  the  electoral  votes  for  President  and 
Vice-President  of  the  United  States  without  any  other  aid  than  the  constitutional  pro 
vision  and  a  single  statute  that  had  been  passed  during  the  first  presidential  term 
of  George  Washington.  In  1792,  on  the  1st  of  March,  an  act  was  passed  "relative  to 
the  election  of  a  President  and  Vice-President  of  the  United  States,  and  declaring  the 
officer  who  shall  act  as  President  in  case  of  vacancies  in  the  office  both  of  President 
and  Vice-President."  One  thing  is  observable  in  this  act  of  Congress,  as  in  all  acts  of 
that  period  of  our  country's  history,  that  great  care  was  taken  to  assume  no  power  not 
distinctly  granted  or  necessarily  implied  by  the  terms  of  the  Federal  Constitution. 

Therefore  in  this  law  (which  is  to  be  found  on  pages  305,  306,  307,  and  308  of  the  last 
compilation  of  the  Constitution,  Rules,  and  Manual  provided  by  the  Senate)  there  will 
be  found  no  attempt  to  transcend  the  grant  of  power  of  the  Constitution  as  to  the  re 
ception  and  count  of  the  electoral  votes.  It  provided  the  method  of  certification  of 
the  results ;  and  it  will  be  observed  that  not  only  was  the  manner  of  the  election  of 
the  electoral  college  confided  to  each  State,  and  to  the  discretion  of  the  legislature  of 
each  State,  but  that  the  certification,  the  authentication  of  the  electoral  vote  was  con 
fided  wholly  and  unreservedly  by  the  Constitution  to  the  States.  And  nowhere  is 
power  given  to  either  House  of  Congress  to  pass  upon  the  election,  either  the  manner 
or  the  fact,  of  electors  for  President  and  Vice-President ;  and  if  the  Congress  of  the 
United  States,  either  one  or  both  Houses,  shall  assume,  under  the  guise  or  pretext  of 
telling  or  counting  a  vote,  to  decide  the  fact  of  the  election  of  electors  who  are  to  form 
the  college  by  whom  the  President  and  Vice-President  are  to  be  chosen,  then  they  will 
have  taken  upon  themselves  an  authority  for  which  I,  for  one,  can  find  no  warrant  in 
this  charter  of  limited  powers. 

I  am  very  glad  that  this  extract  from  my  former  speech  has  been  thus 
brought  to  my  attention,  because  I  am  aware  that  it  has  been  furnished 
before  now  to  members  of  this  Commission,  although  I  will  not  suggest 
that  the  object  in  bringing  it  now  to  my  notice  is  to  impale  me  upon  a 
supposed  inconsistency  between  my  views  as  expressed  in  1875  and  now. 
To  the  doctrine,  however,  contained  in  these  remarks  I  can  only  give  my 
renewed  approval  and  assent,  although  I  must  frankly  admit  that  within 
the  two  years  which  have  elapsed  I  have  had  a  better  opportunity  for 
the  study  and  attention  of  this  subject,  which  had  been  denied  me  then, 
and  which  has  given  to  my  mind  information  and  light  not  obtained  be 
fore.  I  trust  the  time  will  never  come  when  I  shall  cling  obstinately  to 
an  error  which  can  only  grow  into  a  wrong  by  becoming  willful,  nor  do 
I  believe  that  I  shall  be  found  to  lack  the  courage  to  retract  an  opinion 
when  I  am  convinced  that  it  is  erroneous. 

No  one  believes  more  than  I  in  the  necessity  of  preserving  the  rights 
of  the  State  from  invasion  by  the  authority  of  the  General  Government, 
and  this  it  is  not  necessary  for  me  now  to  repeat.  I  consider  the  elec 
tion  of  electors  to  be  the  act  of  the  States,  who  are  the  sole  judges  of 
the  manner  and  the  fact  of  such  election,  and  that  Congress  has  no  right 
to  interfere  with  such  choice  either  by  military  power  or  by  coercion  of 
swarms  of  deputy  marshals  or  of  the  official  influence  in  any  shape  of 
any  branch  of  the  Federal  Government.  What  I  now  contend  for  is 
that  the  act  of  election,  which  I  am  called  upon  thus  to  respect  as  the  act 
of  the  State,  shall  be  the  act  of  the  State,  and  not  the  act  of  a  false  per 
sonation  of  a  State.  Thus,  when  in  the  case  of  Florida  that  State,  by 
the  voice  of  every  department  of  her  govern inent,  legislative,  judicial, 
and  executive,  came  here  before  us  to  entreat  us  to  hear  her  voice,  and 
to  prove  to  us  that  the  electoral  votes  sent  up  here  for  Hayes  and 
Wheeler  under  the  certificate  of  Governor  Stearns  were  in  violation  of 
the  State's  constitution  and  laws  and  in  opposition  to  the  will  of  her  peo 
ple  declared  at  the  polls,  I  felt  it  to  be  my  duty  to  that  State  to  hear  her 
complaint,  and  not  allow  her  rights  to  be  usurped  by  false  men. 


900  ELECTORAL    COUNT    OF    1877. 

In  1875,  in  the  debate  in  question,  I  was  considering  a  case  where 
"the  State"  had  chosen  her  electors  in  fact,  and  I  was  endeavoring  to 
protest  against  congressional  interference  with  the  exercise  of  her  free 
will  in  making  such  choice  under  the  Constitution  of  the  United  States. 
I  was  not  then  considering  a  dual  government  or  dual  claims  to  repre 
sent  that  government.  When  two  South  Carolinas  appear,  each  claim 
ing  to  cast  votes  for  President  and  Vice-President,  one  must  be  false, 
and  that  question  must  be  decided  or  the  vote  of  the  State  rejected. 

Again,  such  a  proposition  as  was  stated  by  me  in  the  debate  referred 
to,  was  applicable  only  to  the  admitted  election  of  a  State.  The  pres 
ence  of  fraud  and  its  effect  in  qualifying  every  proposition  was  not 
then  considered.  The  most  solemn  judgments  and  decrees  of  courts; 
pardons  by  kings  and  rulers ;  every  treaty  or  compact  between  nations 
or  individiduals,  alike  lose  every  quality  of  obligation  when  touched  by 
fraud.  I  know  of  no  human  contract  more  irrevocable  and  binding 
upon  the  parties  than  that  of  Christian  marriage,  in  which  civil  and 
religious  obligation  combine  to  secure  its  performance.  The  sanction 
under  which  marriage  is  entered  into  is  the  most  solemn  known  to  civ 
ilized  men ;  yet  who  ever  denied  that  the  tie  could  be  and  ought  to  be 
dissolved  upon  proof  of  fraud  by  one  of  the  parties  in  obtaining  the 
marriage1?  Fraud  is  a  universal  solvent  and  destroys  whatever  it 
touches,  and  it  ought  to  be  hunted  down  and  crushed  whenever  possi 
ble,  in  order  to  protect  human  society.  Every  proposition  as  to  legal 
or  moral  obligation  must  be  considered  as  made  in  the  absence  of  fraud, 
because  fraud  admitted  as  an  element  displaces  all  the  reasoning  which 
guides  men  in  the  ordinary  conduct  of  life  or  in  the  administration  of 
human  laws  and  justice. 

Thus  while  I  hold  that  the  State  of  South  Carolina  had  the  sole  power 
of  choosing  her  electors  and  of  certifying  her  choice  in  her  own  manner, 
and  that  no  other  power  can  lawfully  obstruct  and  interfere  with  her 
choice,  when  two  voices  attempt  to  speak  for  that  State  we  must  ascer 
tain  which  is  the  false  voice  and  which  is  the  true.  The  power  to  decide 
which  is  the  true  voice  has  been  assumed  by  Congress  to  be  vested  in 
the  two  Houses,  and  by  the  law  under  which  we  are  now  proceeding 
this  Commission  is  invested  with  "the  same  powers  now  possessed  for 
that  purpose  by  the  two  Houses  acting  separately  or  together." 

The  power  and  duty  of  decision  thus  being  imposed  upon  us,  the  only 
remaining  question  is  whether  we  shall  execute  that  power  intelligently 
or  blindly  ;  whether  we  shall  receive  and  consider  such  evidence  as  in 
the  nature  of  things  will  enlighten  our  decision  or  whether  it  shall  be 
excluded,  and  the  false  certificates  and  usurpations  of  power  be  suffered 
to  stand  between  us  and  the  real  State  and  people  whom  they  falsely 
assume  to  represent. 

I  will  admit,  whatever  may  be  my  personal  belief  on  the  subject,  that 
the  fact  is  not  established  before  us  by  competent  testimony  that  Mr. 
Barker  and  his  six  associates  (the  Tilden  electors)  did  receive  a  majority 
of  the  votes  actually  cast  at  the  election  in  November  last  in  South 
Carolina,  and  therefore  I  shall  not  vote  in  favor  of  such  votes  being 
counted ;  but,  on  the  other  hand,  the  fact  is  before  me  as  a  matter  of 
public  knowledge  coupled  with  specific  tenders  of  evidence  to  establish 
it,  and  which  must  be  accepted  as  true  in  the  consideration  of  this  case, 
that  between  the  State  of  South  Carolina  and  her  free  choice  of  electors 
for  President  and  Vice-President  was  interposed  a  will  and  a  physical 
power  stronger  than  her  own,  and  that  the  election  of  Bo  wen  and  his 
six  associates  as  certified  by  Chamberlain,  the  governor,  was  not  the 
election  of  the  State  of  South  Carolina  and  her  people,  but  the  election 


ELECTORAL    COUNT    OF    1877.  901 

controlled  by  tjie  President  of  the  United  States  and  the  official  and 
political  agents  of  the  party  in  favor  of  whom  he  unlawfully  lent  the 
great  powers  intrusted  to  his  control,  in  disregard  of  the  Constitution, 
of  the  law,  and  the  spirit  of  free  government. 

The  voice  which  comes  up  to  us  in  the  certificate  of  Bo  wen  and  his 
associates  is  the  voice  of  the  United  States  Army,  of  swarms  of  deputy 
United  States  marshals,  aided  and  abetted  by  the  profligate  abuse  of 
judicial  power  by  Judge  Bond  of  the  United  States  circuit  court.  It  is 
because  I  am  a  true  friend  and  defender  of  the  rights  of  the  State  of 
South  Carolina  that  I  object  to  this  false  expression  of  her  will,  and  this 
military  mockery  of  free  republican  government  which  is  imposed  upon 
her  unfortunate  people. 

We  have  been  urged  to  reject  the  vote  of  this  State  upon  the  ground 
that  no  registration  of  her  electors  has  ever  been  made  or  provided  for 
by  the  legislature  in  conformity  with  section  3  of  article  8  of  the  consti 
tution  of  that  State,  which  provides  that — 

It  shall  be  the  duty  of  the  general  assembly  to  provide  from  time  to  time  for  the 
registration  of  all  electors. 

It  is  contended  that  by  reason  of  the  failure  of  the  legislature  to  pro 
vide  such  registration  no  valid  election  has  been  held  in  that  State  since 
the  time  of  the  formation  of  its  constitution  in  1868.  To  this  proposition 
I  am  unable  to  agree.  The  second  section  of  the  same  article  fixes  the 
qualifications  of  all  persons  who  "shall  be  entitled  to  vote  for  all  officers 
that  are  now,  or  hereafter  may  be,  elected  by  the  people,  and  upon  all 
questions  submitted  to  the  electors  at  any  election ;"  and  among  these 
registration  as  a  voter  is  not  enumerated.  It  may  be  doubted  whether 
any  new  and  additional  qualification  could  be  imposed  by  the  legisla 
ture  upon  the  voters  in  that  State,  the  section  of  the  constitution  to 
which  I  have  just  referred  having  enumerated  the  qualifications,  and 
by  two  j)rovisos  having  enumerated  all  classes  and  persons  who  are 
excluded  from  the  right  of  suffrage. 


EEMAEKS  OF  ME.  COMMISSIONEE  HUNTOK 

FLORIDA. 

Mr.  Commissioner  HTOTTON  said  : 

Mr.  PRESIDENT  :  I  approach  the  consideration  of  the  questions  in 
volved  in  this  case  with  profound  diffidence.  We  are  sitting  as  a  court, 
the  highest  and  most  august  in  the  history  of  the  world.  Dynasty  is  the 
subject-matter  of  the  suit  to  be  tried;  forty-four  millions  of. people  are 
the  parties,  and  the  civilized  people  of  the  world  are  the  spectators. 

We  are  to  try  a  disputed  presidential  election  in  which  it  is  alleged 
that  fraud  and  force  strangled  the  true  voice  of  several  States  of  this 
Union. 

We  are  to  determine,  when  two  or  more  parties  have  spoken  for  a 
State,  which  is  the  true  voice  of  that  State.  In  the  case  of  the  State  of 
Florida  now  before  us,  three  papers  purporting  to  be  certificates  of 
electoral  votes  of  that  State  have  been  sent  to  the  President  of  the  Sen 
ate,  and  under  the  law  they  have  been  by  him  opened,  objected  to,  and 
referred  to  this  Commission.  One  gives  the  votes  of  the  State  to  Hayes, 
the  other  two  to  Tildeu ;  which  shall  be  counted? 

In  order  to  determine  how  we  shall  proceed  and  what  are  our  powers, 
it  is  necessary  to  examine  the  law  under  which  we  are  acting. 


902  ELECTORAL    COUNT    OF    1877. 

In  the  second  section  it  is  provided  that — 

All  the  certificates  and  papers  purporting  to  be  certificates  of  the  electoral  votes  of 
each  State  shall  be  opened,  in  the  alphabetical  order  of  the  States,  as  provided  in  sec 
tion  1  of  this  act ;  and  when  there  shall  be  more  than  one  such  certificate  or  paper,  as 
the  certificates  and  papers  from  such  State  shall  be  so  opened,  (excepting  duplicates 
of  the  same  return,)  they  shall  be  read  by  the  tellers,  and  thereupon  the  President  of 
the  Senate  shall  call  for  objections,  if  any.  Every  objection  shall  be  made  in  writing, 
and  shall  state  clearly  and  concisely,  and  without  argument,  the  ground  thereof,  and 
shall  be  signed  by  at  least  one  Senator  and  one  member  of  the  House  of  Representa 
tives  before  the  same  shall  be  received.  When  all  such  objections  so  made  to  any  cer 
tificate,  vote,  or  paper  from  a  State  shall  have  been  received  and  read,  all  such  certifi 
cates,  votes,  and  papers  so  objected  to,  and  all  papers  accompanying  the  same,  together 
with  such  objections,  shall  be  forthwith  submitted  to  said  Commission,  which  shall  pro 
ceed  to  consider  the  same,  with  the  same  powers,  if  any,  now  possessed  for  that  pur 
pose  by  the  two  Houses  acting  separately  or  together,  and  by  a  majority  of  votes  decide 
whether  any  and  what  votes  from  such  State  are  the  votes  provided  for  by  the  Consti 
tution  of  the  United  States,  and  how  many  and  what  persons  are  duly  appointed  elect 
ors  in  such  State,  and  may  therein  take  into  view  such  petitions,  depositions,  and  other 
papers,  if  any,  as  shall,  by  the  Constitution  and  now  existing  law,  be  competent  and 
pertinent  in  such  consideration. 

This  Commission  has  all  the  powers  now  possessed  for  this  purpose 
by  the  two  Houses  of  Congress  or  either  one.  If  the  two  Houses  or 
either  one  has  any  power  to  look  into  and  decide  these  matters,  then 
that  power  is  conferred  on  this  Commission. 

This  Commission  is  to  decide  whether  any  and  what  votes  from  this 
State  are  the  votes  provided  for  by  the  Constitution,  and  how  many 
and  what  persons  were  duly  appointed  electors  in  this  State,  and  shall 
take  into  view  such  petitions,  depositions,  and  other  papers,  if  any,  as 
shall  by  the  Constitution  and  now  existing  law  be  competent  and  per 
tinent  in  such  consideration. 

What  are  the  powers  of  the  two  Houses,  or  either  one  ? 

This  law  was  enacted  on  the  theory  and  concession  that  the  President 
of  the  Senate  has  no  power  to  count  the  electoral  vote,  and  that  power 
in  case  of  double  returns  was  committed  to  this  Commission. 

What  is  this  power  to  count  9  Is  it  merely  to  add  up  and  declare  the 
number  of  votes  from  a  State  $  This  cannot  be,  because  we  should  be 
stopped  at  the  beginning  by  the  appearance  of  two  or  more  returns. 
We  must  determine  which  of  these  returns  is  the  true  return,  which  of 
these  votes  u  are  the  votes  provided  for  by  the  Constitution,"  and  "  how 
many  and  what  persons  were  duly  appointed  electors  in  such  State." 
To  do  this  demands  examination,  scrutiny,  and  consideration  of  all  the 
facts  on  which  the  several  sets  of  electors  proceeded  to  cast  their  votes. 
The  law  gives  the  powers  possessed  by  the  two  Houses  or  either  one  of 
them,  and  makes  a  legislative  declaration  of  the  right  and  imposes  the 
duty  to  decide  whether  any  and  what  votes  are  the  votes  provided  by 
the  Constitution.  The  two  Houses  of  Congress  possess  this  power  or 
they  have  been  on  inauy  occasions  guilty  of  gross  usurpation  of  power. 
Doubts  arose  in  1817  about  the  right  of  the  electors  of  Indiana  to  cast 
their  vote,  in  1821  in  Missouri,  and  in  1837  in  Michigan.  (See  House 
Document  13,  pages  46,  51,  and  72.)  In  each  of  these  cases  the  votes  of 
the  States  were  counted  in  the  alternative.  In  1865  the  electoral  votes 
of  the  eleven  seceded  States  were  rejected  by  both  Houses  in  the  elect 
oral  count.  (Page  229.)  In  1869  the  vote  of  Louisiana  was  objected  to 
on  the  ground  of  fraud,  and  the  same  was  considered  and  counted. 
(Page  238.)  In  1873  there  were  two  certificates  and  seven  objections 
raised  to  the  vote  of  Louisiana.  The  vote  of  that  State  was  not  counted. 
(Page  391.)  In  1873  the  vote  of  Georgia  was  not  counted  because  it 
was  cast  for  a  dead  man.  (Page  407.) 


ELECTORAL    COUNT    OF    1877.  903 

The  action  of  the  two  Houses  of  Congress  on  these  several  occasions 
shows  that  this  power  in  the  opinion  of  these  Houses  did  exist.  They 
were  precedents  in  existence  when  the  law  framing  this  Commission  was 
enacted  and  must  be  considered  in  construing  the  law.  But  what  are 
the  constitutional  provisions  on  this  subject  f 

ARTICLE  II. 

Each  State  shall  appoint,  in  such  manner  as  the  legislature  thereof  may  direct,  a 
number  of  electors,  equal  to  the  whole  number  of  Senators  and  Representatives,  to 
which  the  State  may  be  entitled  in  the  Congress ;  but  no  Senator  or  Representative  or 
person  holding  an  office  of  trust  or  profit  under  the  United  States,  shall  be  appointed 
an  elector. 

ARTICLE  XII. 

The  electors  shall  meet  in  their  respective  States  and  vote  by  ballot  for  President 
and  Vice-President,  one  of  whom,  at  least,  shall  not  be  an  inhabitant  of  the  same  State 
with  themselves ;  they  shall  name  in  their  ballots  the  person  voted  for  as  President, 
and  in  distinct  ballots  the  person  voted  for  as  Vice-President,  and  they  shall  make  dis 
tinct  lists  of  all  persons  voted  for  as  President  and  of  all  persons  voted  for  as  Vice- 
President,  and  of  the  number  of  votes  for  each  ;  which  lists  they  shall  sign  and  certify, 
and  transmit  sealed  to  the  seat  of  Government  of  the  United  States,  directed  to  the 
President  of  the  Senate.  The  President  of  the  Senate  shall,  in  the  presence  of  the 
Senate  and  House  of  Representatives,  open  all  the  certificates  and  the  votes  shall  then 
be  counted — the  person  having  the  greatest  number  of  votes  for  President  shall  be  the 
President,  if  such  number  be  a  majority  of  the  whole  number  of  electors  appointed; 
and  if  no  person  have  such  majority,  then  from  the  persons  having  the  highest  numbers 
not  exceeding  three  on  the  list  of  those  voted  for  as  President,  the  House  of  Repre 
sentatives  shall  choose  immediately,  by  ballot,  the  President.  But  in  choosing  the 
President,  the  votes  shall  be  taken  by  States,  the  representation  from  each  State  having 
one  vote;  a  quorum  for  this  purpose  shall  consist  of  a  member  or  members  from  two- 
thirds  of  the  States,  and  a  majority  of  all  the  States  shall  be  necessary  to  a  choice. 
And  if  the  House  of  Representatives  shall  not  choose  a  President  whenever  the  right 
of  choice  shall  devolve  upon  them,  before  the  4th  day  of  March,  next  following,  then 
the  Vice-President  shall  act  as  President,  as  in  the  case  of  death  or  other  constitutional 
disability  of  the  President. 

The  person  having  the  greatest  number  of  votes  as  Vice-President  shall  be  the  Vice- 
President,  if  such  number  be  a  majority  of  the  whole  number  of  electors  appointed ; 
and  if  no  person  have  a  majority,  then  from  the  two  highest  numbers  on  the  list  the 
Senate  shall  choose  the  Vice-President ;  a  quorum  for  the  purpose  shall  consist  of  two- 
thirds  of  the  whole  number  of  Senators,  and  a  majority  of  the  whole  number  shall  be 
necessary  to  a  choice.  » 

The  Congress  may  determine  the  time  of  choosing  the  electors,  and  the  day  on  which 
they  shall  give  their  votes ;  which  day  shall  be  the  same  throughout  the  United  States. 

These  are  the  constitutional  provisions  on  this  subject,  and  by  them 
the  power  to  appoint  electors  is  given  to  the  States  to  be  exercised  in 
such  manner  as  the  legislature  may  direct,  and  the  only  limitation  on 
this  power  to  appoint  is  that  "  no  Senator  or  Eepresentative,  or  person 
holding  an  office  of  trust  or  profit  under  the  United  States,  shall  be  ap 
pointed." 

It  is  conceded  that  the  power  to  appoint  belongs  to  the  State,  but  it 
is  our  power  and  duty  under  this  law  to  decide  who  has  been  appointed 
by  the  State.  The  State  appointed,  if  at  all,  on  the  7th  of  November, 
1876.  The  question  for  us  to  decide  is  whom  did  she  appoint  or  who 
were  duly  appointed  electors  and  which  are  the  votes  provided  for  by 
the  Constitution. 

I  cannot  doubt  our  power  to  go  into  the  inquiry  which  set  of  electors 
uttered  the  true  voice  of  the  State  of  Florida. 

It  is  offered  in  proof  by  counsel  for  objectors  to  the  certificate  of  the 
Hayes  electors  as  follows : 

First.  On  December  6, 1876,  being  the  regular  law  day,  both  the  Tilden  and  the  Hayes 
-electors,  respectively,  met  and  cast  their  votes  and  transmitted  the  same  to  the  seat  of 
Government.  Every  form  prescribed  by  the  Constitution,  or  by  any  law  bearing  on 
the  subject,  was  equally  complied  with  by  each  of  the  rival  electoral  colleges,  unless 


904  ELECTORAL    COUNT    OF    1877. 

there  be  a  material  difference  between  them  in  this  respect :  The  certified  lists  pro 
vided  for  in  section  136  of  the  Revised  Statutes  were,  as  to  the  Tilden  electors,  certified 
by  the  attorney-general,  and  were,  as  to  the  Hayes  electors,  certified  by  Mr.  Stearns, 
then  governor. 

All  this  appears  of  record ;  and  no  additional  evidence  is  needed  in  respect  to  any 
part  of  it. 

Secondly.  A  quo  warranto  was  commenced  against  the  Hayes  electors  in  the  proper 
court  of  Florida  on  the  said  6th  of  December,  1876,  before  they  had  cast  their  votes, 
which  eventuated  in  a  judgment  against  them  on  January  25, 1877,  a  determination 
that  the  Tilden  electors  were  duly  appointed.  The  validity  and  effect  of  this  judgment 
is  determinable  by  the  record,  and  no  extrinsic  evidence  seems  to  be  desirable  on  either 
side,  unless  it  be  thought — 

1.  That  the  Tilden  electors  should  give  some  supplemental  proof  of  the  precise  fact 
that  the  writ  of  quo  warranto  was  served  before  the  Hayes  electors  cast  their  votes,  or 

2.  It  be  desired  on  the  other  side  to  show  the  entry  and  pendency  of  an  appeal  from 
the  judgment  in  the  quo  warranto. 

With  these  two  possible  and  very  slight  exceptions,  the  whole  case  in  this  branch  of 
it  depends  upon  the  record. 

Thirdly.  To  show  what  is  the  common  law  of  Florida,  and  to  show  also  the  true  con 
struction  of  Florida  statutes,  the  Tilden  electors  desire  to  place  before  the  Commission 
the  record  of  a  judgment  of  the  supreme  court  in  that  State  on  a  mandamus  prosecuted 
on  the  relation  of  Mr.  Drew,  the  present  governor  of  that  State,  by  force  of  which  Mr. 
Stearns  was  ousted  and  Mr.  Drew  was  admitted  as  governor.  This  judgment,  together 
with  the  court's  opinion,  are  matters  of  record  and  they  require  no  other  proofs,  nor  is 
tbere  any  technical  rule  as  to  the  manner  in  which  this  Commission  may  inform  itself 
concerning  the  law  of  Florida. 

Fourthly.  The  legislation  of  Florida  authorizing  a  new  canvass  of  the  electoral  vote 
and  the  fact  of  such  new  canvass,  the  casting  anew  of  the  electoral  votes  and  the  due 
formal  transmission  thereof  to  the  seat  of  Government,  in  perfect  conformity  with  the 
Constitution  and  laws,  (except  that  they  were  subsequent  in  point  of  time  to  Decem 
ber  6, 1876,)  are  all  matters  of  record  and  are  already  regularly  before  the  Commission. 

Fifthly.  The  only  matters  which  the  Tilden  electors  desire  to  lay  before  the  Com 
mission  by  evidence  actually  extrinsic  will  now  be  stated : 

1.  The  board  of  State  canvassers,  acting  on  certain  erroneous  views  when  making 
their  canvass,  by  which  the  Hayes  electors  appeared  to  be  chosen,  rejected  wholly  the 
returns  from  the  county  of  Manatee  and  part  of  returns  from  each  of  the  following  coun 
ties,  to  wit :  Hamilton,  Jackson,  and  Monroe. 

In  so  doing  the  said  State  board  acted  without  jurisdiction,  as  the  circuit  and  su 
preme  courts  in  Florida  decided.  It  was  by  overruling  and  setting  aside  as  not  war 
ranted  by  law  these  rejections  that  the  courts  of  Florida  reached  their  respective 
conclusions  that  Mr.  Drew  was  elected  governor,  that  the  Hayes  electors  were  usurpers, 
and  that  the  Tilden  electors  were  duly  chosen. 

No  evidence  that  in  any  view  could  be  called  extrinsic  is  believed  to  be  needful  in 
order  to  establish  the  conclusions  relied  upon  by  the  Tilden  electors,  except  duly-au 
thenticated  copies  of  the  State  canvass  and  of  the  returns  from  the  above-named  four 
counties,  one  wholly  and  the  others  in  part  rejected  by  said  State  canvassers. 

2.  Evidence  that  Mr.  Humphreys,  a  Hayes  elector,  held  office  under  the  United 
States. 

Sixthly.  Judging  from  the  objections  taken  by  those  supporting  the  Hayes  electors, 
and  the  opening  arguments  here  offered  in  their  behalf,  it  is  believed  that  no  evidence 
is  needed  or  intended  to  be  offered  by  the  supporters  of  the  Hayes  electors,  unless  it 
be— 

1.  That  the  above-mentioned  appeal  was  taken. 

2.  That  Mr.  Humphreys,  one  of  the  Hayes  electors,  had  resigned  his  office  under  the 
United  States  before  his  appointment  as  an  elector. 

This  is  the  proof  they  offer  to  us.  They  say  they  can  make  good  this 
offer  by  the  production  of  evidence,  and  they  propose  to  satisfy  the 
minds  of  this  tribunal,  if  allowed,  that  the  State  of  Florida,  on  the  7th 
day  of  November,  1876,  appointed  Tiklen  electors,  and  that  they,  and 
they  alone,  are  u  the  duly-appointed  electors  of  the  State." 

One  would  suppose,  when  the  past  action  of  Congress  on  this  subject 
and  the  provisions  of  the  electoral  bill  are  considered,  that  there  would 
be  no  voice  raised  here  against  hearing  this  evidence  ;  but  it  was  main 
tained  by  counsel,  and  is  insisted  on  here,  that  the  Hayes  electors,  hav 
ing  the  governor's  certificate,  based  on  the  certificate  of  the  returning- 
board,  we  cannot  go  behind  these  certificates  to  inquire  whether  they 
contain  the  truth  or  are  false  and  fraudulent. 


ELECTORAL    COUNT    OF    1877  905 

It  must  be  conceded  that  there  may  be  cases  which  will  force  an  ex 
amination  into  the  truth  of  these  certificates. 

Suppose  it  were  alleged  that  these  certificates  are  forged,  it  will  hardly 
be  maintained  that  they  would  present  a  conclusive  case.  Can  a  forged 
certificate  be  less  powerful  than  a  fraudulent  one?  Would  any  one 
desire  to  uphold  a  fraud  any  more  than  a  forgery  ? 

By  the  laws  of  Congress  it  is  provided  : 

SEC.  136.  It  shall  be  the  duty  of  the  executive  of  each  State  to  cause  three  lists  of 
the  names  of  the  electors  of  such  State  to  be  made  and  certified,  and  to  be  delivered  to 
the  electors  on  or  before  the  day  on  which  they  are  required,  by  the  preceding  section, 
to  meet.  (1  Mar.,  1792,  c.  8,  s.  3,  v.  1,  p.  240.) 

The  laws  of  Florida  also  provide  for  certificates  from  the  returning- 
board  and  from  the  governor  to  the  electors.  I  deny  under  the  precedents 
(already  cited)  of  the  action  of  the  two  Houses  and  under  the  authorities 
that  these  certificates  are  conclusive.  I  maintain  that  they  furnish  evi 
dence  of  the  action  of  the  State  in  the  appointment  of  electors  not  con 
clusive  but  prima  facie,  and  that  we  have  the  right  to  go  behind  them 
to  ascertain  whether  they  speak  the  truth  or  are  fraudulent  and  false. 

Chief-Justice  Whiton,  in  4  Wisconsin,  792,  commenting  on  the  effect 
of  certificates  of  canvassers,  says : 

Before  proceeding  to  state  our  views  in  regard  to  the  law  regulating  the  canvass  of 
votes  by  the  State  carwassers,  we  propose  to  consider  how  far  the  right  of  a  person  to 
an  office  is  affected  by  the  determination  of  the  canvassers  of  the  votes  cast  at  the 
election  held  to  choose  the  officer.  Under  our  constitution,  almost  all  our  officers  are 
elected  by  the  people.  Thus  the  governor  is  chosen,  the  constitution  providing  that 
the  person  having  the  highest  number  of  votes  for  that  office  shall  be  elected.  But  the 
constitution  is  silent  as  to  the  mode  in  which  the  election  shall  be  conducted,  and  the 
votes  cast  for  governor  shall  be  canvassed,  and  the  result  of  the  election  ascertained. 
The  duty  of  prescribing  the  mode  of  conducting  the  election  and  of  canvassing  the 
votes  was,  therefore,  devolved  upon  the  legislature.  They  have  accordingly  made 
provision  for  both,  and  the  question  is,  whether  the  canvass,  or  the  election,  establishes  the 
right  of  a  person  to  an  office.  It  seems  clear  that  it  cannot  ~be  the  former,  because  by  our 
constitution  and  laws  it  is  expressly  provided  that  the  election  by  the  qualified  voters  shall 
determine  the  question.  To  hold  that  the  canvass  shall  control  would  subvert  the  foundations 
upon  which  our  government  rests.  But  it  has  been  repeatedly  contended  in  the  course  of 
this  proceeding  that  although  the  election  by  the  electors  determines  the  right  to  the 
office,  yet  the  decision  of  the  persons  appointed  to  canvass  the  votes  cast  at  the  election 
settles  finally  and  completely  the  question  as  to  the  persons  elected,  and  that,  there 
fore,  no  court  can  have  jurisdiction  to  inquire  into  the  matter.  It  will  be  seen  that 
this  view  of  the  question,  while  it  recognizes  the  principle  that  the  election  is  the 
foundation  of  the  right  to  the  office,  assumes  that  the  canvassers  have  authority  to  de 
cide  the  matter  finally. and  conclusively.  We  do  not  deem  it  necessary  to  say  anything 
on  the  present  occasion  upon  the  subject  of  the  jurisdiction  of  this  court,  as  that  ques 
tion  has  already  been  decided  and  the  reasons  for  the  decision  given.  Bearing  it  in 
mind,  then,  that  under  our  constitution  and  laws  it  is  the  election  to  an  office,  and  not 
the  canvass  of  the  votes,  which  determines  the  right  to  the  office,  we  will  proceed  to 
inquire  into  the  proceedings  of  the  State  canvassers  by  which  they  determined  that 
the  respondent  was  duly  elected. 

The  title  to  an  elective  office  is  derived  from  the  people  through  the  ballot-box. 
Somebody  must  declare  the  will  of  the  electors  as  thus  expressed.  Canvassers  are  pro 
vided  for  that  purpose.  The  certificate  of  a  board  of  canvassers  is  evidence  of  the 
person  upon  whom  the  office  has  been  conferred.  Upon  all  questions  arising  collater 
ally,  or  between  a  party  holding  the  certificate  and  a  stranger,  it  is  conclusive  evidence  ; 
but,  in  a  proceeding  to  try  the  right  to  the  office  it  is  only  prima  facie  evidence.  In 
such  a  proceeding,  now  regarded  as  a  civil  action,  it  is  competent  for  the  court  to  go 
behind  the  adjudication  of  the  canvassers.  The  whole  question  is  thrown  open,  and 
extrinsic  evidence  is  allowed  to  show  which  was  the  true  state  of  the  votes.  In  such 
an  action,  where  the  right  to  the  office  is  the  very  thing  in  issue,  the  court  will  allow 
nothing  to  stand  in  the  way  between  it  and  the  ballot-box.  It  will  put  in  requisition 
all  the  means  within  its  reach  to  ascertain  the  expressed  will  of  the  electors,  and  will 
conform  its  judgment  to  such  ascertained  will.  (Morgan  vs.  Quackenbush,  22  Barb., 

In  deciding  the  question  as  to  which  candidate  has  received  the  greater  number  of 
votes  cast  by  the  electors  for  a  particular  office,  the  court  and  jury  will  go  behind  the 
canvass  to  ascertain  the  intention  of  the  voters,  and  when  ascertained,  will  give  effect 


906  ELECTORAL    COUNT    OF    1877. 

to  that  intenion  by  giving  to  each  candidate  the  votes  the  voters  gave  him  (People 
vs.  Ferguson,  8  Cow.,  102  ;  People  vs.  Cook,  8  N.  Y.,  67,  83  ;  People  vs.  Pease,  27  N.  Y.  45 : 
People  vs.  Love,  63  Barb,,  535 ;  People  vs.  Wilson,  62  N.  Y.,  186 ;  People  vs.  Vail,  20  Wend., 

These  authorities  and  many  more  that  might  be  cited  prove  that  the 
certificates  are  not  the  election.  They  only  form  evidence  in  one  form 
of  the  result  of  it. 

It  is  further  submitted  that  no  law  that  could  be  enacted  in  Florida 
could  make  these  certificates  conclusive  and  absolutely  binding  on  the 
two  Houses  or  this  Commission  in  the  electoral  count.  That  State  could 
by  law  make  a  certificate  binding  and  conclusive  between  her  own  citi 
zens,  but  cannot  give  it  this  effect  out  of  the  State  between  persons  not 
her  citizens. 

It  has  been  declared  that  to  go  behind  these  certificates  and  to  find 
contrary  to  them  would  be 'a  violation  of  State  rights.  I  am  an  advo 
cate  for  State  rights  of  the  straitest  sect.  I  did  not,  I  do  not  expect 
to  learn  a  lesson  in  that  direction  from  those  who  have  proclaimed  it  in 
this  case.  Indeed,  it  is  feared  that  it  is  used  here  to  cover  up  a  great 
wrong  to  a  State.  But  in  this  case  these  new-made  converts  to  the  doc 
trine  need  have  no  apprehension,  because  the  State  of  Florida,  through 
the  executive,  legislative,  and  judicial  departments  of  her  State  govern 
ment,  has  labored  to  convince  us  and  the  country  that  the  Hayes  elect 
ors  are  not  the  duly-appointed  electors  of  that  State.  She  has  done 
what  she  could  to  correct  this  great  wrong,  and  she  relies  on  us  to  do 
the  balance. 

When  the  Hayes  electors  met  and  before  their  vote  was  cast,  the  Til- 
den  electors  commenced  a  quo  warranto  proceeding  against  them,  which 
it  is  offered  to  prove  was  served  before  the  vote  was  cast.  On  the  25th 
of  January,  1877,  judgment  was  rendered  in  the  case,  declaring  that  the 
Hayes  electors  were  usurpers  and  that  the  Tilden  electors  were  duly 
appointed.  From  this  judgment  there  was  an  appeal,  but  it  has  never 
been  reversed.  The  vote  for  the  Tilden  electors  was  about  the  same  as 
the  vote  for  Drew,  the  democratic  candidate  for  governor.  If  one  was 
duly  elected  the  others  were.  This  same  returning-board  that  gave  cer 
tificates  to  the  Hayes  electors  also  gave  certificates  to  Stearns,  the  op 
ponent  of  Drew. 

On  a  mandamus  prosecuted  by  Drew  against  Stearns  in  the  highest 
court  of  Florida,  Mr.  Stearns  was  ousted  and  Mr.  Drew  installed  as  gov 
ernor. 

The  effect  of  these  two  decisions  is  to  declare  by  the  courts  of  Florida 
what  the  laws  of  Florida  are,  and  when  so  declared  these  decisions  bind 
all  other  courts  as  fully  as  if  the  decisions  had  been  incorporated  into 
the  law. 

But  it  is  said  that  the  electors  became  functus  officio  before  the  judg 
ment  in  quo  warranto.  Although  the  electors  had  voted  before  the 
judgment  in  quo  warranto,  yet  that  judgment  was  rendered  in  time  to 
instruct  us  on  the  point  which  we  are  to  decide  and  determine,  to  wit, 
which  set  of  electors  has  been  duly  appointed. 

The  court  had  jurisdiction  to  proceed  to  judgment  after  December  6, 
according  to  the  current  of  authorities  both  in  England  and  this  coun 
try.  When  the  office  shall  expire  before  judgment,  the  court  may  in 
its  discretion  refuse  the  writ ;  but  when  once  granted  it  must  go  on  to 
judgment. 

In  The  People  vs.  Sweeting,  2  Johns.,  184,  the  supreme  court  of  New 
York,  in  denying  a  similar  application,  said  : 

This  court  has  a  discretion  to  grant  motions  of  this  kind  or  to  refuse  them,  if  no  suf 
ficient  reasons  appear  for  allowing  this  mode  of  proceeding. 


ELECTORAL    COUNT    OF    H77,  907 

That  this  was  the  sole  effect  of  this  decision  appears  from  the  subse 
quent  case  of  The  People  vs.  Tibbetts,  4  Cow.,  358,  381,  bottom.  Here 
the  same  court  granted  such  a  motion  for  leave  to  file  an  information, 
notwithstanding  the  former  case,  which  was  cited  and  considered.  They 
say  : 

Here  the  motion  was  brought  before  us  at  the  term  next  after  the  election.  We  can 
not  refuse  it  upon  the  mere  chance  that  a  trial  may  fail.  To  do  this  would  be  equiv 
alent  to  a  refusal  in  all  cases  where  the  office  is  annual;  a  length  to  which  we  pre 
sume  the  court  did  not  intend  to  go,  and  to  which  it  was  not  necessary  they  should  go, 
in  The  People  vs.  Sweeting.  On  the  whole,  we  are  clear  upon  the  nature  of  the  case 
as  to  our  right  of  allowing  the  information  to  be  filed  ;  and  that  the  lapse  of  time  is 
not  such  as  to  require  us  iu  the  exercise  of  a  sound  discretion  to  deny  it. 

Says  Chief-Justice  Ames,  in  delivering  the  opinion  of  the  supreme 
court  of  Ehode  Island,  State  vs.  Brown,  5  Rhode  Island,  1 : 

When  the  information  is  filed  all  the  discretionary  power  of  the  court  is  expended, 
and  the  issues  of  law  or  fact  raised  by  the  pleadings  must  be  tried  and  decided  under 
the  law  and  in  the  same  manner  and  with  the  same  strictness  as  in  any  other  case, 
civil  or  criminal.  (P.  4.) 

According  to  these  decisions  the  court  in  Florida  had  jurisdiction  to 
issue  and  try  this  quo  warranto,  and  the  judgment  that  the  Tilden  elect 
ors  were  the  duly  appointed  electors  of  Florida  until  reversed  binds  all 
courts  in  the  United  States. 

This  judgment  and  that  in  mandamus  settle  the  question  that  accord 
ing  to  the  laws  of  Florida  the  canvassing-board  committed  an  error  (to 
use  no  stronger  term)  in  granting  certificates  to  the  Hayes  electors  and 
that  their  certificate  and  that  of  the  governor  founded  on  it  gave  the 
said  Hayes  electors  no  valid  title  to  their  office,  and  that  the  Tilden 
electors  were  duly  appointed. 

But  the  State  of  Florida  did  not  stop  here.  Upon  the  decision  of  the 
mandamus  Governor  Drew  was  installed  into  office  with  his  democratic 
associates  on  the  State  ticket,  and  also  a  democratic  legislature.  The 
old  returning-board,  consisting  of  the  secretary  of  state,  attorney- general, 
and  comptroller  of  public  accounts,  died,  and  the  new  board  under 
mandamus  came  into  office. 

Under  a  law  of  the  new  legislature  passed  in  January,  1877,  a  new 
canvass  was  held  and  the  Tilden  electors  declared  elected  j  this  was 
followed  by  the  certificate  of  the  governor.  About  the  same  time 
another  act  was  passed  declaring  that  the  Tilden  electors  were  the  duly 
appointed  electors  of  that  State.  Thus  the  State  of  Florida  has,  through 
all  of  its  three  several  departments,  declared  that  according  to  her  laws 
the  Tilden  electors  were  duly  chosen.  In  the  face  of  all  this  accumulated 
evidence  of  the  truth  shall  we  shut  our  eyes  and  say  we  will  hear  nothing 
on  the  subject  ?  We  are  acting  under  a  law  which  requires  us  to  decide 
"  what  persons  were  duly  appointed  electors  "  in  Florida,  and  yet  we  are 
urged  to  decide  this  grave  question  in  favor  of  one  set  of  electors  on  the 
governor's  certificate  and  that  of  the  returning-board,  when  before  our 
eyes  stands  evidence  which  must  be  satisfying  to  ail  that  the  other  set 
was  duly  elected.  They  also  offer  to  produce  for  our  consideration  the 
actual  vote  of  the  State  that  we  may  revise  the  canvass  for  ourselves  and 
decide  according  to  the  laws  of  Florida  and  the  very  right  of  the  case. 
If  this  offer  of  proof  be  rejected,  let  it  not  be  on  the  affectation  of  regard 
for  the  rights  of  the  State  of  Florida.  She  is  suffering  under  a  grievous 
State  wrong,  and  through  all  her  departments  has  tried  to  correct  it, 
and  is  now  stretching  out  her  hands  to  us  for  relief.  I  cannot  believe 
this  Commission  will  refuse  to  hear  this  testimony,  and  (if  it  comes  up 
to  the  offer  of  proof)  to  correct  this  foul  wrong. 


908  ELECTORAL    COUNT    OF    1877. 

But  it  has  been  maintained  that  though  the  Hayes  electors  may  not 
have  been  duly  appointed  and  though  the  Tilden  electors  may  have  been 
duly  appointed  on  the  7th  of  November,  yet  as  the  Hayes  electors  had 
some  color  of  authority  under  the  governor's  certificate,  they  became 
electors  de  facto,  and  their  action  in  casting  the  vote  of  the  State  for 
Hayes  was  binding  on  all  persons.  What  a  monstrous  doctrine  !  It 
must  shock  the  moral  sense  of  every  member  of  this  Commission. 

It  will  be  recollected  that  both  sets  of  electors,  each  claiming  to  be  the 
duly  appointed  electors  of  Florida,  met  according  to  law  at  the  same  time 
and  with  the  same  forms  cast  their  votes — the  one  for  Hayes,  the  other 
for  Tilden.  We  are  told  we  cannot  inquire  which  was  the  true  set  of 
electors,  because  one  set  had  the  governor's  certificate,  and  because  they 
were  the  de  facto  electors.  This  seems  an  entirely  new  application  of 
the  doctrine,  and  common  sense  will  answer  and  repudiate  it.  Where  two 
persons  both  claiming  to  hold  an  office  attempt  to  discharge  the  duties 
of  the  office  at  the  same  time,  there  can  be  no  claim  on  the  part  of  either 
that  he  is  a  de  facto  officer.  One  or  the  other  is  de  jure,  and  his  acts  must 
be  respected  and  those  of  the  other  repudiated. 

The  doctrine  of  the  authorities  on  this  subject  seems  to  be  this :  If 
the  act  of  the  de  facto  officer  has  not  operated  to  accomplish  some  change 
in  the  relation  of  parties  to  each  other  or  to  property  or  to  the  public, 
such  acts  will  not  be  regarded,  especially  if  a  like  act  was  performed  by 
the  officer  de  jure  at  the  same  time.  (Wilcox  vs.  Smith,  5  Wend.,  231. 
Hildreth  vs.  Mclntire,  1  J.  J.  Marshall,  206.  Green  vs.  Burke,  23  Wend., 
490.) 

It  cannot  be  that  the  fact  that  the  Hayes  electors  acted  can  give  valid 
ity  to  their  acts  when  there  could  be  no  inquiry  here  unless  they  had 
acted  and  the  very  question  to  decide  is  which  of  the  two  parties  acting 
had  the  right  to  act,  and  before  the  act  of  either  was  accomplished  by 
the  count  here  this  action  on  the  part  of  the  Hayes  electors  was  declared 
void  by  the  court  of  Florida. 

But  the  proof  is  also  offered  that  one  of  the  Hayes  electors,  Mr.  Hiirn- 
phreys,  held  an  office  of  trust  and  profit  under  the  United  States  Gov 
ernment  at  the  time  of  his  appointment. 

Surely  we  cannot  refuse  to  hear  this  proof. 

The  Constitution  says  in  article  2,  section  1 : 

The  executive  power  shall  be  vested  in  a  President  of  the  United  States  of  America. 
He  shall  hold  his  office  during-  the  term  of  four  years,  and  together  with  the  Vice-Pres 
ident,  chosen  for  the  same  term,  be  elected  as  follows  : 

Each  State  shall  appoint,  in  such  manner  as  the  legislature  thereof  may  direct,  a 
number  of  electors,  equal  to  the  whole  number  of  Senators  and  Representatives  to 
which  the  State  may  be  entitled  in  the  Congress  ;  but  no  Senator  or  Representative, 
or  person  holding  an  office  of  trust  or  profit  under  the  United  States,  shall  be  appointed 
an  elector. 

The  right  and  power  to  appoint  electors  is  not  an  original  State  right, 
not  one  of  those  rights  reserved  to  the  State  in  the  formation  of  the  Con 
stitution.  Without  the  Constitution  and  the  Union  it  formed,  there  would 
have  been  no  such  thing  as  presidential  electors.  It  was  a  power  and  a 
right  secured  by  the  compact  to  each  State  and  owed  its  existence  to  the 
compact.  The  power,  then,  must  be  exercised  in  conformity  to  the  com 
pact.  If  there  is  a  limitation  on  this  right  or  an  inhibition  on  its  exer 
cise,  this  limitation  or  inhibition  must  be  respected  or  the  exercise  of  the 
right  is  void.  The  power  to  appoint  electors  in  the  Constitution  is  sub 
ject  to  the  limitation  on  that  power  in  these  words:  "  But  no  Senator  or 
Representative,  or  person  holding  an  office  of  trust  or  profit  under  the 
United  States,  shall  be  appointed  an  elector."  This  is  an  express  limi 
tation  on  the  right  to  appoint  electors,  and  if  the  State  does  appoint  any 


ELECTORAL    COUNT    OF    1877.  9()9 

of  the  prohibited  class,  it  is  void.  She  has  under  the  Constitution  no 
more  right  to  appoint  such  than  she  would  have  to  appoint  any  if  this 
section  of  the  Constitution  had  not  been  adopted. 

The  States  can  now  fail  or  refuse  to  appoint  electors.  If  so,  then  they 
decline  to  take  part  in  electing  a  President.  If  Florida  appoints  three 
eligible  electors  and  one  who  is  ineligible,  then  she  can  only  give  three 
votes  for  President  instead  of  four. 

It  is  plain  that  the  object  of  this  prohibition  or  limitation  of  the  power 
of  appointment  was  wise.  It  was  to  prevent  the  interference  of  Federal 
officers  in  the  presidential  election — to  make  the  electoral  colleges  inde 
pendent  of  the  existing  President  and  prevent  him  from  re-electing  him 
self  or  naming  his  successor. 

It  has  always  been  considered  a  wise  and  salutary  provision  which 
should  be  rigidly  adhered  to. 

In  the  presidential  count  of  1837  it  was  suggested  that  several  post 
masters  had  been  appointed  electors.  A  committee  was  raised  to  ascer 
tain  and  report  on  this  matter.  Felix.  Gruudy,  Henry  Clay,  and  Silas 
Wright  were  members  of  this  committee  on  the  part  of  the  Senate,  and 
the  following  is  an  extract  from  the  report,  submitted  by  Mr.  Grundy  : 

The  committee  are  of  opinion  that  the  second  section  of  the  second  article  of  the 
Constitution,  which  declares  that  "  no  Senator  or  Representative,  or  person  holding  an 
office  of  trust  or  profit  under  the  United  States,  shall  be  appointed  an  elector,"  ought 
to  be  carried,  in  its  whole  spirit,  into  rigid  execution,  in  order  to  prevent  officers  of  the  Gen 
eral  Government  from  bringing  their  official  power  to  influence  the  elections  of  President  and 
Vice- President  of  the  United  States.  This  provision  of  the  Constitution,  it  is  believed,  ex 
cludes  and  disqualifies  deputy  postmasters  from  the  appointment  of  electors  }  and  the  disquali 
fication  relates  to  the  time  of  the  appointments,  and  that  a  resignation  of  the  office  of  deputy 
postmaster,  after  his  appointment  as  elector,  would  not  entitle  him  to  vote  as  elector  under  the 
Constitution, 

In  the  debate  ensuing  in  the  House  of  Representatives  upon  the  re 
port  of  the  joint  committee,  Mr.  Francis  Thomas,  chairman  of  the  House 
committee,  said  that  "  the  committee  came  unanimously  to  the  conclu 
sion  that  they  (the  postmasters  in  question)  were  not  eligible  at  the 
time  they  were  elected,  and  therefore  the  whole  proceeding  was  vitiated 
ab  initio." 

These  great  men,  considering  it  most  important  that  this  provision 
should  be  strictly  adhered  to,  gave  strong  and  convincing  reasons  for 
it,  and  declared  that  the  appointment  of  such  was  a  void  act  5  that  the 
disqualification  relates  to  the  time  of  appointment,  and  that  subsequent 
resignation  of  Federal  office  before  voting  in  the  electoral  college  did  not 
entitle  one  to  vote  as  elector.  Unfortunately,  the  votes  of  those  ineli 
gible  electors  did  not  affect  the  presidential  count  of  1837,  and  no  legis 
lation  followed  ;  but  the  principle  then  declared  is  as  true  to-day  as  it 
was  when  declared.  Ever  since  the  Wilkes  case  in  the  British  Parlia 
ment,  it  has  been  held  in  a  long  and  almost  harmonious  current  of  de 
cisions,  both  in  this  country  and  in  England,  that  the  election  or  appoint 
ment  of  an  ineligible  person  is  a  void  act.  Authorities  differ  as  to 
whether  the  next  highest  candidate  is  elected,  but  I  know  of  no  case  in 
which  the  ineligible  candidate  was  held  to  be  elected. 

I  beg  leave  to  refer  to  some  of  the  leading  cases  in  which  this  doc 
trine  was  held. 

The  doctrine  was  held  in  the  case  of  Searcy  vs.  Grow,  15  Cal.,  118' 
where  the  opinion  was  pronounced  by  Baldwin,  J.,  Cope,  J.,  and  Field, 
C.  J.,  concurring.  It  was  a  contest  for  the  office  of  sheriff  of  Siskiyou 
County.  Grow  had  been  returned  as  elected  to  the  office.  At  the  time 
of  the  election  he  was  postmaster  in  the  town  of  Yreka,  the  compensa 
tion  of  which  exceeded  $500  per  annum.  The  court  below  found  for 


910  ELECTORAL    COUNT    OF   1877. 

Searey,  and  Grow  appealed.  The  constitution  of  California  provides 
that  "  no  person  holding  any  lucrative  office  under  the  United  States 
or  in  their  power  shall  be  eligible  to  any  civil  office  of  profit  under  this 
State,  provided  that  officers  in  the  militia  to  which  there  is  attached  no 
annual  salary,  or  local  officers  and  postmasters  whose  compensation 
does  not  exceed  $500  per  annum,  shall  not  be  deemed  lucrative/'  Grow 
was  postmaster  at  the  time  of  his  election,  but  had  resigned  at  the  time 
of  his  qualifications.  The  supreme  court  unanimously  affirmed  the 
judgment  of  the  court  below. 

In  the  opinion,  Justice  Baldwin  says,  (page  121 :) 

The  people  in  this  case  were  clothed  with  this  power  of  choice.  Their  selection  of 
a  candidate  gave  him  all  the  claim  to  the  office  which  he  has.  His  title  to  the  office 
comes  from  their  designation  of  him  as  sheriff.  But  they  could  not  designate  or  choose 
a  man  not  eligible — that  is,  not  capable  of  being  selected.  They  might  select  any 
man  they  chose,  subject  only  to  this  exception  :  that  the  man  they  selected  was  capa 
ble  of  taking  what  they  had  the  power  to  give.  We  do  not  see  how  the  fact  that  he 
became  capable  of  taking  office  after  they  had  exercised  their  power  can  avail  the 
appellant.  If  he  was  not  eligible  at  the  time  the  votes  were  cast  for  him,  the  election 
failed.  We  do  not  see  how  it  can  be  assumed  that  by  the  act  of  the  candidate  the  votes 
which,  when  cast,  were  ineffectual,  because  not  given  for  a  qualified  candidate,  became 
effectual  to  elect  him  to  office.  (Price  vs.  Baker,  41  Ind.,  572 ;  Stewart  vs.  Hayes,  3 
Chicago  Legal  News,  117  ;  State  vs.  Giles,  1  Chand.,  Wis.,  112 :  State  vs.  Boal,  46  Mo., 
426;  Saunders  vs.  Haynes,  13  Cal.,  145.) 

The  electors  must  be  all  appointed  on  the  same  day  under  the  act  of 
Congress,  Eevised  Statutes — 

SEC.  131.  Except  in  case  of  a  presidential  election,  prior  to  the  ordinary  period,  as 
specified  in  sections  147  to  149  inclusive,  when  the  offices  of  President  and  Viee-Presi- 
dent  both  become  vacant,  the  electors  of  President  and  Vice-President  shall  be  ap 
pointed  in  each  State  on  the  Tuesday  next  after  the  first  Monday  in  November  in  every 
fourth  year  succeeding  every  election  of  a  President  and  Vice-President. 

The  appointment  must  be  complete  on  that  day.  The  canvass  and 
certificate  made  after  are  only  evidence  of  appointment,  and  cannot  be 
said  in  any  sense  to  be  an  appointment.  These  questions  were  well 
considered  in  a  case  in  Rhode  Island  growing  out  of  the  appointment 
on  the  7th  of  November,  1876,  of  George  H.  Corliss  as  an  elector.  Cor 
liss  was  at  the  date  of  election  (the  day  of  appointment)  a  Centennial 
commissioner.  The  question  of  his  eligibility  was  submitted  by  the 
govenor  to  the  supreme  court. 

The  following  is  a  history  of  the  action  of  the  court  in  the  matter 
of  George  H.  Corliss,  (16  American  Law  Register,  N.  S.,  15,  number 
for  January,  1877.)  Corliss  was  a  Centennial  commissioner  on  Novem 
ber  7,  1876,  when  the  qualified  voters  of  Rhode  Island  cast  a  majority 
of  their  votes  for  him  for  the  office  of  presidential  elector.  The  gov 
ernor,  under  the  laws  of  Rhode  Island,  submitted  to  the  supreme  court 
five  questions,  the  answers  to  which  were  to  guide  his  actions  in 
making  the  required  executive  list  of  electors  appointed.  Of  these 
the  third,  upon  the  assumption  that  the  court  should  answer  that  the 
office  was  one  of  trust  and  profit  under  the  Constitution  of  the  United 
States,  was :  4'  Is  the  disqualification  removed  by  the  resignation  of  said 
office  of  trust  and  profit?"  There  was  a  dissenting  opinion  of  one  judge 
out  of  five  in  answer  to  the  first  question,  but  all  agreed  in  answering 
the  third  question  as  follows : 

We  think  the  disqualification  is  not  removed  by  the  resignation  of  the  office  of  trust 
unless  the  office  is  resigned  before  the  election.  The  language  of  the  Constitution  is- 
that  "  no  person  holding  an  office  of  trust  or  profit  under  the  United  States  shall  be 
appointed  an  elector."  Under  our  law,  (General  Statutes,  chapter  11,  sections  1  and  2,} 
the  election  by  the  people  constitutes  the  appointment.  The  duty  of  the  governor  is  to 
examine  and  count  the  votes,  and  give  notice  to  the  elector.  He  merely  ascertains — 
he  does  not  complete— the  appointment.  A  resignation  therefore,  after.the  election  is 
too  late  to  be  effectual. 


ELECTORAL    COUNT    OF    1677.  911 

Upon  reason  and  authority  both,  Humphreys,  if  a  Federal  officer  on 
the  day  of  election,  could  not  act  as  elector,  even  though  he  resigned 
his  Federal  office  before  the  6th  of  December,  when  he  attempted  to  vote. 

Shall  we  then  refuse  to  hear  evidence  to  show  that  he  held  Federal 
office  on  the  7th  November,  1876  ? 

An  attempt  is  made  to  liken  this  provision  of  the  Constitution  to  the 
third  clause  of  the  third  section  of  article  1 : 

No  person  shall  be  a  Senator  who  shall  not  have  attained  to  the  age  of  thirty  years, 
and  been  nine  years  a  citizen  of  the  United  States,  and  who  shall  not,  when  elected, 
be  an  inhabitant  of  that  State  for  which  he  shall  be  chosen. 

This  provision  it  is  claimed  has  never  prevented  a  person  from  being 
Senator  who  is  at  the  time  he  is  sworn  in  thirty  years  of  age  and  who 
has  then  been  nine  years  a  citizen  of  the  United  States. 

But  how  different  is  the  language  of  these  two  provisions.  In  the 
former  the  language  is,  "  no  person  shall  be  appointed."  In  the  latter, 
"  no  person  shall  be  a  Senator."  He  is  not  a  Senator  until  he  is  sworn 
in,  and  then  the  qualifications  apply.  He  cannot  be  called  Senator 
until  he  assumes  the  duties  of  that  high  position.  He  is  only  a  Senator- 
elect  and  may  never  become  a  Senator.  There  is  much  more  similarity 
in  the  last  prohibition  as  to  Senator,  to  wit,  "and  who  shall  not  when 
elected  be  an  inhabitant  of  the  State  for  which  he  shall  be  chosen." 
No  case  can  be  found  where  this  ineligibility  of  non-residence  at  date  of 
election  has  been  removed  by  afterward  becoming  an  inhabitant.  He 
must  at  the  date  of  election  be  an  inhabitant,  or  he  is  forever  disqualified. 
Nothing  occurring  subsequently  can  remove  this  ineligibility.  So  with 
an  elector — he  must  not  when  appointed  be  a  Federal  officer.  If  he  is,  no 
resignation  can  make  him  eligible. 

Suppose  the  State  of  Florida  had  attempted  to  appoint  her  two  Sen 
ators  and  two  ^Representatives  her  four  electors,  and  they  had  met, 
formed  an  electoral  college,  and  cast  their  votes  for  President  and  Vice- 
President,  will  any  one  maintain  that  such  votes  could  be  counted  or 
that  we  could  not  go  behind  the  certificates  to  ascertain  if  those  four 
men  were  her  Senators  and  Bepresentatives1?  Could  we,  who  have  sworn 
to  support  the  Constitution,  and  have  also  sworn  to  decide  what  are  the 
votes  of  the  State  of  Florida  provided  for  by  the  Constitution  of  the  United 
States,  decide  that  these  Senators  and  Eepresentatives  had  cast  the  votes 
provided  for  by  the  Constitution,  which  in  terms  prohibits  them  from 
being  electors? 

The  statement  of  the  case  is  the  answer  to  the  proposition. 

Mr.  President,  when  I  consider  the  past  action  of  the  two  Houses  of 
Congress,  the  phraseology  of  the  law  under  which  we  are  acting,  the 
offers  of  proof,  and  the  authorities  which  I  have  examined,  I  have  no 
doubt  left  on  my  mind  that  it  is  not  only  our  right  but  our  duty  to  hear 
the  proof  offered  and  to  decide  which  certificate  contains  the  true  and 
lawful  electoral  vote  of  Florida.  Any  other  course  would  disappoint 
the  expectations  of  the  country,  looking  to  us  to  solve  this  vexed  presi 
dential  election  according  to  the  very  right  of  the  case.  Any  other 
course  dwarfs  this  high  Commission  into  a  tribunal  to  ascertain  merely 
whether  the  four  votes  of  Florida  have  been  correctly  added  up  or  notr 
and  whether  the  governor's  certificate  accompanies  the  votes.  This  duty 
might  as  well  have  been  performed  by  a  page  of  either  House.  The 
business  of  the  two  Houses  would  not  then  have  been  interrupted  by 
withdrawing  five  members  from  each  House,  and  waiting  for  days  for 
us  to  arrive  at  the  most  difficult  decision  that  Florida  had  really  cast  four 
votes  and  that  the  electors  who  cast  the  four  votes  had  the  governor's 
certificate.  The  business  of  the  Supreme  Court  would  not  then  have 


912  ELECTORAL    COUNT    OF    1877. 

been  entirely  suspended  by  the  withdrawal  of  five  of  its  associate  jus 
tices,  to  form  this  Commission,  and  play  the  role  of  boys  in  primary 
arithmetic.  No,  sir,  this  Electoral  Commission  was  designed  (as  the 
law  creating  it  directs)  to  "  decide  whether  any  and  what  votes  from 
such  State  are  the  votes  provided  for  by  the  Constitution  of  the  United 
States,  and  how  many  and  what  persons  were  duly  appointed  electors 
in  such  State."  To  do  this  and  to  discharge  our  duties  under  the  bill 
and  satisfy  our  consciences  under  the  oaths  we  have  taken,  we  must  go 
behind  these  certificates  and  ascertain  whether  they  represent  the  per 
sons  duly  appointed  electors. 

LOUISIANA. 

Mr.  Commissioner  HUNTON  said: 

Mr.  PRESIDENT  :  We  have  reached  the  second  State  in  the  history 
of  this  Commission,  and  it  remains  to  be  seen  whether  the  frauds, 
forgeries,  and  perjuries  by  which  the  certificate  of  the  returning-board 
of  Louisiana  was  sustained  are  to  be  upheld  by  this  Commission  ; 
whether  the  vote  of  this  State  is  to  be  counted  for  Hayes  on  the  certifi 
cate  of  the  governor,  based  on  the  certificate  of  the  returuing-board, 
when  proof  is  offered  that  these  certificates  are  founded  on  fraud,  forgery, 
and  perjury;  whether  the  vote  of  Louisiana  is  to  be  counted  for  Hayes 
when  the  proof  is  offered  that  she  voted  for  Tilden  by  from  six  to  nine 
thousand  majority. 

There  are  features  in  this  case  that  distinguish  it  from  that  of  Florida, 
and  I  shall  address  myself  to  these  points,  in  the  hopes  that  the  Com 
mission  will  undertake  in  this  case  to  arrive  at  the  true  vote  of  Louisi 
ana,  without  regard  to  the  certificates  of  governor  and  canvassing-board, 
except  so  far  as  they  may  afford  one  character  of  evidence  as  to  how  the 
State  voted. 

Three  papers  purporting  to  be  certificates  of  the  votes  of  this  State 
were  opened  and  referred  to  this  Commission.  Two  are  votes  for 
Hayes  and  Wheeler  and  the  other  for  Tilden  and  Hendricks.  The 
electors  who  certified  in  the  first  two  certificates  have  the  certificate  of 
W.  P.  Kellogg,  who  certified  as  governor  of  Louisiana  that  the  Hayes 
electors  were  chosen  according  to  law.  The  electors  who  certified  in  the 
third  certificate  have  the  certificate  of  John  McEnery,  who  signs  himself 
governor  of  Louisiana,  that  they,  the  Tilden  electors,  were  duly  and 
legally  appointed,  &c.  We  have  to  determine  between  these  which  set 
has  been  duly  appointed. 

Objections  have  been  filed  to  each  of  these  certificates,  and  on  behalf 
of  the  objectors  to  the  certificates  of  the  Hayes  votes  it  is  offered  to 
prove  as  follows : 


We  offer  to  prove  that  William  P.  Kellogg,  who  certifies,  as  governor  of  the  State  of 
Louisiana,  to  the  appointment  of  electors  of  that  State,  which  certificate  is  now  before 
this  Commission,  is  the  same  William  P.  Kellogg  who,  by  said  certificate,  was  certified 
to  have  been  appointed  one  of  said  electors.  In  other  words,  that  Kellogg  certified  his 
own  appointment  as  such  elector. 

2.  That  said  Kellogg  was  governor  de  facto  of  said  State  during  all  the  months  of 
November  and  December,  A.  D.  1876. 

CONSTITUTION  OP  LOUISIANA. 

"ART.  117.  No  person  shall  hold  or  exercise  at  the  same  time  more  than  one  office  of 
(rust  or  profit,  except  that  of  justice  of  the  peace  or  notary  public." 


ELECTORAL    COUNT   OF   1877.  913 

II. 

We  offer  to  prove  that  said  William  P.  Kellogg  was  not  duly  appointed  one  of  the 
electors  of  said  State  in  A.  D.  1876,  and  that  the  certificate  is  untrue  in  fact. 
To  show  this  we  offer  to  prove — 

(1.)  By  certified  copies  of  the  lists  made  out.  signed,  and  sworn  to  by  the  commis 
sioners  of  election  in  each  poll  and  voting-place  in  the  State,  and  delivered  by  said 
commissioners  to  the  clerk  of  the  district  court  wherein  said  polls  were  established, 
except  in  the  parish  of  Orleans,  and  in  that  parish  delivered  to  the  secretary  of  state, 
that  at  the  election  for  electors  in  the  State  of  Louisiana  on  the  7th  day  of  November 
last,  the  said  William  P.  Kellogg  received  for  elector  6,300  votes  less  than  were  at  said 
election  cast  for  each  and  every  of  the  following-named  persons,  that  is  to  say:  John 
McEnery,  R.  C.  Wickliffe,  L.  St.  Martin,  E.  P.  Poch6,  A.  De  Blanc,  W.  A.  Seay,  R.  G. 
Cobb,  K.  A.  Cross.  (Sec.  43,  act  1872.) 

(2.)  In  connection  with  the  certified  copies  of  said  lists  we  offer  to  prove  that  the 
returning-board,  which  pretended  to  canvass  the  said  election  under  the  act  approved 
November  20, 1872,  did  not  receive  from  any  poll,  voting-place,  or  parish  in  said  State, 
nor  have  before  them,  any  statement  of  any  supervisor  of  registration  or  commissioner 
of  election  in  form  as  required  by  section  26  of  said  act,  on  affidavit  of  three  or  more 
citizens,  of  any  riot,  tumult,  acts  of  violence,  intimidation,  armed  disturbance,  brib 
ery,  or  corrupt  influences  which  prevented  or  tended  to  prevent  a  fair,  free,  and  peace 
able  vote  of  all  qualified  electors  entitled  to  vote  at  such  poll  or  voting-place. 

(3.)  We  further  offer  to  show  that  in  many  instances  the  supervisors  of  registration 
of  the  several  parishes  willfully  and  fraudulently  omitted  from  their  consolidated  state 
ment,  returned  by  them  to  the  State  returning-board,  the  result  and  all  mention  of  the 
votes  given  at  certain  polls  or  voting-places  within  their  respective  parishes,  as  shown 
to  them  by  the  returns  and  papers  returned  to  said  supervisors  by  the  commissioners 
of  election,  as  required  by  law  ;  and  that  in  consequence  of  this  omission  the  said  con 
solidated  statements,  on  their  face,  omitted  majorities  against  the  said  Kellogg,  and 
in  favor  of  each  and  every  the  said  McEnery,  Wickliffe,  St.  Martin,  Poche",  De  Blanc, 
Seay,  Cobb,  and  Cross,  amounting  to  2,267,  but  that  said  supervisors  of  registration 
did,  as  by  law  required,  return  to  the  said  returning-board,  with  their  consolidated 
statements,  the  lists,  papers,  and  returns  received  by  them,  according  to  law,  from  the 
commissioners  of  election  at  the  several  polls  and  voting-places  omitted  as  aforesaid 
from  said  consolidated  statements  of  said  supervisors. 

And  that  the  said  returning-board  willfully  and  fraudulently  neglected  and  refused  to 
make  any  canvass  of  the  majorities  so  omitted,  or  estimate  them  in  any  way,  in  their 
pretended  determination  that  the  said  Kellogg  was  duly  elected  an  elector  at  the  elec 
tion  aforesaid. 

(4.)  We  offer  to  show  that  by  the  consolidated  statements  returned  to  said  returning- 
board  by  the  supervisors  of  registration  of  the  several  parishes  of  the  State  of  the  re 
sult  of  the  voting  at  the  several  polls  or  voting-places  within  their  parishes  respect 
ively,  it  appeared  that  said  Kellogg  received  at  said  election  3,459  less  votes  for  elect 
ors  than  the  said  McEnery,  Wickliffe,  St.  Martin,  Poche",  De  Blanc,  Seay,  Cobb,  and 
Cross,  and  each  and  every  of  them. 

(5.)  We  further  offer  to  show  that  the  said  returning-board  willfully  and  fraudulently 
estimated  and  counted  as  votes  in  favor  of  said  Kellogg  234  votes  which  were  not 
shown  to  have  been  given  at  any  poll  or  voting-place  in  said  State,  either  by  any  con 
solidated  statement  returned  to  said  returning-board  by  any  of  the  said  supervisors, 
nor  by  the  statements,  lists,  tally-sheets,  or  returns  made  by  any  commissioners  of 
election  to  any  of  said  supervisors,  or  which  were  before  said  returning-board. 

(6.)  We  offer  to  prove  that  the  votes  cast  and  given  at  said  election  on  the  7th  No 
vember  last  for  the  election  of  electors,  as  shown  by  the  returns  made  by  the  commis 
sioners  of  election  from  the  several  polls  or  voting-places  in  said  State,  have  never  been 
compiled  nor  canvassed;  and  that  the  said  returning-board  never  even  pretended  to 
compile  or  canvass  the  returns  made  by  said  commissioners  of  election,  but  that  said 
returning-board  only  pretended  to  canvass  the  returns  made  by  the  said  supervisors. 
(Act  of  1872,  section  43  :  "  Supervisor  must  forward."  Act  of  1872,  section  2 :  <•  Board 
must  canvass.") 

(7-)  We  offer  to  prove  that  the  votes  given  for  electors  at  the  election  of  Novem 
ber  7  last  at  the  several  voting-places  or  polls  in  said  State  have  never  been  opened 
by  the  governor  of  the  said  State  in  presence  of  the  secretary  of  state,  the  attorney- 
general,  and  a  district  judge  of  the  district  in  which  the  seat  of  government  was  es 
tablished,  nor  in  the  presence  of  any  of  them ;  nor  has  the  governor  of  said  State 
ever,  in  the  presence  as  aforesaid,  examined  the  returns  of  the  commissioners  of  elec 
tion  for  said  election  to  ascertain  therefrom,  nor  has  he  ever,  in  such  presence,  ascer 
tained  therefrom,  the  persons  who  were,  or  whether  any  one  was,  duly  elected  elect 
ors,  or  elector,  at  said  election  ;  nor  has  he  ever  pretended  so  to  do.  (Revised  Stat 
utes,  section  2826.) 
58  E  0 


914  ELECTORAL    COUNT    OF    1877. 

(8.)  We  further  offer  to  prove — 

That  the  said  William  P.  Kellogg,  governor  as  aforesaid,  when  he  made,  executed, 
and  delivered  the  said  certificate,  by  which  he  certified  that  himself  and  others  had 
been  duly  appointed  electors  as  aforesaid,  well  knew  that  said  certificate  was  untrue 
in  fact  in  that  behalf,  and  that  he,  the  said  Kellogg,  then  well  knew  that  he,  the  said  Kel 
logg,  had  not  received,  of  the  legal  votes  cast  at  the  election  of  November  7, 1876,  for  elect 
ors,  within  five  thousand  of  as  many  of  such  votes  as  had  at  said  election  been  cast  and 
given  for  each  and  every  of  the  said  McEnery,  Wickliffe,  St.  Martin,  Poche",  De  Blanc,  Seay, 
Cobb,  and  Cross ;  and  that  he,  the  said  Kellogg,  when  he  made  and  executed  the  afore- 
Said  certificate,  well  knew  that  of  the  legal  votes  cast  at  the  popular  election  held  in  the 
State  of  Louisiana  on  the  7th  day  of  November  last,  for  the  election  of  electors  in  said 
state,  as  shown  by  the  lists,  returns,  and  papers  sent,  according  to  law,  by  the  commission 
ers  of  election,  who  presided  over  and  conducted  the  said  election  at  the"  several  polls  and 
voting-places  in  said  State,  to  the  supervisors  of  registration,  and  as  shown  by  the  said 
lists,  returns,  papers,  and  ballots  deposited  by  said  commissioners  of  election  in  the 
office  of  the  clerks  of  the  district  courts,  except  the  parish  of  Orleans,  and  deposited 
for  the  parish  of  Orleans  in  the  office  of  ecretary  of  state,  according  to  law,  that 
each  arid  every  the  said  McEnery,  Wickliffe,  St.  Martin,  Poohe",  De  Blanc,  Seay,  Cobb, 
and  Cross  had  received  more  than  five  thousand  of  the  legal  votes  cast  at  said  election 
for  electors,  more  than  had  been  cast  and  Driven  at  said  election  for  the  said  Kellogg 
as  elector,  and  that  the  said  McEnery,  \Vickliife,  St.  Martin,  Poche",  De  Blanc,  Seay, 
Cobb,  and  Cross  had  been  thus  and  thereby  duly  appointed  electors  for  said  State  in 
the  manner  directed  by  the  legislature  of  said  State. 

(9.)  We  further  offer  to  prove — 

That  at  the  city  of  New  Orleans  in  the  State  of  Louisiana,  in  the  month  of  October, 
A.  D.  1876,  the  said  William  P.  Kellogg,  J.  H.  Burch,  Peter  Joseph,  L.  A.  Sheldon,  Mor 
ris  Marks,  A.  B.  Levissee,  O.  H.  Brewster,  Oscar  Joffdou,  S.  B.  Packard,  John  Ray, 
Frank  Morey,  Hugh  J.  Campbell,  D.  J.  M.A.  Jewett,  H.  C.  Dibble,  Michael  Hahn,  B.  P. 
Blanchard,  J.  R.  G.  Pitkin,  J.  Madison  Wells,  Thomas  C.  Anderson,  G.  Casanave,  L.M. 
Kenner,  George  P.  Davis,  W.  L.  Catlin,  C.  C.  Nash,  George  L.  Smith,  Isadore  McCor- 
mick,  and  others,  entered  into  an  unlawful  and  criminal  combination  and  conspiracy  to 
and  with  each  other,  and  each  to  and  with  each  of  the  others,  to  cause  it  to  be  certi 
fied  and  returned  to  the  secretary  of  state  by  the  returning-board  of  said  State,  upon 
their  pretended  compilation  and  canvass  of  the  election  for  electors,  to  be  thereafter 
held  on  the  7th  day  of  Nov  ember,  A.  D.  1876,  that  the  said  Kellogg,  Burch,  Joseph, 
Sheldon,  Marks,  Levissee,  Brewster,  and  Joffriou,  had  received  a  majority  of  all  votes 
given  and  cast  at  said  election  for  electors,  whether  such  should  be  the  fact  or  not; 
and 

That  afterwards,  to  wit,  on  the  17th  day  of  November,  A.  D.  1876,  after  said  elec 
tion  had  been  held,  and  it  was  well  known  to  all  of  said  conspirators  that  said  Kellogg 
and  others  had  not  been  elected  at  said  election,  but  had  been  defeated,  and  their  op 
ponents  had  been  elected  at  said  election,  the  said  returning-board  assembled  at  the 
city  of  New  Orleans,  the  seat  of  government  of  said  State,  to  pretend  to  compile  and 
canvass  the  statements  of  votes  made  by  the  commissioners  of  election  from  the  sev 
eral  polls  and  voting-places  in  said  State  for  presidential  electors,  and  make  returns  of 
said  election  to  the  secretary  of  state,  as  required  by  an  act  of  the  legislature  of  that 
State,  approved  November  20,  1872  ;  that  when  said  returning-board  so  assembled,  said 
Wells,  said  Anderson,  said  Kenner,  and  said  Casanave,  who  are  all  members  of  one 
political  party,  to  wit,  the  republican  party,  were  the  only  members  of  said  board ; 
there  being  one  vacancy  in  said  board,  which  vacancy  it  was  the  duty  of  said  Wells, 
said  Anderson,  said  Kenuer,  and  said  Casanave,  as  members  of  said  board,  to  fill,  then 
and  there,  by  the  elec  tion  or  appointment  of  some  person  belonging  to  some  other  po 
litical  party  than  the  republican  party  ;  but  that  the  said  Wells,  Anderson,  Kenner, 
and  Casanave  then  and  there,  in  pursuance  of  said  unlawful  and  criminal  combination 
aforesaid,  then  and  there  neglected  and  refused  to  fill  said  vacancy,  for  the  reason,  as 
assigned  by  them,  that  they  did  not  wish  to  have  a  democrat  to  watch  the  proceedings 
of  said  board;  and  that  although  frequently  during  the  session  of  said  board,  assem 
bled  for  the  purpose  aforesaid,  they,  the  said  Wells,  Anderson,  Kenner,  and  Casanave, 
were  duly,  and  in  writing,  requested  by  said  McEnery,  Wickliffe,  St.  Martin,  Poch6, 
De  Blanc,  Seay,  Cobb,  and  Cross  to  fill  said  vacancy,  they  refused  to  do  so,  and  never 
did  fill  the  same,  but  proceeded  as  such  board,  in  pursuance  of  said  combination  and 
conspiracy,  to  make  a  pretended  compilation  and  canvass  of  said  election  without  fill 
ing  the  vacancy  in  said  returniug-board  ;  and 

That  said  Wells,  Anderson,  Kenuer,  and  Casanave,  while  pretending  to  be  in  session 
as  a  returning-board  for  the  purpose  of  compiling  and  canvassing  the  said  election,  and 
in  pursuance  of  said  combination  and  conspiracy,  employed  persons  of  notoriously  bad 
character  to  act  as  their  clerks  and  assistants,  to  wit,  one  Davis,  a  man  of  notoriously 
bad  character,  who  was  then  under  indictment  in  the  criminal  courts  of  Louisiana, 
and  said  Catlin,  and  said  Blauchard,  and  said  Jewett,  three  of  said  conspirators,  who 
Avere  then  under  indictment  for  subornation  of  perjury  in  the  criminal  courts  of  Lou- 


ELECTORAL    COUNT    OF    1877.  915 

isiana  ;  the  said  Jewett  being  also  under  indictment  in  one  of  the  criminal  courts  of 
Louisiana  for  obtaining  money  under  false  pretenses ;  and  Isadore  McCormick,  who  was 
then  under  indictment  in  the  criminal  court  of  said  State  charged  with  murder. 

And  that,  in  pursuance  of  said  unlawful  combination  and  conspiracy  aforesaid,  the 
said  Wells,  Anderson,  Kenner,  and  Casanave,  acting  in  said  returning-board,  con 
fided  to  their  said  clerks  and  employe's,  said  co-conspirators,  the  duty  of  compiling  and 
canvassing  all  returns  which  were  by  said  returning-board  ordered  to  be  canvassed 
and  compiled ;  and,  although  thereto  particularly  requested  by  a  communication,  aa 
follows — 

"  To  the  honorable  returning-board  of  the  State  of  Louisiaiia: 

"  GENTLEMEN  :  The  undersigned,  acting  as  counsel  for  the  various  candidates  upon 
the  democratic-conservative  ticket,  State,  national,  and  municipal,  with  respect  show: 
"  That  the  returns  from  various  polls  and  parishes  are  inspected  by  this  board,  and 
the  vote  announced  by  it  is  merely  that  for  governors  and  electors  ; 

"  That  the  tabulation  of  all  other  votes  is  turned  over  to  a  corps  of  clerks,  to  be  done 
outside  of  the  presence  of  this  board  ; 

"  That  all  of  said  clerks  are  republicans,  and  that  the  democratic-conservative  can 
didates  have  no  check  upon  them,  and  no  means  to  detect  errors  and  fraudulent  tabu 
lation,  or  to  call  the  attention  of  this  board  to  any  such  wrongs,  if  any  exist ; 

"  That  by  this  system  the  fate  of  all  other  candidates  but  governor  and  electors  is 
placed  in  the  hands  of  a  body  of  republican  clerks  with  no  check  against  erroneous 
or  dishonest  action  on  their  part ; 

"  That  fair  play  requires  that  some  check  should  be  placed  upon  said  clerks  and 
some  protection  afforded  to  the  said,  candidates  against  error  or  dishonest  action  on  the 
part  of  said  clerks  ; 

"  Wherefore  they  respectfully  ask  that  they  be  permitted  to  name  three  respectable 
persons,  and  that  to  such  parties  be  accorded  the  privilege  of  being  present  in  the 
room  or  rooms  where  said  tabulation  is  progressing,  and  of  inspecting  the  tabulation 
and  comparing  the  same  with  the  returns,  and  also  of  fully  inspecting  the  returns,  and 
previous  to  the  adoption  by  this  board  of  said  tabulation,  with  a  view  to  satisfy  all 
parties  that  there. has  been  no  tampering  or  unfair  practice  in  connection  therewith. 
<f  Very  respectfully, 

<F.  C.  ZACHARTE. 
'  CHARLES  CAVANAC. 
<E.  A.  BURKE. 

:J.  R.  ALCfiE  GAUTHREAUX. 
HENRY  C.  BROWN. 
'FRANK  McGLOIN. 
"I  concur  herein. 

"H.  M.  SPOFFORD. 

"Of  Counsel"— 

they,  the  said  Wells,  Anderson,  Kenner,  and  Casanave,  acting  as  said  board,  expressly 
refused  to  permit  any  democrat,  or  any  person  selected  by  democrats,  to  be  present 
with  said  clerks  and  assistants  while  they  were  engaged  in  the  compilation  and  can 
vass  aforesaid,  or  to  examine  into  the  correctness  of  the  compilation  and  canvass  made 
by  said  clerks  and  assistants  as  aforesaid. 

And  that  said  returning-board,  in  pursuance  of  said  unlawful  combination  and  con 
spiracy  aforesaid,  and  for  the  purpose  of  concealing  the  animus  of  said  board  and 
inspiring  confidence  in  the  public  mind  in  the  integrity  of  their  proceedings,  on  the 
18th  day  of  November,  A.  D.  1876,  adopted  and  passed  a  preamble  and  resolution,  as 
follows : 

"  Whereas  this  board  has  learned  with  satisfaction  that  distinguished  gentlemen  of 
national  reputation,  from  other  States,  some  at  the  request  of  the  President  of  the 
United  States  and  some  at  the  request  of  the  national  executive  committee  of  the 
democratic  party,  are  present  in  this  city,  with  the  view  to  witness  the  proceedings 
of  this  board  in  canvassing  and  compiling  the  returns  of  the  recent  election  in  this 
State  for  presidential  electors,  in  order  that  the  public  opinion  of  the  country  may  be 
satisfied  as  to  the  truth  of  the  result  and  the  fairness  of  the  means  by  which  it  may 
have  been  attained ; 

"And  whereas  this  board  recognizes  the  importance  which  may  attach  to  the  result 
of  their  proceedings,  and  that  the  public  mind  should  be  convinced  of  its  justice  by  a 
knowledge  of  the  facts  on  which  it  may  be  based  :  Therefore, 

"Be  it  resolved,  That  this  board  does  hereby  cordially  invite  and  request  five  gentle 
men  from  each  of  the  two  bodies  named,  to  be  selected  by  themselves  respectively,  to 
attend  and  be  present  at  the  meetings  of  this  board  while  engaged  in  the  discharge 
of  its  duties  under  the  law,  in  canvassing  and  compiling  the  returns  and  ascertaining 
and  declaring  the  result  of  said  election  for  presidential  electors,  in  their  capacity  as 
private  citizens  of  eminent  reputation  and  high  character,  and  as  spectators  and  wit 
nesses  of  the  proceedings  in  that  behalf,  of  this  board." 


916  ELECTORAL    COUNT    OF    1877. 

But  that  said  returning-board,  being  convinced  that  a  compilation  and  canvass  of 
votes  given  at  said  election  for  presidential  electors,  made  fairly  and  openly,  would 
result  in  defeating  the  object  of  said  conspiracy,  and  compelling  said  returning-board 
to  certify  that  said  McEnery,  Wickliffe,  St.  Martin,  Poche",  De  Blanc,  Seay,  Cobb,  and 
Cross  had  been  at  said  election  duly  chosen,  elected,  and  appointed  electors  by  the  said 
State  of  Louisiana,  and  in  pursuance  of  said  unlawful  combination  and  conspiracy, 
did  afterward,  to  wit,  on  the  20th  day  of  November,  A.  D.  1876,  adopt  and  pass  the 
following  rules  for  the  better  execution  and  carrying  into  effect  said  combination  and 
conspiracy ;  that  is  to  say : 

"VII. 

"The  returning-officers,  [if  they  think  it  advisable,  may  go  into  secret  session  to- 
consider  any  motion,  argument,  or  proposition  which  may  be  presented  to  them;  any 
member  shall  have  the  right  to  call  for  secret  session  for  the  above  purpose." 

"X. 

"That  the  evidence  for  each  contested  poll  in  any  parish,  when  concluded,  shall  be 
laid  aside  until  all  the  evidence  is  in  from  all  the  contested  polls  in  the  several  parishes 
where  there  may  be  contests,  and  after  the  evidence  is  all  in,  there  turning-officers  will 
decide  the  several  contests  in  secret  session  ;  the  parties,  or  their  attorneys,  to  be 
allowed  to  submit  briefs  or  written  arguments  up  to  the  time  fixed  for  the  returning- 
officers  going  into  secret  session,  after  which  no  additional  argument  to  be  received 
unless  by  special  consent." 

That  the  proceedings  thus  directed  to  be  had  in  secret  were  protested  against  by  the 
McEnery,  Wickliffe,  St.  Martin,  Poch6,  De  Blanc,  Seay,  Cobb,  and  Cross ;  but  said 
board  thereafter  proceeded  and  pretended  to  complete  their  duties  as  such  returning- 
board  ;  and  did  perform,  execute,  and  carry  out  the  most  important  duties  devolving 
upon  said  board  in  secret,  with  closed  doors,  and  in  the  absence  of  any  member  of 
their  board  belonging  to  the  democratic  party  or  any  person  whatever  not  a  member 
of  said^board  not  belonging  to  the  republican  party. 

That  the  said  Wells,  Anderson,  Kenner,  and  Casanave,  acting  as  said  returning- 
board,  while  engaged  in  the  compilation  and  canvass  aforesaid,  were  applied  to  to 
permit  the  United  States  supervisors  of  election,  duly-appointed  and  qualified  as  such, 
to  be  present  at  and  witness  such  compilation  or  canvass. 

That  application  was  made  to  said  returniug-board  in  that  behalf,  as  follows : 

"  To  the  president  and  members  of  ike  returning-loard  of  the  State  of  Louisiana: 

"  GENTLEMEN  :  The  undersigned,  of  counsel  for  United  States  supervisors  of  election, 
duly  appointed  and  qualified  as  such,  do  hereby  except,  protest,  and  object  to  any 
ruling  made  this  20th  day  of  November,  1876,  or  that  hereafter  may  be  made,  wherebv 
they  are  deprived  of  the  right  of  being  present  during  the  entire  canvass  and  com 
pilation  of  the  results  of  the  election  lately  held  in  the  State  of  Louisiana,  wherein 
electors  for  President  and  Vice-President  and  members  of  the  Forty-fifth  Congress 
were  balloted  for,  and  the  result  of  which  said  board  are  now  canvassing. 

"  That  under  the  fifth  section  of  the  United  States  act  of  February  28,  1871,  they 
are  '  to  be  and  remain  where  the  ballot-boxes  are  kept,  at  all  times  after  the  polls  are 
open,  until  each  and  every  vote  cast  at  said  time  and  place  shall  be  counted,  and  the 
canvass  of  all  votes  polled  be  wholly  completed,  and  the  proper  and  requisite  certif 
icate  or  returns  made,  whether  said  certificate  or  return  s  be  required  under  any  law 
of  the  United  States,  or  any  State,  territorial,  or  municipal  law.' 

"  That  under  said  law  of  the  United  States,  District  Attorney  J.  R.  Beckwith,  under 
date  of  October  30,  J872,  gave  his  written  official  opinion  for  the  instruction  and 
guidance  of  persons  holding  the  office  now  held  by  protestants,  wherein  said  United 
States  district  attorney  said  : 

"'It  cannot  be  doubted  that  the  duty  of  the  supervisors  extends  to  the  inspection  of 
the  entire  election  from  its  commencement  until  the  decision  of  its  result.  If  the 
United  States  statutes  were  less  explicit,  there  still  could  be  no  doubt  of  the  duty  and 
authority  of  the  supervisors  to  inspect  and  canvass  every  vote  cast  for  each  and  every 
candidate,  State,  parochial,  and  Federal,  as  the  law  of  the  State  neither  provides  nor 
allows  any  separation  of  the  election  for  Representatives  in  Congress,  &c.,  from  the 
election  of  State  and  parish  officers.  The  election  is  in  law  a  single  election,  and  the 
power  of  inspection  vested  in  law  in  the  supervisors  appointed  by  the  court  extends  to 
the  entire  election,  a  full  knowledge  of  which  may  well  become  necessary  to  defeat 
fraud.' 

"  In  which  opinion  the  attorney- general  of  the  State  of  Louisiana  coincided.  Where 
upon  protestants  claim  admittance  of  board  to  amend  their  rules  by  making  them  all 
open  sessions,  with  leave  to  a  reasonable  number  of  citizens  of  the  State  directly 


ELECTORAL    COUNT    OF    1877.  917 

interested,  or  their  counsel,  and  of  press  reporters  to  attend,  which  would  furnish,  the 
best  guarantee  possible  against  the  consummation  of  fraud  and  the  perversion  of  the 
popular  will. 

"  The  undersigned  respectfully  asks  that  the  foregoing  protest  be  entered  upon  the 
minutes  of  the  board. 

"  HENRY  M.  SPOFFORD, 

"  Of  Counsel." 

But  that  said  Wells,  Anderson,  Kenner,  and  Casauave,  acting  as  such  returning- 
board,  in  further  pursuance  and  execution  of  said  unlawful  combination  and  conspir 
acy,  then  and  there  refused  to  permit  said  United  States  commissioners  of  election 
to  be  present  for  the  purpose  aforesaid,  but  proceeded  in  their  absence  to  the  pretended 
compilation  and  canvass  aforesaid. 

That  the  said  returning-board,  while  in  session  as  aforesaid,  for  the  purpose  afore 
said,  to  wit,  on  the  20th  day  of  November,  1876,  adopted  the  followiug  rule  to  govern 
their  proceedings  ;  that  is  to  say : 

"  IX. 

"  No  ex  parte  affidavits  or  statements  shall  be  received  in  evidence,  except  as  a  basis 
to  show  that  such  fraud,  intimidation,  or  other  illegal  practice  had  at  some  poll  re 
quires  investigation  ;  but  the  returns  and  affidavits  authorized  by  law,  made  by  officers 
of  election,  or  in  verification  of  statements  as  required  by  law,  shall  be  received  in  evi 
dence  as  prima  facie." 

But  that  said  board  subsequently,  while  sitting  as  aforesaid,  for  the  purposes  afore 
said,  having  become  convinced  thatjthey  could  not,  upon 'other  than  ex  parte  testimony, 
so  manipulate  the  said  compilation  and  canvass  as  to  declare  that  said  Kellogg,  Burch, 
Joseph,  Sheldon,  Marks,  Levissee,  Brewster,  and  Joffrion  were  elected  electors  at  said 
election,  and  in  further  pursuance  of  said  unlawful  combination  and  conspiracy,  did  sub 
sequently  modify  said  rule,  and  declare  and  decide  that,  as  such  returuing-board,  they 
would  receive  ex  parte  affidavits,  under  which  last  decision  of  said  board  over  two 
hundred  printed  pages  of  ex  parte  testimony  was  received  by  said  board  in  favor  of 
said  Kellogg  and  others  ;  and  afterward,  when  the  said  McEnery  and  others  offered  ex 
parte  evidence  to  contradict  the  ex  parte  evidence  aforesaid,  the  said  returning-board  re 
versed  its  last  decision,  and  refused  to  receive  ex  parte  affidavits  in  contradiction  as 
aforesaid. 

And  that  in  pursuance  of  said  unlawful  combination  and  conspiracy  the  said  return 
ing-board,  in  violation  of  a  law  of  said  State,  approved  November  20,  1872,  neglected 
and  refused  to  compile  and  canvass  the  statements  of  votes  made  by  the  commissioners 
of  election  which  were  before  them  according  to  law  for  canvass  and  compilation  as 
aforesaid  in  regard  to  the  election  of  presidential  electors,  but  that  said  board  did,  in 
pursuance  and  further  execution  of  said  combination  and  conspiracy,  ?canvass  and 
compile  only  the  consolidated  statements  and  returns  made  to  them  by  the  supervisors 
of  registration  of  the  several  parishes  of  said  State. 

And  that  said  returning-board,  in  pursuance  and  further  execution  of  said  unlawful 
•combination  and  conspiracy,  did  knowingly,  willfully,  and  fraudulently  refuse  to  com 
pile  and  canvass  the  votes  given  for  electors  at  said  election  in  more  than  twenty  par 
ishes  of  said  State,  as  was  shown  and  appeared  by  and  upon  the  consolidated  state- 
merits  and  returns  made  to  them  by  said  supervisors  of  said  parishes. 

And  that  said  returuing-board  did,  in  said  canvass  and  compilation,  count  and 
estimate,  as  a  foundation  for  their  determination  in  the  premises,  hundreds  of  votes 
which  had  not  been  returned  and  certified  to  them  either  by  the  commissioners  of  elec 
tion  in  said  State  or  by  the  supervisors  of  registration  in  said  State,  they,  the  said  mem 
bers  of  said  board,  then  and  there  well  knowing  that  they  had  no  right  or  authority 
to  estimate  the  same  for  the  purpose  aforesaid. 

And  that  said  returning-board,  in  further  pursuance  and  execution  of  said  unlaw 
ful  combination  and  conspiracy,  knowingly,  willfully,  falsely,  and  fraudulently  did 
make  a  certificate  and  return  to  the  secretary  of  state  that  said  Kellogg,  Burch,  Joseph, 
Sheldon,  Marks,  Levissee,  Brewster,  and  Joffrion  had  received  majorities  of  all  the  legal 
votes  cast  at  said  election  of  November  7,  1876,  for  presidential  electors,  they  then  and 
there  well  knowing  that  the  said  McEnery,  Wickliffe,  St.  Martin,  Poche",  De  Blanc, 
Seay,  Cobb,  and  Cross  had  received  majorities  of  all  the  votes  cast  at  said  election  for 
presidential  electors,  and  were  duly  elected  as  the  presidential  electors  of  said  State. 

And  that  the  said  returuing-board,  in  making  said  statement,  certificate,  and  return  to 
the  secretary  of  state,  were  not  deceived  nor  mistaken  in  the  premises,  but  knowingly, 
willfully,  and  fraudulently  made  what  they  well  knew  when  they  made  it  was  a  false 
and  fraudulent  statement,  certificate,  and  return,  and  that  the  said  false  and  fraudu 
lent  statement,  certificate,  and  return,  made  by  said  returuing-board  to  the  secretary 
of  state  in  that  behalf,  was  made  by  the  members  of  said  returuing-board  in  pursuance 


918  ELECTORAL    COUNT    OF    1877. 

and  execution  of,  and  only  in  pursuance  and  execution  of,  said  unlawful  combination 
and  conspiracy. 

And  that  said  returning-board,  while  in  session  as  aforesaid  for  the  purpose  aforesaid, 
in  further  pursuance  and  execution  of  said  unlawful  combination  and  conspiracy,  did 
alter,  change,  and  forge,  or  cause  to  be  altered,  changed,  and  forged,  the  consolidated 
statement  and  return  of  the  supervisor  of  registration  for  the  parish  of  Vernon,  in  said 
State,  in  the  manner  following,  to  wit :  The  said  consolidated  statement,  as  made  and 
returned  to  said  board,  showed  that  of  the  legal  votes  given  in  said  parish  for  electors 
at  said  election  of  November  7, 1876,  said  McEnery  received  647,  said  Wickliffe  received 
647,  said  St.  Martin  received  647,  said  Poche"  received  647,  said  De  Blanc  received  647, 
said  Seay  received  647,  said  Cobb  received  647,  said  Cross  received  647  ;  and  that  said 
Kellogg  received  none,  said  Burch  received  none,  said  Joseph  received  2,  said  Brew- 
ster  received  2,  said  Marks  received  2,  said  Levissee  received  2,  said  Joffrion  received 
2,  said  Sheldon  received  2  ;  and  said  board  altered,  changed,  and  forged,  or  caused  to 
"be  altered,  changed,  and  forged,  said  consolidated  statement  so  as  to  make  the  same 
falsely  and  fraudulently  show  that  the  said  McEnery  received  469,  said  "Wickliife 
received  469,  said  St.  Martin  received  469,  said  Poch<5  received  469,  said  De  Blanc 
received  469,  said  Seay  received  469,  said  Cobb  received  469,  said  Cross  received  469  ; 
and  that  said  Kellogg  received  178,  said  Burch  received  178,  said  Joseph  received  178, 
said  Sheldon  received  180,  said  Marks  received  180,  said  Levissee  received  180,  said 
Brewster,  received  180,  said  Joffrion  received  180  ;  and  that  said  returning-board, 
•while  in  session  as  aforesaid  for  the  purpose  aforesaid,  to  pretend  to  justify  the  alter 
ation  and  forgery  of  said  consolidated  statement,  procured  and  preteuded  to  act  upon 
three  forged  affidavits,  purporting  to  have  been  made  and  sworn  to  by  Samuel  Carter, 
Thomas  Brown,  and  Samuel  Collins,  they,  the -said  members  of  said  returning-board, 
then  and  there  well  knowing  that  said  pretended  affidavits  were  false  and  forged, 
and  that  no  such  persons  were  in  existence  as  purported  to  make  said  affidavits.  And 
that  said  members  of  said  returning-board,  acting  as  said  board,  in  pursuance  and 
execution  of  said  unlawful  combination  and  conspiracy,  did,  in  their  pretended  canvass 
and  compilation  of  the  legal  votes  given  at  said  election  on  the  7th  day  of  November, 
A.  D.  1876,  for  presidential  electors  in  said  State  of  Louisiana,  as  shown  to  them  by  the 
statements,  papers,  and  returns  made  according  to  law  by  the  commissioners  of  elec 
tion  presiding  over  and  conducting  said  election  at  the  several  polls  and  voting-places 
in  said  State,  all  of  which  votes  were  legally  cast  by  legal  voters  in  said  State  at  said 
election,  knowingly,  willfully,  and  fraudulently,  and  without  any  authority  of  law 
whatever,  exclude  and  refuse  to  count  and  estimate,  or  compile  or  canvass,  votes 
given  at  said  election  for  electors,  as  follows,  which  papers,  statements,  and  returns 
were  before  them,  and  which  it  was  their  duty  by  law  to  compile  and  canvass,  that  is 
to  say  :  for  said  John  McEuery,  10,280  ;  for  said  R.  C.  Wickliffe,  10,293  ;  for  said  L.  St. 
Martin,  10,291 ;  for  said  F.  P.Poch6,  10,280 ;  for  said  A.  De  Blanc,  10,289 ;  for  said  W. 
A.  Seay,  10,291 ;  for  said  R.  A.  Cobb,  10,261 ;  for  said  K.  A.  Cross,  10,281 ;  they,  the 
said  members  of  said  returning-board,  then  and  there  well  knowing  that  all  of  said 
votes  which  they  neglected  and  refused  to  canvass  and  compile  had  been  duly  and 
legally  cast  at  said  election  for  presidential  electors  by  legal  voters  of  said  State  ;  and 
then  and  there  well  knowing  that  had  they  considered,  estimated,  and  counted,  com 
piled  and  canvassed,  said  votes,  as  they  then  and  there  well  knew  it  was  their  duty  to 
do,  it  would  have  appeared,  and  they  would  have  been  compelled  to  certify  and  return 
to  the  secretary  of  state,  that  said  Kellogg  had  not  been  duly  elected  or  appointed  an 
elector  for  said  State,  but  that  at  said  election  the  said  McEnery,  the  said  Wickliffe, 
the  said  St.  Martin,  the  said  Poebe",  the  said  De  Blanc,  the  said  Seay,  the  said  Cobb, 
and  the  said  Cross  had  been  duly  elected  and  appointed  presidential  electors  in  said 
State. 

And  that  by  false,  fraudulent,  willful,  and  corrupt  acts  and  omissions  to  act  by 
said  returning-board  as  aforesaid,  in  the  matter  aforesaid,  and  by  said  nonfeasance, 
misfeasance,  aud  malfeasance  of  said  returning-board,  as  hereinbefore  mentioned, 
the  said  returning-board  made  to  the  secretary  of  state  of  said  State  the  statement, 
certificate,  and  return  upon  which  the  said  Kellogg,  as  de  facto  governor  of  said  State, 
pretended  to  make  his  said  false  certificate,  certifying  that  himself  and  others  had 
been  duly  appointed  electors  for  said  State,  as  hereinbefore  mentioned ;  and  that  said 
statement,  certificate,  and  return  made  by  said  returning-board,  and  that  the  said 
certificate  made  by  the  said  Kellogg,  as  de  facto  governor,  each,  every,  and  all  were 
made  in  pursuance  and  execution  ot  said  unlawful  and  criminal  combination  and  con 
spiracy,  as  was  well  known  to  and  intended  by  each  and  every  of  the  members  of  said 
returning-board  when  they  made  their  said  false  statement,  certificate,  and  return  to 
the  secretary  of  state  of  said  State,  and  by  the  said  Kellogg  when,  as  governor  de  facto 
of  said  State,  he  made  his  said  false  certificate  hereinbefore  mentioned. 

ITT. 

We  further  offer  to  prove — 
That  Oscar  Joffrion  was  on  the  7th  day  of  November,  A.  D.  1876,  supervisor  of  regis- 


ELECTORAL   COUNT    OF    1877.  919 

tration  of  the  parish  of  Pointe  Coupee,  and  that  ho  acted  and  officiated  as  such  super 
visor  of  registration  for  said  parish  at  the  said  election  for  presidential  electors  on 
that  day ;  and  that  he  is  the  same  person  who  acted  as  one  of  the  electors  for  said 
State,  and  on  the  6th  day  of  December,  A.  D.  1876,  as  an  elector,  cast  a  vote  for  Ruther 
ford  B.  Hayes  for  President  of  the  United  States  and  for  William  A.  Wheeler  for  Vice- 
President  of  the  United  States. 

IV. 

We  further  offer  to  prove — 

That  on  the  7th  day  of  November,  A.  D.  1876,  A.  B.  Levissee,  who  was  one  of  the 
pretended  college  of  electors  of  the  State  of  Louisiana,  and  who  in  said  college  gave  a 
vote  for  Rutherford  B.  Hayes  for  President  of  the  United  States  and  for  William  A. 
Wheeler  for  Vice-President  of  the  United  States,  was  at  the  time  of  such  election  a 
court  commissioner  of  the  circuit  court  of  the  United  States  for  the  district  of  Louisiana, 
which  is  an  office  of  honor,  profit,  and  trust  under  the  Government  of  the  United 
States. 

V. 

We  further  offer  to  prove — 

That  on  the  7th  day  of  November,  A.  D.  1876,  0.  H.  Brewster,  who  was  one  of  the 
pretended  electors  in  the  pretended  college  of  electors  of  the  State  of  Louisiana,  and 
who  in  said  college  gave  a  vote  for  Rutherford  B.  Hayes  for  President  of  the  United 
States  and  for  WTilliam  A.  Wheeler  for  Vice-President  of  the  United  States,  was  at  the 
time  of  such  election  as  aforesaid  holding  an  office  of  honor,  profit,  and  trust  under 
the  Government  of  the  United  States,  to  wit,  the  office  of  surveyor-general  of  the  land 
office  for  the  district  of  Louisiana. 

VI. 

We  further  offer  to  prove — 

That  on  the  7th  day  of  November,  1876,  Morris  Marks,  one  of  the  pretended  electors 
who  in  said  college  of  electors  cast  a  vote  for  Rutherford  B.  Hayes  for  President  of  the 
United  States  and  a  vote  for  William  A.  Wheeler  for  Vice-President  of  the  United 
States,  was,  ever  since  has  been,  and  now  is,  holding  and  exercising  the  office  of  dis 
trict  attorney  of  the  fourth  judicial  district  of  said  State,  and  receiving  the  salary  by 
law  attached  to  said  office. 

VII. 

We  further  offer  to  prove — 

That  on  the  7th  day  of  November,  A.  D.  1876,  J.  Henri  Burch,  who  was  one  of  the 
pretended  electors  who  in  said  pretended  electoral  college  gave  a  vote  for  Ruther 
ford  B.  Hayes  for  President  of  the  United  States  and  a  vote  for  William  A.  Wheeler 
for  Vice-President  of  the  United  States,  was  holding  the  following  offices  under  the 
constitution  and  laws  of  said  State,  that  is  to  say :  member  of  the  board  of  control  of 
the  State  penitentiary,  also  administrator  of  deaf  and  dumb  asylum  of  said  State,  to 
both  of  which  offices  he  had  been  appointed  by  the  governor  with  the  advice  and 
consent  of  the  senate  of  said  State,  both  being  offices  with  salaries  fixed  by  law,  and 
also  the  office  of  treasurer  of  the  parish  school  board  for  the  parish  of  East  Baton  Rouge ; 
and  that  said  Burch,  ever  since  the  said  7th  day  of  November,  (and  prior  thereto,)  has 
exercised  and  still  is  exercising  the  functions  of  "all  said  offices  and  receiving  the  emolu 
ments  thereof. 

VIII. 

We  further  offer  to  prove  the  canvass  and  compilation  actually  made  by  said  return- 
ing-board,  showing  what  parishes  and  voting-places  and  polls  were  compiled  and  can 
vassed,  and  what  polls  or  voting-places  were  excluded  by  said  retitrning  board  from 
the^r  canvass  and  compilation  of  votes  given  for  presidential  electors ;  and  we  also 
offer  to  show  what  statements  and  returns  of  the  commissioners  of  election  and  of  the 
supervisors  of  registration  were  duly  before  said  returniug-board. 

IX. 

We  further  offer  to  prove — 

Thit  the  affidavits  on  which  the  allegations  of  tumult  were  made  were  forged  and 
false. 


920  ELECTORAL    COUNT    OF    1877. 

X. 

One  member  of  the  board  offered  to  receive  a  bribe. 

XI. 

That  they  agreed  to  and  did  receive,  as  follows,  votes  never  cast  for  any  elector. 

In  tbe  first  place,  there  seems  to  be  some  confusion  as  to  what  elec 
tion  laws  were  in  force  in  Louisiana  on  the  day  of  election,  and  I  desire 
to  ascertain  what  laws  the  canvassing  board  acted  under,  so  as  to  be 
able  to  judge  of  their  conduct  under  the  law. 

In  1868  there  was  a  general  election  law  passed  in  the  State,  which, 
provided  for  all  elections,  including  State  and  presidential. 

In  1870  the  laws  of  Louisiana  were  revised,  and  the  election  law  of 
1868  was  embraced  in  these  revised  statutes  under  two  heads,  or  chap 
ters,  each  making  a  distinct  and  separate  act.  One  provided  for  State 
and  the  other  for  presidential  elections. 

In  1872,  November  20,  an  act  was  passed  on  the  subject  of  both  State 
and  presidential  election,  the  seventy-first  section  of  which  is  in  these 
words : 

SEC.  71.  Be  it  further  enacted,  <fc.,  That  this  act  shall  take  effect  from  and  after  its 
passage,  and  that  all  others  on  the  subject  of  election  laws  be,  and  the  same  are  hereby, 
repealed. 

Approved  November  20,  1872. 

Under  this  repealing  clause  all  other  acts  on  the  subject  of  election 
were  repealed,  and  this  left  the  act  of  1872  the  only  election  law  of  Louis 
iana. 

The  following  provisions  will  be  found  in  this  law  of  1872 : 

SECTION  1.  Be  it  enacted  by  the  senate  and  house  of  representatives  of  the  State  of  Louis 
iana  in  general  assembly  convened,  That  all  elections  for  State,  parish,  and  judicial  offi 
cers,  members  of  the  general  assembly,  and  for  members  of  Congress,  shall  be  held  on 
the  first  Monday  in  November;  and  said  elections  shall  be  styled  the  general  elec 
tions.  They  shall  be  held  in  the  manner  and  form  and  subject  to  the  regulations  here 
inafter  prescribed,  and  in  no  other. 

SEC.  2.  Be  it  further  enacted,  <fc.,  That  five  persons,  to  be  elected  by  the  senate  from 
all  political  parties,  shall  be  the  returni rig-officers  for  all  elections  in  the  State,  a  major 
ity  of  whom  shall  constitute  a  quorum,  and  have  power  to  make  the  returns  of  all 
elections.  In  case  of  any  vacancy  by  death,  resignation,  or  otherwise,  by  either  of  the 
board,  then  the  vacancy  shall  be  filled  by  the  residue  of  the  board  of  returning-officers. 
The  returning-officers  shall,  after  each  election,  before  entering  on  their  duties,  take 
and  subscribe  to  the  following  oath  before  a  judge  of  the  supreme  or  any  district  court : 

"I,  A  B,  do  solemnly  swear  (or  affirm)  that  I  will  faithfully  and  diligently  perform 
the  duties  of  a  returning-officer  as  prescribed  by  law;  that  I  will  carefully  and  hon 
estly  canvass  and  compile  the  statements  of  the  votes,  and  make  a  true  and  correct  re 
turn  of  the  election :  so  help  me  God." 

Within  ten  days  after  the  closing  of  the  election  said  returning-officers  shall  meet 
in  New  Orleans  to  canvass  and  compile  the  statement  of  votes  made  by  the  commissioners 
of  election,  and  make  returns  of  the  election  to  the  secretary  of  state.  They  shall  con 
tinue  in  session  until  such  returns  have  been  compiled.  The  presiding  officer  shall,  a4 
such  meeting,  open,  in  the  presence  of  the  said  returning-officers,  the  statements  of 
the  commissioners  of  election,  and  the  said  returuiug-officers  shall,  from  said  state 
ments,  canvass  and  compile  the  returns  of  the  election  in  duplicate ;  one  copy  of  such 
returns  they  shall  file  in  the  office  of  the  secretary  of  state,  and  of  one  copy  they  shall 
make  public  proclamation,  by  printing  in  the  official  journal  and  such  other  newspa 
pers  as  they  may  deem  proper,  declaring  the  names  of  all  persons  and  officers  voted 
for,  the  number  of  votes  for  each  person,  and  the  names  of  the  persons  who  have  been 
duly  and  lawfully  elected.  The  return  of  the  election  thus  made  and  promulgated  shall  be 
prima  facie  evidence  in  all  courts  of  justice  and  before  all  civil  officers,  until  set  aside  after  son- 
test  according  to  law,  of  the  right  of  any  person  named  therein  to  hold  and  exercise  the  cffice 
to  which  he  shall  by  such  return  be  declared  elected.  The  governor  shall,  within  ttirty 
days  thereafter,  issue  commissions  to  all  officers  thus  declared  elected,  who  are  required 
by  law  to  be  commissioned. 

SEC.  3.  Be  it  further  enacted,  <fc.,  That  in  such  canvass  and  compilation  the  returning- 


ELECTORAL    COUNT    OF    1877.  921 

officers  shall  observe  the  following  order :  They  shall  compile  first  the  statements 
from  all  polls  or  voting-places  at  which  there  shall  have  been  a  fair,  free,  and  peacea 
ble  registration  and  election.  Whenever,  from  any  poll  or  voting-place,  there  shall  be 
received  the  statement  of  any  supervisor  of  registration  or  commissioner  of  election,  in 
form  as  required  by  section  26  of  this  act,  on  affidavit  of  three  or  more  citizens,  of  any 
riot,  tumult,  acts  of  violence,  intimidation,  armed  disturbance,  bribery,  or  corrupt  in 
fluences,  which  prevented,  or  tended  to  prevent,  a  fair,  free,  and  peaceable  vote  of  all 
qualified  electors  entitled  to  vote  at  such  poll  or  voting-place,  such  returning-officers 
shall  not  canvass,  count,  or  compile  the  statement  of  votes  from  such  poll  or  voting- 
place  until  the  statements  from  all  other  polls  or  voting-places  shall  >  have  been  can 
vassed  and  compiled.  The  returuing-officers  shall  then  proceed  to  investigate  the 
statements  of  riot,  tumult,  acts  of  violence,  intimidation,  armed  disturbance,  bribery, 
or  corrupt  influences  at  any  such  poll,  or  voting-place ;  and  if  from  the  evidence  of 
such  statement  they  shall  be  convinced  that  such  riot,  tumult,  acts  of  violence,  intim 
idation,  armed  disturbance,  bribery,  or  corrupt  influences  did  not  materially  interfere 
with  the  purity  and  freedom  of  the  election  at  such  poll  or  voting-place,  or  did  not 
prevent  a  sufficient  number  of  qualified  voters  thereat  from  registering  or  voting  to 
materially  change  the  result  of  the  election,  then,  and  not  otherwise,  said  returning- 
officers  shall  canvass  and  compile  the  vote  of  such  poll  or  voting-place  with  those  pre 
viously  canvassed  and  compiled  ;  but  if  said  retumiug-officers  shall  not  be  fully  satis 
fied  thereof,  it  shall  be  their  duty  to  examine  further  testimony  in  regard  thereto,  and 
to  this  end  they  shall  have  power  to  send  for  persons  and  papers.  If,  after  such  exam 
ination,  the  said  returning-officers  shall  be  convinced  that  said  riot,  tumult,  acts  of  vio 
lence,  intimidation,  armed  disturbance,  bribery,  or  corrupt  influences  did  materially 
interfere  with  the  purity  and  freedom  of  the  election  at  such  poll  or  voting-place,  or 
did  prevent  a  sufficient  number  of  the  qualified  electors  thereat  from  registering  and 
voting  to  materially  change  the  result  of  the  election,  then  the  said  returning-officers 
shall  not  canvass  or  compile  the  statement  of  the  votes  of  such  poll  Or  voting-place, 
but  shall  exclude  it  from  their  returns :  Provided,  That  any  person  interested  in  said 
election  by  reason  of  being  a  candidate  for  office  shall  be  allowed  a  hearing  before  said 
returning-officers  upon  making  application  within  the  time  allowed  for  the  forwarding 
of  the  returns  of  said  election. 

In  the  first  place,  it  is  offered  to  prove  that  this  eanvassing-board 
was  not  legal  because  it  should  have  consisted  of  five  whereas  it  only 
consisted  of  four;  that  these  four  persistently  refused  to  fill  the  board 
and  give  the  democrats  a  representation  in  said  board ;  and  that  such  re 
fusal  was  for  the  purpose  of  concealing  from  the  opposite  party  the 
fraudulent  acts  of  said  board  by  which  they  gave  the  returns  to  the 
Hayes  electors. 

Was  it  a  legal  board? 

The  general  doctrine  seems  to  be  that  when  authority  of  a  public 
nature  has  been  delegated  to  a  certain  number  the  authority  cannot  be 
exercised  by  less  than  the  full  number,  and  although  a  quorum  shall  con 
sist  of  a  majority,  yet  all  of  the  five  must  have  the  opportunity  to  at 
tend  if  they  please. 

This  is  especially  true  when  the  board  is  to  consist  of  the  represent 
atives  of  the  different  political  parties  and  only  one  of  them  is  repre 
sented  in  an  incomplete  board. 

This  question  was  well  considered  in  the  case  of  Wentworth  vs.  Farm- 
ington,  49  N.  Hamp.,  120. 

The  case  is  directly  in  point  on  the  proposition  submitted,  and  the 
court,  in  its  opinion,  says : 

Even  if  the  statute  goes  no  further  than  the  common-law  rule,  a  report  signed  by 
the  majority,  under  the  circumstances  of  this  case,  would  have  been  good.  According 
to  the  case  of  Grindley  et  al.  vs.  Barker,  1  B.  &  P.,  228,  before  cited,  it  would  have  been 
deemed  to  be  the  report  of  the  whole.  The  real  point  of  the  objection  is  that  at  the 
time  when  the  report  was  signed  there  was  a  vacancy  in  the  board  of  commissioners 
caused  by  the  removal  of  the  chairman  from  the  county ;  and  the  general  doctrine 
that  in  case  there  be  a  vacancy  in  the  board  the  remaining  members  cannot  act  seems 
to  be  unquestionable.  (Palmer  vs.  Conway,  22  N.  H.,  148  ;  Mitchell  vs.  Holderness,  34 
N.H.,209,214.) 

The  question  here,  then,  is  whether  this  doctrine  applies  where,  at  the  time  the  va 
cancy  occurred,  nothing  remained  to  be  done  but  to  reduce  to  writing  and  make  the 
formal  report  of  what  had  already  been  determined  by  the  whole  board. 


922  ELECTORAL    COUNT    OF    1877. 

In  Palmer  vs.  Conway,  before  cited,  it  was  held  that  as  there  were  not  three  mem 
bers  of  the  board  in  office  at  the  time,  there  was  no  such  board  as  the  statute  requires, 
and  therefore  there  could  be  no  aqtion  of  the  majority. 

In  that  case  a  report  laying  out  a  highway  had  been  recommitted  to  the  same  board, 
and  a  hearing  notified,  and  before  the  time  appointed  one  of  the  commissioners  died, 
but  the  others  went  on  with  the  hearing  and  made  several  changes  in  the  report,  and 
upon  the  report  being  again  recommitted,  the  same  two  corninissiouers  made  further 
changes,  and  the  report,  upon  full  consideration,  was  set  aside  for  want  of  authority  in 
those  commissioners  to  act. 

Reference  is  also  made  to  Pell  vs.  Ullman,  21  Barb.,  500;  Pulaski  Co. 
vs.  Lincoln,  9  Ark.,  320;  People  vs.  Ooghill,  47  Cal.,  361. 

I  desire  on  this  point  also  to  refer  to  an  able  opinion  pronounced  on 
this  question  by  Associate  Justice  Miller,  a  member  of  this  Commis 
sion,  which  has  been  furnished  me  by  Mr.  Representative  Abbott.  It 
will  be  found  in  1  Wool  worth's  Circuit  Court  Eeports,  175,  and  was 
pronounced  in  the  case  of  Schenck  vs.  Peay.  Mr.  Justice  Miller  says : 

We  understand  it  to  be  well  settled  that  where  authority  of  tbis  kind  is  conferred 
on  three  or  more  persons,  in  order  to  make  its  exercise  valid  all  must  be  present  and 
participate,  or  have  an  opportunity  to  participate,  in  the  proceedings,  although  some 
may  dissent  from  the  action  determined  on.  The  action  of  two  out  of  three  commis 
sioners,  to  all  of  whom  was  confided  a  power  to  be  exercised,  cannot  be  upheld  when 
the  third  party  took  no  part  in  the  transaction  and  was  ignorant  of  what  was  done, 
gave  no  implied  consent  to  the  action  of  the  others,  and  was  neither  consulted  by  them 
nor  had  any  opportunity  to  exert  his  legitimate  influence  in  the  determination  of  the 
course  to  be  pursued.  Such  is  the  un contradicted  course  of  the  authorities,  so  far  as 
we  are  advised,  where  the  power  conferring  the  authority  has  not  prescribed  a  differ 
ent  rule.  (2  Kent's  Commentaries,  293,  note  a,  633,  and  authorities  cited  there,  note  b  ; 
Commonwealth  vs.  Canal  Commissioners,  9  Watts,  466;  Green  vs.  Miller,  6  Johnson,  39; 
Kirk  vs.  Ball,  12  Eng.  L.  &  E.,  385 ;  Crocker  vs.  Crane,  21  Wendell,  211 ;  Dougherty  vs. 
Hope,  I  Cornstock,  79,252  ;  i&.,  3  Denio,  252,  259.) 

The  case  before  us  goes  even  beyond  this,  for,  according  to  the  statement  of  the  bill, 
there  never  was  a  board  of  commissioners  in  existence  until  after  the  proceedings  in 
regard  to  his  title  were  completed.  The  law  required  three  commissioners.  A  less  num 
ber  was  not  a  board  and  could  do  nothing.  The  third  commissioner  for  &  rkansas,  although 
nominated  and  confirmed,  did  not  qualify  or  enter  upon  the  duties  of  his  office  until 
after  the  sale  of  the  lots  to  the  defendants.  There  was,  therefore,  no  board  of  commissioners 
in  existence  authorized  to  assess  the  tax,  to  receive  the  money,  or  to  sell  the  property.  If  Con 
gress  had  intended  1o  confide  these  important  functions  to  two  persons,  it  would  not  have 
required  the  appointment  of  the  third.  If  it  had  been  willing  that  two  out  of  the  three  should 
act,  the  statute  could  easily  have  made  provision  for  that  contingency,  as  has  since  been  done 
by  the  act  of  1865. 

This  reasoning  seems  perfectly  conclusive,  and  I  take  it  for  granted 
will  satisfy  the  mind  of  at  least  one  of  this  Commission  that  this  board 
of  four  had  no  right  to  canvass  the  Louisiana  returns,  and  that  their 
determination  amounts  to  nothing — absolutely  nothing. 

But  this  is  not  all.  By  the  law  of  1872,  above  quoted,  in  the  third 
section  the  order  to  be  observed  by  the  returning-officers  is  specifically 
laid  down.  They  shall  compile  first  the  statements  from  all  polls 
where  the  election  was  fair,  free,  and  peaceable.  This  is  a  mere  addi 
tion  or  summarizing  of  the  results  of  each  poll,  and  shall  be  continued 
through  the  entire  list  of  polls  or  parishes  in  the  State,  unless  there 
shall  be  received  from  some  poll  or  polls  a  statement  required  by  section 
26,  and  then  these  last  polls  are  not  to  be  canvassed  until  all  the  others 
are  compiled. 

Section  26  is  as  follows: 

SEC.  26.  Be  it  further  enacted,  <fc.,  That  in  any  parish,  precinct,  ward,  city,  or  town 
in  which  during  the  time  of  registration,  or  revision  of  registration,  or  on  any  day  of 
election,  there  shall  be  any  riot,  tumult,  acts  of  violence,  intimidation,  and  disturbance, 
bribery,  or  corrupt  influences,  at  any  place  within  said  parish,  or  at  or  near  any  poll  or 
voting-place,  or  place  of  registration,  or  revision  of  registration,  which  riot,  tumult, 
acts  of  violence,  intimidation,  and  disturbance,  bribery,  or  corrupt  influences  shall 
prevent  or  tend  to  prevent  a  fair,  free,  peaceable,  and  full  vote  of  all  the  qualified 
electors  of  said  parish,  precinct,  ward,  city,  or  town,  it  shall  be  the  duty  of  the  commis 
sioners  of  election,  if  such  riot,  tumult,  acts  of  violence,  intimidation,  and  disturbance, 


ELECTORAL    COUNT   OF   1877.  923 

bribery,  or  corrupt  influences  occur  on  the  day  of  election,  of  of  the  supervisor  of 
registration  of  the  parish,  if  they  occur  during  the  time  of  registration  or  revision  of 
registration,  to  make  in  duplicate  and  under  oath  a  clear  and  full  statement  of  all  the 
facts  relating  thereto  and  of  the  effect  produced  by  such  riot,  tumult,  acts  of  violence, 
intimidation,  and  disturbance,  bribery  or  corrupt  influences  in  preventing  a  fair,  free, 
peaceable,  and  full  registration  or  election,  and  of  the  number  of  qualified  voters 
deterred  by  such  riot,  tumult,  acts  of  violence,  intimidation,  and  disturbance,  bribery, 
or  corrupt  influences,  from  registering  or  voting,  which  statement  shall  also  be  corrob 
orated  under  oath  by  three  respectable  citizens,  qualified  electors  of  the  parish.  When 
such  statement  is  made  by  a  commissioner  of  election  or  a  supervisor  of  registration, 
he  shall  forward  it  in  duplicate  to  the  supervisor  of  registration  of  the  parish  ;  if  in  the 
city  of  New  Orleans  to  the  secretary  of  state;  one  copy  of  which,  if  made  to  the  supervisor 
of  registration,  shall  be  forwarded  by  him  to  the  returning-officers  provided  for  in  section 
two  of  this  act,  when  he  makes  the  returns  of  election  in  his  parish.  His  copy  of  said 
statement  shall  be  so  annexed  to  his  returns  of  elections,  by  paste,  wax,  or  some  adhe 
sive  substance,  that  the  same  can  be  kept  together,  and  the  other  copy  the  supervisor 
of  registration  shall  deliver  to  the  clerk  of  the  court  of  his  parish  for  the  use  of  the 
district  attorney. 

Kow,  unless  this  twenty-sixth  section  is  complied  with  and  the  affida 
vit  therein  prescribed  is  made  within  twenty-four  hours  after  the  elec 
tion  and  shall  accompany  the  returns  from  the  polls  attached  to  the 
certificate,  the  returning-officers  are  absolutely  without  jurisdiction  to 
inquire  into  any  alleged  riot,  tumult,  or  acts  of  violence.  It  is  offered 
to  be  proved  that  the  returning-officers  did  inquire  into  and  throw  out 
polis  when  no  such  affidavits  accompanied  the  returns,  and  that  by  thus 
throwing  out  polls  and  parishes,  the  majority  for  theTilden  electors  was 
overcome  and  a  majority  made  to  appear  for  the  Hayes  electors.  We 
must  act  on  this  offer  to  prove  in  a  motion  to  admit  the  evidence  as  if 
the  proof  would  come  up  to  the  offer.  If  this  be  so,  then  the  returning- 
officers — granting  for  the  sake  of  the  argument  that  they  had  the  right 
to  proceed  without  filling  the  board — proceeded  without  jurisdiction 
and  had  no  more  right  to  throw  out  parishes  than  any  other  persons 
had  to  act  in  the  premises.  If  the  offer  of  proof  is  made  good,  these  re- 
turning-officers  did  not  commit  an  error  of  judgment  in  a  matter  commit 
ted  to  their  discretion,  but  proceeded  without  jurisdiction  and  were  mere 
usurpers.  It  is  alleged  in  the  offers  of  proof  that  the  affidavits  provided 
for  by  the  twenty-sixth  section  did  not  accompany  the  returns  from  the 
polls,  but  were  supplied  in  New  Orleans  long  after  the  time  prescribed 
by  that  section,  and  were  made  by  persons  who  knew  nothing  about  the 
facts  they  were  swearing  to;  that  fraud  and  perjury  were  resorted  to 
to  afford  these  returning-officers  a  chance  or  pretext  for  throwing  out 
these  returns. 

To  confirm  my  view  of  the  powers  and  duties  of  these  returning-offi 
cers,  under  the  third  and  twenty- sixth  sections,  I  quote  from  a  report  of 
a  House  committee  dated  February  23,  1875,  and  signed  by  George  F. 
Hoar,  William  A.  Wheeler,  and  W.  P.  Frye. 

After  quoting  said  sections  the  report  proceeds  to  state : 

Upon  this  statute  we  are  clearly  of  opinion  that  the  returning-board  had  no  right  to 
do  anything  except  to  canvass  and  compile  the  returns  which  were  lawfully  made  to  thtm  by 
the  local  officers,  except  in  cases  where  they  were  accompanied  by  the  certificate  of  the  supervisor 
or  commissioner  provided  in  the  third  section.  In  such  cases  the  last  sentence  of  that  sec 
tion  shows  that  it  was  expected  that  they  would  ordinarily  exercise  the  grave  and 
delicate  duty  of  investigating  charges  of  riot,  tumult,  bribery  or  corruption,  on  a  hear 
ing  of  the  parties  interested  in  the  office.  It  never  could  have  been  meant  that  this 
board  of  its  own  motion,  sitting  in  New  Orleans,  at  a  distance  from  the  place  of  voting, 
and  without  notice,  could  decide  the  rights  of  persons  claiming  to  be  elected. 

This  construction  of  the  powers  of  the  returniug-board  of  Louisiana 
has  been  acquiesced  in  by  both  Houses  of  Congress,  and  the  electoral 
vote  of  Louisiana  cast  in  1872  was  rejected  by  the  concurrent  action  of 
the  Senate  and  House  of  Representatives,  because  the  laws  of  said  State 


924  ELECTORAL    COUNT    OF    1377. 

had  not  been  complied  with  in  the  canvass  and  return  of  the  votes  cast 
for  the  appointment  of  the  electors.  See  pages  396-407  Compilation  of 
Proceedings  of  Counting  the  Electoral  Votes. 

Of  the  votes  actually  cast  at  the  late  election  for  the  appointment  of 
electors  in  Louisiana,  the  democratic  electors  received  majorities  ranging 
from  5,300  to  8,990;  on  the  face  of  the  returns  as  made  by  the  supervis 
ors  of  registration  to  the  board  of  returning-officers  their  majorities 
ranged  from  3,459  to  6,405,  but  by  the  canvass  and  the  return  made  by  the 
returning-officers  majorities  were  certified  in  favor  of  the  republican 
electors,  ranging  from  3,437  to  4,800.  To  produce  this  result,  sixty-nine 
polls  were  rejected,  embracing  twenty-two  parishes  in  whole  or  in  part. " 

It  is  believed  that  in  no  single  instance  did  the  returniug-officers  have 
this  foundation  laid  for  inquiring  into  and  rejecting  the  returns  from 
any  parish.  This  board  was  of  special  jurisdiction,  and  its  action,  ac 
cording  to  well-settled  principles,  must  show  on  its  face  jurisdiction. 
In  Thatcher  vs.  Powell,  6  Wheatou,  119,  the  court,  by  Marshall,  C.  J.. 
say : 

In  summary  proceedings,  when  a  court  exercises  an  extraordinary  power  under  a 
special  statute  prescribing  its  course,  we  think  that  course  ought  to  be  exactly  observed, 
and  those  facts  especially  which  give  jurisdiction  ought  to  appear  in  order  to  show 
that  its  proceedings  are  co-ram  judice.  Without  this  act  of  assembly,  the  order  for 
sale  would  have  been  totally  void.  This  act  gives  the  power  only  on  a  report  to  be  made 
by  the  sheriff.  This  report  gives  the  court  jurisdiction,  and  without  it  the  court  is  as 
powerless  as  if  the  act  had  never  passed.  (Walker  vs.  Turner,  9  Wheat.,  541 ;  Atkins 
vs.  Brewer,  3  Cowen,  306 ;  2  Lord  Eaymoud,  1144.) 

I  have  endeavored  to  show  that  this  board  of  returning-officers  had  no 
right  to  act  because  it  did  not  consist  of  the  statutory  number  and  be 
cause  they  refused  to  fill  the  vacancy  in  it  from  fraud  ;  that  if  empow 
ered  to  act  they  had  no  jurisdiction  to  throw  out  parishes,  and  that 
their  action  was  a  mere  usurpation.  In.  addition  to  all  this,  it  is  pro 
posed  to  prove  that  this  board  was  corrupt,  that  its  action  was  fraudu 
lent,  that  they  proceeded  upon  forged  papers  and  affidavits  knowing 
them  to  be  forged,  that  they  encouraged  and  promoted  perjury  and 
forgery  in  their  criminal  attempt  to  rob  the  State  of  her  true  electoral 
vote,  that  they  offered  to  sell  their  services  to  one  of  the  political  parties 
contending  for  the  vote.  This  fraudulent  and  most  wicked  conduct 
of  the  returning-officers  reflects  a  flood  of  light  on  their  refusal  to  fill 
the  vacancy  in  the  board  with  a  political  opponent,  who  would  have 
exposed  and  denounced  their  conduct  on  the  spot  and  prevented  the 
consummation  of  their  hellish  purpose.  It  also  reflects  light  on  their 
assumption  of  jurisdiction  to  throw  out  parishes  when  by  the  law  under 
which  they  were  acting  they  had  no  such  jurisdiction. 

Taken  altogether,  the  offer  of  proof  shows  that  there  was  a  damnable 
conspiracy  to  cheat  the  people  of  this  State  out  of  their  vote  and  to  elect 
a  President  against  the  wishes  of  the  people  by  the  most  disreputable 
and  fraudulent  means.  This,  too,  in  a  State  where  the  whole  election 
machinery  was  in  the  hands  of  republicans,  and  not  the  remotest  chance 
given  to  their  opponents  to  use  unfair  means  to  carry  the  State  if  they 
had  been  disposed  to  use  them.  Now,  how  shall  we  discharge  our  duty 
under  this  bill  if  we  shut  our  eyes  to  these  monstrous  acts  of  fraud, 
perjury,  and  forgery,  by  which  the  votes  of  this  State  have  been  certi 
fied  for  Hayes?  Can  we  say  the  Hayes  votes  are  the  true  votes  of  the 
State  and  such  as  are  provided  for  by  the  Constitution,  in  the  face  of 
these  facts  offered  to  be  proved  ?  Heaven  forbid  that  this  Commission 
shall  by  its  action  legalize  and  confirm  these  outrageous  acts,  and  make 
fraud  respectable  and  potent  in  shaping  the  political  destinies  of  the 
American  people. 


ELECTORAL    COUNT    OF    1877.  925 

Under  pretense  that  we  cannot  interfere  with  State  action,  for  God's 
sake  do  not  let  us  inflict  this  grievous  wrong  on  the  already  down-trod 
den  people  of  that  State.  Let  us  not  by  our  action  make  these  despica 
ble  and  corrupt  returning-officers  a  power  in  the  land,  and  give  to  re- 
turning-boards  in  future  elections,  instead  of  to  the  people,  the  power  to 
elect  a  President. 

This  is  a  question  that  does  not  concern  the  people  of  Louisiana  alone. 
It  affects  the  political  destiny  of  the  whole  American  people.  Thirty- 
seven  States  besides  Louisiana  are  looking  to  our  action  and  are  inter 
ested  in  our  decision.  If  a  corrupt  returning-board  can  cheat  that 
State  of  her  vote,  the  same  fate  may  await  any  other  State  in  this 
Union. 

But  they  also  offer  to  prove  that  two  of  the  pretended  electors  who 
cast  their  votes  for  Hayes,  to  wit,  A.  B.  Levissee  and  O.  H.  Brewster, 
were  holding  offices  of  trust  and.  profit  under  the  United  States  when 
they  were  appointed.  They  did  not  attend  the  meeting  at  first,  and 
were  elected  by  the  others  to  fill  the  vacancy.  I  will  not  repeat  here  the 
remarks  I  made  on  this  subject  in  the  Florida  case.  They  commend 
themselves  to  my  judgment  the  more  I  reflect  on  them.  I  will  only  add 
a  few  remarks  which  seem  peculiarly  applicable  to  this  case.  It  seems 
that  these  two  persons  felt  that  they  had  not  been  legally  appointed,  and 
that  the  Constitution  prohibited  their  appointment.  They  therefore 
failed  to  attend,  and  the  college  proceeded  to  fill  the  vacancies  caused 
by  their  failure  to  attend.  If  I  am  right  that  the  only  election  law  in 
force  in  Louisiana  is  the  law  of  1872,  which  repealed  all  other  acts  on 
the  subject  of  election,  then  there  is  no  law  of  that  State  which  pro 
vides  for  filling  these  vacancies  in  that  way.  The  only  provision  on 
the  subject  of  filling  vacancies  will  be  found  in  the  twenty-fourth  sec 
tion,  as  follows : 

SEC.  24.  Be  it  further  enacted,  <fc.,  That  all  elections  to  be  held  in  this  State  to  fill  any 
vacancies  shall  be  conducted  and  managed,  and  returns  thereof  shall  be  made,  in  the 
same  manner  as  is  provided  for  general  elections. 

This  is  a  provision  to  fill  vacancies  by  a  popular  election,  and  confers 
no  power  on  the  board  to  fill  vacancies. 

Nor  does  any  law  of  Congress  confer  this  power.  All  the  provisions 
on  this  subject  will  be  found  in  the  following  sections  of  the  Revised 
Statutes: 

SEC.  133.  Each  State  may,  ~by  law,  provide  for  the  filling  of  any  vacancies  which  may 
occur  in  its  college  of  electors  when  such  college  meets  to  give  its  electoral  vote. 

SEC.  134.  Whenever  any  State  has  held  an  election  for  the  purpose  of  choosing 
electors,  and  has  failed  to  make  a  choice  on  the  day  prescribed  by  law,  the  electors  may  be 
appointed  on  a  subsequent  day,  in  such  a  manner  as  the  legislature  of  such  State  may 
direct. 

I  beg  leave  to  conclude  what  I  have  to  say  on  this  subject  by  quoting 
from  the  brilliant  and  able  speech  of  Hon.  Matt  Carpenter : 

After  quoting  the  two  sections  from  the  Eevised  Statutes  as  above,  he 
says : 

Two  cases  are  here  provided  for :  one,  the  case  of  a  vacancy  occurring  after  the 
election  ;  the  other,  a  failure  to  make  an  election.  Waiving  at  present  the  question 
whether  as  between  two  candidates,  the  one  receiving  the  greater  number  of  votes 
being  ineligible,  his  opponent  is  elected,  in  virtue  of  a  smaller  number  of  legal  votes, 
and  assuming  that  he  is  not,  then  it  is  unquestionable  that  the  election  is  void. 

In  the  case  of  the  contested  seat  in  the  Senate  between  Vance  and  Abbott  from  North 
Carolina,  there  was  a  very  full  discussion  upon  this  subject.  Vance,  who  received  the 
largest  number  of  votes,  was  ineligible  under  the  fourteenth  amendment  to  the  Con 
stitution,  and  Abbott,  who  received  the  next  highest  number  of  votes  and  was  eligible, 
claimed  the  seat.  The  Senate  decided  that  Abbott  was  not  entitled  to  the  seat,  andr 
of  course,  that  the^State  had  failed  to  make  an  election  of  Senator. 


926  ELECTORAL    COUST    OF    1877. 

The  Constitution  of  the  United  States,  article  2,  section  1,  authorizes  each  State  to 
appoint  an  elector,  but  provides  that  no  person  holding  an  office  of  trust  or  profit 
under  the  United  States  shall  be  appointed. 

This  provision  of  the  Constitution  applied  to  the  case  in  hand  is  this  :  The  State  of 
Louisiana  may  appoint  eight  electors ;  but  A.  B.  Levissee  and  O.  H.  Brewster  shall 
not  be  appointed.  Hence  any  attempt  to  appoint  Levissee  and  Brewster  is  unconsti 
tutional  and  void.  And  hence  it  follows  that  the  State  appointed  but  six  electors  ;  in 
other  words,  they  failed  to  elect  the  full  number  to  which  the  State  was  entitled.  This 
is  the  case  provided  for  by  the  last  section  quoted  from  the  Revised  Statutes  of  Con 
gress,  which  declares  that  the  State  may  by  law  provide  for  subsequent  appointment. 
If  the  act  of  1868  was  not  in  force,  the  only  provision  in  relation  to  filling  such  a 
vacancy  was  by  subsequent  popular  election.  (Election  law  of  1672,  section  24.)  If  the 
act  of  1868  was  in  force,  it  only  provided  for  filling  a  vacancy  occurring  after  the  officer 
had  been  elected.  So  then,  whether  the  act  of  1868  was  or  was  not  in  force,  there  was  no 
law  of  the  State  which  authorized  the  appointment  in  place  of  Levissee  and  Brewster, 
as  to  whom  there  had  been  a  failure  to  elect. 

And  therefore,  in  any  event,  two  of  the  votes  given  by  the  Hayes  electors  must  be 
rejected. 

The  case  of  the  United  States  vs.  The  Aniistad,  15  Peters,  518,  is  instructive  on  this 
point.  The  court  say  it  is  argued  "  that  the  ship  and  cargo  and  negroes  were  duly 
documented  as  belonging  to  Spanish  subjects,  and  this  court  has  no  right  to  look 
behind  these  documents ;  that  full  faith  and  credit  is  to  be  given  to  them,  and  that 
they  are  to  be  held  conclusive  evidence  in  this  cause,  even  although  it  should  be  estab 
lished  by  the  most  satisfactory  proofs  that  they  have  been  obtained  by  the  grossest 
frauds  and  impositions  upon  the  constituted  authorities  of  Spain.  To  this  argument 
we  can  in  no  wise  assent.  There  is  nothing  in  the  treaty  which  justifies  or  sustains 
the  argument.  We  do  not  here  meddle  with  the  point  whether  there  has  been  any 
connivance  in  this  illegal  traffic  on  the  part  of  any  of  the  colonial  authorities  or  subor 
dinate  officers  of  Cuba  ;  because,  in  our  view,  such  an  examination  is  unnecessary  and 
ought  not  to  be  pursued,  unless  it  were  indispensable  to  public  justice,  although  it  has 
been  strongly  pressed  at  the  bar.  What  we  proceed  upon  is  this  :  that,  although 
public  documents  of  the  Government  accompanying  property  found  on  board  of  the  pri 
vate  ships  of  a  foreign  nation,  certainly  are  to  be  deemed  prima-facie  evidence  of  the 
facts  which  they  propose  to  state,  yet  they  are  always  open  to  be  impugned  for  fraud  ; 
and  whether  that  fraud  be  in  the  original  obtaining  of  these  documents,  or  in  the  sub 
sequent  fraudulent  and  illegal  use  of  them,  when  once  it  is  satisfactorily  established, 
it  overthrows  all  their  sanctity  and  destroys  them  as  proof.  Fraud  ivill  vitiate  any,  even 
tlie  most  solemn,  transactions  ;  and  an  asserted  title  to  property  founded  upon  it  is  utterly  void. 
The  very  language  of  the  ninth  article  of  the  treaty  of  1795  requires  the  proprietor  to 
make  due  and  sufficient  proof  of  his  property.  And  how  can  that  proof  be  deemed 
either  due  or  sufficient,  which  is  but  a  connected  and  stained  tissue  of  fraud  ?  This 
is  not  a  mere  rule  of  municipal  jurisprudence.  Nothing  is  more  clear  in  the  law 
of  nations  as  an  established  rule  to  regulate  their  rights  and  duties  and  intercourse 
than  the  doctrine  that  the  ship's  papers  are  but  prima-facie  evidence,  and  that  if  they 
are  shown  to  be  fraudulent  they  are  not  to  be  held  proof  of  any  valid  title.  This 
rule  is  familiarly  applied,  and  indeed  is  of  every-day  occurrence  in  cases  of  prize,  in 
the  contests  between  belligerents  and  neutrals,  as  is  apparent  from  numerous  cases 
to  be  found  in  the  reports  of  this  court;  and  it  is  just  as  applicable  to  the  trans 
actions  of  civil  intercourse  between  nations  in  times  of  peaoe.  If  a  private  ship 
clothed  with  Spanish  papers  should  enter  the  ports  of  the  United  States  claiming 
the  privileges  and  immunities  and  rights  belonging  to  bona-fide  subjects  of  Spain 
under  our  treaties  or  laws,  and  she  should  in  reality  belong  to  the  subjects  of 
another  nation  which  was  not  entitled  to  any  such  privileges,  immunities,  or  rights, 
and  the  proprietors  were  seeking  by  fraud  to  cover  their  own  illegal  acts  under  the 
flag  of  Spain,  there  can  be  no  doubt  that  it  would  be  the  duty  of  our  courts  to  strip  off  the 
disguise  and  to  look  at  the  case  according  to  its  naked  realities.  In  the  solemn  treaties  be 
tween  nations  it  can  never  be  presumed  that  either  State  intends  to  provide  the  means  of  perpe 
trating  or  protecting  frauds,  but  all  the  provisions  are  to  be  construed  as  intended  to  be 
applied  to  bona-fide  transactions." 

OREGON. 

Mr.  Commissioner  HILNTON  said  : 

Mr.  PRESIDENT:  The  Commission  has  decided*  the  cases  of  Florida 
and  Louisiana.  The  votes  of  those  States  have  been  given  for  Hayes 
under  the  decision  of  this  Commission  sworn  to  decide  what  persons 
were  duly  appointed  electors.  This  requirement  of  the  law  and  this 
obligation  of  the  oath  have  been  met  by  a  decision  that  this  Commission 
could  not  go  behind  the  governor's  certificates,  based  on  the  certificates 


ELECTORAL    COUNT    OF    1877.  927 

of  returning-boards,  although  the  proof  was  offered  that  these  certifi 
cates  were,  in  Florida,  in  violation  of  the  law  of  the  State ;  that  the  three 
departments  of  that  State  government  had  declared  in  solemn  form  that 
these  certificates  were  illegal  and  void  ;  that  the  people  of  the  State  of 
Florida  in  the  mode  prescribed  by  the  legislature  had  by  a  decided 
majority  appointed  Tilden  electors. 

In  Louisiana  the  votes  of  that  State  have  been  given  to  H  lyes  on  the 
same  ground  of  the  conclusive  effect  of  the  governor's  certificate  based 
on  the  certificate  of  returning-board,  notwithstanding  the  evidence  was 
at  hand- and  offered  that  these  certificates  were  the  result  of  a  most  fraudu 
lent  conspiracy  to  count  the  vote  for  Hayes  j  that  counsel  were  ready  to 
prove  that  these  certificates  were  procured  by  perjury  and  forgery  ;  that 
the  returning-board  illegally  discarded  many  thousand  votes  cast  for  the 
Tilden  electors,  without  even  the  color  of  authority;  that  the  board 
offered  to  sell  the  return  of  the  State  to  one  of  the  political  parties ;  that 
the  State  had,  by  about  eight  thousand  majority,  appointed  the  Tilden 
electors  in  the  mode  prescribed  by  her  legislature. 

Notwithstanding  all  this,  a  majority  of  this  Commission  shut  their  eyes 
to  these  monstrous  facts  and  decided  that  they  must  count  according  to 
certificates,  and  that  they,  representing  the  powers  of  the  two  Houses 
of  Congress,  were  yet  powerless  to  examine  into  and  correct  these  gross 
wrongs,  in  deciding  what  persons  were  duly  appointed  electors  in  such 
States.  These  decisions  must  shock  the  minas  of  the  legal  profession 
and  paralyze  the  love  of  the  American  citizens  for  their  institutions 
when  these  acts  of  fraud,  forgery,  and  perjury  can  be  committed  with 
impunity,  the  Constitution  violated  and  the  guardians  of  the  people's 
rights  declared  impotent  to  defend  and  correct ! 

In  this  case  of  Oregon  the  technical  advantages  seem  to  be  on  the 
Tilden  side  of  the  case,  and  I  am  curious  to  see  whether  they  are  as 
potential  in  that  direction  as  the  other.  It  seems  that  a  majority  of 
votes  were  cast  for  Odell,  Watts,  and  Cartwright  on  7th  November, 
1876.  One  of  these,  Mr.  Watts,  was  on  the  day  of  election  a  postmaster, 
and  the  governor,  acting  under  the  best  legal  counsel,  decided  that 
Watts  was  not,  and  that  Cronin,  the  next  highest,  was,  appointed,  and 
gave  the  certificates  required  by  law  to  Odell,  Cartwright,  and  Cronin, 
the  last  having  possession  of  them. 

On  December  6,  according  to  the  offer  of  proof,  Cronin  proposed  to 
act  with  Odell  and  Cartwright  in  the  formation  of  the  electoral  college. 
They  refused.  He  then  proceeded  to  act  alone ;  filled  the  vacancies  by  the 
appointment  of  Miller  and  Parker,  and  they  cast  two  votes  for  Hayes  and 
one  for  Tilden.  Odell  and  Cartwright  proceeded  by  themselves  to  fill 
the  vacancy  caused  by  the  resignation  of  Watts  by  the  election  of 
Watts,  and  they  cast  the  three  votes  for  Hayes. 

Which  are  the  constitutional  votes  and  who  are  the  duly-appointed 
electors  of  Oregon  ?  If  the  strict  technical  rule  applied  to  Florida  and 
Louisiana  be  applied  to  Oregon,  then  the  vote  of  the  Cronin  college  must 
be  recognized  as  the  constitutional  vote  of  Oregon.  By  the  election 
law,  it  is  provided  : 

SEC.  37.  The  county  clerk,  immediately  after  making  the  abstract  of  the  votes  given 
in  his  county,  shall  make  a  copy  of  each  of  said  abstracts,  and  transmit  it  by  mail  to 
the  secretary  of  state  at  the  seat  of  government ;  and  it  shall  be  the  duty  of  the  secretary 
of  state ,  in  the  presence  of  the  governor,  to  proceed  within  thirty  days  after  the  election,  and 
sooner  if  the  returns  be  all  received,  to  canvass  the  votes  given  for  secretary  and  treasurer  of 
state,  State  printer,  justices  of  the  supreme  court,  member  of  Congress,  and  district  attorneys  ; 
and  the  governor  shall  grant  a  certificate  of  election  to  the  person  having  the  highest  number  of 
votes,  and  shall  also  issue  a  proclamation  declaring  the  election  of  such  person.  In  case  there 
shall  be  no  choice,  by  reason  of  any  two  or  more  persons  having  an  equal  and  the 


928  ELECTORAL   COUNT   OF    1877. 

highest  number  of  votes  for  either  of  such  offices,  the  governor  shall  by  proclamation 
order  a  new  election  to  fill  said  offices. 

SEC.  60.  The  votes  for  the  electors  shall  be  given,  received,  returned,  and  canvassed 
as  the  same  are  given,  returned,  and  canvassed  for  members  of  Congress.  The  secre 
tary  of  state  shall  prepare  tivo  lists  of  the  names  of  the  electors  elected,  and  affix  the  seal  of 
the  State  to  the  same.  Such  lists  shall  be  signed  by  the  governor  and  secretary,  and  by 
the  latter  delivered  to  the  college  of  electors  at  the  hour  of  their  meeting  on  such  first 
Wednesday  of  December. 

These  provisions  make  the  governor  and  secretary  of  state  the  re- 
turning-board  of  Oregon,  and  the  certificates  held  by  Odell,  Cartwrightr 
and  Crouin  will  be  found  on  examination  to  comply  strictly  with  the 
above  provisions  of  law.  The  secretary  of  state  in  presence  of  the  gov 
ernor  did  canvass  the  votes  according  to  section  37.  He  did  prepare- 
two  lists  of  the  persons  elected  and  affixed  the  seal  of  the  State  to  the 
same,  and  the  governor  and  secretary  did  sign  the  same,  as  required  by 
section  60,  and  all  of  this  will  be  found  in  the  governor's  certificate,, 
attested  by  the  secretary  of  state,  which  accompanies  the  Crouin  certifi 
cate  No.  2. 

It  seems  to  me,  therefore,  that  the  votes  in  the  Cronin  certificate., 
according  to  the  ruling  of  the  majority  in  Florida  and  Louisiana,  are 
the  constitutional  votes  of  Oregon.  If  the  ruling  in  Florida  and  Loui 
siana  was  right,  I  demand  at  the  hands  of  the  majority  of  this  Commis 
sion  a  simflar  ruling  in  this  Oregon  case.  But,  sir,  I  do  not  believe  that 
ruling  was  right.  I  am  more  convinced  it  is  wrong  the  more  I  think  of 
and  study  it.  I  do  not  believe  it  is  right  to  smother  the  voice  of  a  State 
in  a  presidential  election  on  such  technical  quibbles.  I  do  not  believe 
we  are  discharging  our  duty  to  the  country  and  to  the  law  creating  this 
Commission,  in  refusing  to  hear  evidence  to  determine  the  constitutional 
and  duly-appointed  electors  of  a  State.  I  believe  that  the  State  of  Ore 
gon  by  a  decided,  though  not  large  majority,  voted  for  Hayes,  and  I  am 
not  willing  to  have  any  part  of  her  vote  cast  for  Tilden.  I  shall  not, 
therefore,  maintain  that  the  vote  cast  by  the  Cronin  college  is  the  con 
stitutional  vote  of  Oregon. 

In  taking  this  position  I  do  not  mean  to  reflect  on  the  conduct  of  the 
governor  in  giving  a  certificate  of  election  to  Cronin  instead  of  Watts, 
who  by  concession  was  a  Federal  officer  on  the  day  of  election. 

I  think  the  governor  was  bound  by  his  oath  to  refuse  a  certificate  to 
Watts.  The  votes  cast  for  him  were  absolute  nullities,  and  according 
to  many  of  the  best-considered  authorities  these  votes  for  Watts  were 
thrown  away— considered  as  not  given  to  anybody — and  Crouin,  the 
next  highest  candidate  or  the  highest  eligible  candidate,  was  duly 
elected. 

r  While  I  feel  it  would  not  be  proper  to  give  one  vote  in  Oregon  to  Til- 
den,  the  oath  I  have  taken  as  a  member  of  this  Commission  will  prevent 
me  from  giving  more  than  two  of  the  three  votes  to  Hayes. 

Watts  was  by  concession  a  Federal  officer  on  the  day  of  election  and 
was  ineligible,  could  not  be  appointed.  See  authorities  cited  in  Florida 
case.  Watts,  Odell,  and  Cartwright  all  seemed  to  have  felt  and  ac 
knowledged  this  ineligibility  by  Watts's  resignation  and  its  acceptance. 
The  other  two  at  once  proceeded  to  fill  the  vacancy  by  the  election  or 
appointment  of  this  same  Watts.  Now,  was  there  a  vacancy  ?  I  will 
not  repeat  the  argument  made  or  attempted  in  the  Florida  case,  but 
content  myself  with  referring  to  it  and  to  some  of  the  authorities,  most 
of  which  are  familiar  to  the  members  of  this  Commission.  Clark  & 
Hall,  871.  Story  on  the  Constitution,  sec.  1559.  Sergeant's  Const.  Law, 
(2d  ed.,)  373.  Schenck  vs.  Peay,  1  Dillon,  267.  State  vs.  Benedict,  15 
Minn.,  199.  Battle  vs.  Mclver,  68  N.  C.,  469.  Stratton  vs.  Oulton,  28 


ELECTORAL    COUNT    OF   1877.  929 

Cal.,  51.  People  vs.  Stratton,  28  Cal.,  382.  People  vs.  Parker,  37  Cal., 
639.  Dodd  Exparte,  6  Eng.,  (Ark.,)  152.  State  vs.  Jenkins,  43  Mo.,  261. 

These  authorities  establish  to  my  mind  thatthere  was  no  vacancy,  but 
failure  to  elect  if  Cronin  was  not  elected.  These  authorities  are  greatly 
strengthened  by  the  statutory  definition  of  a  vacancy  in  Oregon. 

The  laws  of  Oregon  bearing  on  this  subject  are  as  follows: 

•  TITLE   VI — OF   VACANCIES. 

SEC.  48.  Every  office  shall  become  vacant  on  the  occurring  of  either  of  the  following 
events  before  the  expiration  of  the  term  of  such  office: 

1.  The  death  of  the  incumbent ; 

2.  His  resignation ; 

3.  His  removal ; 

4.  His  ceasing  to  be  an  inhabitant  of  the  district,  county,  town,  or  village  for  which 
he  shall  have  been  elected  or  appointed  or  within  which  the  duties  of  his  office  are  re 
quired  to  be  discharged ; 

5.  His  conviction  of  an  infamous  crime,  or  of  any  offense  involving  a  violation  of 
his  oath ; 

6.  His  refusal  or  neglect  to  take  his  oath  of  office,  or  to  give  or  renew  his  official 
bond,  or  to  deposit  such  oath  or  bond  within  the  time  prescribed  by  law  ; 

7.  The  decision  of  a  competent  tribunal,  declaring  void  his  election  or  appointment. 
SEC.  49.  The  governor  shall  also  declare  vacant  the  office  of  every  officer  required  by 

law  to  execute  an  official  bond,  whenever  a  judgment  shall  be  obtained  against  such 
officer  for  a  breach  of  the  conditions  of  such  bond. 

TITLE   IX— OF  THE   ELECTION  OF   PRESIDENTIAL  ELECTORS. 

SEC.  58.  On  the  Tuesday  next  after  the  first  Monday  in  November,  1864,  and  every 
four  years  thereafter,  there  shall  be  elected  by  the  qualified  electors  of  this  State  as 
many  electors  of  President  and  Vice- President  as  this  State  may  be  entitled  to  elect  of 
Senators  and  Representatives  in  Congress. 

SEC.  59.  The  electors  of  President  and  Vice-President  shall  convene  at  the  seat  of 
government  on  the  first  Wednesday  of  December  next  after  their  election,  at  the  hour 
of  twelve  of  the  clock  at  noon  of  that  day,  and  if  there  shall  be  any  vacancy  in  the 
office  of  an  elector,  occasioned  by  death,  refusal  to  act,  neglect  to  attend,  or  otherwise, 
the  electors  present  shall  immediately  proceed  to  fill,  by  viva  voce  and  plurality  of  votes, 
such  vacancy  in  the  electoral  college,  and  when  all  the  electors  shall  appear,  or  the 
vacancies,  if  any,  shall  have  been  filled  as  above  provided,  such  electors  shall  proceed 
to  perform  the  duties  required  of  them  by  the  Constitution  and  laws  of  the  United 
States. 

In  all  cases  of  vacancy  under  this  law  there  must  first  have  been  a 
legal  and  eligible  incumbent ;  and  no  vacancy  can  exist,  then,  in  an 
office  unless  the  office  has  first  been  duly  filled. 

So  also  the  authority  given  to  the  electors  to  fill  vacancies  by  the  fifty  - 
ninth  section  looks  merely  to  a  vacancy  caused  by  death,  refusal  to  act, 
neglect  to  attend,  or  otherwise,  that  is,  by  any  other  like  cause. 

1  am  constrained  to  believe  that  Odell  and  Cartwright  had  no  author 
ity  to  elect  Watts  or  any  other  person  as  an  elector,  and  consequently 
that  Watts  had  no  right  to  cast  his  vote  for  President. 

SOUTH   CAROLINA. 

Mr.  Commissioner  HCTNTOX  said: 

Mr.  PRESIDENT  :  We  have  now  reached  the  last  case  to  be  submit 
ted  to  this  Commission.  That  it  has  disappointed  public  expectation 
in  its  decisions,  I  need  not  declare.  By  a  vote  of  eight  to  seven,  this 
Commission  has  decided  on  purely  technical  grounds  that  Florida  and 
Louisiana  voted  for  Hayes,  and  by  the  same  vote  of  the  same  members 
have,  as  I  think,  discarded  these  same  technical  grounds  to  give  the 
one  disputed  vote  of  Oregon  to  Hayes.  I  say  this  Commission  has  dis 
appointed  public  expectation,  because  the  country  expected  of  it  that  it 
59  E  c 


930  ELECTORAL    COUNT    OF    1877. 

would  decide  who  had  been  elected  President  and  Vice-President  by 
the  people.  They  did  not  expect  of  us  that  we  would  merely  confirm 
the  judgment  of  corrupt  and  illegal  returning-boards,  who  were  ready 
to  put  the  Presidency  up  to  the  highest  bidder  in  the  public  market. 

But  our  action  in  the  three  cases  has  become  a  part  of  the  history  of 
the  country,  and  we  must  stand  or  fall  by  the  judgment  of  the  forty- 
four  millions  of  people  who  have  been  anxious,  interested,  and  discon 
tented  witnesses  of  our  conduct.  « 

In  the  case  of  South  Carolina  different  facts  are  presented  from  any 
heretofore  offered.  We  have  heretofore  been  called  on  to  protect  States 
from  corrupt  returniug-boards  who  have  stifled  the  voice  of  the  people 
on  election-day,  and  to  protect  the  Constitution  of  the  United  States 
from  infraction  by  the  attempt  to  appoint  persons  electors  when  the 
States  are  expressly  inhibited  by  the  Constitution  from  making  such 
appointments. 

The  South  Carolina  case  will  be  better  understood  by  reference  to  the 
offer  of  proof,  as  follows : 

In  support  of  the  objections  to  certificate  No.  1,  it  is  proposed  to  prove  by  competent 
evidence  the  following  facts,  which  said  facts  are  offered  separately  and  as  a  whole: 

First.  That  by  reason  of  the  failure  and  refusal  of  the  legislature  of  South  Carolina 
to  provide  for  a  registration  of  electors,  as  required  by  article  8,  section  3,  of  the  con 
stitution  of  said  State,  and  by  reason  of  the  acts  passed  by  said  legislature  in  violation 
of  the  spirit  of  such  constitutional  provision,  great  frauds  were  perpetrated  by  colored 
republican  voters ;  that  at  least  3,000  illegal  votes  were  cast  for  the  Hayes  electors, 
which  said  votes  being  excluded  would  give  a  large  majority  to  the  Tilden  electors. 

Second.  That  immediately  after  the  adjournment  of  Congress,  to  wit,  in  the  month 
of  August,  A.  D.  1876,  a  large  number  of  United  States  soldiers,  under  command  of 
General  Ruger,  were  sent  by  the  President  into  said  State  ;  that  on  October  16,  Gen 
eral  Ruger  telegraphed  to  the  authorities  at  Washington  that  all  was  quiet;  that  there 
was  no*  need  for  further  troops;  that  if  he  (Ruger)  deemed  a  further  force  necessary  he 
would  call  for  the  same ;  that  he  never  did  call  for  more  troops;  but  that  on  October 
17  the  President  issued  a  proclamation  declaring  that  the  people  of  said  State  were  in 
a  condition  of  insurrection,  and  that  immediately  thereafter  large  numbers  of  United 
States  soldiers  were  sent  into  said  State  ;  that  at  no  time  prior  to  the  last-mentioned 
date  was  there  a  condition  of  violence  or  insurrection  which  the  authorities  of  the  State 
were  unable  to  control ;  that  at  no  time  during  the  year  1876  did  such  a  state  of  affairs 
exist  in  South  Carolina  as  justified  the  intervention  of  the  Federal  Government. 

Third.  That  the  troops  were  sent  into  said  State  without  any  action  of  the  legisla 
ture  thereof,  although  the  same  could  have  been  readily  convened. 

Fourth.  That  the  troops  were  sent  into  said  State,  not  for  the  purpose  of  quelling 
insurrection  and  preserving  peace  and  good  order,  but  for  the  purpose  and  with  the 
design  of  overawing  the  voters  of  said  State;  that  said  troops  were  stationed  at  and 
near  the  polls  on  election-day,  and  that  their  presence  before  and  on  the  day  of  the 
election  did  obstruct  and  interfere  with  an  expression  of  the  popular  will  and  prevent 
a  free  election. 

Fifth.  That  the  presence  of  said  troops  served  to  embolden  the  more  desperate  of 
the  negroes.  Being  assured  by  their  party  leaders  that  said  troops  were  there  for  the 
purpose  of  protecting  them  in.any  act  of  violence,  the  blacks  throughout  the  counties 
of  Beaufort  and  Charleston  inaugurated  a  condition  of  riot  and  lawlessness  ;  that  pub 
lic  officials  incited  them  to  the  commission  of  every  character  of  crime ;  that  murder 
was  committed,  and  the  perpetrators  allowed  to  escape  punishment;  that  justices  re 
fused  to  issue  warrants  for  the  arrest  of  criminals  charged  even  with  the  crime  of  mur 
der,  and  sheriffs  refused  to  execute  such  warrants  if  issued ;  that  the  police  force  of 
the  city  of  Charleston,  composed  almost  entirely  of  republican  negroes,  employed  its 
time  in  shooting  down  upon  the  public  streets  quiet  and  inoffensive  white  men,  mem 
bers  of  said  force  being  in  many  instances  leaders  in  the  riots  which  occurred. 

That  upon  election-day  the  negroes  assembled  at  the  polls  armed  with  rifles,  shot 
guns,  and  other  weapons,  and  prevented  negroes  who  desired  so  to  do  from  voting  the 
democratic  ticket.  That  the  State  militia,  composed  of  the  worst  element  of  the  negro 
population,  and  supplied  with  State  arms,  was  also  at  the  polls  aiding  and  abetting  in 
the  violation  of  law  and  in  the  intimidation  of  voters.  That  the  sheriff  of  Charleston 
County,  one  of  the  republican  electors,  without  warrant  or  authority  of  law,  appointed 
hundreds  of  so-called  "  deputy  sheriffs,"  all  negroes  and  republicans,  investing  them 
with  the  power  to  make  arrests  at  their  pleasure.  That  these  deputy  sheriffs  swarmed 
about  the  various  polls  on  election-day,  and  by  their  threats  and  violence  did  hinder 


ELECTORAL    COUNT    OF    1677.  931 

and  prevent  many  citizens  from  voting,  and  did  arrest  and  imprison,  without  informa 
tion  or  warrant,  many  of  those  who  attempted  'to  vote  the  democratic  ticket.  That 
persons  styled  "  United  States  deputy  marshals"  were  also  stationed  at  the  polls  aid 
ing  and  assisting  said  "  deputy  sheriffs."  That  throughout  the  State  the  negroes  be 
lieved  that  the  United  States  soldiers  had  been  sent  to  shoot  them  if  they  did  not  vote 
the  republican  ticket. 

Sixth.  That  such  violence  and  lawlessness  existed  throughout  the  counties  of  Charles 
ton  and  Beaufort  shortly  before  and  on  the  day  of  the  election,  which  said  lawlessness 
was  primarily  attributable  to  the  occupation  of  said  State  by  United  States  soldiers, 
that  no  free  election  could  be  or  was  held  in  said  counties,  "but  that,  upon  the  con 
trary,  the  popular  will  found  no  expression  at  the  polls ;  that  by  reason  of  the  law 
lessness  which  existed  in  the  county  of  Charleston  alone  the  republican  electors  secured 
a  majority  of  about  7,000  votes. 

The  well-understood  rule  must  be  applied.  In  passing  upon  the  admis- 
sibility  of  evidence  we  must  assume  that  all  that  is  offered  to  beproved 
can  be  proved. 

Applying  this  rule,  I  ask,  What  was  the  condition  of  South  Carolina 
on  the  day  of  election  and  for  several  weeks  preceding  ? 

There  was  no  condition  of  violence  or  insurrection  which  the  State 
authorities  were  unable  to  control.  There  was  nothing  to  justify  the 
intervention  of  the  Federal  Government  in  the  affairs  of  South  Caro 
lina.  On  the  16th  October  General  Eager,  commanding  the  Federal 
troops  in  that  State,  reported  all  quiet  and  that  there  was  no  need  for  fur 
ther  troops. 

Notwithstanding,  on  the  very  next  day  the  President,  without  author 
ity,  declared  by  proclamation  that  the  people  of  the  State  were  in  a  con 
dition  of  insurrection,  and  forced  Federal  troops  into  that  State. 

These  troops  were  sent  into  the  State,  not  for  the  purpose,  as  avowed, 
of  preserving  the  peace  and  quelling  insurrection,  but  to  over-awe  the 
voters.  The  troops  were  stationed  near  the  polls  on  the  day  of  election, 
and  did  obstruct  the  free  expression  of  the  popular  will. 

The  presence  of  troops  emboldened  the  desperate  colored  men,  who, 
incited  to  deeds  of  violence  by  party  leaders,  committed  all  sorts  of  acts 
of  intimidation  on  colored  men  who  wished  to  vote  the  democratic  ticket. 

The  police  force  of  Charleston,  composed  mainly  of  republican  negroes, 
shot  down  on  the  public  streets  quiet  white  men. 

Scenes  of  violence  and  bloodshed  occurred  at  many  of  the  polls. 

All  this  and  much  more  was  done  by  the  public  authorities  and  pro 
tected  by  the  troops  of  the  Federal  Government  with  the  design  to  deter 
men,  and  especially  colored  men,  from  voting  the  democratic  ticket. 

If  the  half  of  this  is  true  and  can  be  proved  as  they  offer  to  do,  can  it 
be  said  there  was  a  free  election  in  that  State  ?  Can  it  be  said  that  the 
apparent  small  majority  for  Hayes  expressed  the  true  voice  of  the  State 
of  South  Carolina  I 

Can  the  electors  thus  chosen  be  said  by  us  to  be  duly  appointed  ?  Can 
we  say  their  votes  are  the  votes  provided  for  by  the  Constitution  ? 

It  is  very  certain  if  this  state  of  affairs  existed  in  South  Carolina  on 
and  before  the  day  of  election,  that  the  Hayes  electors  were  chosen  by 
force  brought  to  bear  by  the  Federal  Government  for  the  purpose  of  com 
pelling  the  result;  that  a  state  of  anarchy  and  lawlessness  prevailed 
which  absolutely  prevented,  as  it  was  designed  to  do,  a  free  and  fair  ex 
pression  of  the  political  preferences  of  the  voters  of  the  State ;  that 
this  condition  of  affairs  in  that  unhappy  State  was  deliberately  planned 
and  persistently  and  wickedly  carried  out  to  coerce  the  voters  of  that 
State  for  Hayes. 

We  shoukf  be  most  culpable*,  nay  criminal,  if  we  allowed  this  wicked 
design  to  culminate  here  by  counting  the  vote  of  the  State  for  Hayes. 

There  was  such  a  state  of  affairs  existing  there  that  there  could  not  be 


932  ELECTORAL    COUNT    OF    1877. 

said  there  was  on  the  day  of  election  a  republican  government  in  the 
State. 

I  am,  therefore,  for  admitting  the  evidence,  and,  if  the  proof  comes 
up  to  the  otter,  for  deciding  that  no  persons  were  duly  appointed  electors 
in  that  State,  and  that  no  votes  have  been  cast  for  President  and  Vice- 
president  which  are  the  votes  provided  for  by  the  Constitution  of  the 
United  States. 


REMARKS  OF  MR,  COMMISSIONER  ABBOTT. 

FLORIDA. 

The  Commission  having  under  consideration  the  electoral  vote  of  Florida — 
Mr.  Commissioner  ABBOTT  said  substantially : 
Mr.  PRESIDENT  :  I  understand  the  Senator  from  Vermont  claims  that 
it  is  not  within  the  power  of  this  Commission  to  take  evidence  to  con 
tradict  the  governor's  return  made  in  pursuance  of  the  act  of  Congress, 
while  the  Senator  from  Indiana  is  of  the  opinion  that  the  governor's  re 
turn  under  the  act  of  Congress  may  be  inquired  into,  but  that  any  re 
turn,  whether  of  the  governor  or  any  other  State  officer,  required  by 
State  laws  is  conclusive  and  cannot  be  controlled  or  in  any  way  contra 
dicted,  varied,  or  explained.  I  readily  understand  the  position  of  the 
latter  Senator ;  it  is  taken  not  only  for  this  case,  but  for  one  that  may 
be  before  us  in  the  future,  for  in  so  deciding  as  to  get  the  vote  of  Flor 
ida,  it  would  not  do  to  render  it  impossible  to  count  the  vote  of  Oregon. 
I  agree  with  the  Senator  from  Indiana  that  the  return  of  the  governor 
under  the  act  of  Congress  may  be  controlled,  indeed  set  aside  and  dis 
regarded,  by  proving  it  to  be  false  in  fact.  The  act  of  Congress  does  not 
make  that  return  either  conclusive  or  prima  facie  evidence,  or  even  evi 
dence  at  all,  in  express  terms.  If  it  had  undertaken  to  make  it  con 
clusive  evidence,  it  certainly  would  have  been  uncoo stitutional.  Clearly, 
Congress  has  no  authority  to  prescribe  what  shall  be  conclusive  evidence 
in  such  a  case,  and,  probably,  it  would  be  held,  had  no  right  to  impose 
such  a  duty  upon  the  chief  executive  of  a  State. 

But  upon  the  Senator's  second  proposition  I  by  no  means  agree  with 
him.  He  claims,  as  I  understand  him,  that  in  no  event  can  a  return 
made  under  the  laws  of  a  State  be  controlled,  inquired  into,  varied,  or 
.shown  to  be  wrong,  not  according  to  the  fact,  whether  this  falsity  arise 
from  innocent  mistakes — a  mere  error  in  the  addition  of  figures,  for 
example — or  from  fraud  and  corruption ;  nay,  further,  if  the  return  is 
once  made  by  the  officers  appointed  under  the  State  law  to  count  the 
votes  and  determine  the  persons  elected,  it  cannot  be  shown  that  such 
officers  have  exceeded  the  jurisdiction  given  them  by  that  law,  have 
done  what  the  law  forbade  them  to  do,  so  that  in  fact  their  return  is 
not  an  execution  of  the  State  law,  but  a  direct  violation  of  it. 

Under  this  claim  we  are  told  that  both  Houses  of  Congress  must  count 
the  votes  given  by  electors  from  any  State  who  are  certified  to  be  elected 
by  State  officers  appointed  by  the  law  of  the  State  to  count  the  votes 
and  determine  the  persons  elected,  although  it  may  be  proven  beyond 
all  question  that  the  return  is  untrue  in  fact,  either  because  the  officers 
making  it  had  made  an  innocent  mistake  in  adding  up  a  column  of  fig 
ures,  or  because,  actuated  by  the  grossest  and  most  fraudulent  of  mo 
tives,  even  to  the  extent  of  having  been  paid  so  to  do,  they  deliberately 
and  willfully  made  an  utterly  false  return,  even  certifying  persons  to  be 
elected  who  never  had  been  voted  for. 


ELECTORAL    COUNT   OF   1877.  933> 

I  understand  the  claim  goes  even  farther  than  this,  which  would  seem 
to  be  going  far  enough  in  all  conscience.  We  are  told  that  if  this  return 
is  once  made,  the  certificate  of  election  once  given,  there  is  no  power  to 
recall  it,  to  show  that  it  is  false  either  from  fraud  or  mistake  ;  that  it 
must  stand ;  that  the  persons  in  whose  favor  it  is  made  must  cast  the 
vote  of  the  State  for  President ;  and  that  such  votes  must  be  counted 
by  the  two  Houses  of  Congress,  although  known  to  every  man,  woman, 
and  child  in  the  land  to  be  false  and  wrong,  and  although  it  may  have 
been  declared  false  and  wrong  by  the  parties  making  it,  by  the  highest 
courts,  by  the  legislature  and  the  executive  of  the  State  !  Such  a  claim 
is  most  extraordinary  and  startling.  It  is  abhorrent  to  the  sense  of  jus 
tice  and  right  of  every  fair-minded  man  in  the  land.  Nothing  but  the 
strongest,  clearest,  and  most  incontrovertible  reasons  can  ever  compel 
the  public  conscience  and  judgment  to  assent  to  it. 

We  are  told  that  the  two  Houses  of  Congress,  for  it  is  admitted  that 
this  Commission  has  all  their  powers  in  the  premises,  have  no  power  to 
do  anything  more  than  simply  to  perform  an  arithmetical  operation  in 
ascertaining  the  persons  voted  for  as  President ;  that  they  are  to  count 
the  votes  and  nothing  more.  I  agree  that  they  are  to  count  the  votes  j 
but,  in  order  to  count  the  votes,  they  must  first  determine  whether  there 
are  any  votes  to  count,  and  whether  those  votes  have  been  cast  by  duly- 
appointed  electors,  or  by  impostors.  They  not  only  have  the  power,  but 
it  is  a  duty  imposed  upon  them,  to  inquire  into  and  to  authenticate  the 
votes,  and,  where  there  are  several  returns  claiming  to  be  votes,  to  deter 
mine  which  are  the  true  votes  and  which  truly  declare  the  real  will  of 
the  State  according  to  the  State  law. 

Each  and  every  State  has  the  greatest  interest  not  only  in  its  own 
vote  for  President  but  in  the  vote  of  each  of  the  other  States.  No 
greater  wrong  could  be  done  to  the  people  of  all  the  other  States  than 
to  have  a  President  imposed  upon  them,  not  by  the  honest,  real  vote  of 
a  single  State,  but  by  a  fraudulent  and  wicked  misrepresentation  of 
that  vote,  so  that  the  high  office  should  be  filled  by  one  never  elected 
by  the  people  or  the  States. 

The  Constitution  meant  to  give  the  power  of  determining  the  greatest 
political  question  that  could  ever  arise,  namely,  who  should  be  Chief 
Magistrate,  to  some  persons  or  bodies  of  persons ;  it  was  not  intended 
to  be  left  unprovided  for :  it  must  be  determined  every  four  years  ;  and 
it  is  absurd  to  claim  that  no  provision  was  made  by  the  organic  law  for 
so  doing.  It  is  a  question  which  does  not  determine  itself;  it  must  be 
done  by  human  means  ;  and  if  provision  had  not  been  made,  the  Gov 
ernment  would  not  have  survived  the  first  election,  for  it  could  never 
have  been  decided  who  had  been  elected.  Nor  is  this  determination 
confined  merely  to  the  arithmetical  duty  of  counting  what  are  claimed 
to  be  votes.  Each  and  every  State,  as  I  have  said,  has  the  same  inter 
est  in  the  vote  of  every  other  State  as  in  its  own  ;  each  State  has  the 
highest  interest,  nay,  right,  that  the  vote  of  every  other  State  should 
be  the  real  vote  of  that  State  according  to  its  law,  and  should  not  mis 
represent  its  true  voice.  Without  the  power  somewhere  to  determine 
this  question,  to  decide  which  are  the  true  votes  to  be  counted,  both 
the  spirit  and  letter  of  the  Constitution  could  be  violated  with  impunity » 
and  both  the  States  and  the  people  grossly  defrauded  and  deprived  of 
the  rights  guaranteed  to  them  by  their  organic  law.  There  was  no 
meeting  together  of  all  the  electors  from  the  different  States  provided 
for,  so  that  all  could  pass  on  the  question  who  were  entitled  to  cast  the 
vote  of  each  State.  No  power  was  given  to  the  electoral  college  of  each 
State  to  pass  upon  or  determine  the  election  of  its  members.  And  still 


934  ELECTORAL    COUNT    OF    1877. 

that  question  must  be  determined  or  the  Government  could  never  have 
got  itself  even  launched.  And  to  whom  should  that  most  vital  power 
be  granted  but  to  the  two  great  legislative  bodies  to  which  are  intrusted 
most  of  the  powers  to  be  exercised  under  the  Constitution  ;  upon  one  of 
which  is  imposed  the  great  duty  of  choosing  the  President,  if  none  has 
been  chosen  by  the  States  and  the  people,  and  upon  the  other  the  like 
duty  of  choosing  a  Vice-President  in  the  same  contingency?  The  lan 
guage  of  the  Constitution  is  amply  sufficient  to  impose  this  duty  of 
determining  who  has  been  elected  President  upon  the  two  Houses  of 
Congress.  If  those  two  Houses  refuse  to  perform  this  duty,  confine 
themselves  merely  to  the  arithmetic  of  the  count  instead  of  discharg 
ing  their  great  obligation  to  tbe  people  and  to  the  States  of  determin 
ing  what  is  the  real,  honest  vote  of  each  State  according  to  the  law  of 
that  State,  then  they  are  unworthy  of  the  great  trust  confided  to  them. 
This  trust  can  only  be  discharged  by  ascertaining  whether  the  vote 
offered  from  each  State  is  the  vote  of  that  State  according  to  its  law ; 
nothing  more,  nothing  less  is  the  measure  and  requirement  of  that  trust. 

Let  me  not  be  misunderstood.  It  is  claimed  by  the  Senator  from  In 
diana  and  those  agreeing  with  him,  that  the  doctrine  of  State  rights 
bars  the  way  to  any  inquiry  into  the  question  whether  the  persons  from 
any  State  claiming  to  cast  its  vote  are  the  true  electors,  and  compels 
Congress  to  confine  itself  merely  to  counting.  I  have  always  been  a 
true  and  faithful  disciple  of  the  great  doctrine  of  State  rights.  I  have 
always  believed  in  it,  and  always  expect  and  hope  to  remain  steadfast 
in  my  faith.  From  day  to  day  I  am  the  more  assured  that  there  is  no 
way  known  to  man  by  which  our  Government  can  be  preserved  except 
by  the  strictest  and  firmest  maintenance  of  all  the  rights  of  the  States. 
I  yield  to  no  one  in  my  fidelity  to  the  doctrine  of  State  rights,  but  I  am 
not  willing  to  carry  it  to  the  extent  of  doing  in  its  name  the  greatest 
wrongs  to  States,  instead  of  upholding  their  rights.  There  never  was  a 
clearer  case  of  stealing  "  the  livery  of  the  court  of  Heaven  to  serve  the 
devil  in,"  than  in  thus  attempting  to  wrest  the  doctrine  of  State  rights 
to  excuse  and  justify  this  great  wrong  to  States. 

Those  with  whom  I  agree  do  not  desire  to  interfere  in  the  slightest 
degree  with  the  smallest  right  of  a  State.  We  agree  that  each  State  by 
its  legislature  can  prescribe  the  manner  of  the  appointment  of  its  elect 
ors,  and  that  Congress  can  in  no  way  interfere.  We  agr.ee,  further,  that 
the  State  legislature  may  prescribe  the  manner  of  voting  for  the  electors, 
the  method  of  counting  the  vote  and  of  ascertaining  and  determining  who 
has  been  elected,  and  Congress  cannot  interfere.  We  agree  that,  if  the 
law  of  the  State  has  been  followed  out  and  complied  with,  and  a  return 
made  according  to  and  complying  with  its  provisions,  Congress  must 
take  and  give  full  effect  to  such  a  return. 

Much  has  been  said  here  by  those  opposed  to  us  about  "  going  behind 
the  returns,"  and  the  terrible  consequences  of  such  an  act.  You  would 
suppose  that  if  it  was  once  established  that  so  terrible  a  crime  as  to  go 
for  a  moment  "  behind  the  returns"  could  be  perpetrated,  we  should 
wander  in  the  great  wilderness  which  the  imagination  of  our  friends  on 
the  other  side  has  conjured  up  as  lying  beyond  that  mysterious  limit  for 
as  many  years  as  did  the  Israelites  in  the  deserts  of  arid  and  burning 
sands  before  they  entered  into  the  promised  land.  It  is  a  chimera  con 
jured  up  not  to  enlighten  but  rather  to  darken  and  mislead  counsel. 

In  no  real,  proper,  true  sense  is  it  proposed  to  go  u  behind  the  returns." 
On  the  contrary,  it  is  only  proposed  to  go  to  the  returns,  not  behind 
them;  to  go  to  them,  I  say,  and  near  enough  to  them  to  ascertain 
whether  they  are  real,  true,  honest  returns;  whether  they  are  made  ac- 


ELECTORAL    COUNT    OF    1877.  935 

cording  to  and  in  conformity  with  the  laws  of  the  State,  or  in  conflict 
with  and  in  violation  of  such  laws ;  whether  they  are  true  and  honest, 
or  the  mere  results  and  creations  of  fraud  and  bribery  and  corruption 
on  the  part  of  those  making  them ;  for  if  in  making  them  the  makers 
were  simply  endeavoring  to  perpetrate  a  fraud,  to  establish  a  lie,  instead 
of  certifying  to  the  facts  and  the  truth,  then  they  are  no  returns  by  any 
law  ever  recognized  by  any  civilized  people  who  ever  lived  on  the  earth. 

Is  it  not  as  clear  as  the  sun  in  the  heavens  that,  if  we  do  not  inquire 
whether  the  returns  are  the  returns  in  truth  and  fact,  whether  they  are  in 
accordance  with  the  law  of  the  State  instead  of  in  conflict  with  it,  whether 
they  certify  the  truth  or  a  lie,  whether  they  are  honest  or  steeped  in  fraud, 
we  are  not  only  doing  a  great  wrong  to  all  the  other  States,  but  a  greater 
to  the  State  whose  vote  is  the  subject  of  inquiry,  depriving  it  indeed  of 
one  of  its  greatest  rights  ? 

Let  it  not  be  said,  then,  that  we  propose  "  to  go  behind  the  returns" 
in  the  popular  acceptation  of  the  words,  or  in  the  sense  here  claimed. 
We  have  no  occasion  to  go  behind  them,  but  we  can  go  to  them.  We 
can  examine  them,  whether  they  are  returns  in  fact  and  in  truth,  whether 
they  are  made  in  accordance  with  and  not  in  violation  of  law,  whether 
the  makers  of  them  executed  the  law  under  which  they  acted  and  certi 
fied  the  truth ;  or  whether,  being  corrupt  and  fraudulent,  they  not  only 
refused  to  execute  it  and  certify  the  truth,  but  on  the  contrary  put  a  lie 
in  its  place. 

Take  the  case  under  consideration.  What  is  proposed!  Fraud  is 
not  directly  and  in  terms  alleged,  I  agree ;  but  it  is  alleged  that  the  re 
turn  is  not  made  in  accordance  with,  but  in  direct  violation  of  the  law 
of  the  State  of  Florida,  and  that  the  persons  making  it  exceeded  and 
went  beyond  any  jurisdiction  given  them  by  law  in  the  premises. 

What  are  the  facts  offered  to  be  proved — indeed  proved  by  the  copies 
of  records  and  papers  before  us  f  Why,  by  the  law  of  Florida  the  sec 
retary  of  state,  the  attorney-general,  and  the  comptroller-general  are 
made  a  board  of  State  canvassers  to  canvass  the  county  returns  and  to 
determine  and  declare  who  have  been  elected.  They  are  to  make  a  cer 
tificate  of  such  determination,  which  is  to  be  filed  in  the  office  of  the 
secretary  of  state,  and  that  officer  is  to  send  to  each  person  elected  a 
certificate  of  his  election,  which  is  made  prima  facie  evidence,  nothing 
more.  This  board,  if  the  return  from  any  county  is  so  irregular  or  fraud 
ulent  that  the  truth  cannot  be  ascertained  from  it,  have  power  to 
reject  the  whole  return,  nothing  more.  Two  only  of  the  canvassers 
joined  in  the  certificate  of  the  Hayes  electors ;  the  third  refused  to  do  so 
on  the  ground  that  the  statements  in  the  certificate  were  not  true. 

It  is  offered  to  be  proved  that  the  two  canvassers  did  not  execute 
the  law  which  ,gave  them  their  only  jurisdiction  to  act,  but  violated 
that  law,  exceeded  their  jurisdiction,  and  in  and  by  their  return  stated 
not  the  truth  but  a  lie.  Here  is  no  attempt  to  go  behind  the  return, 
only  to  go  to  it,  to  see  if  it  is  a  return  under  and  by  virtue  of  the  State 
law,  or  whether  it  is  in  fact  no  return.  To  show  that  it  is  no  return 
by  which  any  one  could  be  bound,  it  is  offered  to  be  proved  that  the 
supreme  court  of  Florida  has  passed  upon  and  decided  the  question — 
in  fact,  decided  that  in  making  the  return  the  canvassers  went  outside 
of  and  beyond  their  jurisdiction.  It  is  also  offered  to  be  proved  that  a 
circuit  court,  having  jurisdiction  under  the  State  constitution,  in  a  pro 
cess  of  quo  warranto  instituted  by  the  Tilden  electors  against  the  Hayes 
electors  and  served  upon  the  latter  before  they  had  cast  their  votes, 
has  given  judgment  that  the  Hayes  electors  were  not,  but  that  the 
Tilden  electors  were  legally  elected,  and  has  also  given  judgment  of 


936  ELECTORAL    COUNT    OF    1877. 

ouster  against  the  former.  It  is  further  offered  to  be  proved,  and  we 
have  the  proof  before  us,  that  by  judgment  of  the  supreme  court  of 
Florida  all  the  State  officers,  from  governor  down,  who  were  voted  for 
at  the  same  election  and  on  the  same  ticket  with  the  Tilden  electors, 
and  who  received  substantially  th,e  same  number  of  votes,  have  been 
declared  legally  elected,  and  been  put  in  possession  of  their  respective 
offices,  although  the  candidates  upon  the  Hayes  ticket  for  State  officers 
had  been  declared  elected  by  the  State  canvassers  at  the  same  time 
they  had  declared  the  Hayes  electors  to  be  elected. 

It  is  offered  to  be  proved,  and  here  again  we  have  the  proof  before 
us,  that  the  legislature  of  the  State  of  Florida  has  passed  an  act  requir 
ing  the  board  of  canvassers  to  make  a  new  canvass  of  the  votes  cast 
for  electors  in  conformity  with  the  principles  laid  down  by  the  supreme 
court ;  that  such  canvass  has  been  made,  by  which  it  appears  that  the 
Tilden  electors  were  elected ;  that  in  consequence  of  such  new  canvass 
the  legislature  has  passed  another  act  declaring  that  the  Tilden  electors 
were  duly  elected  and  were  the  only  persons  authorized  to  cast  the  vote 
of  the  State,  that  the  Hayes  electors  had  no  authority  to  cast  such  vote, 
and  ratifying  and  adopting  the  vote  of  the  Tilden  electors,  and  direct 
ing  the  governor  to  certify  to  the  President  of  the  Senate  the  election 
of  the  last-named  electors,  together  with  the  act  itself,  which  the  gov 
ernor  has  done. 

Thus  it  is  offered  to  be  proved  that  the  certificate  of  the  State  can 
vassers  is  false  in  fact  5  that  in  making  it  they  exceeded  their  jurisdic 
tion  and  authority ';  that  this  has  been  so  decided  by  the  supreme  court 
of  the  State ;  that  the  Hayes  electors  have  been  ousted  from  office  by 
the  judgment  of  a  court  of  competent  jurisdiction  ;  that  the  legislature 
of  the  State  has  intervened  and  declared  that  the  Hayes  electors  do  not 
represent  the  true  voice  of  the  State  ;  that  the  governor  has  so  declared ; 
and  that  in  fact  the  Hayes  electors  never  were  elected,  or  declared  to 
be  elected,  in  accordance  with  the  laws  of  the  State.  And  still  we  are 
told  that  this  false  certificate,  made  by  two  men  with  purely  ministerial 
functions — the  appointees  of  a  governor  who  was  himself  a  candidate 
for  re-election — and  which  is  by  law  made  prima  facie  evidence  only, 
must  stand  and  cannot  be  in  any  way  controlled.  All  powers,  all  rights, 
all  persons,  and  bodies  of  persons,  courts,  legislature,  governor,  people, 
the  State  itself,  pale  and  stand  powerless  before  this  false  certificate  of 
two  men.  No  power  on  earth,  we  are  told,  is  broad  and  high  and  great 
and  strong  enough  to  cope  with  these  two  men  and  their  false  certifi 
cate.  They  have  the  power  to  make  a  President  of  a  person  who  con 
fessedly  was  never  elected,  while  two  and  forty  millions  of  people  and 
their  representatives  in  Congress  and  all  the  States  have  no  power  to 
prevent  it.  Such  a  proposition  is  monstrous.  It  is  abhorrent  to  all 
sense  of  right  and  justice.  It  is  shocking  to  the  conscience  of  the 
whole  people  and  ought  not  to  be  entertained.  It  is  a  scandal  upon 
all  law  and  would  bring  it  into  deserved  contempt.  By  it  law  would 
be  made  to  uphold  wrong  and  fraud,  instead  of  right  and  honesty.  The 
establishing  of  such  a  doctrine  would  offer  a  premium  to  fraud  5  it  would 
tell  the  world  that  fraud  may  be  perpetrated  with  impunity,  and  that 
there  is  no  help  for  it,  no  way  of  preventing  it,  and  that  the  guilty 
persons  may  enjoy  the  fruits  of  their  guilt. 

Consider  for  a  moment  this  claim.  The  Hayes  electors  have  voted  j 
and  we  are  asked  to  declare  their  vote  the  true  vote  of  Florida,  because 
two  irresponsible  ministerial  officers,  keeping  back  their  decision  till 
the  day  the  vote  was  to  be  cast,  have  so  declared ;  and  this  although 
the  court  having  jurisdiction  of  the  case  has  adjudged  that  they  had  no 


ELECTORAL    COUNT    OF    1877.  937 

right  to  cast  the  vote  and  were  not  electors  either  in  fact  or  in  law ; 
although  the  supreme  court  of  the  State  has  in  fact  so  declared; 
although  the  legislature  and  the  governor  have  joined  in  so  finding  and 
declaring ;  and  although  these  men  have  never  been  in  fact  elected  by 
the  voters  of  Florida.  We  are  told  that  neither  the  two  Houses  of 
Congress,  nor,  if  I  understand  it  rightly,  any  other  authority  on  earth, 
have  power  against  this  simple  certificate  signed  by  two  ministerial 
officers — the  creatures  of  the  governor — and  made  by  law  prima  facie 
evidence  only ;  that  we  must  sanction  it,  declare  it  sacred,  although  we 
know  it  to  be  a  lie,  and  thus,  in  fact,  permit  two  obscure  men  to  elect 
a  person  to  the  high  office  of  President.  This  is  not  only  to  encourage 
fraud — it  is  to  sanctify  it.  Instead  of  declaring,  as  heretofore  we  have 
been  taught  to  believe — foolishly  it  would  seem — that  fraud  vitiates 
everything  it  touches,  it  is  proclaiming  that  the  greater  the  fraud  the 
more  sacred  is  the  act. 

Here  in  Florida  we  have  this  strange  spectacle :  The  governor  and 
all  the  State  officers  having  been  voted  for  on  the  same  ticket  with  the 
Tilden  electors,  having  received  substantially  the  same  vote,  and  having 
been  counted  out  by  the  same  board  of  canvassers,  have  been  declared 
elected  by  the  highest  judicial  authority  of  the  State,  and  are  now 
exercising  the  powers  of  their  respective  offices  peaceably  and  to  the 
general  contentment  of  the  whole  people,  while  the  Tilden  electors,  we 
are  told — although  they  too  have  been  declared  elected  by  the  courts — 
have  no  power  to  act,  and  their  vote  must  not  be  counted.  What  greater 
scandal  upon  the  law  could  be  imagined  ? 

Why  have  not  the  State  courts  full  authority  and  right  to  construe 
the  State  statutes  ?  Is  there  any  doubt  that  such  is  the  law  ?  It  is  so 
admitted  everywhere.  I  appeal  to  the  members  of  the  Supreme  Court 
upon  this  board  if  such  is  not  the  inflexible  rule  which  governs  the  action 
of  that  court  in  construing  any  statute  of  a  State  ?  Is  not  the  construc 
tion  put  upon  a  statute  of  a  State  by  the  supreme  court  of  that  State  as 
controlling  as  if  such  construction  had  been  in  express  words  incorpo 
rated  into  and  made  a  part  of  the  law  ? 

Apply,  then,  this  rule  to  the  Florida  case.  The  supreme  court  of  that 
State  have  construed  the  statute  under  which  the  State  canvassers  act 
and  which  alone  gives  them  any  authority  to  act.  By  their  construction 
the  canvassers  in  giving  a  certificate  to  the  Hayes  electors  exceeded  and 
went  beyond  any  jurisdiction  and  power  conferred  upon  them,  and  their 
action  is  therefore  void  and  of  no  effect.  Tell  me  why  we,  why  all  the 
world  are  not  bound  by  that  construction.  Where  do  we  get  the  right 
to  set  up  our  construction,  or  rather  the  construction  of  the  board  of 
canvassers,  of  a  statute  of  Florida  against  the  judgment  of  the  supreme 
court  of  Florida  ?  Yet,  by  giving  effect  to  their  certificate,  we  do  in  fact 
declare  that  the  judgment  of  the  two  canvassers  as  to  what  the  law  is 
shall  prevail  over  that  of  the  highest  judicial  authority  of  the  State. 

But  it  is  claimed  that  these  Hayes  electors  having  received  certificates 
of  election  and  having  voted  are  de  facto  officers,  and  that  therefore 
their  acts  must  be  held  to  be  legal  and  valid.  Indeed !  But  how  are 
the  Hayes  more  than  the  Tilden  electors  de  facto  officers  ?  Both  voted 
at  the  same  time.  The  vote  of  neither  has  been  followed  by  any  conse 
quences  affecting  the  rights  of  any  person.  The  effect  of  the  votes  is  to 
be  determined  in  the  future,  and  it  is  to  determine  it  that  we  are  now 
here. 

The  doctrine  of  de  facto  officers  in  no  way  applies  to  presidential 
electors  or  to  their  votes.  The  act  of  voting  affects  nobody;  it  has  no 


938  ELECTORAL    COUNT    OF    1877. 

power  or  vitality  until  they  are  given  by  the  votes  being  counted  by  the 
Houses  of  Congress. 

A  strange  perversion  is  it  of  the  equitable  rule  that  the  acts  of  a  de 
facto  officer  shall  be  considered  valid  as  to  third  persons,  to  apply  it  in 
'this  case.  That  rule  was  established  for  the  protection  of  innocent  third 
persons  who  have  trusted  to  and  acted  upon  the  fact  that  an  officer  was 
in  open  and  apparently  peaceable  possession  of  an  office,  and  to  whom 
great  injustice  would  be  done  by  permitting  the  acts  of  such  a  person  to 
be  held  void  because  of  a  subsequent  determination  that  he  was  not  a 
legal  officer.  This  rule,  that  official  acts  are  valid  although  performed 
by  one  having  no  legal  right  in  that  regard,  is,  however,  but  an  excep 
tion,  and  is  applied  only  in  favor  of  those  who  have  trusted  to  and  acted 
upon  such  acts  as  official,  and  in  order  to  prevent  great  wrong  to  inno 
cent  third  persons.  But  in  the  case  of  the  vote  of  these  electors  nobody 
has  trusted  to  or  acted  upon  it ;  nobody's  rights  have  been  affected  by 
it;  nobody's  condition  has  been  changed  by  it;  it  is  inoperative  until, 
counted ;  its  whole  force  and  effect  is  derived  from  the  act  and  determi 
nation  of  other  authorities.  We  are  to  give  it  effect  now  for  the  first 
time. 

Besides,  this  doctrine  of  the  validity  of  the  acts  of  de  facto  officers  and 
authorities  has  never  been  applied  or  extended  to  their  political  action. 
While  very  many  of  the  acts  of  the  governments  of  the  States  while  in 
rebellion,  and  of  their  officers,  have  been  held  valid  on  the  ground  that 
they  were  de  facto,  if  not  dcjure,  entitled  to  act  in  the  premises,  none- of 
their  political  action  has  ever  been  recognized  as  binding  on  any  one. 
And  this  has  been  the  rule  adopted  by  the  Supreme  Court  of  the  United 
States. 

I  submit  that  there  is  no  ground  upon  which  the  votes  of  the  Hayes 
electors  can  be  counted.  They  were,  in  fact,  never  elected.  To  count 
their  votes  would  be  to  set  aside  the  judgment  of  the  supreme  court,  the 
legislature,  and  the  governor  of  the  State  of  Florida ;  it  would  be  to 
give  to  the  certificate  of  two  ministerial  officers,  made  by  law  merely 
prima  facie  evidence,  a  power  and  effect  and  conclusiveness  not  given 
to  the  judgments  of  the  highest  courts  of  law;  a  result  never  before 
heard  of  in  the  administration  of  justice.  To  count  those  votes  would 
be  to  declare  elected  to  the  high  office  of  President  a  person  who  never 
received  the  votes  of  the  people  as  required  by  the  Constitution,  but 
whose  title  would  depend  simply  on  the  illegal,  fraudulent  action  of  two 
State  canvassers  in  Florida.  If  it  were  intended  to  encourage  fraud  and 
to  show  that  there  was  no  way  known  to  the  law  to  prevent  its  perpe 
tration,  no  better  way  to  do  it  could  be  devised. 

To  count  the  votes  of  the  Hayes  electors  would  be  the  grossest  outrage, 
equally  upon  the  dearest  rights  of  the  State  and  people  of  Florida,  and 
upon  those  of  all  the  other  States.  By  it  wrong  and  injustice  would  be 
put  in  the  place  of  right  and  justice. 

If  this  attempt  to  authorize  these  two  irresponsible  officers,  not  the 
State  or  people  of  Florida,  to  appoint  presidential  electors  for  that  State, 
is  by  the  judgment  of  this  Commission  to  be  crowned  with  success,  we 
shall  in  effect  proclaim  to  all  the  world  that  the  whole  armory  of  the  law 
and  the  Constitution  contains  no  weapon  of  offense  or  defense  by  which 
the  high  office  of  Chief  Magistrate  of  the  greatest  civilized  nation  on 
earth  can  be  successfully  protected  and  defended  against  being  seized 
upon  and  held  by  means  of  the  grossest  fraud.  Such  a  judgment  would 
proclaim  to  the  world  that,  to  obtain  and  enjoy  the  office  of  President 
of  the  United  States,  it  is  not  now,  as  in  the  olden  time,  necessary  to  be 
constitutionally  elected  by  the  States  and  the  people,  but  that  a  caudi- 


ELECTORAL    COUNT    OF    1877.  939 

date  and  party,  as  lacking  in  principle  as  they  are  rich  in  money,  can, 
by  buying  a  few  weak,  wicked,  and  irresponsible  State  canvassers,  gain 
possession  of  and  hold  that  high  office ;  and  that  such  an  act  will  be 
justified  and  sanctified  by  the  two  Houses  of  Congress.  In  fine,  such  a 
judgment  would  proclaim  that  this  Government  is  no  longer  one  of  the 
people,  under  the  Constitution  and  law,  but  that  it  is  a  Government  of 
returniug-boards  and  their  creatures. 

LOUISIANA. 

The  Commission  having  under  consideration  the  electoral  vote  of  Louisiana- 
Mr.  Commissioner  ABBOTT  said  substantially  : 
Mr.  PRESIDENT  ;  I  desire  to  correct  a  mistake  which  Mr.  Justice  Mil 
ler  has  made  in  reference  to  the  grounds  and  effect  of  the  decision  of 
the  court  in  Schenck  vs.  Peay,  1  Wool  worth,  C.  C.  Kep.,  175,  just  referred 
to. 

That  decision  settles  the  question  that  the  Louisiana  returning-board 
was  not  a  legally  constituted  board ;  that  it  was,  in  fact,  no  board  at 
all ;  and  that  its  acts  are  not  entitled  to  respect,  and  are  of  no  force 
and  effect. 

That  judgment  was  by  no  means  put  solely  or  mainly  upon  the  ground 
that,  where  three  persons  are  made  a  board  or  commission,  and  two  un 
dertake  to  act  without  notice  to  the  third,  or  without  the  third  knowing 
of  or  having  any  opportunity  to  participate  in  their  doings,  the  action 
of  the  two  cannot  be  sustained.  That  was  not  the  chief  reason  for  the 
decision. 

The  question  at  issue  was  the  validity  of  the  action  of  a  board  of  tax- 
commissioners  in  Arkansas,  I  think.  The  law  of  Congress  provided 
that  three  persons  should  be  appointed  such  commissioners  by  the  Presi 
dent  ;  and  three  had  been  appointed,  but  only  two  had  qualified  under 
the  appointment.  The  two  had  acted,  and  under  their  action  certain 
lands  had  been  taken  for  the  payment  of  taxes  ;  and  the  question  to  be 
decided  was  the  validity  of  the  action  of  the  two. 

The  court,  Mr.  Justice  Miller,  rightfully,  I  think,  and  in  accordance 
with  principle  and  the  authorities,  held  that,  where  the  law  provides 
that  three  shall  constitute  a  board,  a  less  number  cannot  make  a  legal 
board  at  all,  and  that  the  law  having  required  three  commissioners, 
there  was  no  board  until  the  three  were  appointed  and  qualified.  Hear 
what  he  says  on  page  188 : 

The  case  before  us  goes  even  beyond  this,  for,  according  to  the  statement  of  the  bill, 
there  never  was  a  board  of  commissioners  in  existence  until  after  the  proceedings  in 
regard  to  this  title  were  completed.  The  law  required  three  commissioners.  A  less 
number  was  not  a  board  and  could  do  nothing.  The  third  commissioner  for  Arkansas, 
though  nominated  and  confirmed,  did  not  qualify  or  enter  upon  the  duties  of  his  office 
until  after  the  sale  of  the  lots  to  the  defendant.  There  was,  therefore,  no  board  of 
commissioners  in  existence  authorized  to  assess  the  tax,  to  receive  the  money,  or  to  sell 
the  land.  If  Congress  had  intended  to  confide  these  important  functions  to  two  per 
sons  it  would  not  have  required  the  appointment  of  a  third.  If  it  had  been  willing  that 
two  out  of  the  three  should  act,  the  statute  could  easily  have  made  provision  for  that 
contingency  as  has  since  been  done  by  the  act  of  1865. 

After  the  passage  of  the  law  creating  the  tax-commissioners  another 
act  was  passed  by  Congress  giving  power  to  a  majority  of  the  board  to 
do  any  and  all  acts  which  could  be  done  by  the  whole"  board.  This,  it 
was  claimed,  legalized  the  action  of  the  two  commissioners ;  but  Mr. 
Justice  Miller  held  that,  if  the  last  act  was  retroactive,  it  did  not 
affect  the  case,  for  the  clear  and  plain  reason  that  it  applied  only  to 
cases  where  there  was  a  legal  board  in  existence,  and  that,  where  the 
law  provided  for  a  board  of  three,  two  did  not  constitute  a  board  at  all, 


940  ELECTORAL    COUNT    OF    1877. 

and  so  the  act  did  not  apply.  If  there  had  been  three  commissioners  in 
existence,  then  the  act  might  take  effect  and  confirm  the  action  of  the 
two ;  but  not  otherwise.  Hear  what  Mr.  Justice  Miller  says  on  this 
point,  at  page  190 : 

But  if  the  section  we  have  cited  could  be  held  to  have  a  retrospective  effect,  the  case 
before  us  does  not  come  within  its  purview,  for  it  requires  a  board  of  tax-commission 
ers  to  be  in  existence,  and  then  provides  that  a  majority  of  that  board  can  act.  We 
have  already  shown  that,  according  to  the  allegations  of  the  bill,  no  such  board  was 
in  existence;  that  none  had  ever  been  organized  when  the  two  commissioners  assessed 
the  tax  and  sold  the  defendant's  property.  The  act  of  1865  does  not  pretend  to  hold 
that  the  sale  shall  be  valid  when  there  is  no  board  in  existence,  where  one  of  the  com 
missioners  never  qualified,  and  where,  consequently,  no  authority  was  ever  vested  in 
three  which  might  be  exercised  by  two. 

In  the  case  of  Schenck  vs.  Peay,  Mr.  Justice  Miller  decides  another 
matter  to  which  I  wish  to  call  the  careful  attention  of  the  Commission, 
because  his  decision  is  so  admirably  expressed  and  applies  with  such 
directness  and  force  to  this  case  of  the  constitution  of  the  Louisiana  re- 
turning-board.  It  is  holden  that  whenever  the  rights  of  property  are 
to  be  affected  by  proceedings  in  pais,  i.  e.,  by  any  board  of  ministerial 
officers,  their  proceedings  must  be  proved  to  be  exactly  and  strictly  in, 
accordance  with  the  law  authorizing  them.  In  the  case  before  him  the 
title  to  a  parcel  of  land  was  to  be  affected  by  the  action  of  the  tax-com 
missioners.  I  read  what  he  says,  at  page  188 : 

Nothing  is  better  settled  in  the  law  of  this  country  than  that  proceedings  in  pais,  for 
the  purpose  of  divesting  one  person  of  his  title  to  real  estate,  and  conferring  it  upon 
another,  must  be  shown  to  have  been  in  exact  pursuance  of  the  statute  authorizing  them, 
and  that  no  presumption  will  be  indulged  in  favor  of  their  correctness.  This  principle 
has  been  more  frequently  applied  to  tax-titles  than  to  any  other  class  of  cases.  We 
cannot  presume,  therefore,  that  Congress  intended  that  less  than  three  commissioners 
could  conduct  these  proceedings,  and  still  less  that  they  intended  that,  in  regard  to  the 
important  matters  confided  to  the  board,  any  action  should  be  taken  when  there  was 
no  legally  organized  board  in  existence. 

Apply  the  rule,  thus  so  well  and  so  forcibly  laid  down,  to  the  case  of 
the  Louisiana  returning-board.  It  is  not  a  court ;  its  action  is  in  pais  ; 
it  is  a  ministerial,  not  a  judicial  body.  The  law  constituting  it  requires 
five  members  taken  from  different  political  parties,  the  functions  of  the 
board  being  political  and  to  affect  parties.  As  constituted,  it  consisted 
of  four,  not  five  members,  all  of  the  same,  not  different  parties.  Upon 
the  action  of  this  board  depended  the  highest  rights  of  the  State  and  of 
the  United  States ;  nay,  the  very  liberties  of  the  people !  Shall  greater 
strictness  be  required  in  the  case  of  the  title  to  a  parcel  of  land  than 
when  the  highest  rights  and  dearest  liberties  of  a  whole  people  are  con 
cerned  ? 

But  the  whole  decision  is  applicable  to  this  case  of  the  constitution- 
of  the  returniug-board  of  Louisiana ;  and  if  it  is  law — and  no  one 
doubts  it  is — it  forever  settles  the  question  that  there  was  no  legally- 
constituted  board  in  that  State  with  any  power  to  act.  The  Louisiana 
case  is,  by  all  odds,  the  strongest ;  for  not  only  is  the  law  fixing  the 
number  of  members  violated,  but  the  much  more  important  provision 
requiring  the  board,  in  order  to  protect  the  rights  of  all,  to  be  made  up 
of  different  political  parties,  is  utterly  disregarded,  apparently  that  the 
grossest  frauds  might  be  committed. 

The  fact  that  in  the  Schenck  vs.  Peay  case  the  third  tax-commissioner, 
though  appointed,  had  never  qualified,  makes  no  difference  in  principle. 
The  decision  is  put  solely  on  the  ground  that  when  the  law  requires  one 
number  to  constitute  a  board,  a  less  number  will  not  make  a  legal  body. 
And  so  it  is  held  in  other  cases  of  the  highest  authority,  especially  in 
that  of  Wentworth  vs.  Farmington,  49  K  H.  Bep.,  120. 


ELECTORAL   COUNT    OF    1877.  941 

I  commend  to  the  Commission  this  decision  of  Mr.  Justice  Miller  for 
their  careful  examination. 

OREGON. 

The  Commission  having  under  consideration  the  electoral  vote  of  Oregon — 

Mr.  Commissioner  ABBOTT  said  substantially  : 

Mr.  PRESIDENT  :  I  wish  to  call  the  attention  of  the  Commission  to 
the  position  of  this  case  in  reference  and  relation  to  the  decisions  here 
tofore  made  by  the  majority  in  the  two  cases  of  Louisiana  and  Florida. 
In  both  those  cases  it  has  been  holden  that  the  certificate  of  the  officers 
appointed  and  acting  under  the  State  law  for  the  purpose  of  canvassing 
the  returns  and  determining  who  have  been  elected  as  presidential 
electors  cannot  be  questioned,  controlled,  or  contradicted  for  any  cause 
whatever ;  that  it  is  final  and  conclusive,  and  must  be  so  taken  and 
considered  by  the  two  Houses  of  Congress  j  in  fact  that  it  imports  abso 
lute  verity. 

With  that  doctrine  I  did  not  and  do  not  agree.  I  protested  against 
it  when  it  was  under  consideration,  and  I  shall  always  protest  against 
it.  But  by  its  adoption  and  maintenance  by  a  majority  of  this  Commis 
sion  the  votes  of  two  States  have  been  counted  for  a  person  who  never 
received  the  true  and  honest  votes  of  those  States,  but  only  false  certifi 
cates  from  corrupt  and  fraudulent  returning-boards.  Unless  the  major 
ity  are  prepared  in  this  case  to  reverse  their  former  action — to  change 
their  judgments  as  the  necessities  of  the  case  may  require — certificate 
Ko.  2.  given  by  the  governor  to  Crouin  and  his  associates,  must  pre 
vail  and  be  declared  to  be  the  only  conclusive  evidence  of  the  appoint 
ment  of  electors  for  the  State  of  Oregon.  There  is  no  escape  from  such 
a  decision,  if  consistency  is  to  govern  and  the  same  rules  which  were 
established  in  the  former  cases  are  to  be  applied  now.  In  those  cases 
it  was  held  and  determined  by  the  majority  beyond  all  perad venture 
that  the  certificate  of  officers  appointed  under  the  State  law  to  canvass 
returns  and  determine  who  were  elected  could,  under  no  circumstances, 
be  controlled,  contradicted,  or  varied  j  but  that  it  must  stand  as  the 
conclusive  evidence  of  the  appointment  of  electors  against  any  and  all 
objections.  Let  us  apply  this  rule  to  the  Oregon  certificates  numbered 
1  and  2,  the  former  being  in  favor  of  Watts  and  his  associates,  and  the 
latter  in  favor  of  Cronin  and  his  associates.  In  the  first  place,  let  us 
see  what  is  the  law  of  Oregon  on  the  subject  of  determining  the  per 
sons  chosen  as  presidential  electors.  It,  in  substance,  provides  that  the 
secretary  of  state,  upon  receiving  the  returns  from  the  different  voting- 
precincts,  shall  proceed  to  canvass  the  votes  given  for  State  officers  and 
members  of  Congress  in  ilie  presence  of  the  governor ;  and  that  the  gov 
ernor  shall  grant  certificates  of  election  to  the  persons  having  the  highest 
number  of  votes,  and  shall  also  issue  a  proclamation  declaring  the  elec 
tion  of  such  persons.  Another  section  provides  that  votes  for  presi 
dential  electors  shall  be  given,  received,  returned,  and  canvassed  in 
the  same  manner  as  those  for  members  of  Congress  are  given,  returned, 
and  canvassed  ;  and  that  the  secretary  of  state  shall  prepare  two  lists 
of  the  names  of  the  electors  elected,  shall  affix  thereto  the  seal  of  the 
State,  and  that  such  lists  shall  be  signed  by  the  governor  and  the  secre 
tary  of  state,  and  delivered  to  the  college  of  electors. 

The  certificate  of  election  to  be  given  to  members  of  Congress 
and  State  officers  is  not  to  be  given  to  the  electors ;  but  it  is  well  to 
consider  this  provision  in  determining  who  are  the  canvassing-officers 
for  that  State.  Upon  any  fair  construction  of  the  law  the  canvass- 


942  ELECTORAL    COUNT    OF    3877. 

ing-officers  are  the  governor  and  the  secretary  of  state.  Neither  of 
them  alone  has  this  power,  but  it  resides  in  both,  acting  together.  As 
to  members  of  Congress  and  State  officers,  the  secretary  is  to  canvass 
the  votes  in  presence  of  the  governor,  who  alone,  from  this  canvassing, 
is  to  certify  and  proclaim  the  result.  The  secretary  is  subordinate; 
he  is  to  do  the  mechanical  work,  but  in  the  presence  of  the  highest 
officer  of  the  State,  the  governor,  who  alone  is  to  act  on  the  canvass. 
Where  the  governor  was  to  make  one  of  the  canvassing-board  this  would 
be  the  natural  form  of  expression.  It  would  hardly  be  provided  that 
the  governor  should  do  the  work  while  his  secretary  was  present ;  but 
that  would  be  done  by  the  latter  in  the  presence  and  under  the  super 
vision  of  the  governor.  The  presence  of  the  governor  could  be  required 
only  as  canvasser,  one  who  was  to  be  responsible,  to  see  that  the  work 
was  rightly  done.  To  make  him  a  member,  it  is  by  no  means  necessary 
that  he  should  do  any  of  the  manual  or  arithmetical  work  of  the  can 
vass  ;  it  is  sufficient  that  he  is  there  to  see  that  the  right  results  are 
reached.  Can  it  with  any  show  of  reason  be  claimed  that,  if  in  his  pres 
ence  the  secretary  should  make  a  mistake  or  should  attempt  to  commit 
a  fraud,  the  governor  would  have  no  power  to  set  it  right,  but  must 
make  his  certificate  according  to  the  fraudulent  or  erroneous  canvass  by 
the  secretary  ?  His  presence  is  provided  for  that  he  may  prevent  any 
fraud  or  mistake  in  the  canvass,  and  it  would  be  preposterous  to  claim 
that  he  could  not  correct  any  such  fraud  or  mistake  and  make  his  cer 
tificate  according  to  the  fact.  Indeed,  as  to  Congressmen  and  State 
officers  he  is  vested  with  the  sole  authority  to  act.  The  canvass  is  made 
in  his  presence  by  the  secretary ;  but  the  governor  alone  gives  a  certifi 
cate;  he  alone  determines  and  proclaims  the  persons  elected. 

Now,  although  the  governor  is  not  to  make  proclamation  or  alone  to 
give  the  certificate  in  the  case  of  electors,  his  duty  with  respect  to  State 
officers  ought  to  be  considered  in  determining  who  compose  the  board  of 
canvassers.  In  the  case  of  electors  the  votes  are  to  be  canvassed  as  in 
the  case  of  State  officers,  by  the  secretary  of  state  in  the  presence  of 
the  governor.  The  canvass  can  be  made  by  neither  without  the  other ; 
for  its  validity  the  governor  is  just  as  necessary  as  the  secretary.  A 
canvass  made  by  the  secretary  alone  would  be  just  as  illegal,  just  as  void 
as  it  would  be  if  made  by  the  governor  without  the  secretary.  Both 
officers  are  absolutely  necessary  to  make  a  complete  legal  canvass.  It 
is  of  no  consequence  what  part  each  is  to  take  in  the  canvass.  One  may 
do  the  mechanical  and  arithmetical  work ;  the  other  may  be  present  to 
see  that  it  is  rightly  done ;  both  together  compose  the  board  of  canvass 
ers,  not  one  alone.  The  test  is  that  both  are  required  to  be  present 
when  the  canvass  is  made,  and  that  it  cannot  be  made  in  the  absence  of 
either.  « 

Here  the  canvass  is  to  be  made  by  the  secretary  and  the  governor ; 
the  secretary  is  to  prepare  two  lists  of  the  persons  elected,  to  which  he 
is  to  affix  the  great  seal  of  the  State,  and  which  are  to  be  signed  by  the 
governor  and  himself  and  delivered  to  the  electors.  Can  there  be  any 
stronger  evidence  that  the  governor  and  secretary  are  the  canvassers 
of  the  votes  for  electors  ? 

The  secretary  is  to  canvass  the  votes  in  the  presence  of  the  governor  ; 
both  are  to  ascertain  and  determine  the  result— that  is,  who  are  elected ; 
and  both  are  to  sign  a  certificate  of  that  result.  Both  ascertain  and 
determine  the  fact  of  election,  and  both  must  agree  in  that  ascertain 
ment  and  determination,  for  both  are  required  to  sign  a  certificate  of 
it.  Both  must  be  present  at  the  canvass,  and  the  absence  of  either 
would  vitiate  it.  Both  must  certify  to  the  result  of  the  canvass,  and 


ELECTORAL    COUNT    OF    1877.  943 

the  refusal  of  either  to  do  so  would  destroy  the  certificate.  Can  any 
thing  show  more  conclusively  that  the  two — not  one — are  to  canvass 
the  votes,  determine  who  are  elected  by  the  canvass,  and  certify 
that  determination  1  Xo  certificate  of  election  under  the  law  of  Ore 
gon  is  sufficient  unless  it  is  signed  by  the  secretary  of  state  and  the 
governor,  and,  if  it  is  so  signed  and  the  great  seal  is  affixed,  it  is  full 
and  complete — the  precise  evidence  required  by  law  to  prove  the  vote 
of  the  State  for  President.  And  that  certificate  must  give  the  result 
of  a  canvass  of  the  votes  made  by  both,  not  one,  of  the  officers  signing  it. 

The  certificate  of  Cronin  and  his  associates  fully  and  exactly  answers 
the  requirements  of  the  laws  of  Oregon.  It  certifies  that  Cronin  and  his 
associates  were  elected.  It  is  under  the  great  seal  of  the  State,  and  is 
signed  by  the  governor  and  the  secretary  of  state. 

These  are  all  the  requirements  of  the  law  of  Oregon.  It  is  of  no  con 
sequence  what  else  the  certificate  may  contain ;  the  form  of  expression 
is  immaterial,  for  no  particular  form  is  prescribed.  All  that  is  necessary 
is  that  there  should  appear  in  it  the  names  of  the  persons  elected  as 
electors ;  thafcj  it  should  be  under  the  great  seal,  and  be  signed  by  the 
governor  and  the  secretary  of  state.  All  this  appears  fully  and  clearly 
in  the  Crouin  certificate. 

The  governor  certifies  that  Cronin  and  his  associates  are  elected,  and 
the  secretary  of  state  signs  in  attestation  and  affixes  the  great  seal  of 
the  State.  This  is  all  that  is  necessary.  The  fact  that  it  is  stated  in 
the  certificate  that  the  persons  named  received  the  highest  number  of 
votes  cast  for  persons  eligible  under  the  Constitution  of  the  United 
States  to  be  appointed  electors,  and  are  duly  elected,  does  not  affect  the 
validity  of  the  certificate.  To  be  sure,  all  that  was  required  was  to  cer 
tify  the  persons  duly  elected  5  but  because  the  certificate  contains 
another  statement,  certainly  not  contradictory  of  the  first,  it  does  not 
vitiate  it  or  destroy  its  effect.  This  certificate  fully  meets,  too,  the 
requirements  of  the  act  of  Congress,  which  directs  the  governor  to  cause 
three  lists  of  the  names  of  the  electors  of  the  State  to  be  made,  certi 
fied,  and  delivered  to  the  electors ;  it  is  certified  by  the  governor  under 
the  great  seal,  and  attested  by  the  secretary  of  state.  We  have  here, 
then,  a  certificate  of  election  which  in  itself  fully  and  exactly  complies 
with  and  fulfills  all  the  requirements  of  the  law  of  Oregon  and  of  the 
act  of  Congress. 

If  the  Senator  from  Vermont  still  adheres  to  the  opinion  he  expressed 
in  the  Florida  case,  that  the  certificate  of  the  governor  under  the  act 
of  Congress  is  final  and  conclusive,  he  has  such  a  certificate  here.  If 
the  Senator  from  Indiana  and  the  rest  of  the  majority  of  the  Commis 
sion  propose  still  to  adhere  to  their  decision  that  the  determination 
of  the  persons  elected  as  electors  and  the  certificate  thereof  under  and 
by  virtue  of  the  State  laws  is  final  and  conclusive  and  cannot  be  con 
trolled,  contradicted,  or  varied,  they  have  here  such  a  certificate,  and 
it  must  stand  and  determine  the  persons  elected  unless  it  is  proposed 
to  change  that  rule  of  construction.  I  maintain  that,  if  the  decisions 
of  the  majority  in  the  Florida  and  Louisiana  cases  are  to  stand  and 
serve  as  guides  in  this  case  to  govern  it  in  fact,  then  Cronin  must  be 
declared  a  duly- appointed  elector  for  Oregon. 

To  be  sure,  if  you  look  behind  the  returns,  another  person  appears  to 
have  received  some  1,100  more  votes  than  did  Crouiu ;  but  what  of  that? 
If  you  had  looked  behind  the  returns  in  the  Louisiana  case  you  would 
have  found  that  eight  persons  received  from  six  to  ten  thousand  votes 
more  than  did  the  persons  whom  you  decided  to  be  elected.  Why  be 
troubled  at  a  paltry  1,100  votes,  when  you  have  faced  without  blenching 


944  ELECTORAL    COUNT    OF    1877. 

10,000  votes  ?    When  the  camel  of  Louisiana  has  been  swallowed,  why 
strain  at  the  gnat  of  Oregon  ? 

But  let  us  now  examine  the  certificate  of  Watts  and  his  associates  and 
see  if  it  comes  up  to  the  requirements  of  any  law,  State  or  Federal. 
Clearly  it  does  not.  It  contains  no  certificate  of  election ;  it  is  not  signed 
by  the  governor,  both  of  which  are  necessary  under  the  State  law;  and, 
not  being  signed  or  made  by  the  executive,  it  in  no  respect  complies 
with  the  act  of  Congress.  There  is,  as  I  have  said,  no  certificate  of 
election,  signed  by  any  one,  produced  by  Watts  and  his  associates.  There 
is,  however,  a  certified  statement  of  the  votes  cast  for  electors  at  the 
election,  from  which  it  is  claimed  that  we,  not  the  secretary  of  state  and 
governor  of  Oregon  as  required  by  law,  are  to  ascertain  and  determine 
who  had  been  elected.  That  is  to  say,  we  are  to  make  ourselves  into  a 
returning-board  and  do  the  duty  of  the  State  officers.  The  certificate 
does  not  state,  nor  does  it  appear,  that  all  the  votes  were  legally  cast 
or  legally  returned.  Indeed,  no  facts  are  stated  from  which  we  can 
determine  who  were  elected,  even  were  it  competent  for  us  to  usurp  the 
duties  of  the  State  canvassers.  It  is  clear  that  this  is  not,  and  was  never 
intended  by  the  secretary  of  state  to  be,  a  certificate  of  election  under 
the  law  of  Oregon,  and  that  the  one  signed  by  the  governor  and  secre 
tary  was  so  intended.  By  looking  at  the  affidavit  of  Watts  and  his 
associates,  which  is  attached  to  Certificate  No.  1,  you  will  find  them 
swearing  as  follows:  That  they  demanded  "of  the  governor  and  of  the 
secretary  of  state  certified  lists  of  the  electors  for  President  and  Vice- 
President  of  the  United  States  for  the  State  of  Oregon,  but  both  L.  F. 
Grover,  governor  of  the  State  of  Oregon,  and  S.  F.  Chadwick,  secretary 
of  state  of  said  State,  then  and  there  refused  to  deliver  to  us  or  either 
of  us  any  such  certified  lists  or  any  certificate  of  election  whatever.  And 
being  informed  that  such  lists  had  been  delivered  to  one  E.  A.  Cronin 
by  said  secretary  of  state,  we  each  and  all  demanded  such  certified  lists 
of  said  Cronin,  but  he  then  and  there  refused  to  deliver  or  to  exhibit 
such  certified  lists  to  us  or  either  of  us.  Whereupon  we  have  procured 
from  the  secretary  of  state  certified  copies  of  the  abstract  of  the  vote  of 
the  State  of  Oregon  for  electors  of  President  and  Vice-President  at  the 
presidential  election  held  in  said  State  November  7,  A.  D.  1876,  and  have 
attached  them  to  the  certified  lists  of  the  persons  voted  for  by  us  and 
of  the  votes  cast  by  us  for  President  and  Vice-President  of  the  United 
States,  in  lieu  of  a  more  formal  certificate." 

Here,  then,  several  things  are  clear  from  this  sworn  statement:  First, 
that  the  secretary  of  state  and  the  governor  never  intended,  but  always 
refused,  to  give  any  certificate  of  election  to  Watts ;  and  that  both  of 
these  officers  did  intend  to  give,  and  in  pursuance  of  that  intent  did  give, 
to  Cronin  a  certificate  of  election  in  accordance  with  both  State  and 
national  law.  Second,  that  all  parties  interested  understood  it  to  be  the 
only  legal  certificate  given.  It  is  claimed  here  now  that  the  secretary 
of  state,  and  the  governor  of  Oregon,  and  all  parties  interested,  together 
with  the  citizens  of  that  State,  did  not  know  and  understand  their  own 
law,  and  that  it  is  left  for  this  Commission  to  discover  that  the  certifi 
cate  of  election  given  by  the  secretary  of  state  and  the  governor  under 
the  great  seal,  and  intended  and  supposed  to  be  the  legal  and  rightful 
certificate  under  State  and  Federal  law,  was,  in  fact,  no  certificate  at  all 
and  must  be  set  aside  and  held  of  no  effect;  while  a  mere  abstract  of 
votes,  containing  no  certificate  of  election  and  signed  only  by  the  secre 
tary  of  state,  and  not  intended  to  be  given  or  received  as  such  certificate, 
answers  fully  the  requirements  of  the  State  law,  which  requires  such 
certificate  to  certify  to  the  election  and  to  be  signed  by  the  governor  and 
the  secretary  of  state. 


ELECTORAL   COUNT    OF   1877.  945 

If  the  certificate  of  Cronin  is  rejected,  it  is  simply  reversing  the  de 
cisions  in  the  Florida  and  Louisiana  cases,  and  adopting  a  rale  exactly 
opposite  to  the  one  governing  those  cases. 

But  even  if  it  is  held  that  the  secretary  of  state  alone  is  the  person  to 
canvass  the  votes  and  determine  who  are  elected,  the  Cronin  certificate 
is  the  only  one  that  meets  the  requirements  of  the  law.  That  is  the  only 
certificate  of  election.  There  is  no  other.  It  is  under  the  great  seal  of 
the  State  and  is  signed  by  the  secretary  of  state.  That  it  is  also  signed 
by  the  governor  does  not  in  any  way  detract  from  its  legality  or  effect. 
So  that,  whatever  construction  is  put  upon  the  State  law,  whether  it  is 
holden  that  the  secretary  of  state  alone  or  the  governor  and  secretary 
together  constitute  the  board  of  canvassers  of  votes,  that  certificate  is 
the  only  one  made  in  conformity  with  law — in  fact,  the  only  certificate 
of  election  at  all. 

But  do  not  misunderstand  me.  I  do  not  believe  that  Cronin  was  duly 
elected  an  elector  for  the  State  of  Oregon,  and  I  shall  so  vote.  I  agree 
that  the  weight  of  American  authorities,  including  especially  those  of 
rny  own  State,  are  in  his  favor;  but  I  believe  the  true,  the  fair,  the  just 
rule  to  be  this :  When  a  person  ineligible  for  election  is  voted  for  and 
receives  the  largest  number  of  votes,  it  must  be  held  that  there  is  no 
election,  unless  it  can  be  proved  that  the  electors  knew  of  his  ineligibil- 
ity  when  they  voted  for  him,  and  in  that  case  their  votes  are  to  be 
treated  as  mere  blanks,  not  votes  at  all.  In  this  case  I  am  not  satisfied 
that  the  people  of  Oregon  can  be  fairly  said  to  have  known  that  Watts 
held  the  office  of  postmaster.  Some  of  them  did  undoubtedly  know  it ; 
but  in  a  State  so  large  .territorially  as  is  Oregon,  it  is  not  reasonable  to 
suppose  that  any  considerable  number  of  the  citizens  of  that  State 
knew  that  he  was  postmaster  in  a  small  town,  and  I  therefore  think  it 
must  be  held  tbat,  Watts  being  ineligible,  there  was  no  election  of  one 
elector. 

That  Watts  held  an  office  of  profit  under  the  United  States  at  the 
time  he  was  voted  for  is  not  denied.  It  has  been  held  here  that  if  such 
a  person  receives  the  certificate  of  election  from  the  proper  authorities 
his  vote  must  be  counted,  and  that  the  two  Houses  of  Congress  have  no 
power  to  inquire  whether  he  is  by  the  Constitution  prohibited  from 
being  elected  or  not.  This  seems  to  me  a  most  monstrous  proposition, 
one  equally  strange  and  dangerous.  The  prohibition  of  the  Constitution 
is  absolute . 

No  person  holding  an  office  of  trust  or  profit  under  the  United  State^  shall  be  ap 
pointed  an  elector. 

Nothing  could  be  stronger.  The  voting  for  President  is  a  right  crea 
ted  solely  by  the  Constitution;  before  that  was  adopted  it  had  no  ex 
istence;  it  depends  therefore  entirely  on  the  terms  of  the  grant,  and 
must  be  exercised  according  to  its  mandates  and  provisions.  If  a  rea 
son  for  this  prohibition  was  sought  for,  it  could  be  easily  found.  It  was 
not  intended  that  Federal  officers  should  be  candidates  for  appoint 
ment,  so  that  they  might  not  be  tempted  to  use  their  power  and  influ 
ence  as  such  officers  to  affect  or  control  an  election.  The  Constitution 
must  be  construed  as  saying  in  terms  to  the  people  of  Oregon,  "  You 
shall  not  vote  for  J.  W.  Watts."  It,  in  effect,  so  says  to  the  people  of 
any  State  in  reference  to  any  candidate  who  holds  an  office  of  trust  or 
profit  under  the  United  States.  To  claim  that  this  prohibition  upon 
the  States  is  left  to  them,  the  very  parties  prohibited,  and  to  them  only, 
to  enforce,  is  against  all  logic  and  reason.  It  amounts  to  this:  a  party  . 
is  prohibited  by  a  superior  authority  from  doing  a  particular  act  which 
affects  that  superior  authority,  and  still  the  party  prohibited  is  alone  to 
GO  E  c 


946  ELECTORAL    COUNT    OF    1877. 

determiDe  whether  it  will  regard  the  prohibition,  and  if  it  does  not  re 
gard  it,  the  superior  authority,  although  affected  by  such  determination, 
has  no  right  or  power  to  enforce  the  prohibition.  The  statement  of  the 
claim  is  a  sufficient  refutation  of  it.  Until  the  hearing  before  this  Com 
mission  began,  it  was  never  heard  or  even  dreamed  that  a  State  could 
against  the  prohibition  of  the  Constitution  appoint  a  person  elector  and 
have  his  vote  counted,  there  being  no  power  in  Congress  to  prevent  it. 

Why,  look  for  a  moment  at  the  provisions  of  the  law  under  which 
we  are  acting.  Consider  them,  and  then  say,  who  can,  that  we  are 
compelled  to  count  the  vote  of  a  person  whom  the  Constitution  prohib 
its  the  State  from  appointing  as  an  elector !  By  that  law  the  duties  of 
this  Commission  are  expressly  and  carefully  defined.  This  Commission 
is  to  "  decide  whether  any  and  what  votes  from  such  States  are  the 
votes  provided  for  by  the  Constitution  of  the  United  States" — mark  it, 
and  consider  it  well — u  whether  they  are  the  votes  provided  for  by  the  Con 
stitution."  Could  anything  be  plainer?  Again,  the  Commission  is  to 
"decide  how  many  and  what  persons  were  duly  appointed  electors  in 
such  State.'7  We  have  each  taken  an  oath  that  "  we  will  impartially 
examine  and  consider  all  questions  submitted  to  the  Commission  of 
which  we  are  members,  and  a  true  judgment  give  therein." 

It  is  proven  to  us  that  a  person  who  was  by  the  Constitution  abso 
lutely  prohibited  and  forbidden  to  be  elected  has  voted  as  an  elector. 
Can  we  find  and  determine  tinder  the  law  and  our  oaths  that  his  vote  is 
the  one  "  provided  for  by  the  Constitution  of  the  United  States"  when 
he  is  by  that  instrument  expressly  prohibited  from  casting  a  vote?  Can 
we  say  that  such  a  person  u  was  duly  appointed  an  elector  "  when  the 
Constitution  expressly  declares  that  he  shall  not  be  so  appointed? 

Speaking  for  myself  alone,  I  can  only  say  that  if  I,  as  a  member  of 
this  Commission  and  having  in  mind  the  oath  I  have  taken  to  honestly 
discharge  the  duties  imposed  upon  me  by  the  law  creating  it,  decided 
in  favor,  as  a  presidential  elector,  of  the  vote  of  a  person  who  held  an 
office  of  trust  or  profit  under  the  United  States  at  the  time  of  his  elec 
tion,  I  should  be  morally,  if  not  legally,  guilty  of  perjury.  I  should  be 
doing  precisely  that  which  I  had  solemnly  sworn  I  would  not  do. 

But  it  is  claimed  that  W^atts,  although  holding  an  office  of  profit  un 
der  the  United  States  when  he  was  appointed  and  for  some  time  after, 
resigned  that  office  and  also  the  office  of  elector  before  casting  his  vote, 
and  that  he  was  subsequently  by  the  other  electors  chosen  to  fill  his 
own  vacancy.  At  the  best,  this  is  but  a  gross  evasion  both  of  the 
spirit  and  the  letter  of  the  Constitution.  But  let  us  examine  and  see 
if  the  prohibition  of  the  Constitution  can  be  gotten  rid  of  so  easily. 

The  act  of  Congress,  Kevised  Statutes,  section  133,  provides  that — 

Each  State  may  "by  law  provide  for  the  filling  of  any  vacancies  which  may  occur  in 
ts  college  of  electors  when  such  college  meets  to  give  its  electoral  vote. 

Section  134  provides — * 

That  whenever  any  State  has  held  an  election  for  the  purpose  of  choosing  electors 
and  has  failed  to  make  a  choice  on  the  day  prescribed  by  law,  the  electors  may  be 
appointed  on  a  subsequent  day  ill  such  manner  as  the  legislature  of  such  State  may 
direct. 

The  law  of  Oregon  provides  that  "the  electors  shall  convene  at  the 
seat  of  government  on  the  first  Monday  of  December  next  after  the 
election,  at  the  hour  of  twelve  of  the  clock  at  noon  of  that  day,  and  if 
there  shall  be  any  vacancy  in  the  office  of  an  elector  occasioned  by 
death,  refusal  to  act,  neglect  to  attend,  or  otherwise,  the  electors  present 
immediately  proceed  to  fill  by  viva  voce  and  plurality  of  votes  such 


ELECTORAL    COUNT    OF    1877.  947 

vacancy  in  the  electoral  college."  It  is  claimed  that  under  these  pro 
visions  of  the  law  Watts  could  resign,  thus  create  a  vacancy,  be  imme 
diately  elected  to  fill  it,  and  cast  one  vote  of  the  State  for  President. 

An  examination  of  the  affidavits  and  returns  of  this  Watts  and  his 
associates  shows  a  queer  state  of  facts — something,  indeed,  almost  mys 
terious.  The  affidavit  of  Watts  and  his  associates,  Odell  and  Cartwright, 
to  which  they  all  make  oath,  says  that —  , 

At  the  hour  of  twelve  o'clock  ra.  of  the  6th  day  of  December,  A.  D.  1876,  we  duly  as 
sembled  at  the  State  capital,  in  a  room  in  the  capitol  building  at  Salem,  Oregon,  which 
was  assigned  to  us  by  the  secretary  of  state ;  that  we  duly  on  said  day  and  hour  de 
manded  of  the  governor  and  secretary  of  state  "  certain  certified  lists  of  electors, 
which  were  then  and  there  refused." 

Now,  in  the  certificate  of  their  vote  for  President  and  Vice-President 
two  of  these  same  gentlemen,  Odell  and  Cartwright,  say  that  at  pre 
cisely  twelve  o'clock  noon  on  the  same  6th  day  of  December  they  two, 
alone,  met  at  the  seat  of  government ;  that  they  organized  by  the  choice 
of  one  as  chairman  and  the  other  as  secretary ;  that  one  of  them  pre 
sented  the  resignation  of  Watts,  which  was  read  and  accepted;  that 
there  were  but  two  electors  present,  namely,  said  Odell  and  Cartwright ; 
that  the  two  thereupon  declared  one  vacancy  to  exist  in  the  college,  and 
elected  Watts  to  fill  the  vacancy  occasioned  by  his  own  resignation. 
Put  together  the  affidavit  of  the  three  and  the  certificate  of  the  two, 
and  this  is  the  result :  the  three  swear  that  at  twelve  o'clock  m.  they 
were  all  three  present  at  a  certain  place  and  there  did  certain  acts ;  but 
two  of  the  three  certify  that  at  the  same  hour  and  place  the  third  was 
not  present,  and  on  account  of  his  absence  the  two  performed  certain 
other  and  different  acts.  This  is  like  a  game  of  "  thimble-rig,"  and 
Watts  is  the  "little  joker;7'"  "now  you  see  him  and  now  you  don't.'7 
When  required  at  a  certain  point  of  time  to  be  in  a  certain  place,  he  is 
sworn  to  be  present ;  when  not  wanted  he  is  certified  to  be  absent  at 
precisely  the  same  place  and  time,  A  very  convenient  personage  this, 
who  can  thus  make  himself  visible  and  invisible  whenever  the  necessi 
ties  of  the  case  require  it. 

This  seems  to  me  to  be  clear  :  Section  133  of  the  law  of  Congress  has 
reference  only  to  a  college  of  electors  which  has  been  once  filled  and  a 
vacancy  has  occurred  subsequently.  The  words  indicate  that  the  in 
tent  was  to  provide  for  such  a  case  only.  This  is  rendered  certain  by 
the  fact  that  the  next  section  provides  for  the  case  of  no  election  hav 
ing  been  had,  clearly  showing  that  the  word  "vacancy77  when  used  in 
the  preceding  section  applied  simply  to  the  case  where  there  had  been 
an  election  and  the  place  of  a  person  elected  had  subsequently  become 
vacant.  Without  this,  indeed,  it  might  be  claimed,  with  much  show  of 
reason  for  the  construction,  that  a  vacancy  could  only  happen  when  the 
office  had  been  once  occupied. 

The  statute  of  Oregon  clearly  meant  to  deal  with  the  "  vacancy 77  in 
dicated  in  section  133  of  the  act  of  Congress,  and  not  with  the  case  of 
the  office  never  having  been  filled,  provided  for  in  the  next  section. 
The  phraseology  shows  this  clearly  and  excludes  any  other  construc 
tion.  "  If  there  shall  be  any  vacancy  occasioned  by  death,  refusal  to  act, 
neglect  to  attend,  or  otherwise 77  by  no  means  refers  to  a  case  of  the  office 
never  having  been  filled  at  all.  "  Or  otherwise  '7  must  be  taken  with  its 
surroundings,  and  construed  in  the  light  of  those  surroundings  and  of 
the  whole  statute  taken  together.  The  old  maxim  "noscitur  a  sociis," 
if  it  could  ever  apply  in  any  case,  applies  here.  The  "  other  causes  '2 
creating  a  vacancy  must  be  like  causes  ;  for  no  one  can,  without  violat 
ing  all  the  rules  of  construction  applicable  to  statutes,  hold  that  the  in- 


948  ELECTORAL    COUNT    OF    18/7. 

tent  was  to  provide  by  these  two  words  in  the  connection  in  wbicb  they 
are  used  for  the  case  of  a  failure  to  elect — a  case  so  entirely  different 
from  that  of  a  vacancy  occurring  after  election  by  reason  of  death  or 
any  other  cause.  This  construction  is  fortified  by  the  opinion  of  the 
supreme  court  of  Ehode  Island,  a  most  respectable  tribunal,  upon  a  case 
almost  exactly  like  this  both  in  spirit  and  letter,  and  by  the  action  of 
the  legislature  upon  that  opinion.  That  court  held  that  where  there 
had  been  no  election  because  the  person  voted  for  at  the  time  held  an 
"office  of  trust  under  the  United  States"  there  was  no  u  vacancy,"  and 
that  the  place  must  be  filled  by  the  legislature  as  in  the  case  of  a  failure 
to  elect. 

It  seems  clear  to  me  that,  inasmuch  as  Watts  held  an  office  of  trust 
and  profit  under  the  United  States  at  the  time  of  the  election,  he  was 
"ineligible"  to  be  elected;  that  there  was  no  election  of  one  elector; 
that  he  could  not  resign  an  office  which  he  had  never  held;  that  there 
was  no  u  vacancy  "  within  the  meaning  of  the  law  of  Oregon ;  and  that, 
consequently,  but  two  votes  from  Oregon  can  be  counted  for  President 
and  Yice-President.  To  me  it  seems  clear  and  beyond  all  question  that 
to  count  more  than  two  votes  would  be  a  direct  violation  of  the  Consti 
tution  and  a  violation  of  the  oath  we  have  here  taken  "  to  decide 
whether  the  votes  are  those  provided  for  by  the  Constitution  and  what 
persons  were  duly  appointed  electors." 

It  seems  to  me  certain  beyond  all  controversy  that  to  set  aside  the  cer 
tificate  of  the  governor  and  the  secretary  of  state  under  the  great  seal, 
and  to  accept  in  its  stead  a  mere  certified  statement  of  votes  with  no 
certificate  of  election,  is  to  openly  and  directly  reverse  and  overrule  the 
decisions  pronounced  by  the  majority  of  this  Commission  in  the  cases  of 
Florida  and  Louisiana ;  thus  establishing  different  rules,  applicable  to 
the  same  fa#ts,  in  different  cases. 

SOUTH  CAROLINA. 

The  Commission  having  under  consideration  the  electoral  vote  of  South  Carolina — 

Mr.  Commissioner  ABBOTT  said  substantially : 

Mr.  PRESIDENT  :  I  desire  to  say  something,  after  what  has  been  said 
here,  upon  the  questions  raised  in  this  case  of  South  Carolina. 

Of  course  no  one  claims  that  the  vote  of  the  Tilden  electors  should  be 
counted.  The  Hayes  electors  undoubtedly  received  a  majority  of  the 
votes  as  they  were  actually  cast.  There  were,  no  doubt,  many  irregu 
larities  in  conducting  the  election  and  making  returns  of  votes  from  the 
many  different  precincts,  which,  if  they  had  been  insisted  upon,  might 
have  altered  the  result ;  but  ascertaining  as  nearly  as  could  be  done  the 
number  of  votes  as  actually  cast  and  disregarding  all  irregularities  con 
nected  with  the  conduct  of  the  elections  and  the  returns  thereof,  a 
majority  of  the  votes  cast,  was  for  the  Hayes  electors;  therefore,  of 
course,  no  question  can  fairly  arise  in  reference  to  counting  the  vote  of 
the  Tilden  electors. 

But  such  a  conclusion  by  no  means  settles  the  case.  There  still 
remains  to  be  determined  the  question,  shall  the  vote  of  the  Hayes  elect 
ors  be  counted? 

The  settlement  of  it  involves  several  considerations  and  issues  quite 
as  important  and  interesting  as  any  which  have  been  examined  and 
decided  in  either  of  the  other  cases  before  the  Commission. 

And  first  let  me  consider  an  objection  to  counting  these  votes  raised 
by  my  friend  from  Virginia,  Mr.  Hunton.  The  objection  is  this : 

The  Constitution  expressly  requires  that  the  electors  shall  vote  for 


ELECTORAL    COUNT    OF    1877.  949 

President  and  Vice-President  by  ballot;  that  they  shall  name  in  their 
ballots  the  persons  voted  for  as  President,  and  in  distinct  ballots  the 
persons  voted  for  as  Vice-President ;  and  that  they  shall  make  distinct 
lists  of  all  persons  voted  for  as  President  and  of  all  persons  voted  for 
as  Vice-President,  and  of  the  number  of  votes  for  each,  which  lists  they 
shall  sign  and  certify,  and  transmit  to  the  President  of  the  Senate.  The 
acts  of  Congress  merely  provide  the  details  for  carrying  this  require 
ment  of  the  Constitution  into  effect.  It  is  clear  that,  if  the  Constitution, 
is  to  be  regarded,  no  vote  for  President  not  by  ballot  is  legal  or  can  be 
counted.  No  matter  what  may  have  been  the  reason  for  this  require 
ment,  certain  it  is  that  it  was  considered  important  enough  to  put  it  into 
the  Constitution,  and  we  must  regard  it,  unless  we  are  prepared  to  say 
this  Commission  is  not  bound  by  that  antiquated  instrument.  I  think 
the  majority  have  practically  set  aside,  nullified  in  fact,  the  mandate 
that  no  person  holding  an  office  under  the  United  States  shall  be 
appointed  an  elector,  and  it  may  be  considered  that  we  can  with  equal 
right  disregard  the  mandate  that  all  votes  shall  be  by  ballot.  If  the 
Constitution  is  to  prevail,  however,  not  only  must  the  voting  be  by 
ballot,  but  lists  must  be  made  of  the  persons  thus  voted  for,  and  sent  to 
the  President  of  the  Senate.  By  fair  construction  these  lists  must  show 
that  the  votes  were  by  ballot,  because  by  the  Constitution  nothing  but 
ballots  are  recognized  as  votes.  By  the  law  establishing  the  Commis 
sion  we  are  to  decide  what  votes  "  are  the  votes  provided  for  by  the 
Constitution,"  and  as  no  vote  is  recognized  by  that  instrument  as  a  vote 
for  President  except  it  be  by  ballot,  it  seems  clear  that  we  must  be  sat 
isfied  whether  the  votes  under  consideration  were,  as  required  by  the 
Constitution,  by  ballot  or  otherwise. 

It  is  clear  beyond  any  question  that  it  does  not  appear  from  the  cer 
tificate  of  the  Hayes  electors  that  they  voted  by  ballot ;  there  is  nothing 
in  it  from  the  first  to  the  last  word  which  in  any  manner  indicates  that 
the  voting  was  viva  voce  or  by  ballot.  We  therefore  have  not  even  a 
scintilla  of  evidence  before  us  upon  which  we  can  decide  as  required  by 
law  u  which  are  the  votes  provided  for  by  the  Constitution ;"  that  is, 
whether  the  votes  were  by  ballot  or  otherwise.  That  is  a  question  that 
must  be  settled  by  evidence ;  we  cannot  know  it  by  instinct  or  intuition, 
and  there  is  no  evidence  at  all  bearing  upon  it. 

We  are  told  by  Mr.  Justice  Bradley  that  this  objection  is  not  even 
plausible ;  certainly  a  somewhat  strong  word  to  apply  to  an  objection 
made  by  a  member  of  this  Commission  upon  his  official  responsibility. 
Not  "  plausible,"  forsooth,  to  inquire  whether  the  votes  have  been  cast 
in  the  manner  commanded  by  the  Constitution  !  Perhaps  by  some  it 
may  not  be  considered  sensible,  "plausible"  even,  to  permit  the  require 
ments  of  the  Constitution  to  be  regarded  at  all  in  this  matter  of  deter 
mining  who  is  to  be  President,  but  then  there  are  others  of  us  who  do 
consider  that  some  evidence  should  be  furnished  to  show  that  the  pro 
visions  and  requirements  of  the  organic  law  have  been  complied  with 
before  we  give  judgment  in  so  important  an  issue.  Therefore,  at  the 
expense  of  not  being  considered  even  "plausible"  by  the  learned  justice, 
I  venture  to  discuss  arid  consider  this  question. 

When  it  is  considered  important,  vital  enough  to  make  it  a  constitu 
tional  mandate,  that  the  vote  for  President  should  be  cast  in  a  particu 
lar  manner,  why  must  we  not  in  some  way,  by  some  evidence,  be  satis 
fied  that  this  requirement  has  been  complied  with  ?  Certainly  when  we 
are  appointed  by  law  to  decide  "  which  are  the  votes  provided  for  by 
the  Constitution  "  some  evidence  should  be  furnished  on  the  point  at 
issue,  so  that  we  may  be  able  to  decide  that  question.  As  I  have  said, 


950  ELECTORAL    COUNT    OF    1877. 

when  the  Constitution  requires  that  the  electors  shall  make  and  certify 
lists  of  the  persons  voted  for  as  President  and  Vice-President  and  of 
the  number  of  votes  for  each,  a  fair  construction  would  require  the  cer  • 
tificate  to  state  that  the  votes  were  by  ballot,  they  being  the  only  votes 
that  could  be  legally  cast.  I  do  not  claim  that  the  certificate  should 
contain  any  set  form  of  words,  but  that  it  is  necessary  that  in  some  form 
of  expression  it  should  set  forth  the  fact  that  the  votes  were  cast  as 
required  by  the  Constitution. 

Now,  by  looking  at  the  return  by  the  Hayes  electors  of  their  acts,  there 
is  nothing  in  it  even  to  indicate  that  they  voted  by  ballot;  on  the  con 
trary,  the  inference  from  it  would  be  that  they  did  not  so  vote.  It  is 
not  even  stated  that  the  vote  was  duly  cast,  or  according  to  law,  which 
might  be  sufficient  in  the  absence  of  anything  to  control  such  a  state 
ment.  Again,  the  list  purports  to  be  of  "  those  voted  for  by  the  elec 
toral  college  of  the  State  of  South  Carolina,"  rather  indicating  the  result 
of  action  by  the  college  as  a  board  than  that  of  each  individual  member 
of  it.  Certainly  there  is  nothing  in  the  return  which  gives  me  the 
slightest  intimation  that  the  votes  were  cast  by  ballot  and  nothing  from 
which  I  can  fairly  infer  that  such  was  the  fact,  and  if  I  decide  they  were 
so  cast,  I  do  it  absolutely  without  evidence.  Indeed,  from  the  wording 
of  the  certificate,  I  should  be  strongly  inclined  to  believe  that  the  voting 
was  not  by  ballot. 

Having  had  some  opportunity  to  know  how  affairs  are  conducted  by 
the  party  in  power  in  South  Carolina,  that  knowledge  by  nov means  leads 
me  to  believe  that  any  regard  would  be  paid  by  these  electors  to  either 
law  or  Constitution.  Several  of  them  I  saw  when  in  South  Carolina  this 
winter  as  a  member  of  the  committee  of  investigation  on  the  part  of  the 
House  of  Representatives,  and  one  at  least  came  before  that  committee 
and  was  examined  as  a  witness,  and  in  his  examination  disclosed  facts 
which  would  prevent  any  fair  mind  from  putting  the  slightest  faith  in 
his  honesty,  integrity,  or  intelligence.  From  the  certificate  itself,  from 
what  I  know  of  the  persons  who  signed  it,  and  their  disregard  of  all  law, 
right,  and  even  decency,  I  am  strongly  inclined  to  believe  that  the  voting 
in  this  case  was  not  by  ballot;  certainly  no  member  of  the  Commission 
can  say  there  is  the  slightest  evidence  that  the  votes  were  so  cast. 
Although  it  may  please  Mr.  Justice  Bradley  to  say  of  the  objection  of 
my  friend  from  Virginia  that  it  is  not  even  "  plausible,"  I  defy  him  to 
give,  not  merely  a  plausible,  but  any  reason,  for  finding  that  the  votes 
of  the  South  Carolina  electors  were  cast  in  the  manner  required  by  the 
Constitution. 

How  then  can  we  find  they  were  cast  by  ballot?  We  must  so  find  in 
order  to  determine  that  they  "  are  the  votes  provided  for  by  the  Consti 
tution  of  the  United  States,"  which  we  are  bound  to  do  by  our  official 
oaths. 

By  one  Commissioner  it  is  said  this  objection  is  not  even  "plausible," 
by  another  that  it  is  merely  technical  and  so  ought  not  to  weigh  in  the 
consideration  of  questions  so  great  and  important  as  are  here  at  issue. 
The  answer  is  plain.  The  objection  is  founded  on  the  Constitution  itself, 
and  its  only  purpose  is  to  require  a  compliance  with  its  express  man 
dates.  If  the  objection  is  not  plausible,  if  it  is  technical,  it  is  the  fault 
of  the  Constitution  in  being  technical  and  not  even  plausible  in  its 
requirements. 

But  there  are  other  objections  to  the  votes  of  the  Hayes  electors  which 
involve  some  of  the  most  important  questions  and  issues  that  can  ever 
present  themselves  for  consideration  and  determination  where  the  gov 
ernment  is  constituted  as  is  ours — questions  and  issues  fundamental,  and 


ELECTORAL    COUNT    OF    1877.  951 

involving  the  very  existence  of  our  institutions  in  their  present  form. 
If  you  decide  to  reject  the  proofs  offered  in  this  case,  and  count  the  vote, 
you  will  establish  a  principle  by  which,  if  acted  on  in  the  future,  there 
may  never  be  another  free  election  of  President  of  the  United  States  by 
the  people  thereof;  a  precedent  by  which  any  person  or  party  in  power 
may  forever  perpetuate  that  power  by  the  use  of  the  Army  of  the  United 
States. 

Consider  the  proofs  which  are  offered  here,  and  which  we  are  told  by 
the  majority  we  must  reject,  and  count  the  vote  of  South  Carolina,  not 
withstanding  the  facts  offered  to  be  proved. 

In  the  first  place  it  is  alleged,  and  proof  of  the  allegation  is  proffered, 
that  although  the  constitution  of  the  State  which  was  adopted  in  1868 
commands  the  legislature  to  establish  a  registration  of  voters,  the  legis 
lature  has  persistently  refused  to  obey  this  mandate,  it  being  largely 
republican,  for  the  sole  purpose  of  keeping  possession  of  the  government 
by  a  resort  to  repeating  and  double  voting.  Certainly  the  laws  of  that 
State  regulating  voting,  if  intended  expressly  to  encourage  repeating  and 
frauds  at  elections,  could  not  be  better  contrived  to  accomplish  such  a 
purpose.  The  counties  are  each  divided  into  many  voting-precincts,  one 
into  over  fifty,  and  every  citizen  of  the  county  can  vote  in  any  precinct 
without  regard  to  the  parish,  precinct,  or  town  in  which  he  resides.  But 
although  this  is  reprehensible  in  the  highest  degree,  and  shows  the 
fraudulent  intent  of  the  party  in  power,  I  agree  that  it  does  not  furnish 
sufficient  reason  to  reject  the  vote  of  the  State.  The  law  certainly  is 
mandatory  upon  the  legislature  ;  but  if  that  body  refuses  to  obey,  to  do 
its  duty  and  execute  the  mandate  by  making  a  law  to  provide  registra 
tion,  such  refusal,  however  wicked  and  fraudulent,  cannot  deprive  the 
State  and  its  people  of  the  right  to  vote.  Any  other  construction  would 
put  an  end  to  the  government  and  prevent  the  people  from  electing  any 
officers,  State  or  national. 

The  next  offer  of  proof  is,  that  the  troops  of  the  United  States  were 
sent  to  South  Carolina  before  and  stationed  near  the  polls  at  the  elec 
tion,  by  the  President  of  the  United  States,  solely  for  the  purpose  of 
overawing  a  portion  of  the  people,  and  compelling  them  to  vote  to  sus 
tain  the  republican  party,  and  that  this  purpose  for  so  sending  and 
stationing  the  troops  was  accomplished ;  that  the  people  were  over 
awed  and  compelled  to  vote  to  sustain  the  party  so  using  the  troops, 
and  that  there  was  in  consequence  thereof  no  free  election,  no  such 
election  as  is  required  by  the  law  and  Constitution  of  both  the  State 
and  United  States. 

It  is  further  offered  to  be  proved  that  the  State  militia,  composed 
almost  entirely  of  ignorant  negroes,  was  stationed  at  many  of  the  polls, 
in  fact  surrounding  them,  to  prevent  a  portion  of  the  people  from  voting 
.the  democratic  ticket,  and  by  violence  did  succeed  in  so  doing ;  that 
armed  bands  of  negroes  also  surrounded  the  voting-places  in  some 
counties,  and  by  violence  and  force  prevented  thousands  of  persons 
from  voting  with  the  democrats — a  much  larger  number,  in  fact,  than 
the  majority  claimed  for  the  Hayes  electors. 

The  only  answer  made  to  all  this  is  that  the  two  Houses  of  Congress 
have  no  right  to  inquire  into  these  allegations,  no  right  to  ascertain 
whether  these  offers  of  proof  can  be  substantiated. 

In  the  Florida  and  Louisiana  cases  we  were  told,  and  a  majority  of  this 
Commission  has  so  decided,  that  by  the  Constitution,  by  our  organic  law, 
neither  the  two  Houses  of  Congress,  the  States,  nor  their  legislatures,  nor 
their  courts,  nor  their  executives,  had  any  power  to  inquire  whether  the 
votes  of  any  State  had  been  cast  by  persons  never  in  fact  elected,  but 


952  ELECTORAL    COUNT    OF    18/7. 

who  obtained  a  certificate  of  election  by  the  grossest  frauds  and  bribery 
of  the  State  returning-boards;  and  that  Congress,  the  whole  country 
indeed,  must  look  on  in  quiet  and  contentment,  able  to  do  nothing  to 
prevent  their  Chief  Magistrate  being  seated  in.  office  not  by  law  and 
the  voice  of  the  people,  but  by  fraud  and  corrupt  practices. 

Those  decisions,  by  which  fraud  is  justified  and  sanctified,  are  bad 
enough,  but  the  proposed  resolutions  are  even  worse.  By  the  first,  the 
Presidency  can  be  bought  and  sold,  even  put  up  at  auction,  openly  and 
in  the  face  of  the  world,  and  so  weak  and  powerless  are  our  Constitu 
tion  and  laws  that  it  cannot  be  prevented  or  remedied. 

Some  one  has  said — Gibbon,  I  think — that  when  the  imperial  purple 
at  Rome  was  sold  by  the  pretorian  guard,  it  was  conclusive  evidence 
that  all  reason  for  the  Roman  empire  continuing  to  exist  had  ceased. 
£To  people  who  submit  to  have  their  chief  magistracy  bought  and  sold 
have  any  right  to  exist  as  a  nation.  What  shall  we  say,  then,  of  our 
own  condition  ?  In  the  Louisiana  case  it  was  oifered  to  be  proved,  and 
the  offer  being  rejected  it  must  be  taken  as  true,  that  the  vote  of  that 
State  for  the  republican  candidate  was  obtained  by  bribery,  perjuryT 
and  forgery,  and  this  Commission  decided  that  a  vote  so  obtained  was 
as  good  as  one  absolutely  pure  and  honest,  and  that  the  people  must 
submit  to  a  President,  though  he  might  owe  his  election  to  such  crimes. 
By  that  decision  we  are. told  that  a  candidate  may  openly  buy  the  vote 
of  any  State  from  such  a  returning-board  as  has  been  established  in 
perpetuity  in  Louisiana,  and  agree  that  the  money  therefor  shall  be 
paid  when  the  sale  is  consummated  by  the  count  of  the  two  Houses  of 
Congress ;  and,  for  aught  I  can  see,  he  can  deposit  the  money  to  be 
paid  on  the  Speaker's  desk,  to  be  delivered  when  the  count  is  complete, 
and  call  upon  the  assembled  Senators  and  Representatives  to  witness 
the  payment.  All  this  we  are  told  would  be  constitutional  and  right 
under  the  law.  And  now,  as  if  it  was  not  quite  enough  of  infamy  and 
disgrace  to  the  country  to  have  it  established  that  the  Presidency  can 
be  bought  without  hinderance  or  objection,  we  are  told  that  the  Presi 
dent,  to  perpetuate  himself  or  his  party  in  power,  may  use  the  military 
forces  of  the  United  States  to  compel  the  people  of  a  State  to  vote  as 
he  desires ;  that  the  militia  of  a  State  may  be  used  to  the  same  end  ; 
and  that  votes  so  obtained  by  an  election  controlled  and  dominated  by 
military  force  must  be  counted  precisely  as  pure  and  honest  votes  are 
counted ;  and  again,  that  there  is  no  power  in  Congress,  or  in  any  other 
person  or  bodies  of  persons,  to  prevent  such  a  consummation  of  wrong 
and  wickedness.  If  any  doctrine  more  utterly  destructive  to  a  free 
government  and  free  institutions — to  a  government  of  the  people,  for 
the  people,  and  by  the  people — could  be  devised  and  put  forth  to  the 
world,  1  certainly  cannot  conceive  of  it.  The  doctrine  is  utterly  and 
entirely  damnable.  It  will  bear  the  palm  for  unmitigated  wickedness 
for  all  time  to  come.  By  it  a  free  goverment  may  be  turned  into  the 
worst  of  despotisms.  By  it  the  people  may  be  deprived  of  all  their 
rights  and  liberties,  and  military  force  and  power  be  made  to  usurp  the 
place  of  law  and  justice.  It  is  a  high  crime  against  liberty  and  good 
government.  It  proclaims  to  the  world  that  our  system  of  government 
is  a  failure  ;  that  it  has  ceased  to  be  one  regulated  by  law,  and  admin 
istered  according  to  the  will  of  the  people  expressed  under  and  accord 
ing  to  the  law,  and  has  become  a  despotism,  where  law  has  given  place 
to  force  and  the  will  of  the  people  exists  only  in  name,  not  as  a  con 
trolling  factor,  not  in  verity  and  fact. 

Indeed,  this  doctrine,  if  established,  caps  the  climax  of  wrong.  We 
have  had  bribery,  forgery,  perjury.,  and  all  manner  of  corrupt  practices 


ELECTORAL    COUNT    OF    1877.  953 

justified  by  the  decision  of  a  majority  of  this  Commission  as  a  proper 
means  to  obtain  the  Presidency.  We  are  now  told  that  the  Army  of 
the  United  States  may  be  used  to  force  the  people  to  vote,  not  as  they 
wish,  but  as  others  wish.  If  this  doctrine  is  adopted  and  established, 
the  measure  of  our  woes,  and  disgrace  as  well,  is  full  to  the  brim. 

Its  greatest  foes  never  before  have  claimed  that  our  Constitution  was 
so  miserably  weak  and  defective,  such  a  piece  of  bungled,  botched  work, 
as  we  are  now  told  it  is  by  a  majority  of  this  Commission. 

In  a  free  government,  professing  to  be  a  government  of  the  people  by 
the  people,  whose  boast  is  that  the  rights  and  liberties  of  all  are  equally 
protected  by  and  under  the  law  and  that  all  wrongs  and  abuses  are  to 
be  righted  peaceably  by  an  appeal  to  the  ballot-box,  how  strange,  indeed 
how  criminal  it  is  to  claim  and  act  upon  the  claim  that  the  military  arm 
may  be  used  with  impunity,  against  all  law  and  right,  for  the  very  object 
and  purpose  of  putting  an  end  to  free  elections — which  means  nothing 
more  nor  less  than  putting  an  end  to  the  government  of  the  people ;  and 
that  there  is  no  way  of  preventing  it,  known  to  man,  that  the  Constitu 
tion  and  law  furnish  no  defense  against  so  great  an  offense  against  free 
dom  and  free  government. 

Such  a  doctrine  would  not  and  ought  not  to  be  tolerated  for  a  moment 
where  even  the  smallest  show  is  kept  up  of  a  regard  for  the  will  of  the 
people  in  governmental  affairs.  A  doctrine  like-this  put  forth  and  acted 
on  by  the  King  of  Great  Britain  would  change  the  reigning  dynasty  as 
effectually  as  did  no  worse  attempt  to  establish  despotism  change  it  in 
1G88. 

In  addition  to  this  employment  of  the  Army  of  the  United  States,  we 
have  the  offer  of  proof  that  the  State  militia  were  used  for  the  same 
purpose,  that  armed  bands  of  negroes  surrounded  the  polls,  preventing 
people  of  their  own  race  from  voting,  as  they  wished  to  do,  and  resorting 
to  all  manner  of  violence  to  accomplish  such  a  result ;  in  fact,  the  offer 
of  proof  is  such  that,  if  substantiated,  an  election  holden  under  such 
circumstances  is  worse  than  a  farce,  it  is  a  disgrace  to  any  civilization 
however  imperfect,  and  would  bring  our  form  of  government  into  most 
justly  merited  contempt.  Indeed,  if  it  be  true  that  such  an  election  is 
to  be  tolerated  and  its  results  are  to  be  established  and  prevail,  it  fur 
nishes  conclusive  proof  that  our  institutions,  of  which  so  much  is  boasted, 
have  failed  5  and  it  might,  with  a  show  of  reason,  be  claimed  they  ought 
to  give  way  to  some  other  form  of  government  which  will  at  least  give 
peace  and  protection  to  persons  and  property. 

From  all  I  could  learn  while  in  South  Carolina,  the'allegations  in  the 
offers  of  proof  are  substantially  true,  certainly  as  to  parts  of  the  State, 
and  I  am  sure  no  such  election  was  holden  the  results  of  which  ought 
to  affect  in  any  way  the  rights  of  the  people  of  the  other  States. 

The  colored  people  were  told  and  believed  that  the  United  States 
troops  were  sent  into  the  State  to  compel  them  to  vote  the  republican 
ticket  and  shoot  all  who  attempted  to  vote  with  the  democrats.  This 
belief  I  have  no  doubt  was  general  among  the  blacks.  Of  course  there 
were  many  too  intelligent  to  give  it  credit,  but  the  great  mass  gave  it 
full  faith  and  credence.  Any  negro  who  manifested  a  desire  to  act  with 
the  democrats  was  completely  ostracized,  and  in  addition  assaulted  and 
beaten  by  those  of  his  own  race  whenever  the  opportunity  to  do  it  oc 
curred.  Negro  wives  left  their  husbands  if  the  husbands  left  the  repub 
lican  party.  Negro  men  attempting  to  vote  the  democratic  ticket  were 
attacked  at  the  polls  by  negro  women,  beaten,  stripped  naked,  and  driven 
off.  In  many  places  the  polls  were  surrounded  by  organized  bands  of 
armed  blacks,  who  assaulted,  beat,  and  forcibly  drove  off  all  of  their 


954  ELECTORAL    COUNT    OF    1877. 

own  race  who  attempted  to  vote  against  the  republicans,  or  compelled 
them  to  vote  that  ticket.  I  have  no  doubt  that  many  thousands  of  col 
ored  voters  would  have  voted  the  democratic  ticket  had  they  not  been 
either  driven  off  or  compelled  by  violence  and  fear  to  vote  for  the  repub 
licans,  and  but  for  that  lawlessness  and  violence  the  Hayes  electors, 
instead  of  receiving  a  majority  of  some  eight  hundred,  would  have  been 
defeated  by  some  thousands. 

But  one  answer  suggested  to  this  is,  that  the  democrats,  too,  resorted 
to  force,  violence,  threats,  and  intimidation  to  compel  the  blacks  to  vote 
their  ticket. 

Does  not  this  tend,  if  the  charge  be  true,  to  prove  conclusively  the 
proposition  we  support,  that  the  vote  of  the  State  should  not  be  counted, 
because  by  the  illegal  and  unjustifiable  acts  of  both  political  parties  a 
free  election  was  rendered  impossible  ? 

The  answer  is  no  answer.  Its  reason  and  logic  is  the  reason  and  logic 
of  the  boy  charged  by  his  fellow  with  wrong-doing,  who  replies  to  it, 
"You  are  another.7' 

I  have  no  doubt  the  charge,  to  some  extent,  is  well  founded.  It 
would  be  strange  if  it  was  not  so.  The  provocations  were  so  great, 
the  evils  to  be  remedied  were  so  terrible,  the  wrongs  to  be  righted  so 
vsubversive  of  all  governments,  that  no  doubt  many  things  were  done  by 
the  democrats  that  would  not  be  tolerated  in  a  different  condition  of 
affairs,  and  cannot  be  justified.  But  I  believe  ten  negroes  were  com 
pelled  to  vote  for  the  republicans  by  the  violence  and  lawlessness  of 
their  own  race  for  one  who  was  compelled  to  vote  against  his  will  for 
the  democrats  by  their  unlawful  practices. 

But  while  I  admit  that  there  was  to  some  extent  a  resort  to  unjustifia 
ble  means  by  democrats  to  control  the  colored  vote,  beyond  all  question 
this  was  not  sanctioned  by  their  candidates  for  office  or  by  any  of  the 
leading,  influential  men  of  that  party.  Governor  Hampton,  Colonel 
Haskell,  the  chairman  of  the  State  committee,  and  every  other  candi 
date  and  leading  man  of  the  party,  I  am  satisfied,  exerted  all  their 
power  and  influence  in  favor  of  peace  and  a  perfectly  free  election.  But 
such  was  the  condition  of  things  in  the  State,  what  with  the  United 
States  troops  and  the  State  militia,  composed  mainly  of  the  most  igno 
rant  blacks,  what  with  armed  bands  of  negroes  in  many  precincts,  dom 
inating  and  abusing  all  their  own  race  who  dared  even  to  try  to  act 
independently,  urged  on  by  bands  of  carpet-baggers,  thieves,  and  native 
"scalawags,77  as  they  are  called,  who  knew  if  they  were  defeated  flight 
or  the  penitentiary  was  their  only  safety,  a  free  election  was  an  utter 
impossibility.  Certainly  no  election  holden  under  such  circumstances 
and  with  such  surroundings  ought  ever  to  affect  the  rights  of  a  single 
human  being  outside  the  limits  of  the  State  ;  to  impose  on  the  other 
States  a  Chief  Magistrate  by  the  means  and  appliances  there  resorted 
to  would  bring  our  whole  system  of  elections  into  merited  contempt  and 
disgrace. 

Let  me  say  a  few  words  in  reference  to  another  justification  put  forth 
for  the  presence  of  the  Federal  troops  in  South  Carolina.  It  is  said 
that  the  people  of  South  Carolina  were  in  a  state  of  insurrection  against 
the  Government,  that  the  governor  was  powerless  to  suppress  it,  and 
called  on  the  President  for  aid  under  the  provisions  of  the  Constitution. 
This  is  offered  to  be  proved  to  be  false ;  but  for  the  purpose  of  consid 
ering  the  justification,  and  its  effect  on  the  election,  let  it  be  taken  to 
be  true.  The  State,  then,  was  not  only  controlled  by  turbulence  and 
violence,  but  an  insurrection  against  the  Government  and  the  execution 
of  the  laws  prevailed  over  the  constituted  authorities,  which  was  be- 


ELECTORAL    COUNT    OF    1877.  955 

yond  their  power  to  quell  and  suppress.  Such  is  the  justification  for 
sending  the  troops.  The  governor,  it  is  said,  asked  for  them,  for  he, 
with  all  the  authority  of  the  State  and  its  laws,  was  powerless. 

Is  an  election  holden  when  the  people  of  the  State  are  in  open  insur 
rection  against  its  authorities,' so  general  and  wide-spread  that  they  are 
powerless  and  the  United  States  are  called  on  to  suppress  it,  an  election 
at  all,  in  any  sense  known  to  our  law  ?  How  can  it  be  claimed  with  any 
show  of  reason  that  when  the  people  of  a  State  are  in  actual  insurrec 
tion  against  its  authorities  they  can  hold  a  valid  election,  by  which  the 
rights  of  not  only  their  own  State,  but  of  all  the  other  States,  are  to  be 
affected,  nay,  possibly  controlled  f  To  hold  such  an  election  valid  to 
affect  the  rights  of  the  people  of  the  whole  country  is  against  the  whole 
spirit  and  theory  of  our  Government. 

Therefore,  whether  the  troops  were  rightfully  sent  to  South  Carolina 
because  there  existed  there  an  insurrection  too  strong  to  be  put  down 
by  the  State  authorities,  or  whether  no  such  insurrection  existed,  and 
the  troops  were  wrongfully  sent  there  to  overawe  a  part  of  the  voters 
and  compel  them  to  support  the  party  in  power,  is  perhaps  unimportant 
to  determine,  for  in  either  case  the  reason  is  equally  strong  against 
giving  effect  to  an  election  holdeu  under  such  circumstances  and  with 
such  surroundings. 

In  whatever  light,  then,  you  look  upon  the  election  in  South  Carolina 
for  presidential  electors  on  the  7th  of  last  November,  and  its  result, 
with  the  allegations  and  offers  of  proof  before  you,  to  count  the  vote  of 
the  Hayes  electors  would  be  a  crime  against  freedom  and  free  govern 
ments — as  great  an  offense,  if  possible,  as  that  committed  by  counting 
the  votes  of  Louisiana. 


REMARKS  OF  MR.  COMMISSIONER  HOAR. 
FLORIDA. 

The  Electoral  Commission  having  under  consideration  the  question  of  counting 
the  electoral  vote  of  the  State  of  Florida — 

Mr.  Commissioner  HOAR  said  : 

Mr.  PRESIDENT  :  The  question  before  the  Commission  is  not  who 
have  been  lawfully  elected  President  and  Vice-President  of  the  United 
States.    We  are  to  decide  who  were  appointed  electors  by  the  State  of 
Florida;  and  are  now  to  consider  one  only  of  the  steps  required  in 
arriving  at  that  decision. 

The  election  of  President  is  accomplished  by  a  mechanism  wholly 
created  by  the  Constitution,  unlike  anything  else  in  the  world,  by 
which  the  executive  power  of  the  country  is  to  be  continued  without 
interruption,  and  rendered  perpetual,  by  elections  to  take  place  once  in 
four  years  by  persons  appointed  by  thirty-eight  other  sovereignties  ;  the 
appointment,  election,  ascertainment  of  the  result,  and  induction  into 
office  of  the  person  elected  being  all  required  to  be  completed  within  the 
space  of  a  few  weeks.  Whatever  aid  we  may  derive  from  the  common 
or  parliamentary  law,  or  from  the  practice  of  courts,  it  is  obvious  that 
the  best  test  of  the  question  whether  a  particular  process  belongs  in 
this  complicated  machine  is  the  inquiry  whether  if  it  be  introduced  the 
machine  will  work  ;  whether  it  will  help  or  prevent  the  accomplishment 
of  the  result. 

The  Constitution  provides  that  the  electors  of  President  and  Vice- 


956  ELECTORAL    COUNT    OF    1877. 

President  shall  be  appointed  by  the  States  in  such  manner  as  their  legis 
latures  may  direct.  These  electors,  when  appointed,  become  clothed 
with  a  right  of  suffrage  which  they  are  to  exercise  on  the  same  day  in 
all  the  States.  There  must  enter  into  the  act  of  appointment  the  exer 
cise  of  the  power  of  determining  who  is  appointed.  This  power  is  also 
lodged  in  the  State  and  must  be  exercised  as  it  provides  and  before  the 
casting  the  vote.  The  vote  cannot  be  cast  first  and  the  appointment 
consummated  afterward. 

The  law  of  the  State  of  Florida  provides  that  the  due  appointment  of 
electors  shall  be  ascertained  and  determined  by  a  board  composed  of 
certain  designated  State  officers,  who,  having  made  a  canvass,  "  shall 
determine  the  result  of  the  election  as  shown  by  the  returns ;"  *  *  * 
u  shall  make  and  sign  a  certificate  and  declare  who  shall  have  been 
elected,  which  certificate  shall  be  recorded.77  *  *  *  u  When  any 
person  shall  be  elected  to  the  office  of  elector  of  President  and  Vice- 
President,  the  governor  shall  make  out,  sign,  and  cause  to  be  sealed 
with  the  seal  of  the  State  and  transmit  to  such  person  a  certificate  of 
his  election."  It  seems  to  me  that  this  determination  of  the  canvassing- 
board  is  in  the  nature  of  a  judgment.  It  must  be  performed  before  the 
electors  receive  their  authority  or  cast  their  votes.  It  is  the  conclusive 
evidence  of  their  authority.  When  the  tribunal  on  whom  the  State  has 
imposed  the  duty  has  ascertained  and  declared  who  have  been  lawfully 
appointed  electors,  and  such  electors  have  cast  their  votes  and  duly  cer 
tified  the  result,  the  State  has  performed  its  whole  constitutional  office, 
and  isjunctus  officio  in  that  regard. 

I  do  not  think  that  any  evidence  can  be  received  to  overcome  the 
effect  of  this  determination  of  the  State  authority  as  to  wrho  were  law 
fully  appointed,  made  before  the  electors  cast  their  vote  on  the  6th  of 
December.  Further,  I  do  not  think  that  the  evidence  offered  or  sug 
gested  by  the  counsel  or  objectors  tends  to  overcome  it. 

It  is  true  that  votes  are  to  be  counted.  But  it  is  the  votes  of  those 
persons  whom  the  proper  authority  has  determined  and  certified  were 
entitled  to  cast  them,  and  not  the  votes  of  those  persons  whom  the  two 
Houses  of  Congress  or  either  of  them  may  think  were  so  entitled. 

It  seems  to  me  clear  that  the  power  to  judge  of  the  elections,  returns, 
and  qualifications  of  presidential  electors  is  not  given  by  the  Constitu 
tion  to  the  two  Houses  of  Congress,  or  either  of  them.  The  power 
which  it  was  deemed  necessary  carefully  to  express  in  regard  to  their 
own  members,  it  could  hardly  have  been" intended  to  bestow  by  implica 
tion  from  the  right  to  be  present  when  the  certificates  are  opened,  or 
even  from  the  right  to  count  the  votes.  It  is  a  power  which  it  is  utterly 
impracticable  for  Congress  to  exercise  between  the  time  when  the  cer 
tificates  are  brought  officially  to  its  knowledge  and  the  time  when  it 
must  be  determined  who  has  been  chosen  President,  Indeed,  the  dis 
tinguished  counsel  who  closed  for  theTildeu  electors  conceded  this  diffi 
culty,  to  which  his  only  answer  is  the  suggestion  that  such  an  inquiry, 
like  the  right  to  the  writ  of  quo  warranto,  must  be  limited  by  discretion  ; 
in  other  words,  that  the  two  Houses  may  go  as  far  into  the  inquiry,  who 
were  duly  chosen  electors  in  any  State,  as  they  in  their  discretion  think 
fit,  or  as  time  will  permit. 

The  statement  of  this  position  seems  to  be  its  refutation.  We  are 
now  discussing  a  question  of  jurisdiction.  In  whom  is  the  power  to 
determine  who  have  been  appointed  electors — in  Congress  or  in  the 
State"?  It  is  gravely  answered  that  it  is  in  Congress  when  the  State  to 
be  investigated  is  near  the  seat  of  Government,  or  the  inquiry  relates 
to  a  few  election-precincts  only,  but  is  to  be  left  to  the  State  in  other 


ELECTORAL    COUXT    OF    1877.  957 

cases;  that  Congress  may  exert  a  power  of  inquiry  into  an  election  in 
Delaware  which  is  impossible  as  to  California,  or  may  inquire  into  one 
election-district  in  New  York,  but  cannot  into  twenty  or  a  hundred. 
This  claim  would  never  have  arisen  in  any  man's  mind  before  the  days 
of  railroads  and  telegraphs.  Such  investigations,  possible  only  in  the 
most  limited  degree  now,  would  have  been  wholly  impossible  as  to  most 
of  the  States  when  the  Constitution  was  adopted. 

It  is  asked,  is  there  no  remedy  if  the  officers  to  whom  the  States  in 
trust  the  power  of  ascertaining  and  declaring  the  result  of  the  election 
act  fraudulently  or  make  mistakes  2  The  answer  is  that  the  Constitu 
tion  of  the  United  States  gives  no  jurisdiction  to  Congress,  when  the 
certificates  are  opened  and  the  votes  are  to  be  counted,  to  correct  such 
mistakes  or  frauds.  A  like  question  may  be  put  as  to  every  public 
authority  in  which  a  final  power  of  decision  is  lodged.  The  danger  of 
mistake  or  fraud  is  surely  quite  as  great  if  the  final  power  be  lodged 
in  Congress,  and  the  framers  of  the  Constitution  acted  in  nothing  more 
wisely  than  in  removing  from  Congress  all  power  over  the  election  of 
President. 

But  it  is  said  that  the  State  board  of  canvassers  had  no  jurisdiction  to 
reject  the  votes  of  certain  precincts,  and  that  their  decision  is  only 
binding  when  they  acted  within  their  jurisdiction.  This  is  an  erroneous 
application  of  the  term  "  jurisdiction."  The  jurisdiction  of  that  board 
is  to  determine  and  declare  who  were  chosen  electors.  The  rejection  or 
computation  of  certain  votes,  whether  right  or  wrong,  was  but  a  deter 
mination  what  evidence  or  elements  they  would  take  into  account  in  the 
exercise  of  their  jurisdiction. 

Some  of  the  arguments  have  proceeded  on  the  supposition  that  the  ques 
tion  is  whether  evidence  that  the  certificate  of  the  governor  was  fraudu 
lent  might  be  received.  But  the  certificate  of  the  governor  was,  on  the 
admission  of  both  sides,  exactly  what  his  duty  required  of  him.  It  will 
not  be  claimed  that  the  governor  in  his  single  capacity  could  re-examine 
the  action  of  the  canvassing-board  and  certify  to  anything  other  than 
the  effect  of  its  record.  The  offer  in  substance  is  that  stated  by  Mr. 
O'Couor  under  his  fifth  head,  u  that  the  board  of  State  canvassers,  act 
ing  on  certain  erroneous  views  in  making  their  canvass,  rejected  certain. 
returns.'7  But  this  seems  to  me  immaterial,  first,  because  the  question 
whether  those  views  were  sound  or  erroneous,  must  be  determined  by 
the  judgment  of  that  board  and  not  of  Congress;  and  second,  because 
the  evidence  would  not  affect  the  count  of  the  vote  unless  it  were  fur 
ther  shown  that  the  actual  result  of  the  election  was  declared  otherwise 
than  truly,  to  show  which  must  open  to  both  sides  the  whole  question 
as  to  the  votes  actually  cast  for  electors  in  Florida,  a  question  which 
the  two  Houses  of  Congress  cannot  investigate  or  determine. 

The  suggestion  made  by  the  counsel  is  that  the  canvassing-board 
"  acted  on  certain  erroneous  views.77  The  counsel  in  their  oral  argu 
ment  propose  to  show  that  the  action  of  the  State  canvassers  was  fraud 
ulent,  by  which  I  suppose  they  mean  that  they  knew  that  these  views 
were  erroneous  when  they  acted  on  them. 

It  is  vehemently  urged  that  to  refuse  to  go  behind  the  decision  of  the 
State  authority,  however  affected  by  mistake  or  fraud,  and  inquire 
into  the  truth,  may  lead  to  the  establishment  of  the  most  flagrant  in 
justice  and  wrong.  But  the  position  of  our  opponents  leads  them  to  a 
like  result.  Commissioners  Clifford  and  Field,  in  their  written  opin 
ions,  each  distinctly  assert  that  they  hold  that  the  judgment  of  the 
supreme  court  of  Florida  rendered  long  after  the  votes  for  President 
were  cast  by  the  electors,  is  conclusive  as  to  who  were  duly  chosen 


958  ELECTORAL    COUNT    OF    1377. 

such  electors,  and  that  no  evidence  whatever  can  be  received  against 
such  judgment.  Mr.  Commissioner  Bayard,  in  answer  to  my  question 
put  to  him  in  the  presence  of  the  Commission,  frankly  answered  that  he 
deemed  such  judgment  conclusive.  Both  sides,  then,  agree  in  this,  that 
the  decision  of  a  State  tribunal  upon  this  matter  is  conclusive  and 
binding  upon  all  mankind,  and  that  Congress  has  no  power  to  go  be 
hind  it.  The  difference  between  these  gentlemen  and  myself  is  this : 
they  attribute  that  conclusive  effect  to  the  judgment  rendered  after 
ward,  when  all  the  electors  had  cast  their  votes,  of  a  court  deriving  its 
authority  only  by  implication  from  the  general  power  to  issue  writs  of 
quo  warranto,  while  1  attribute  it  to  the  determination  made  before 
the  electors  discharged  their  office,  at  the  time  when  the  State  law  ex 
pressly  required  it  to  be  made,  and  by  the  persons  in  whom  the  State 
had  expressly  reposed  that  authority. 

It  does  not  seem  to  me  that  the  proceedings  of  the  State  leg 
islature  or  of  the  State  court  which  have  been  offered  in  evidence  are  of 
any  validity  whatever  5  and  this  without  reference  to  the  question 
whether  the  judgment  of  the  court  has  been  vacated  by  an  appeal,  or 
whether  the  statute  of  Florida  confines  the  effect  of  judgment  on  quo 
warranto,  to  which  the  attorney-general  is  not  a  party,  to  private  rights. 
I  think  the  function  of  elector,  under  the  Constitution  of  the  United 
States,  must  be  performed  and  ended  on  a  day  certain,  and  that  when  the 
act  has  been  performed  its  validity  cannot  be  affected  by  anything  which 
occurs  afterward.  The  right  of  a  State  to  withdraw  the  vote  of  its  elect 
ors  for  President  in  obedience  to  the  decree  of  a  court  entered  afterward 
will  not  bear  discussion. 

I  do  not  rely  upon  the  doctrine  which  recognizes  as  valid  in  law  the 
acts  of  public  or  corporate  officers  who  without  rightful  title  perform 
the  functions  of  an  office  with  which  they  are  in  part  clothed.  Unless 
the  decision  of  the  canvassing-board  and  the  certificate  of  Governor 
Stearns  to  them  thereupon  issued  made  the  persons  so  found  and  certi 
fied  to  be  chosen  the  dejure  electors  of  Florida  on  the  6th  of  December, 
I  do  not  see  that  they  were  any  more  fully  clothed  with  the  office  than 
their  competitors.  Each  of  the  sets  of  electors  who  claim  to  have  cast 
their  votes  in  Florida  did  everything  which  was  necessary  to  the  entire 
execution  of  the  office  of  presidential  elector. 

The  presidential  electors  of  a  State  are  required  by  the  Constitution 
to  meet,  and  were  doubtless  in  tbe  beginning  expected  to  consult.  They 
are  required  by  the  Constitution  jointly  to  make,  sign,  and  certify  lists, 
and  jointly  to  seal  and  transmit  them  ;  they  are  required  by  the  act  of 
Congress  jointly  to  make  certain  certificates  on  the  back  of  their  lists 
and  a  majority  of  them  jointly  to  appoint  a  messenger.  It  may  well  be 
that  one  person  or  more,  less  than  the  majority  of  the  whole  number, 
meeting  with  the  others,  recognized  by  the  others  as  entitled  to  take 
part  with  them  in  their  consultations  and  in  these  joint  acts  and  actually 
so  taking  part,  may  be  held  to  be  an  elector  or  electors  de  facto.  But 
where  two  boards,  contesting  for  an  office  whose  functions  by  law  expire 
when  one  act  has  been  performed  and  certified,  each  at  the  lawful  time 
and  place  does  everything  which  is  necessary  to  the  entire  execution  of 
the  office,  there  being  no  corporate  or  official  property  or  seal  or  func 
tion  from  which  either  excludes  the  other,  it  seems  to  me  that  that  board 
or  college  which  is  the  board  or  college  de  jure  is  also  the  board  or  col 
lege  de  facto. 

Upon  the  whole  matter,  therefore,  lam  of  opinion  that  the  appoint 
ment  of  electors  and  the  ascertaining  who  has  been  appointed  is  the 
sole  and  exclusive  prerogative  of  the  State.  The  State  acts  by  such 


ELECTORAL   COUNT    OF    1S77.  959 

agencies  as  it  selects.  The  powers  conferred  by  the  State  upon  these 
agencies  cannot  be  exercised  by  Congress.  To  usurp  them  for  the  pur 
pose  of  righting  alleged  wrongs  would  be  for  this  Commission,  which 
has  only  the  powers  of  Congress,  to  commit  the  very  wrong  which  is 
imputed  to  the  returning-boards  in  some  of  the  States.  When  the 
agencies  which  the  State  has  selected  have  acted,  the  State  has  acted  ; 
no  power  can  reverse  its  action  for  mistake  in  law  or  fact,  for  fraud, 
or  for  any  cause  whatever,  unless  it  be  a  power  higher  than  the  State, 
on  whom  the  Constitution  has  expressly  conferred  such  authority.  But 
there  is  for  this  purpose  no  such  power  higher  than  the  State,  and  the 
President  of  the  Senate  and  Congress  are  but  the  mere  servants  of  the 
State's  will  and  registers  of  its  action,  with  power  only  to  open  the  cer 
tificates  and  count  the  votes  of  the  electors  whom  the  State  authority 
has  appointed  and  certified. 


REMARKS  OF  ME.  COMMISSIONER  GARFIELD. 
FLORIDA. 

The  Commission  having  under  consideration  the  request  of  counsel  to  present  evi 
dence  to  prove  that  the  State  board  of  canvassers  of  Florida  acted  upon  erroneous 
views  in  canvassing  the  returns  of  votes  from  the  several  counties — 

Mr.  Commissioner  GARFIELD  said : 

Mr.  PRESIDENT  :  We  are  called  upon  to  determine  a  rule  of  evidence 
upon  a  proffer  of  testimony  by  counsel.  This  is  purely  a  question  of 
law,  to  be  decided  within  the  limitations  of  the  statute  which  created 
this  Commission.  We  cannot  go  beyond  those  limitations  for  any  pur 
pose  whatever.  We  are  bound  by  our  oaths  to  search  the  meaning  of 
the  statute  and  make  our  answer  to  the  proffer  on  its  merits  under  the 
law,  without  regard  to  the  consequences  which  may  result  from  the  de 
cision. 

Such  being  my  view -of  our  duty,  I  have  been  pained  to  notice  that, 
running  through  all  the  arguments  of  the  counsel  who  offered  this  tes 
timony,  and  through  the  remarks  of  those  members  of  the  Commission 
who  favor  its  reception,  has  appeared  the  assumption  that  those  who 
offer  the  testimony  are  able  to  prove  great  and  manifold  frauds,  and 
that  those  who  oppose  its  reception  do  so  because  they  do  not  wish  to 
expose  fraud.  I  wish  to  repel  this  assumption  as  being  not  only  outside 
of  the  law  we  are  seeking  to  administer,  but  as  being  gratuitous  and 
wholly  unfounded  in  fact.  It  may  not  be  out  of  place  to  call  the  atten 
tion  o*f  the  Commission  to  the  fact  that  four  counts  of  the  electoral  vote 
of  Florida  have  been  made,  as  appears  in  the  several  congressional  re 
ports  on  that  subject.  Without  vouching  for  the  correctness  of  any  of 
them,  I  will  state  by  whom  they  were  made  and  what  is  the  alleged 
result  of  each. 

First.  On  the  28th  day  of  November,  the  secretary  of  the  State  of 
Florida  laid  before  the  canvassing-board  the  returns  of  the  votes  for 
electors  from  all  the  counties  of  the  State;  and  a  count  of  this  gross 
vote,  before  any  canvass  was  made  by  the  board,  before  any  vote  was 
rejected  or  any  correction  was  made,  is  declared  to  have  shown  that 
the  Hayes  electors  had  43  majority  over  the  Tilden  electors. 

Second.  On  the  6th  clay  of  December,  the  board  of  State,  canvassers 
made  their  official  report  of  the  vote  as  canvassed  and  compiled  by 
themselves  according  to  law;  and  that  report  declared  that  the  Hayes 
electors  had  received  925  majority. 


S60  ELECTORAL    COUNT    OF    1677. 

Third.  On  the  10th  of  January,  in  obedience  to  the  order  of  the  su 
preme  court,  which  had  issued  to  the  board  of  canvassers  a  peremptory 
writ  of  mandamus,  ordering  them  to  recanvass  the  votes  for  governor 
and  to  include  in  the  count  some  polls  which  they  had  thrown  out,  the 
board  reconvened  and  recanvassed  the  vote  for  governor.  That  can 
vass  resulted  in  the  declaration  that  Drew  was  elected  governor  and 
Stearns  was  not.  Although  the  order  of  the  court  did  not  disturb  the 
former  canvass,  so  far  as  related  to  the  presidential  electors,  yet  if  the 
order  had  applied  to  the  presidential  electors  the  result  wo'uld  have- 
been  211  majority  for  the  Hayes  electors. 

Fourth.  After  Governor  Drew  was  inaugurated  and  the  new  legisla 
ture  had  assembled,  proceedings  in  quo  icarranto  before  the  district 
court  were  had,  which  resulted,  late  in  January,  in  an  order  for  the  new 
board  of  State  canvassers,  which  had  been  appointed  by  Governor 
Drew,  to  recanvass  the  votes  for  presidential  electors.  That  canvass 
was  made,  and  the  result  was  forwarded  to  the  President  of  the  Senate, 
and  was  received  by  him  less  than  two  weeks  ago.  According  to  that 
count  the  Tilden  electors  received  a  popular  majority  of  87.  But  this 
count  was  made  long  after  the  electoral  college  had  met,  given  its  votes, 
and  dissolved.  Some  discredit  is  attached  to  this  result  from  the  alle 
gation  that  this  count  was  made  by  a  board  specially  appointed  to 
achieve  a  special  result,  after  its  importance  became  known.  The  con 
firmation  of  this  count  by  the  legislature  of  Florida  has  the  same  post 
liac  character. 

Here  then  we  have  four  real  or  pretended  counts  of  the  popular  vote 
of  Florida  for  electors ;  and  three  of  them  give  the  Hayes  electors  a 
majority  ranging  from  43  to  925;  and  the  fourth,  which  was  made 
nearly  two  months  after  the  electoral  college  had  voted  and  had  become 
functus  officio,  showed  for  the  Tilden  electors  less  than  90  majority.  I  do 
not  vouch  for  the  accuracy  of  any  of  these  counts;  but  they  are  suffi 
cient  to  show  how  unfounded  and  unjust  is  the  pretension  that  virtue 
and  right  are  on  the  side  of  the  Tilden  electors,  and  that  frauds  and 
false  counting  are  to  be  attributed  to  the  other  side.  The  extremest 
claim  made  on  behalf  of  the  Tilden  electors  is  but  a  majority  of  90; 
and  that  is  set  up  against  three  counts  on  the  other  side,  &s  prima  facie 
evidence  of  the  truth. 

I  have  referred  to  these  facts  only  for  the  purpose  of  repelling  the 
assumption  that  those  who  deny  the  authority  of  this  Commission  to 
canvass  the  popular  votes  of  a  State  do  so  because  of  any  desire  or 
willingness  to  cover  up  fraud  or  prevent  its  exposure.  I  will  add  that 
while  one  political  party  charges  errors  and  frauds  on  the  part  of  the 
State  board  of  canvassers  in  declaring  the  result  of  the  election,  the 
other  party  charges  fraud,  violence,  and  intimidation  at  the  polls  to 
prevent  a  full  and  fair  vote  at  the  popular  election.  We  must  reso 
lutely  turn  away  from  the  passionate  outcries  of  both  parties,  and  from 
every  consideration  except  the  law  which  we  have  sworn  to  obey,  and 
in  the  light  of  that  law  determine  what  evidence,  if  any,  we  can  con 
sider  in  reaching  a  decision  of  the  case. 

But  first  let  us  consider  what  class  of  evidence  is  offered  arid  what 
allegations  are  sought  to  be  established  that  we  may  more  intelligently 
measure  the  offer  by  the  provisions  of  the  law  under  which  we  are 
acting. 

Let  us  survey  the  boundaries  of  the  field  which  we  are  invited  to 
enter. 

First.  In  the  opening  of  his  speech  before  us,  one  of  the  objectors, 
Mr.  Field,  said  he  "  should  have  occasion  to  mention  canvassers  in  only 


ELECTORAL    COUXT    OF    1377.  961 

one  county,"  and  "that  county  was  decisive  of  the  result."  He  asked 
us  to  hear  evidence  that  the  county  canvassers  of  Baker  County  threw 
out  the  votes  of  two  polls,  one  in  the  Darbyville  precinct  and  another 
in  the  Johnsonville  precinct.  (See  Congressional  Record,  February  3, 
page  46.) 

Thus,  at  the  first  step  of  the  contest,  we  are  asked  not  only  to  go  be 
hind  the  certificate  of  the  governor  and  behind  the  determination  of  the 
State  board  of  canvassers,  but  we  are  asked  to  review  and  correct  the 
alleged  errors  and  wrong-doings  of  a  county  judge,  a  county  clerk,  and 
a  county  sheriff,  in  making  up  their  returns  of  votes  to  the  secretary  of 
state.  How  shall  we  do  this  ?  Certainly  no  member  of  this  Commission 
will  deny  that  if  we  enter  the  door  opened  by  Mr.  Field,  we  must  hear 
both  sides.  We  must  summon  the  judge,  the  clerk,  and  the  sheriff,  to 
learn  precisely  what  they  did  and  the  reason  for  it,  and  must  have  before 
us  the  returns  from  Johnsonville  and  Darbyville  in  order  to  ascertain 
whether  they  were  lawful  and  regular  returns,  such  as  the  county  offi 
cers  were  required  by  law  to  include  in  the  general  returns  of  Baker 
County.  Probably,  in  order  to  get  at  the  very  truth,  we  should  be  com 
pelled  to  summon  the  election -officers  of  Darbyville  and  Johnsonville 
and  examine  the  ballots  and  poll-lists,  and  any  contest  arising  in  refer 
ence  to  them. 

Second.  But  while  Mr.  Objector  Field  is  willing  to  rest  his  case  upon 
the  polls  in  one  county,  Mr.  O'Conor,  the  leading  counsel  for  the  Tilden 
electors,  asks  us  to  enter  a  much  larger  field.  He  offers  evidence  to 
show  that  the  State  board  of  canvassers,  acting  "on  certain  erroneous 
views  in  making  their  canvass,  by  which  the  Hayes  electors  appeared 
to  be  chosen,  rejected  wholly  the  returns  from  the  county  of  Manatee 
and  part  of  the  returns  of  each  of  the  following  counties :  Hamilton, 
Jackson,  and  Monroe."  Mr.  O'Conor  adds  that  he  trusts  he  has  omitted 
none,  but  has  had  no  consultation.  This  extends  the  area  over  which 
evidence  is  offered  to  election-precincts  in  five  counties. 

Third.  Mr.  Evarts,  at  the  close  of  his  speech,  refers  to  the  votes  of 
five  counties,  one  of  which  was  not  named  by  Mr.  Field  or  Mr.  O'Conor. 

Fourth.  From  the  reports  of  the  committees  of  the  Senate  and  House 
on  the  subject  of  the  Florida  election,  I  observe  that  testimony  has  been 
taken  in  reference  to  polls  in  seventeen  different  counties  of  the  State. 
A  portion  of  that  testimony  I  have  no  doubt  is  contained  in  the  large 
packages  brought  before  us,  but  not  yet  opened.  Much  of  the  testimony 
referred  to  in  the  Senate  report,  relates  to  the  proceedings  at  polling- 
places,  to  alleged  frauds  on  the  part  of  voters,  and  to  errors  on  the  part 
of  officers  who  conducted  the  election. 

This  summary  of  the  evidences  proffered  is  sufficient  to  show  that  we 
cannot  take  one  step  beyond  the  final  determination  which  the  State 
itself  has  made  without  going  to  the  bottom  of  the  poll ;  in  brief,  this 
Commission  must  assume  to  be  the  canvassing  and  returning  board  of 
Florida.  A  bare  statement  of  the  proposition  shows  that  its  accomplish 
ment  by  us  is  not  merely  inconvenient;  it  is  utterly  impossible.  But  if 
the  law  under  which  we  are  acting  commands  us  to  undertake  it,  we 
must  obey.  Though  I  opposed  the  bill  in  the  House,  and  regarded  it,  as 
I  still  do,  in  conflict  with  the  constitutional  plan  of  counting  the  elec 
toral  vote,  my  opinion  was  overruled  by  the  two  Houses ;  and  I  shall  do 
all  in  my  power  to  carry  out  the  provisions  of  the  act  in  its  letter  and 
spirit.  And  this  brings  me  to  search  the  act  itself  to  ascertain  our 
powers  and  duties  under  it. 

This  law  is  based  on  the  assumption  that  it  is  the  right  and  the  duty 
of  the  two  Houses  of  Congress,  meeting  together,  to  count  the  votes  for 
61  E  o 


962  ELECTORAL    COUNT    OF    1877. 

President  and  Vice-President.  It  prescribes  the  order  of  proceeding  to 
perform  that  duty.  When  the  certificates  of  any  State  are  opened,  if 
no  objection  be  made,  the  votes  of  that  State  shall  at  once  be  counted. 
If  objection  be  made  two  modes  of  procedure  are  provided,  one  for  a 
single  return,  and  another  for  a  double  return.  The  two  Houses  pass 
upon  objections  to  a  single  return  ;  this  Commission  is  required  to  act 
in  cases  of  double  returns.  In  either  case  the  action  is  to  be  according 
to  the  Constitution  and  the  law.  In  each  the  object  to  be  reached  is  to 
count  the  lawful  votes  of  the  State.  The  provisions  of  the  act  which 
regulate  the  conduct  of  the  two  Houses  in  cases  of  single  returns  will 
throw  light  upon  the  duty  of  the  Commission  in  cases  of  double  returns. 
The  first  section  of  the  act  provides  that  in  cases  where  there  is  but  one 
return  from  a  State  and  an  objection  is  made  to  the  count,  the  two 
Houses  shall  separate  and  each  shall  act  upon  such  objection.  The 
fourth  section  provides  that — 

When  the  two  Houses  separate  to  decide  upon  an  objection  that  may  have  been  made 
to  the  counting  of  any  electoral  vote  or  votes  from  any  State,  or  upon  an  objection  to 
a  report  of  the  Commission,  or  other  question  arising  under  this  act,  each  Senator  or 
Representative  may  speak  to  such  objection  or  question  ten  minutes,  and  not  oftener 
than  once ;  but  after  such  debate  shall  have  lasted  two  hours,  it  shall  be  the  duty  of 
each  House  to  put  the  main  question  without  further  debate. 

Can  it  be  claimed  that  this  provision  implies  the  hearing  of  testi 
mony  and  the  trial  of  a  contest  ?  The  whole  time  allowed  to  the  two 
Houses  to  decide  the  gravest  objections  that  may  be  raised  to  the 
counting  of  the  vote  of  any  State  or  of  any  elector  is  but  two  hours; 
and  that  brief  period  is  devoted,  not  to  the  hearing  of  evidence,  but  to 
debate.  There  is  no  provision  in  the  section  for  taking  testimony  or 
trying  disputed  questions  of  fact.  The  reasonable  construction  of  the 
section  is  that  the  two  Houses  decide  any  questions  of  law  or  any  mat 
ter  of  informality  which  may  appear  on  the  face  of  the  certificates 
opened  by  the  President  of  the  Senate.  It  has  been  said  by  an  honor 
able  member  of  the  Commission  that,  in  deciding  upon  an  objection  to 
a  single  return,  the  two  Houses  may  exercise  their  acknowledged  power 
of  inquiry  by  sending  for  persons  and  papers,  and  may  use  testimony 
already  taken  by  their  committees ;  but  it  must  be  remembered  that  the 
contents  of  the  certificate  on  which  the  objection  is  based  can  be  known 
by  neither  House  nor  by  any  member  of  either  House  until  it  is  opened 
in  their  presence;  for  the  objection  provided  for  in  the  act  is  "  to  any 
vote  or  paper  from  a  State.77  Certainly  it  will  not  be  claimed  that  any 
testimony  taken,  before  the  contents  of  the  sealed  package  are  made 
known,  can  be  valid  and  lawful  testimony  to  sustain  an  objection  made 
afterward.  Such  testimony  might  be  ex  parte,  misleading,  and  false ; 
and  yet  in  the  two  hours  allowed  by  the  bill  it  might  be  wholly  impos 
sible  to  procure  evidence  to  overcome  it. 

If,  then,  we  take  the  proceedings  of  the  two  Houses,  under  the  first 
and  fourth  sections  of  the  act,  as  a  precedent  for  our  action  here,  we 
find  no  warrant  for  receiving  the  evidence  offered.  Again,  if  we  take 
the  proceedings  of  the  two  Houses  under  the  first  and  fourth  sections 
as  a  precedent,  we  should  compare  the  time  granted  to  the  two  Houses 
with  the  time  we  have  already  consumed  on  this  case.  We  are  far  into 
the  sixth  day  of  our  proceedings.  This  is  the  first  of  four  cases  to  be 
submitted;  and  we  are  now  debating,  not  the  merits  of  the  case,  but  a 
preliminary  question  of  procedure.  It  is  not  too  much  to  say  that  the 
admission  of  the  evidence  proffered  will  wholly  defeat  the  object  of  the 
bill. 

But  the  learned  Commissioner  FMr.  Bararu]  who  has  just  spoken 


ELECTORAL   COUNT   OF    1877.  963 

calls  attention  to  the  clause  of  the  act  which  confers  upon  us  our  pow 
ers.    It  is  in  these  words : 

All  such  certificates,  votes,  and  papers  so  objected  to,  and  all  papers  accompanying 
the  same,  together  with  such  objections,  shall  be  forthwith  submitted  to  said  Conmiis- 
sion,  which  shall  proceed  to  consider  the  same,  with  the  same  powers,  if  any,  now 
possessed  for  that  purpose  by  the  two  Houses,  acting  separately  or  together,  and  by  a 
majority  of  votes  decide  whether  any  and  what  votes  from  such  State  are  the  votes 
provided  for  by  the  Constitution  of  the  United  States,  and  how  many  and  what  per 
sons  were  duly  appointed  electors  in  such  State,  and  may  therein  take  into  view  such 
petitions,  depositions,  and  other  papers,  if  any,  as  shall,  by  the  Constitution  and  now 
existing  law,  be  competent  and  pertinent  in  such  consideration. 

This  clause  declares  what  questions  we  are  to  decide,  and  prescribes 
the  rule  of  evidence  by  which  the  decision  is  to  be  reached.  The  rule 
of  evidence,  is  that  we  "may  take  into  view  such  petitions,  depositions, 
and  other  papers,  if  any,  as  shall,  by  the  Constitution  and  now  existing 
law,  l)e  competent  and  pertinent  in  such  consideration."  In  applying  this 
rule  we  have  "  the  same  powers,  if  any,  now  possessed  for  that  purpose  by 
the  two  Houses  acting  separately  or  together."  That  is,  the  Commission  is 
clothed  with  the  powers  of  the  two  Houses  in  reference  to  counting  the 
votes  of  electors,  but  in  nothing  else. 

The  act  speaks  of  "petitions  and  depositions;"  but  it  does  not  per 
mit  us  to  consider  them  unless  we  find  that  the  Constitution  and  the 
law,  us  it  existed  before  the  passage  of  this  act,  authorized  the  two 
Houses  to  employ  them  in  counting  the  votes. 

This  act  confers  no  new  powers  upon  the  two  Houses ;  but  it  makes 
this  Commission  the  interpreter  of  the  powers  which  they  possessed 
before  its  passage.  It  is  well  known  that  the  framere  of  the  act  were 
unable  to  agree  upon  the  question  whether  the  Constitution  confers 
upon  the  two  Houses  authority  to  challenge,  for  any  purpose,  the  determ 
ination  of  the  State  authorities  in  reference  to  the  appointment  of  elect 
ors  ;  and,  because  they  could  not  agree,  they  purposely  left  it  an  open 
question  to  be  decided  by  the  Commission.  For  one,  I  did  not  consider 
it  an  open  question ;  and  I  was  unwilling  to  place  it  in  the  power  of  any 
commission  to  declare  that  the  two  Houses  possess  such  authority.  But 
the  act  permits  us  to  decide  and  pass  upon  the  question ;  and  we  are 
bound  to  decide  it  in  accordance  with  the  Constitution  and  existing 
law.  Let  us  fully  understand  the  precise  question  which  we  are  to 
decide. 

The  law  of  Florida  provides  that  the  secretary  of  state,  the  attorney- 
general,  the  comptroller  of  public  accounts,  together  with  any  member 
of  the  cabinet  who  may  be  designated  by  them,  shall  "  form  a  board  of 
State  canvassers,  and  proceed  to  canvass  the  returns  of  the  election  and 
determine  and  declare  who  shall  have  been  elected  as  shown  by  such 
returns.  If  any  such  returns  shall  be  shown  or  shall  appear  to  be  so 
irregular,  false,  or  fraudulent  that  the  board  shall  be  unable  to  determ 
ine  the  true  vote  for  any  such  officer  or  member,  they  shall  so  certify, 
and  shall  not  include  such  return  in  their  determination  and  declara 
tion."  (Section  4  of  act  of  February  27,  1872.) 

This  board,  thus  authorized  to  "determine  and  declare"  what  per 
sons  have  been  chosen  by  the  State,  did  determine  and  declare  that 
four  persons  had  been  appointed  electors  of  President  and  Vice-Pres- 
ident ;  and  the  certificate  of  the  governor,  now  before  us,  is  acknowl 
edged  to  be  in  accordance  with  the  determination.  On  this  state  of  the 
law  and  the  facts,  assuming  that  the  Constitution  empowers  the  two 
Houses,  or  either  of  them,  to  count  the  electoral  votes,  does  this  author 
ity  to  count  carry  with  it  the  authority  to  take  testimony  or  to  consider 
evidence  to  show  that  the  State  board  of  canvassers  acted  upon  erro- 


964  ELECTORAL    COUNT    OF    1677. 

neous  views  of  the  law  of  the  State,  or  made  errors  and  mistakes  in 
determining  and  declaring  who  were  elected  1 

This  is  the  main  question  we  are  now  called  upon  to  decide.  If  the 
two  Houses  possess  such  authority,  we  may  hear  the  testimony.  If 
they  do  not,  we  could  not  consider  it  if  it  were  here  in  our  hands. 

The  distinguished  Commissioner  [Mr.  Bayard]  who  has  just  spoken, 
claims  this  authority  for  the  Commission,  on  the  ground  that  the  words 
"  existing  law  "  include  the  lex parliamentaria  under  which  each  House 
may  send  for  persons  and  papers,  and  may  take  testimony  upon  any 
subject  it  pleases  ;  and  that,  as  a  matter  of  fact,  each  House  has  already 
taken  testimony  in  reference  to  the  election  in  Florida  and  in  other 
States. 

This  authority  to  take  testimony  is  not  expressly  conferred  upon  either 
House  by  the  Constitution.  It  belongs  to  the  class  of  implied  powers. 
It  is  incidental  to  the  power  to  make  laws.  Because  Congress  has  au 
thority  to  enact  laws,  it  is  a  necessary  incident  to  that  power  that  each 
House  may  procure  such  information  as  will  enable  it  to  act  with  intel 
ligence,  incidental  authority  cannot  exceed  the  express  authority  from 
which  it  is  derived.  Where  the  authority  to  legislate  ends,  there  the 
incidental  authority  to  take  testimony  also  ends. 

The  testimony  taken  for  purposes  of  legislation  is  not  testimony,  in 
the  judicial  sense.  It  is  not  taken  in  accordance  with  the  rules  of  evi 
dence  which  regulate  a  trial  before  a  jury  or  court ;  but  it  is  rather  the 
information  obtained  by  a  special  inquiry  made  for  the  purpose  of 
ascertaining  the  opinions  and  wishes  of  intelligent  citizens  upon  ques 
tions  requiring  the  action  of  Congress.  I  doubt  if  one  deposition  in 
ten,  taken  by  the  committees  sent  to  Florida,  would  be  admissible  in 
any  judicial  inquiry. 

Besides  the  testimony  taken  in  aid  of  legislation,  each  House  may 
also  take  testimony  in  the  case  of  a  contested  election  of  a  member,  in 
proceedings  to  censure  or  expel  a  member,  or  in  the  still  more  strictly 
judicial  proceeding  in  impeachment.  Bufc  these  are  authorized  by  the 
clauses  of  the  Constitution  which  provide  for  the  trial  of  impeachments, 
and  those  which  empower  each  House  to  "  be  the  judge  of  the  election, 
returns,  and  qualifications  of  its  own  members,"  and  to  punish  or  expel 
its  members  for  disorderly  behavior.  These  clauses  confer  no  authority 
whatever  upon  this  Commission.  They  do  not  relate  to  the  subject- 
matter  which  has  been  referred  to  us. 

It  will  not  do  for  us  to  claim  the  same  powers  which  we  should  pos 
sess  if  the  Constitution  made  the  two  Houses  the  judge  of  the  elections, 
returns,  and  qualifications  of  electors  of  the  President  and  Vice-Presi 
dent.  The  fact  that  no  such  power  is  expressed  in  the  Constitution,  is 
strongly  against  our  right  to  infer  it,  and  virtually  amounts  to  the  denial 
of  such  a  power. 

But  I  base  my  opinion  on  the  rule  of  evidence  upon  other  clauses  of 
the  Constitution  which  seem  to  me  conclusive  of  the  question.  I  can 
not  better  state  my  position  than  to  summarize  the  argument  which  I 
made  in  the  House  of  Eepreseutatives  three  weeks  ago. 

I  will  read  the  only  two  clauses  from  which  it  is  claimed  that  Con 
gress  derives  any  power  whatever  to  inquire  into  the  action  of  the 
States  in  appointing  electors  of  the  President  and  Yice-Presideut.  The 
second  clause  of  the  first  section  of  article  2  provides  as  follows  : 

Each  State  shall  appoint,  in  such  manner  as  the  legislature  thereof  may  direct,  a 
number  of  electors,  equal  to  the  whole  number  of  Senators  and  Representatives  to 
which  the  State  may  be  entitled  in  the  Congress;  but  no  Senator  or  Representative, 
or  person  holding  an  office  of  trust  or  profit  under  the  United  States,  shall  be  ap 
pointed  an  elector. 


ELECTORAL    COUNT    OF    1877.  965 

And  the  third  clause  of  the  same  section  provides — 

The  Congress  may  determine  the  time  of  choosing  the  electors,  and  the  day  on 
which  they  shall  give  their  votes ;  which  day  shall  be  the  same  throughout  the  United 
States. 

These  two  clauses  contain  all  the  powers  conferred  upon  the  States 
in  appointing  electors,  and  contain  also  all  the  limitations  upon  these 
powers.  There  are  five  expressed  or  implied  limitations  upon  the  power 
of  the  States,  and  only  five.  The  limitations  are  either  absolute  in  the 
Constitution  itself,  or  such  as  authorize  Congress  to  fix  limitations. 
And  if  Congress  lias  any  authority  whatever  to  interfere  with  the  action 
of  the  States  in  the  appointment  of  electors,  that  authority  must  be 
found  in  some  one  or  more  of  the  five  limitations. 

jSTo<y  what  are  these  limitations? 

First.  It  must  be  a  State  that  elects  the  electors  ;  and,  as  Congress 
alone  has  the  authority  to  admit  new  States  into  the  Union,  if  there 
should  be  any  political  organization,  not  a  State,  that  shall  cast  a  vote 
for  presidential  electors,  and  if  such  pretended  electors  send  a  certifi 
cate  of  their  vote  for  President  and  Vice-President,  the  Congress  would 
undoubtedly  have  the  right  to  inquire  into  the  authority  of  such  political 
organization  to  participate  in  the  election. 

Second.  ~No  State  c&n  have  more  electors  than  the  number  of  Sen 
ators  and  Eepreseutatives  to  which  that  State  is  entitled  in  Congress  at 
the  time  of  the  presidential  election.  If  any  State  presumes  to  elect 
more,  no  doubt  that  can  be  inquired  into.  The  surplus  votes  cannot  be 
counted.  That  is  the  second  limitation. 

Third.  The  Constitution  provides  that  no  person  shall  be  appointed 
an  elector  for  President  and  Vice-President  who  is  either  a  Senator  or 
Eepreseritative  in  Congress,  or  holds  any  office  of  trust  or  profit  under 
the  United  States.  Without  doubt,  a  violation  of  this  provision  may 
be  inquired  into  ;  for  it  is  distinctly  declared  as  a  limitation  of  the  au 
thority  of  the  State.  Whether  that  inquiry  can  be  made  without  spe 
cial  legislation  prescribing  a  mode  of  procedure,  is  a  question  aside 
from  the  topic  I  am  now  discussing. 

Fourth.  Congress  is  empowered  by  the  Constitution  to  fix  the  day 
when  the  States  shall  vote  for  electors $  and  as  Congress  has  fixed  a 
day,  the  Tuesday  after  the  first  Monday  in  November,  the  State  has  no 
right  to  vote  for  electors  on  any  other  day,  except  that,  in  case  a  State, 
having  held  an  election  on  that  day,  has  failed  to  make  a  choice,  its 
legislature  may  provide  for  holding  an  election  on  a  subsequent  day,  in 
accordance  with  the  act  of  Congress  approved  January  23, 1845.  Doubt 
less  the  inquiry  may  be  made  whether  the  election  was  held  on  the  day 
fixed  by  law. 

Fifth.  The  Constitution  provides  that  Congress  may  determine  the 
day  on  which  the  electors  in  all  the  States  shall  give  their  votes  for  Presi 
dent  and  Vice-President.  By  the  act  of  March  1,  1792,  that  fixed  day 
is  the  first  Wednesday  of  December — within  thirty-four  days  of  the  date 
of  the  general  election.  From  this  it  follows  that  all  the  steps  which 
are  necessary  to  complete  the  appointment  of  the  electors  must  have 
been  taken  by  the  first  Wednesday  in  December,  when  the  electors  are 
to  vote  for  President  and  Vice-President.  For  the  purposes  of  my  argu 
ment,  I  do  not  follow  the  process  of  electing  a  President  beyond  the  ap 
pointment  of  the  electors. 

To  sum  up  these  limitations  in  brief,  Congress,  in  obedience  to  the 
Constitution,  fixes  the  day  for  choosing  the  electors,  and  the  day  when 
they  must  vote.  The  Constitution  prescribes  that  States  only  shall 
choose  electors.  It  prescribes  the  number  of  electors  for  each  State, 


966  ELECTORAL    COUNT    OF    1877. 

and  limits  their  qualifications.  These  are  the  only  limitations  upon  the 
authority  of  the  States  in  the  appointment  of  electors  of  the  President. 
Every  other  act  and  fact  relating  to  their  appointment  is  placed  as  abso 
lutely  and  exclusively  in  the  power  of  the  States,  as  it  is  within  their 
power  to  elect  their  governors  or  their  justices  of  the  peace.  Across 
the  line  of  these  limitations  Congress  has  no  more  right  to  interfere 
with  the  States  than  it  has  to  interfere  with  the  election  of  officers  in 
England.  To  speak  more  accurately,  I  should  say  that  the  power  is 
placed  in  the  legislatures  of  the  States  5  for  if  the  constitution  of  any 
State  were  silent  upon  the  subject,  its  legislature  is  none  the  less  armed 
with  plenary  authority,  conferred  upon  it  directly  by  the  national  Con 
stitution. 

It  is  insisted  by  those  who  oppose  the  view  I  am  taking,  that,  though 
the  Constitution  authorizes  the  States  to  appoint  electors  in  such  man 
ner  as  the  legislatures  thereof  may  direct,  yet  the  two  Houses  of  Con 
gress,  in  counting  the  electoral  votes,  may  inquire  whether  the  State 
authorities  proceeded  in  accordance  with  their  own  laws,  and  may  cor 
rect  any  errors  in  the  process,  or  any  violation  of  the  State  law.  To 
this  I  answer  that  the  power  to  appoint  includes  the  power  to  do  all 
those  things  necessary  to  complete  the  appointment,  and  to  determine 
and  declare  who  have  been  appointed.  In  pursuance  of  its  authority  to 
appoint  electors,  the  State  may  not  only  provide  for  holding  a  popular 
election,  as  the  mode  of  choosing  them,  but  it  may  also  provide  by 
what  means  the  result  of  such  election  may  be  verified  and  declared; 
and  we  have  already  seen  that  the  legislature  of  Florida  has  made  such 
provision.  The  laws  of  that  State  prescribe  all  the  steps,  from  the  cast 
ing  and  counting  of  the  ballots  at  the  several  polling-places  to  the  final 
determination  and  declaration  of  the  result  by  the  board  of  State  can 
vassers.  If  any  revision  of  that  result  be  possible,  it  is  the  right  of  the 
legislature  of  Florida  to  provide  for  it,  not  the  right  of  the  two  Houses 
of  Congress  or  either  of  them. 

The  final  determination  of  the  result  of  the  election  having  been  de 
clared  by  the  authority  empowered  to  determine  and  declare  it,  that  act 
becomes  the  act  of  the  State  ;  and  the  two  Houses  of  Congress  can  no 
more  question  such  declaration  than  they  can  question  the  primary  right 
of  appointment  by  the  State. 

For  these  reasons,  Mr.  President,  I  shall  vote  against  receiving  the 
evidence  offered.  In  conclusion,  I  will  add  that  the  preservation  of  the 
right  of  the  States  under  the  Constitution  to  appoint  electors  and  de 
clare  who  have  been  appointed,  is,  in  my  judgment,  a  matter  of  much 
greater  importance  than  the  accession  of  any  one  man  to  the  Presi 
dency. 

LOUISIANA. 

On  Friday,  February  1C,  the  Commission  having  under  consideration  the  electoral 
vote  of  Louisiana — 

Mr.  Commissioner  GAEFIELD  said : 

Mr.  PRESIDENT  :  The  rule  of  evidence  adopted  by  the  Commission  in 
reference  to  Florida  was  in  fact  decisive  of  that  case.  The  same  will 
doubtless  be  true  in  the  case  before  us.  The  discussion  has  disclosed 
the  fact  that  the  rule  of  evidence  and  the  merits  of  the  case  stand 
together,  and  I  shall  proceed  upon  that  understanding  in  my  remarks. 

There  can  be  no  difference  in  principle  between  the  Florida  and  the 
Louisiana  cases,  so  far  as  the  rule  of  evidence  is  concerned,  unless  it  be 
that  the  allegation  of  fraud  and  the  offer  to  prove  fraud  on  the  part  of 


ELECTORAL    COUNT    OF    1877.  987 

the  returning-board  brings  this  case  under  principles  different  from  those 
which  the  Commission  applied  to  the  Florida  certificate.  In  that  case, 
the  counsel  proffered  evidence  to  show  that  the  State  board  of  canvass 
ers  had  proceeded  upon  an  erroneous  view  of  the  law.  In  this  case, 
they  allege  not  only  error  on  the  part  of  the  returning  board  in  the  con 
struction  of  the  law  under  which  they  acted,  bat  they  offer  to  prove 
actual  fraud. 

I  have  listened  with  great  pleasure  to  the  clear  and  able  argument 
of  the  distinguished  Commissioner  [Senator  Thurman]  who  has  just 
spoken.  He  has  aided  us  in  the  discussion  by  making  the  strongest 
possible  presentation  of  the  argument  in  favor  of  admitting  the  evi 
dence.  I  will  follow  the  order  he  has  adopted,  and  will  offer  some  sug 
gestions  in  reply. 

He  holds : 

First.  That,  assuming  the  law  of  Louisiana  which  created  the  return 
ing-board  to  be  constitutional,  the  board  was  itself  not  lawfully  organ 
ized,  because  the  vacancy  was  not  filled  as  required  by  the  act  of  No 
vember  20,  1872,  which  provides  that  "  in  case  of  vacancy  by  death, 
resignation,  or  otherwise,  by  either  of  the  board,  the  vacancy  shall  be 
tilled  by  the  residue  of  the  board."  Authorities  have  been  cited  to  sus 
tain  this  view.  It  is  no  doubt  true  that  where  the  law  creates  a  board, 
unless  otherwise  specially  provided,  its  membership  must  be  full  before 
it  can  become  a  legal  board.  But  the  rule  is  otherwise  where  it  has 
once  been  full  and  a  vacancy  has  subsequently  happened.  In  the  case 
before  us,  however,  it  is  not  necessary  to  go  into  the  general  doctrine ; 
for  we  are  able  to  determine  the  point  in  the  controversy  by  the  laws  of 
Louisiana,  as  construed  by  the  courts  of  that  State.  I  remind  the  Com 
mission  of  the  point  so  well  made  a  few  days  since  by  Mr.  Commissioner 
Field,  in  the  Florida  discussion,  that  the  construction  given  to  a  statute 
of  a  State  by  its  supreme  court  is  binding  upon  all  other  States  and 
upon  the  United  States;  and  that,  for  all  practical  purposes,  the  con 
struction  so  given  becomes  as  much  a  part  of  the  statute  as  though  the 
language  of  the  court  were  incorporated  into  the  text  of  the  law.  There 
can  be  no  doubt  of  the  correctness  of  this  position. 

In  Bank  of  Hamilton  vs.  Dudley,  2  Peters,  492,  Chief-Justice  Mar 
shall,  delivering  the  unanimous  opinion  of  the  court,  said : 

The  judicial  department  of  every  government  is  the  rightful  expositor  of  its  laws, 
and  emphatically  of  its  supreme  law. 

Again,  in  Elmdorf  vs.  Taylor,  10  Wheaton,  the  same  great  judge  says, 
at  page  159 : 

This  court  has  uniformly  professed  its  disposition,  in  cases  depending  on  the  laws  of 
a  particular  State,  to  adopt  the  construction  which  the  courts  of  the  State  have  given 
to  those  laws.  This  course  is  founded  on  the  principle,  supposed  to  be  universally  re 
cognized,  that  the  judicial  department  of  every  government  is  the  appropriate  organ 
for  construing  the  legislative  acts  of  that  government.  '  *  We  receive  the  con 

struction  given  by  the  courts  of  a  nation  as  the  true  sense  of  the  law,  and  feel  our 
selves  no  more  at  liberty  to  depart  from  that  construction  than  to  depart  from  the 
words  of  the  statute.  *"  *  *  On  the  same  principle,  the  construction  given  by  the 
courts  of  the  several  States  is  received  as  true,  unless  they  come  in  coutlict  with  the 
Constitution,  laws,  or  treaties  of  the  United  States. 

The  later  decisions  of  the  Supreme  Court  are  all  in  accordance  with 
this  doctrine.  (See  12  Wheaton,  167,  168;  6  Peters,  291;  7  Howard, 
818;  8  Howard,  558,  559;  11  Howard,  318;  14  Howard,  504;  2  Black, 
599;  1  Wallace,  175.) 

Now  apply  this  doctrine  to  the  point  under  consideration.  The  su 
preme  court  of  Louisiana  has  decided  that  the  returning-board  of  1872, 
created  under  the  act  of  March  16,  1870,  and  consisting  of  but  four 


968  ELECTORAL    COUNT    OF    1877. 

members,  (there  being  one  vacancy,)  was  the  lawful  returning- board  of 
the  State.  The  court  also  decided  that  the  clause  of  the  act  of  1870 
requiring  vacancies  to  be  filled,  which  is  precisely  the  same  as  in  the  act 
of  1872,  is  not  mandatory,  and  a  failure  to  fill  the  vacancy  does  not  ren 
der  unlawful  the  acts  of  a  remaining  quorum.  I  refer  to  the  case  of 
Bonner  vs.  Lynch,  25  Louisiana  Annual  Reports,  267,  and  to  the  cases 
therein  cited.  At  page  268  the  court  say : 

We  decided  in  the  case  of  Ivennard  vs.  Morgan,  and  again  in  the  case  of  Hughes  vs. 
Pitkin,  that  the  board  of  returning  officers,  composed  of  John  Lynch,  George  E.  Bovee, 
James  Longstreet,  and  Jacob  Hawkins,  was  the  legal  returning-board  of  the  State  at 
the  late  November  election.  That  board,  it  appears,  returned  the  defendant,  Lynch,  as 
elected  judge  of  the  fourth  district  court  of  New  Orleans  ;  and  upon  that  return  the 
acting  governor  issued  a  commission  to  him  according  to  law. 

The  court  held  the  returns  of  the  election  by  that  board  valid ;  and 
upon  the  principle  so  long  and  so  well  settled  by  the  Supreme  Court  of 
the  United  States  we  are  concluded  on  the  question.  As  a  matter  of 
right  and  fairness,  the  board  ought  to  have  filled  the  vacancy  by  ap 
pointing  a  democrat;  but  their  failure  to  do  so  did  not  invalidate  their 
acts  done  in  pursuance  of  the  law. 

Second.  The  distinguished  Commissioner  [Mr.  Thurman]  holds  that 
if  the  board  had  been  full,  and  organized  in  accordance  with  the  law, 
yet  the  law  itself  and  the  board  created  by  it  are  unconstitutional  and 
unrepublican. 

Here  again  I  appeal  for  my  answer  to  the  authority  of  the  supreme 
court  of  Louisiana,  which  is  conclusive  upon  this  Commission  and  upon 
all  courts.  I  quote  again  from  Bonner  vs.  Lynch,  25  Louisiana  Annual 
Eeports,  268,  where  the  court  says  : 

The  legislature  has  seen  proper  to  lodge  the  power  to  decide  who  has  or  has  not  been 
elected  in  the  returning-board.  It  might  have  conferred  that  power  upon  the  courts, 
but  it  did  not.  Whether  the  law  be  good  or  bad,  it  is  our  duty  to  obey  its  provisions 
and  not  to  legislate.  ]  *  *  Having  no  power  to  revise  the  action  of  the  board  of 
returning-officers,  we  have  nothing  to  do  with  the  reasons  or  grounds  upon  which  they 
arrived  at  their  conclusion. 

The  court  declares  the  law  valid ;  and  that  alone  ends  the  controversy. 
But  I  submit  that  it  is  not  necessary  to  have  recourse  to  the  constitu 
tion  of  the  State  to  find  authority  for  the  legislature  to  prescribe  the 
mode  of  appointing  electors  of  President  and  Vice-President.  The  na 
tional  Constitution  confers  that  power  directly  upon  the  legislature  of 
the  State.  In  1796,  at  the  time  of  the  presidential  election,  there  was 
no  provision  in  the  constitution  or  laws  of  Vermont  for  choosing  electors. 
But  the  legislature  of  that  State,  of  its  own  motion,  appointed  the  elect 
ors  ;  and  Congress  did  not  question  the  validity  of  the  transaction. 

Whether  the  acts  of  the  returniiig-board  were  in  conflict  with  the  con 
stitution  of  Louisiana  or  not,  they  were  in  accordance  with  the  mode  of 
procedure  prescribed  by  the  legislature ;  and  the  national  Constitution 
confers  upon  the  State  legislature  the  sole  and  exclusive  authority  to 
prescribe  the  mode  of  appointment. 

In  view  of  the  other  clause  of  the  objection,  that  the  law  is  unrepub 
lican,  it  may  be  worth  while  to  consider  the  causes  which  led  to  its  en 
actment. 

If  I  were  framing  a  body  of  election  laws  for  Ohio,  I  certainly  should 
not  adopt  the  Louisiana  law  as  my  model.  But  it  is  difficult  to  see  how 
the  election  laws  that  prevail  in  most  of  the  States  could  be  made  effect 
ive  to  repress  the  evils  that  have  afflicted  Louisiana.  No  State  of  the 
Union  has  passed  through  an  experience  so  sad  and  so  calamitous. 

It  is  not  necessary  to  repeat  the  history  of  the  tragic  events  which 
for  several  years  threatened  to  dissolve  the  bonds  of  society  and  to  de- 


ELECTORAL    COUNT    OF    1877.  969 

stroy  both  liberty  and  law  in  that  State.  It  is  sufficient  for  rny  present 
purpose  to  call  the  attention  of  the  Commission  to  article  103  of  her 
present  constitution  adopted  in  1868.  It  is  in  these  words : 

The  privilege  of  free  suffrage  shall  be  supported  by  laws  regulating  elections  and 
prohibiting  under  adequate  penalties  all  undue  influence  thereon  from  power,  bribery, 
tumult,  or  other  improper  practice. 

I  doubt  if  a  similar  provision  can  be  found  in  the  constitution  of  any 
other  State  in  the  Union.  It  is  probable  that  no  other  State  has  found, 
by  terrible  experience,  that  such  a  provision  was  necessary  to  its  peace. 
Will  any  one  say  that  it  is  unrepublieau  for  a  State  to  require  its  legis 
lature  to  protect  its  voters  against  "  bribery  and  tumult"  at  elections  I 

The  law  under  which  the  returning-board  acted  at  the  late  election 
was  passed  in  pursuance  of  this  provision  of  the  constitution.  In  its 
title  it  is  declared  to  be  "An  act  to  regulate  the  conduct  and  to  main, 
tain  the  freedom  and  purity  of  elections  ;  to  prescribe  the  mode  of  mak 
ing  the  returns  thereof;  to  provide  for  the  election  of  returning-officers- 
to  define  their  powers  and  duties,  and  to  enforce  article  103  of  the  con 
stitution." 

It  is  a  general  law,  applicable  to  all  elections  held  within  the  State. 
If  its  provisions  are  unrepublican,  then  the  State  itself  is  unrepublican;, 
for  all  the  officers  which  the  State  has  elected  during  the  last  seven 
years  have  been  chosen  and  declared  elected  in  pursuance  of  this  or  a 
law  substantially  like  this.  We  are  told  that  the  powers  granted  to  the 
returning-board  are  unrepublican.  It  should  not  be  forgotten  that  the 
power  to  canvass,  determine,  and  declare  the  result  of  elections  must 
be  lodged  somewhere;  that  some  authority  or  authorities  of  a  State 
must  finally  determine  who  have  been  elected. 

In  Ohio,  for  example,  the  duties  of  the  state  board  of  canvassers  are 
wholly  ministerial.  They  can  do  nothing  but  add  up  the  returns  sent 
from  the  counties  and  announce  the  result.  The  actual  work  of  can 
vassing  and  judging  is  left,  not  to  one  board,  but  to  four  or  five  thou 
sand  boards,  called  judges  of  election,  who  sit  behind  the  ballot-boxes, 
clothed  with  power  to  administer  oaths* and  prevent  the  casting  of  un 
lawful  ballots.  When  the  polls  are  closed,  each  of  these  local  return- 
ing-boards  proceeds  to  determine  and  declare  the  result.  But  they  do 
not  count  as  lawful  votes  "  all  the  ballots  actually  cast."  If  they  find 
two  votes  so  folded  together  that  in  their  judgment  both  were  cast  by 
the  same  voter,  such  ballots  are  thrown  out  and  constitute  no  part  of 
the  lawful  vote.  If  they  find  a  printed  name  pasted  over  another  name 
on  the  ticket,  they  reject  the  name  on  the  paster.  If  they  find,  on  com 
pleting  the  count,  that  the  number  of  ballots  in  the  box  exceeds  the 
number  of  names  on  the  poll-lists,  they  draw  out,  by  lot,  a  number  of 
ballots  equal  to  the  excess,  and  reject  them  wholly  from  the  count.  It 
may  be  that  every  fraudulent  ballot  was  put  in  by  one  political  party, 
and  that  every  vote  drawn  out  and  rejected  by  the  judges  was  lawfully 
cast  by  the  other  party.  But  the  judges  are  ministers  of  the  law,  and 
they  purge  the  poll  before  declaring  the  result.  It  is  not  the  count  of 
ballots  actually  cast,  but  the  result  as  declared  by  these  judges,  which 
constitutes  the  lawful  vote  of  the  precinct.  The  declarations  made  and 
certified  to,  at  the  four  thousand  ballot-boxes  of  Ohio,  are  forwarded 
through  the  county  officers  to  the  designated  State  officers,  and  there 
remains  only  the  ministerial  work  of  addition  and  declaration. 

In  Louisiana  it  was  found  impossible  to  preserve  peace  and  order  at 
all  the  polls  of  the  State,  if  the  local  officers  of  elections  were  intrusted 
with  the  quasi-judicial  powers  which  are  exercised  by  such  officers  in 
Ohio.  And  hence,  in  the  matter  of  counting  votes,  the  Louisiana  stat- 


970  ELECTORAL    COUNT    OF    1877. 

ute  enjoins  only  ministerial  duties  upon  the  local  election  officers.  They 
must  count  what  they  find  in  the  ballot-boxes,  and  must  forward  the 
result,  together  with  the  poll-lists,  through  the  parish  officers,  to  the 
State  returning-board.  In  that  board  the  law  has  vested  the  quasi- 
judicial  powers,  without  which  no  popular  election  can  be  conducted. 
To  that  board  are  delivered  the  unpurged  polls  of  the  State,  and  the 
law  requires  them — 

To  canvass  and  compile  the  returns  of  the  election  and  declare  the  names  of  all  per 
sons  and  officers  who  have  been  duly  and  lawfully  elected. 

In  making  that  canvass  and  compilation  the  board  must  proceed  in 
the  order  laid  down  in  the  statute  : 

They  shall  compile,  first,  the  statements  from  all  polls  or  voting-places  at  which 
there  shall  have  been  a  fair,  free,  and  peaceable  registration  and  election. 

And  whenever  proof  is  made  to  the  board  as  required  by  the  stat 
ute— 

Of  any  riot,  tumult,  acts  of  violence,  intimidation,  armed  disturbance,  bribery  or 
corrupt  influences,  which  prevented,  or  tended  to  prevent,  a  fair,  free,  and  peaceable 
vote  of  all  qualified  electors  entitled  to  vote  at  such  poll  or  voting-place,  such  return- 
ing-officers  shall  not  canvass,  count,  or  compile  the  statement  of  votes  from  such  poll 
or  voting-place  until  the  statements  from  all  other  polls  or  voting-places  shall  have 
been  canvassed  and  compiled.  The  returning-officers  shall  then  proceed  to  investigate 
the  statements  of  riot,  tumult,  acts  of  violence,  intimidation,  armed  disturbance, 
bribery  or  corrupt  influences,  at  any  such  poll  or  voting-place. 

And  for  that  purpose  they  have  power  to  send  for  persons  and  papers 
and  examine  witnesses. 
The  statute  then  declares  that — 

If,  after  such  examination,  the  said  returning-officers  shall  be  convinced  that  said 
riot,  tumult,  acts  of  violence,  intimidation,  armed  disturbance,  bribery  or  corrupt 
influences,  did  materially  interfere  with  the  purity  and  freedom  of  the  election  at  such 
poll  or  voting-place,  or  did  prevent  a  sufficient  number  of  the  qualified  electors  thereat 
from  registering  and  voting  to  materially  change  the  result  of  the  ejection,  then  the 
said  returning-officers  shall  not  canvass  or  compile  the  statement  of  the  votes  of  such 
poll  or  voting-place,  but  shall  exclude  it  from  their  returns. 

Here,  then,  is  a  board  upon  whom  the  State  of  Louisiana  has  conferred 
those  quasi-judicial  powers  which,  in  other  States,  are  usually  con 
ferred  upon  the  judges  of  election  in  the  several  voting-precincts.  Who 
shall  say  that  it  is  unrepublican  for  a  State  of  the  Union  to  adopt  the 
Louisiana  mode  of  conducting  elections  rather  than  the  Ohio  mode? 
Certainly  each  State  has  the  right  to  choose  that  method  which  it  deems 
best  for  its  own  protection. 

Third.  The  distinguished  Commissioner  [Mr.  Thurman]  holds  that  if 
the  returning-board,  in  making  their  returns,  exceeded  the  jurisdiction, 
conferred  upon  them  by  law,  all  their  acts  in  excess  of  such  jurisdiction 
are  void ;  and  that  this  Commission  may  examine  and  decide  whether 
the  board  did  in  fact  exceed  its  j  urisdiction-. 

He  does  not  insist,  as  some  have  done,  that  the  two  Houses  of  Con 
gress  have  authority  to  question  the  real  voice  of  a  State  in  declaring 
who  have  been  chosen  as  electors;  but  he  holds  that  they  may  inquire 
whether  the  returning-board  did  utter  the  true  voice  of  the  State.  This 
proposition  is  strongly  put,  but  I  believe  it  to  be  unsound.  Its  real 
meaning  is  obscured  by  the  use  of  the  word  "jurisdiction."  If,  under 
cover  of  inquiring  into  the  jurisdiction  of  the  returning-board,  Congress 
may  go  behind  the  determination  of  that  board,  it  follows  that  the  power 
of  Congress  is  not  limited  to  the  counting  of  the  electoral  votes,  but  ex 
tends  to  the  counting  of  the  popular  vote  by  which  the  electors  them 
selves  were  chosen. 

The  authority  of  the  State  to  appoint  electors,  as  I  tried  to  show  in 


ELECTORAL    COUNT    OF    1677.  971 

the  Florida  case,  carries  with  it  the  authority  to  do  every  act  necessary 
to  complete  the  appointment,  and  to  determine  and  declare  who  has  been 
appointed.  It  must  also  carry  with  it  the  authority  to  decide  whether 
the  board,  created  for  the  purpose  of  determining  and  declaring  the 
result,  has  acted  within  its  jurisdiction. 

If  the  State  has  made  no  complaint  of  excess  of  jurisdiction  on  the 
part  of  the  board,  it  is  difficult  to  see  how  the  two  Houses  of  Congress 
can  do  so.  Jurisdiction  in  general  may  depend  upon  territory,  upon 
time,  or  upon  subject-matter.  In  this  case  the  only  question  relates  to 
subject-matter.  But  the  very  subject-matter  upon  which  the  board  is 
authorized  to  act  is  summed  up  in  a  single  sentence:  u They  are  to 
determine  what  persons  have  been  elected  according  to  law."  That 
they  did  determine  and  declare.  But  the  learned  Commissioner  says 
they  made  an  unjust  decision,  they  excluded  votes  which  ought  to 
have  been  counted,  and,  in  arriving  at  .the  result,  adopted  methods 
which  were  beyond  their  jurisdiction.  But,  like  every  other  tribunal, 
they  were  the  judges  of  their  own  jurisdiction,  unless  the  law  itself  pro 
vided  another  tribunal  to  determine  that  question. 

It  will  not  do  to  say  that  because  a  judgment  is  erroneous,  it  is  there 
fore  beyond  the  jurisdiction  of  the  tribunal  that  declares  it.  Jurisdic 
tion  to  decide  a  case  implies  jurisdiction  to  decide  it  wrong.  Hundreds 
of  cases  before  the  Supreme  Court  have  turned  on  the  question  of  juris 
diction,  and  that  question  has  often  been  decided  by  a  divided  court. 
The  distinguished  members  of  this  Commission  who  are  justices  of  that 
court  will  probably  admit  that  that  great  tribunal  may  sometimes  have 
passed  upon  the  merits  of  a  case  of  which  it  was  erroneously  held  that 
they  had  jurisdiction.  But  as  their  judgments  are  final,  even  such  er 
roneous  decision  was  valid. 

Now,  it  is  not  denied  that  the  law  of  Louisiana  confers  upon  the  re- 
turning-board  the  power  "to  determine  and  declare n  who  have  been 
appointed  its  electors.  That  duty  is  their  jurisdiction.  In  the  case  of 
the  governor  and  other  State  officers,  the  legislature  may  revise  the 
finding  of  the  board ;  but  in  determining  who  have  been  appointed  elect 
ors,  no  such  power  of  revision  is  conferred  upon  the  legislature.  It  fol 
lows  that  the  determination  of  the  board,  if  not  overruled  by  the  courts 
of  that  State,  is  the  final  and  conclusive  decree  of  the  State  itself.  That 
decree  we  have  no  power  to  question  or  review.  The  State  appoints 
electors  and  declares  who  have  been  appointed.  The  utmost  that  can  be 
claimed  for  the  two  Houses  of  Congress  is  the  authority  to  count  the 
votes  cast  by  the  electors.  In  doing  that  they  may  inquire  whether  the 
certificates  of  votes  are  genuine;  whether  they  are  signed  by  the  recog 
nized  officers  of  the  State;  in  short,  may  inquire  if  the  certificates  do, 
in  fact,  represent  the  determination  of  the  State.  But  beyond  that  de 
termination  Congress  cannot  go.  In  issuing  the  certificates,  the  gov 
ernor  does  not  represent  the  State.  He  acts  at  the  request  of  Congress. 
The  act  of  1792  makes  it  his  duty  to  certify  to  the  President  of  the  Sen 
ate  what  the  State  has  done  in  reference  to  the  appointment  of  electors. 
If  his  certificate  does  not  testify  truly,  the  authority  which  counts  may 
go  behind  the  certificate  until  the  actual  declaration  of  the  State  is 
found;  but  there  the  inquiry  ends.  To  go  one  step  further,  is  to  evade 
the  exclusive  domain  of  State  authority. 

I  am  no  champion  of  State  sovereignty  as  that  doctrine  has  some 
times  been  taught  in  our  political  history.  But  there  are  rights  so 
clearly  -and  exclusively  conferred  upon  the  States,  that  to  invade  them 
is  to  break  up  the  solid  foundation  of  our  institutions ;  and  if  one  act  can 
be  more  sovereign  than  another,  it  may  fairly  be  said  that  the  most  sov- 


972  ELECTORAL    COUNT    OF    1877. 

ereign  act  which  a  State  of  this  Union  can  perform  is  the  act  of  choos 
ing  the  meD  who  shall  cast  its  vote  for  President  and  Vice-Presideut. 
Against  the  theory  now  urged  upon  us,  that  we  may  review  all  the  pro 
cesses  by  which  Louisiana  has  given  her  vote  for  President  at  the  late 
election,  I  oppose  this  highest  and  most  unquestioned  right  of  each 
State  of  the  Union. 

It  has  been  said,  in  the  course  of  our  deliberations,  that  this  view  of 
the  case  is  technical  ;  that  what  is  asked  on  the  other  side  is  to  ascer 
tain  the  very  right  and  truth  of  this  matter;  to  ascertain  who  was  in 
fact  really  voted  for  by  the  people  of  Louisiana.  I  might  respond  by 
saying  that  the  objections  to  the  finding  of  the  returniug-board  are 
themselves  in  the  highest  degree  technical.  We  are  asked  to  go  behind 
the  decree  of  the  returning.board ;  but  for  what  purpose  ?  For  the 
purpose  of  adding  to  the  count  some  votes  actually  cast  but  which  were 
rejected  by  the  board  as  unlawful.  We  are  told  that  some  of  these  polls 
were  improperly  rejected  ;  and  why  improperly?  Because  it  is  alleged 
that,  in  rejecting  these  polls,  certain  technical  formalities  were  not  com 
plied  with.  For  example,  it  is  alleged  that  the  protests  against  the  valid 
ity  of  these  rejected  ballots  were  not  filed  within  forty-eight  hours  after 
the  closing  of  the  ballot-boxes ;  and  if  protests  were  not  filed  within  that 
time,  the  board  could  not  consider  them,  no  matter  how  corrupt  and 
fraudulent  the  ballots  might  be.  They  say  we  stand  upon  a  technicality ; 
but  they  ask  us  to  break  through  one  only  to  rest  upon  another. 

If  this  Commission  has  authority  to  go  behind  the  decree  of  the  re- 
turning-board  for  any  purpose,  it  must  have  the  power  to  go  behind  it 
for  all  the  purposes  of  ascertaining  the  truth ;  and  if  we  enter  upon 
such  an  inquiry,  if  we  open  the  testimony  that  both  sides  will  proffer, 
we  shall  find  a  group  of  allegations  like  these :  that  in  forty-two  par 
ishes  of  Louisiana,  where  both  sides  agreed  that  there  was  a  fair  and 
free  election,  the  Hayes  electors  received  an  aggregate  of  6,000  majority; 
that  in  two  groups  of  parishes  where  the  validity  of  the  returns  was 
contested,  there  existed  such  a  state  of  intimidation  and  terror,  violence 
and  murder,  that  the  voice  of  the  republican  party  was  almost  wholly 
suppressed ;  that,  for  example,  in  the  parish  of  East  Feliciana,  which 
for  years  had  cast  a  large  republican  majority,  not  one  republican  vote 
was  cast  at  the  late  election  ;  that  in  many  precincts  within  the  dis 
turbed  districts,  hundreds  of  negroes  were  forced  by  the  coercion  of 
threats  and  intimidation  to  vote  the  democratic  ticket  against  their  will ; 
and  that  on  the  whole,  within  the  terrorized  districts,  the  voice  of  the 
republican  voters  was  so  effectually  stifled  as  to  produce  an  apparent 
majority  for  the  democratic  electors,  sufficient  to  overcome  the  6,000 
republican  majority  in  the  undisturbed  portions  of  the  State. 

If  we  take  one  step  behind  the  determination  of  the  State  authorities, 
we  must  go  to  the  bottom  of  the  case.  It  will  not  do  to  go  just  far 
enough  to  find  votes  actually  cast,  and  shut  our  eyes  to  the  violence  and 
outrage  that  put  such  votes  in  the  boxes.  The  duty  of  purging  the 
polls,  and  finding  the  real  result  of  the  election,  was,  by  law,  enjoined 
upon  the  returning-board  of  the  State.  That  duty  they  performed. 
Whether  wisely  or  unwisely,  justly  or  unjustly  in  every  instance,  I  am 
not  prepared  to  say;  but  I  take  the  liberty  to  remark  that  after  a  careful 
study  of  the  history  of  that  election,  and  considering  the  turbulence  and 
irregularities  which  have  long  prevailed  in  that  State,  I  am  of  the  opin 
ion  that,  on  the  whole,  the  decree  of  the  returuing-board  is  in  accordance 
with  substantial  justice.  I  have  no  doubt  that  thousands  of  voters 
were  prevented  from  the  exercise  of  their  suffrage.  For  that  evil  the 
laws  of  Louisiana  provide  no  remedy.  But  they  do  command  the 


ELECTORAL    COUNT    OF    1877.  973 

rejection  of  polls  that  are  tainted  by  violence,  intimidation,  and  fraud. 
And,  in  doing- that,  the  State  has,  in  part,  repaired  the  wrong  sought  to 
be  committed  upon  her  people. 

Before  concluding,  I  must  refer  to  the  single  feature  in  which  the 
Louisiana  case  is  said  to  differ  from  the  case  of  Florida.  There  coun 
sel  offered  evidence  to  show  that  the  board  of  canvassers  had  acted 
upon  an  erroneous  view  of  the  law»  and  had  made  errors  and  mistakes 
in  determining  the  result  of  the  election.  Here  they  offer  evidence  to 
show  that  the  return  ing-board  acted  fraudulently  in  determining  the 
result.  On  the  doctrine  that  fraud  vitiates  everything,  we  are  told  that 
if  fraud  be  proved  in  this  case,  it  vitiates  the  determination  of  the 
board. 

But  the  allegation  of  fraud  does  not  confer  jurisdiction  of  a  subject 
which  the  law  does  not  authorize  a  tribunal  to  consider.  The  real  ques 
tion  is  whether  the  allegation  of  fraud  in  the  processes  of  the  returning- 
board  confers  upon  the  two  Houses  of  Congress,  or  upon  this  Commis 
sion  acting  in  their  stead,  the  jurisdiction  to  inquire  into  those  processes 
and  hear  evidence  to  prove  fraud. 

A  case  decided  by  the  Supreme  Court  of  the  United  States  in  1870, 
and  which  has  already  been  referred  to  by  one  of  the  commissioners  for 
another  purpose,  applies  so  strikingly  to  the  point  under  consideration 
that  I  will  cite  its  leading  feature.  I  refer  to  the  case  of  Virginia  vs. 
West  Virginia,  11  Wall.,  39. 

In  adjusting  the  boundary  between  the  States  of  Virginia  and  West 
Virginia  an  agreement  was  made  that  the  counties  of  Jefferson  and 
Berkeley  might  become  a  part  of  West  Virginia,  on  condition  that  a 
majority  of  the  votes  cast  on  that  question  in  the  two  counties  should  be 
found  in  favor  of  annexation.  A  special  statute  regulated  the  mode  of 
conducting  the  election  and  determining  the  question,  and  provided, 
among  other  things,  that — 

The  governor  of  this  State,  if  of  opinion  that  the  said  vote  has  been  opened  and  held, 
and  the  result  ascertained  and  certified  pursuant  to  law,  shall  certify  the  result  of 
the  same,  under  the  seal  of  this  State,  to  the  governor  of  the  said  State  of  West  Vir 
ginia. 

The  election  was  held  and  the  result  declared  by  the  governor.  But 
subsequently  the  State  of  Virginia  filed  a  bill  in  chancery  against  West 
Virginia  to  recover  back  the  jurisdiction  of  those  counties,  upon  the 
ground  that  the  vote  was  not  fairly  taken,  and  that  the  returns  upon 
which  the  governor  issued  his  certificate  were  false  and  fraudulent.  The 
bill  alleged,  in  terms,  "  that  the  vote  taken  was  not  a  fair  and  full  ex 
pression  of  the  people  of  those  counties,  and  that  the  officers  who  made 
their  returns  to  the  governor  falsely  and  fraudulently  suggested  and 
falsely  and  untruly  made  it  to  appear  to  the  governor  of  the  common 
wealth  that  a  large  majority  of  the  votes  was  given  in  favor  of  annexa 
tion  ;  and  that  his  determination  of  the  result,  being  based  upon  such 
false  and  fraudulent  returns,  was  illegal  and  void." 

These  allegations  are  strikingly  analogous  to  the  offers  of  proof  now 
pending  before  this  Commission.  In  reference  to  the  allegations  of  fraud, 
Mr.  Justice  Miller,  delivering  the  opinion  of  the  court,  said  : 

But  waiving  these  defects  in  the  bill,  we  are  of  opinion  that  the  action  of  the  governor 
is  conclusive  of  the  vote  as  between  the  States  of  Virginia  and  West  Virginia.  He  was, 
in  legal  effect,  the  State  of  Virginia  in  this  matter.  In  addition  to  his  position  as  ex 
ecutive  head  of  the  State,  the  legislature  delegated  to  him  all  its  own  power  in  the  prem 
ises.  It  vested  him  with  large  control  as  to  the  time  of  taking  the  vote,  and  it  made  his 
opinion  of  the  result  the  condition  of  final  action. 


974  ELECTORAL    COUNT   OF    1877. 

Even  upon  an  allegation  of  fraud  the  court  would  not  go  behind  the 
determination  of  the  officer  on  whom  the  State  had  conferred  the  au 
thority  to  declare  the  result  of  the  election.  This  is  precisely  the  case 
before  us.  The  State  of  Louisiana  had  empowered  the  returniug-board 
to  determine  and  declare  who  had  been  appointed  electors,  and  having 
provided  no  appeal  from  its  decision,  its  action  became  the  final  and 
conclusive  determination  of  the  State ;  and  neither  Congress  nor  this 
Commission  has  any  authority  to  inquire  whether  there  was  fraud  or 
error  in  the  process  by  which  the  determination  was  reached. 

To  sum  up  the  points  already  made : 

In  appointing  her  electors,  the  State  of  Louisiana  has  followed  the 
method  prescribed  by  her  legislature.  That  method  has  been  reviewed 
by  her  supreme  judicial  tribunal,  and  has  been  declared  to  be  in  accord 
ance  with  her  constitution.  It  is  also  in  accordance  with  the  Constitu 
tion  of  the  United  States.  Of  all  the  steps  leading  to  that  appointment, 
the  State,  through  her  chosen  organs,  is  the  sole  determining  power. 
She  has  determined  and  declared  that  the  persons  named  in  certificate 
No.  1  were  duly  and  lawfully  appointed  her  electors  of  President  and 
Vice-President. 

Those  persons  met  at  the  time  required  by  law;  finding  vacancies  in 
their  number  they  filled  such  vacancies  in  the  manner  prescribed  by  the 
law  of  the  State;  and,  in  pursuance  of  the  national  Constitution,  they 
cast  their  votes  and  certified  the  same  to  the  President  of  the  Senate. 
These  certificates  have  been  opened  in  the  presence  of  the  two  Houses 
of  Congress  ;  and  there  remains  but  one  duty  more  :  that  is,  to  obey  the 
imperial  command  of  the  Constitution,  which  declares,  u  the  vote  shall 
then  be  counted.77 

Certificate  No.  2  comes  with  no  semblance  of  authority.  It  is  signed 
by  a  man  who  for  three  years  has  not  even  pretended  to  be  governor.  It 
is  based  upon  no  finding  or  declaration  of  any  officer  or  pretended  officer 
of  the  State.  It  has  no  validity  whatever.  It  carries  upon  its  face  all 
the  indications  of  worthlessness. 

I  shall  vote  against  receiving  the  proffered  evidence,  and  in  favor  of 
counting  the  votes  reported  in  the  first  certificate. 


REMARKS  OF  ME.  COMMISSIONER  FIELD. 

FLORIDA. 

On  the  7th  of  February  the  Commission  having  under  consideration  the  electoral 
vote  of  Florida — 

Mr.  Justice  FIELD  said  : 

Mr.  PRESIDENT  :  After  the  elaborate  arguments  made  yesterday  by 
the  members  of  the  Commission  from  the  Senate  and  House  of  Repre 
sentatives,  I  cannot  hope  to  throw  much  light  on  the  subject  under  dis 
cussion.  I  shall,  therefore,  confine  myself,  in  the  brief  observations  I 
propose  to  make,  to  a  statement  of  what  I  deem  to  be  the  law  applicable 
to  the  case  before  us. 

The  main  question  submitted  to  us,  the  one  to  which  all  other  in 
quiries  are  subordinate,  is,  whom  has  the  State  of  Florida  appointed  as 
electors  to  cast  her  vote  for  President  and  Vice-President.  The  electoral 
act,  under  which  we  are  sitting,  makes  it  our  duty  to  decide  "  how  many 
and  what  persons  were  duly  appointed  electors"  in  that  State. 

The  Constitution   declares   that  each  State   shall   appoint  electors 


ELECTORAL   COUNT    OF   1877.  975 

"  in  such  manner  as  the  legislature  thereof  may  direct."  It  fixes  the 
number  to  be  appointed,  which  is  to  be  equal  to  the  whole  number  of 
Senators  and  [Representatives  to  which  the  State  may  be  entitled  in 
Congress.  It  declares  who  shall  not  be  appointed ;  that  is,  no  Senator 
or  Representative,  or  person  holding  an  office  of  trust  or  profit  under 
the  United  States.  With  the  exception  of  these  provisions  as  to  the 
number  of  electors  and  the  ineligibility  of  certain  persons,  the  power 
of  choice  on  the  part  of  the  State  is  unrestricted.  The  manner  of  ap 
pointment  is  left  entirely  to  its  legislature. 

What,  then,  was  the  manner  of  appointment  directed  by  the  legisla 
ture  of  Florida  ?  This  is  manifestly  a  proper  subject  for  our  inquiry, 
for  if  another  and  different  manner  from  that  directed  by  the  legislature 
has  been  followed  in  the  appointment  of  persons  as  electors,  such  per 
sons  are  not  "  duly  appointed"  in  the  State,  and  we  must  so  decide.  Any 
substantial  departure  from  the  manner  prescribed  must  necessarily  viti 
ate  the  whole  proceeding.  If,  for  example,  the  appointment  of  elect 
ors  should  be  made  by  the  governor  of  a  State,  when  its  legislature  had 
directed  that  they  should  be  chosen  by  the  qualified  voters  at  a  general 
election,  the  appointment  would  be  clearly  invalid  and  have  to  be  re 
jected.  So,  too,  if  the  legislature  should  prescribe  that  the  appointment 
should  be  made  by  a  majority  of  the  votes  cast  at  such  election,  and 
the  canvassers,  or  other  officers  of  election,  should  declare  as  elected 
those  who  had  received  only  a  plurality  or  a  minority  of  the  votes,  or 
the  votes  of  a  portion  only  of  the  State,  the  declaration  would  be 
equally  invalid  as  not  conforming  to  the  legislative  direction ;  and  the 
appointment  of  the  parties  thus  declared  elected  could  only  be  treated 
as  a  nullity. 

In  inquiring  whether  the  manner  prescribed  by  the  State  has  been 
followed,  we  do  not  trench  upon  any  authority  of  the  State,  or  question 
in  any  respect  her  absolute  right  over  the  subject,  but.  on  the  contrary, 
we  seek  only  to  give  effect  to  her  will  and  ascertain  the  appointment 
she  has  actually  made. 

What,  then,  was  the  manner  directed  by  the  legislature  of  Florida  ? 
It  was  by  popular  election.  It  was  by  the  choice  of  a  majority  of  the 
qualified"  voters  of  the  State.  When  their  votes  were  cast  on  the  7th  of 
jSTovember,  the  electors  were  appointed,  and  all  that  remained  was  to 
ascertain  and  declare  the  result.  The  appointment  was  then  completed 
and  could  not  afterward  be  changed.  What  subsequently  was  required 
of  the  officers  of  election  and  canvassing-boards  was  an  authentic  dec 
laration  of  the  result.  For  this  purpose  the  votes  in  each  county  were 
to  be  canvassed  by  certain  designated  officers  of  the  county  within  a 
prescribed  period  after  the  election,  and  duplicate  certificates  were  to 
be  made  and  signed  by  them,  containing  the  whole  number  of  votes 
given  for  each  officer,  the  names  of  the  persons  for  whom  they  were 
given,  and  the  numoer  of  votes  given  to  each  person.  A  record  was  to 
be  made  of  the  certificate,  and  one  of  the  duplicates  was  to  be  forwarded 
to  the  secretary  of  state,  and  the  other  to  the  governor.  On  the  thirty- 
fifth  day  after  the  election,  or  sooner,  if  the  returns  from  the  several 
counties  were  received,  the  secretary  of  state,  the  attorney-general,  and 
the  comptroller  of  public  accounts,  or  any  two  of  them,  together  with 
any  other  member  of  the  cabinet  who  might  be  designated  by  them, 
were  required  to  meet  at  the  office  of  the  secretary  of  state,  pursuant 
to  notice  to  be  given  by  him,  and  form  a  board  of  State  canvassers,  and 
proceed  to  canvass  the  returns  of  the  election  and  determine  and  declare 


976  ELECTORAL    COUNT    OF    1877. 

who  were  elected  "  as  shown  ~b\j  such  returns."*  The  duty  of  the  can 
vassers  under  the  law  of  the  State  was  ministerial,  involving  only  the 
exercise  of  such  judgment  as  was  required  to  determine  whether  the 
papers  returned  were  genuine,  and  were  executed  in  conformity  with 
the  requirements  of  the  law.  Such  was  the  construction  given  to  the 
statute  by  the  supreme  court  of  the  State  in  the  proceeding  against  the 
canvassers  taken  on  the  relation  of  Mr.  Drew,  who  was  a  candidate  for 
governor  at  the  same  election,  at  which  the  electors  for  President  and 
Vice-President  were  chosen,  and  votes  for  whom  were  thrown  out  by 
the  canvassers  upon  the  same  assumed  power  that  votes  for  the  Tilden 
electors  were  thrown  out  by  them.  In  giving  its  decision  in  that  case, 
the  supreme  court  said  : 

The  view  that  the  board  of  State  canvassers  is  a  tribunal  having  power  strictly  ju 
dicial,  such  as  is  involved  in  the  determination  of  the  lelgaity  of  a  particular  vote  or 
election,  cannot  be  sustained.  All  of  the  acts  which  this  board  can  do  under  the  stat 
ute  must  be  based  upon  the  returns  ;  and  while  in  some  cases  the  officers  composing 
the  board  may,  like  all  ministerial  officers  of  similar  character,  exclude  what  purports 
to  be  a  return  for  irregularity,  still  everything  they  are  authorized  to  do  is  limited  to 
what  is  sanctioned  by  authentic  and  true  returns  before  them.  Their  final  act  and 
determination  must  be  such  as  appears  from  and  is  shown  by  the  returns  from  the  sev 
eral  counties  to  be  correct.  They  have  no  general  power  to  issue  subpoenas,  to  sum 
mon  parties,  to  compel  the  attendance  of  witnesses,  to  grant  a  trial  by  jury,  or  to  do 
any  act  but  determine  and  declare  who  has  been  elected  as  shown  by  the  returns. 
They  are  authorized  to  enter  no  judgment,  and  their  power  is  limited  by  the  express 
words  of  the  statute,  which  gives  them  being,  to  the  signing  of  a  certificate  containing 
the  whole  number  of  votes  given  for  each  person  for  each  office,  and  therein  declaring 
the  result  as  shown  Inj  the  returns.  This  certificate  thus  signed  is  not  a  judicial  judg 
ment,  and  the  determination  and  declaration  which  they  make  is  not  a  judicial  dec 
laration,  that  is,  a  determination  of  a  right  after  notice,  according  to  the  general  law 
of  the  land  as  to  the  rights  of  parties,  but  it  is  a  declaration  of  a  conclusion  limited 
and  restricted  by  the  letter  of  the  statute.  Such  limited  declaration  and  determina 
tion  by  a  board  of  State  canvassers  has  been  declared  by  a  large  majority  of  the  courts 
to  be  a  ministerial  function,  power,  and  duty,  as  distinct  from  a  judicial  power  and 
jurisdiction.  Indeed,  with  the  exception  of  the  courts  in  Louisiana,  and  perhaps  an 
other  State,  no  judicial  sanction  can  be  found  for  the  view  that  these  officers  are  judi 
cial  in  their  character,  or  that  they  have  any  discretion,  either  executive,  legislative, 
or  judicial,  which  is  not  bound  and  fixed  by  the  returns  before  them.  The  duty  to 
count  these  returns  has  been  enforced  by  mandamus  so  repeatedly  in  the  courts  of  the 
several  States  of  the  Union,  that  the  power  of  the  courts  in  this  respect  has  long  since 
ceased  to  be  an  open  question. 

The  only  clause  of  the  statute,  which  would  seem  to  invest  the  can 
vassers  with  something  more  than  mere  ministerial  authority,  is  the  one 

*  The  following  is  the  text  of  the  law,  being  section  4  of  the  act  of  February  27, 1872 : 
"  SEC.  4.  On  the  thirty-fifth  day  after  the  holding  of  any  general  or  special  election 
for  any  State  officer,  member  of  the  legislature,  or  Representative  in  Congress,  or 
sooner  if  the  returns  shall  have  been  received  from  the  several  counties  wherein  elec 
tions  shall  have  been  held,  the  secretary  of  state,  attorney-general,  and  the  comptrol 
ler  of  public  accounts,  or  any  two  of  them,  together  with  any  other  member  of  the 
cabinet  who  may  be  designated  by  them,  shall  meet  at  the  office  of  the  secretary  of 
state,  pursuant  to  notice  to  be  given  by  the  secretary  of  state,  and  form  a  board  of 
State  canvassers,  and  proceed  to  canvass  the  returns  of  said  election  and  determine 
and  declare  who  shall  have  been  elected  to  any  such  office  or  as  such  member,  as  shown 
by  such  returns.  If  any  such  returns  shall  be  shown  or  shall  appear  to  be  so  irregular, 
false,  or  fraudulent  that  the  board  shall  be  unable  to  determine  the  true  vote  for  any 
such  officer  or  member,  they  shall  so  certify,  and  shall  not  include  such  return  in  their 
determination  and  declaration ;  and  the  secretary  of  state  shall  preserve  and  file  in 
his  office  all  such  returns,  together  with  such  other  documents  and  papers  as  may  have 
been  received  by  him  or  by  said  board  of  canvassers.  The  said  board  shall  make  and 
sign  a  certificate  containing,  in  words  written  at  full  length,  the  whole  number  of 
votes  given  for  each  office,  the  number  of  votes  given  for  each  person  for  each  office  and 
for  member  of  the  legislature,  and  therein  declare  the  result,  which,  certificate  shall  be 
recorded  in  the  office  of  the  secretary  of  state  in  a  book  to  be  kept  for  that  purpose ; 
and  the  secretary  of  state  shall  cause  a  certified  copy  of  such  certificate  to  be  published 
once  in  one  or  more  newspapers  printed  at  the  seat  of  government." 


ELECTORAL    COUNT    OF    1877.  977 

which  provides  that,  "  if  any  such  returns  shall  be  shown  or  shall  ap 
pear  to  be  so  irregular,  false,  or  fraudulent,  that  the  board  shall  be  un 
able  to  determine  the  true  vote  for  any  officer  or  member,  they  shall  so 
certify,  and  shall  not  include  such  return  in  their  determination  and  dec 
laration."  Great  stress  was  placed  by  counsel,  in  the  argument  before 
the  Commission,  and  by  Mr.  Commissioner  Morton  yesterday,  upon 
this  clause,  as  though  it  gave  unlimited  discretion  and  power  to  the 
canvassers  to  exclude,  in  their  count,  such  votes  as  they  might  judge 
from  any  cause  to  have  been  illegally  or  irregularly  cast.  But  it  is  ev 
ident  from  the  language  used  and  its  context,  that  the  clause  never 
contemplated  the  exercise  of  any  such  undefined  and  arbitrary  power 
over  the  returns,  but  only  intended  to  authorize  the  exclusion  from 
the  count  of  a  return  whenever,  from  evidence,  intrinsic  or  extrinsic,  of 
its  irregularity,  falsity,  or  fraudulent  character,  the  canvassers  were  un 
able  to  determine  the  actual  vote  cast  for  any  officer.  It  gave  no 
authority  to  reject  the  votes  actually  given,  except  when  the  canvassers 
were  unable  to  ascertain  for  whom  they  were  intended,  much  less  to 
enter  upon  any  judicial  investigation  into  the  legality  of  the  votes.  In 
considering  this  clause  the  supreme  court  of  the  State,  in  the  case  of 
Drew,  already  cited,  held  that  the  words  true  vote  meant  the  vote  actu 
ally  cast  as  distinct  from  the  legal  vote;  and  that  this  followed  from  the 
clear  general  duty  of  the  canvassers  to  ascertain  and  certify  the  u  votes 
given"  for  each  person  for  each  office;  and  because  to  determine  whether 
a  vote  cast  icas  a  legal  vote,  was  beyond  the  poiver  of  the  board. 

We  have,  then,  a  decision  of  the  supreme  court  of  Florida  giving  an 
authoritative  construction  to  the  act  under  which  the  electors  for  Pres 
ident  and  Vice-Presideut  were  chosen,  to  the  effect  that  the  powers  of 
the  canvassers  under  the  act  were  purely  ministerial,  and  that  their 
whole  duty  consisted,  whenever  they  were  enabled  to  determine  the 
actual  vote  given  for  any  officer,  in  simply  computing  arithmetically 
the  number  of  votes  cast,  as  shown  by  the  returns,  and  declaring  the 
result  by  a  certificate  of  the  fact  over  their  signatures.  Whatever  be 
yond  this  was  done  by  them  was  in  excess  of  their  authority  and  void. 
And  1  hardly  need  add,  in  this  presence,  that  whatever  was  done  by 
them  in  excess  of  their  authority  was  not  done  in  any  manner  directed 
by  the  legislature  of  the  State. 

The  construction  given  to  a  statute  of  a  State  by  its  supreme  court 
is,  as  we  all  know,  considered  as  part  of  the  statute  itself,  as  much  so 
as  if  embodied  in  its  very  text.  Such  is  the  language  of  the  Supreme 
Court  of  the  United  States  in  all  its  decisions.  Thus,  in  Leffiugwell  vs. 
Warren,  reported  in  2d  Black,  the  court  said : 

The  construction  given  to  a  statute  of  a  State  by  the  highest  judicial  tribunal  of 
such  State  is  regarded  as  a  part  of  the  statute  and  is  as  binding  upon  the  courts  of  the 
United  States  as  the  text. 

And  again,  in  Christy  vs.  Pridgeon,  reported  in  4th  Wallace,  the 
court  said  : 

The  interpretation  within  the  jurisdiction  of  one  State  becomes  a  part  of  the  law 
of  that  State,  as  much  so  as  if  incorporated  into  the  body  of  it  by  the  legislature. 

Having  thus  briefly  stated  the  requirements  of  the  law  of  Florida, 
providing  for  the  appointment  of  electors,  and  thus  shown  the  manner 
of  appointment  directed  by  its  legislature,  I  will  proceed  to  state  the 
course  actually  pursued  by  the  canvassers,  from  which  it  will  appear 
whether  there  was  any  departure  by  them,  and,  if  any,  how  great  a  de 
parture,  from  the  direction  given. 

The  returns  sent  from  the  several  counties  to  the  State  canvassers  all 
62  E  c 


978  ELECTORAL    COUNT    OF    1877. 

disclosed  for  whom  the  votes  were  cast.  It  is  not  pretended  that  any 
of  them  appeared,  or  was  shown  to  be,  either  so  irregular,  false,  or 
fraudulent  that  the  canvassers  were  unable  to  determine  the  actual 
votes  given  for  any  officer.  The  pretense  is  that  some  of  the  votes  re 
turned  were  illegally  or  irregularly  given,  not  that  there  was  any  doubt 
for  whom  they  were  intended.  Under  these  circumstances  the  duty 
of  the  canvassers,  according  to  the  decision  of  the  supreme  court, 
and  according  to  the  express  language  of  the  statute,.was  simply  to 
add  together  the  votes  and  declare,  under  their  certificate,  the  result 
as  shown  by  the  returns.  In  so  doing  they  would  have  carried  out  the 
direction  of  the  legislature.  Being  added  together,  the  returns  would 
have  shown  that  the  Tilden  electors  were  chosen.  But  the  canvassers, 
instead  of  discharging  the  simple  ministerial  duty  devolved  upon  them, 
undertook  to  exercise  judicial  functions  and  pass  upon  the  legality  of 
votes  cast  at  various  precincts  in  different  counties,  hearing  evidence 
and  counter-evidence  upon  the  subject,  consisting  partly  of  oral  testi 
mony,  but  principally  of  ex-parte  affidavits,  and  in  numerous  instances, 
upon  one  pretense  or  another,  throwing  out  votes  given  for  the  Tilden 
electors,  thereby  changing  the  result.  In  this  way  a  majority  of  the 
canvassers  came  to  the  conclusion  that  the  Hayes  electors  were  chosen. 
In  no  other  way  could  such  a  result  have  been  reached. 

Now,  it  matters  not,  for  the  purpose  of  my  argument,  whether,  in 
taking  these  proceedings  and  in  exercising  judicial  functions,  the 
canvassers  were  actuated  by  honest  or  by  corrupt  motives ;  whether 
their  conduct  was  the  result  of  a  mistaken  conception  of  their  powers, 
or,  as  is  alleged,  of  a  conspiracy  to  defraud  the  State  of  her  choice.  In 
any  view  that  may  be  taken,  it  is  clear  that  in  deciding  upon  the  legality 
of  votes  embraced  in  the  returns,  and  in  rejecting  votes  from  their 
count  on  the  ground  of  their  asserted  illegality  or  upon  any  other 
ground,  they  exceeded  their  jurisdiction,  and  their  action  in  that  par 
ticular  was  without  any  validity  whatever. 

A  result  declared,  after  the  returns  were  altered  by  the  elimination 
of  votes  embraced  therein,  was  not  a  result  obtained  in  the  manner 
directed  by  the  legislature  of  the  State.  It  was  not  a  result  which  gave 
the  offices  to  those  who  had  received  the  highest  number  of  votes,  as 
required  by  the  law  of  the  State,  but  to  those  who  had  received  only 
a  minority  of  the  votes.  The  whole  proceeding,  instead  of  being  in 
accordance  with,  was  in  direct  contravention  of  the  will  of  the  legisla 
ture.  Surely  it  would  not  be  pretended  that  if  a  portion  of  the  returns 
had  been  feloniously  abstracted  from  the  office  of  the  secretary  of  state, 
a  canvass  founded  upon  the  returns  remaining  would  show  an  appoint 
ment  of  electors  in  the  manner  prescribed  by  the  legislature  of  the  State. 
A  felonious  abstraction  and  an  unauthorized  exclusion  of  votes  are  in 
legal  effect  the  same  thing. 

By  the  act  of  Congress  the  electoral  colleges  were  required  to  meet 
on  the  first  Wednesday  in  December,  which  was  the  6th  of  the  month. 
The  canvassers  commenced  their  labors  on  the  27th  of  November,  the 
returns  from  the  several  counties  being  at  that  time  all  received,  but 
did  not  complete  the  count  until  the  morning  of  the  day  appointed  for 
the  meeting  of  the  electoral  college.  Two  of  them  then  certified  to  the 
election  of  the  Hayes  electors  j  and  the  governor  issued  to  them  a  cer 
tificate  of  their  election.  One  of  the  canvassers,  the  attorney-general, 
certified  that  by  the  authentic  returns  of  the  votes  in  the  several  coun 
ties  on  file  in  the  office  of  the  secretary  of  state,  and  seen  by  him  as  a 
member  of  the  board,  the  Tilden  electors  were  chosen.  The  two  sets  of 
electors  met  on  the  same  day,  and  at  the  same  time,  and  in  the  same 


ELECTORAL    COUNT    OF    1877.  979 

building,  and  both  sets  voted,  and  transmitted  their  respective  certifi 
cates  of  their  proceedings  in  duplicate  to  the  President  of  the  Senate  at 
Washington,  one  copy  by  a  special  messenger  and  one  by  mail.  Which 
of  these  two  sets  of  electors  was  duly  appointed  by  the  State?  Both 
were  not  thus  appointed.  After  the  statement  I  have  made  of  the  char 
acter  of  the  returns,  and  the  manner  in  which  they  were  altered,  there 
can  be  no  reasonable  doubt  that  the  Tilden  electors  were  thus  appointed. 
They  received  a  majority  of  the  votes  cast,  as  shown  by  the  returns, 
and  the  law  of  the  State  declares  that  parties  receiving  the  highest  num 
ber  of  votes  for  any  office  shall  be  elected  to  such  office. 

Mr.  President,  I  have  spoken  of  the  matters  appearing  by  the  returns, 
and  of  the  proceedings  of  the  canvassers,  as  facts  in  proof  'before  us.  I 
have  done  so  because  the  evidence  contained  in  the  documents  trans 
mitted  to  us  with  the  papers  received  and  opened  by  the  President  of 
the  Senate,  if  we  are  allowed  to  look  into  them,  establishes  beyond  con 
troversy  the  facts  which  I  have  stated.  Why,  then,  should  we  not  con 
sider  that  evidence  and  act  upon  it?  We  are  answered  that  the  certifi 
cate  of  the  governor  is  the  only  evidence  which  the  Commission  can 
receive  of  the  appointment  of  the  electors.  The  Constitution  does  not 
prescribe  the  evidence  which  shall  be  received  of  the  appointment.  That 
only  provides  for  the  voting  of  the  electors,  and  the  transmission  by 
them  of  a  list  of  the  persons  voted  for  to  the  seat  of  Government, 
directed  to  the  President  of  the  Senate.  Congress  has,  therefore, 
enacted  that  the  governor  shall  issue  a  certified  list  of  the  electors  to 
them  before  the  time  fixed  for  their  meeting.  The  language  of  the  act 
is  that — 

It  shall  be  the  duty  of  the  executive  of  each  State  to  cause  three  lists  of  the  names 
of  the  electors  of  such  State  to  be  made  and  certified,  and  to  be  delivered  to  the  electors 
of  such  State  on  or  before  the  day  on  which  they  are  required  by  the  previous  section 
to  meet. — Revised  Statutes,  section  136. 

There  is  nothing  in  this  act  which  declares  that  the  certificate  thus 
issued  shall  be  conclusive  of  the  appointment.  It  does  not  say  that  the 
evidence  thus  furnished  is  indispensable,  or  that  other  evidence  of  the 
appointment  may  not  be  received.  Its  only  object  was  simply  to  pro 
vide  convenient  evidence  of  the  appointment  for  the  consideration  of 
the  two  Houses  of  Congress  when  called  -upon  to  count  the  votes.  It 
was  not  its  purpose  to  control  their  judgment  in  deciding  between  differ 
ent  sets  of  papers  purporting  to  contain  the  votes  of  the  State.  A  com 
pliance  with  the  act  is  not  obligatory  upon  the  executive  of  the  State. 
He  is  not  in  that  respect  subject  to  the  control  of  Congress,  He  could 
not  be  compelled  to  give  the  certificate,  nor  could  he  be  subject  to  any 
punishment  for  refusal  to  act  in  the  matter.  And  certainly,  when  Con 
gress  can  furnish  no  means  to  control  the  action  of  a  State  officer,  it 
cannot  render  his  action  either  indispensable  or  conclusive  of  the  rights 
of  the  State.  Instances  may  be  readily  imagined  where,  from  accident, 
disability,  or  sickness  of  the  governor,  the  certified  lists  could  not  be 
obtained,  or  be  obtained  and  delivered  in  time,  or,  if  obtained,  might  be 
lost  or  destroyed  before  delivery.  In  such  cases  would  there  be  no 
remedy  ?  Would  the  State  in  such  cases  lose  its  vote  ?  Surely,  no  one 
will  seriously  contend  for  such  a  result.  Suppose,  further,  that  the  gov 
ernor,  by  mistake  or  fraud,  should  deliver  certified  lists  in  favor  of  per 
sons  not  appointed  electors ;  for  instance,  to  persons  who  had  not 
received  a  majority  of  the  votes  cast  for  those  officers,  (the  persons  hav 
ing  such  majority  of  votes  being  eligible  to  the  office  under  the  consti 
tution  ;)  would  it  be  pretended  that  the  will  of  the  State  should  be 
thwarted  through  the  force  of  his  certificate?  I  feel  confident  that  no 


980  ELECTORAL    COUNT    OF    1877. 

lawyer  in  the  country  would  hold  that  the  truth  could  not  be  shown  in 
such  case  against  the  face  of  the  certificate ;  and  I  will  never  believe  in 
the  possibility  of  this  Commission  so  holding  until  I  see  its  decision  to 
that  effect. 

The  truth  is,  a  certificate  is  only  prima-facie  evidence  of  the  fact 
certified.  Indeed,  I  venture  to  assert,  without  fear  of  successful  con 
tradiction,  that  in  the  absence  of  positive  law  declaring  its  effect  to  be 
otherwise,  a  certificate  of  any  officer  to  a  fact  is  never  held  conclusive 
on  any  question  between  third  parties ;  it  is  always  open  to  rebuttal. 
There  are,  indeed,  cases  where  a  party  who  has  been  induced  to  act 
upon  the  certificate  of  a  fact  may  insist  that  the  truth  of  the  certificate 
shall  not  be  denied  to  his  injury,  but  those  cases  proceed  upon  the  doc 
trine  of  estoppel,  which  has  no  application  here.  The  fact  here  to  be 
ascertained  is,  who  have  been  duly  appointed  electors  of  the  State  of 
Florida,  not  who  have  the  certificates  of  appointment.  It  is  the  election, 
and  not  the  certificate,  which  gives  the  right  to  the  office.  The  certifi 
cate  being  only  evidence,  can  be  overcome  by  any  evidence  which  is  in 
its  nature  superior.  And  this  is  equally  true  of  the  certificate  issued 
under  the  law  of  the  State  as  of  the  certificate  issued  under  the  act 
of  Congress.  And  it  is  equally  true  of  the  certificate  of  the  board  of 
canvassers.  Those  officers  exercised  mere  ministerial  functions ;  they 
possessed  no  judicial  power ;  their  determination  had  none  of  the  char- 
acte^istics  or  conclusiveness  of  a  judicial  proceeding;  it  has  been  so 
decided  by  the  supreme  court  of  the  State.  And  yet,  in  the  opinion  of 
the  distinguished  Commissioner  from  Indiana,  [Senator  Morton,]  and 
some  other  Commissioners  from  the  Senate  and  House  appear  to  concur 
with  him,  the  determination  of  those  canvassers,  as  expressed  by  their 
certificate,  is  more  sacred  and  binding  than  the  judgment  of  the  highest 
court  of  the  land,  incapable  of  successful  attack  on  any  ground  what 
ever. 

I  put,  yesterday,  to  these  gentlemen  this  question :  Supposing  the 
canvassers  had  made  a  mistake  in  addition  in  footing  up  the  returns,  a 
mistake  that  changed  the  result  of  the  election,  and  acting  upon  the 
supposed  correctness  of  the  addition  they  had  issued  a  certificate  to 
persons  as  electors  who  were  not  in  fact  chosen,  and  such  persons  had 
met  and  voted  for  President  and  Vice-President  and  transmitted  the 
certificate  of  their  votes  to  Washington ;  and  afterwards,  before  the 
vote  was  counted  by  the  two  Houses  of  Congress,  the  mistake  was  dis 
covered — was  there  no  remedy  f  The  gentlemen  answered  that  there  was 
none  ;  that  whatever  mistakes  of  the  kind  may  have  been  committed 
must  be  corrected  before  the  vote  was  cast  by  the  electors  or  they  could 
not  be  corrected  at  all.  If  this  be  sound  doctrine,  then  it  follows  that 
by  a  clerical  mistake  in  arithmetical  computation  a  person  may  be  placed 
in  the  Chief  Magistracy  of  the  nation  against  the  will  of  the  people,  and 
the  two  Houses  of  Congress  are  powerless  to  prevent  the  wrong. 

But  the  gentlemen  do  not  stop  here.  I  put  the  further  question  to 
them  :  Supposing  the  canvassers  were  bribed  to  alter  the  returns,  and 
thus  change  the  result,  or  they  had  entered  into  a  conspiracy  to  commit 
a  fraud  of  this  kind,  arid  in  pursuance  of  the  bribery  or  conspiracy  they 
did  in  fact  tamper  with  and  alter  the  returns,  and  declare  as  elected 
persons  not  chosen  by  the  voters,  and  such  persons  had  voted  and  trans 
mitted  their  vote  to  the  President  of  the  Senate,  but  before  the  vote 
was  counted  the  fraud  was  detected  and  exposed — was  there  no  remedy  f 
The  gentlemen  answered,  as  before,  that  there  was  none ;  that  whatever 
fraud  may  have  existed  must  be  proceeded  against  and  its  success  de 
feated  before  the  electors  voted ;  that  whatever  related  to  their  action 


ELECTORAL    COUNT    OF    1877.  981 

was  then  a  closed  book.  If  this  be  sound  doctrine,  it  is  the  only  instance 
in  the  world  where  fraud  becomes  enshrined  and  sanctified  behind  a 
certificate  of  its  authors.  It  is  elementary  knowledge  that  fraud  vitiates 
all  proceedings,  even  the  most  solemn  ;  that  no  form  of  words,  no  amount 
of  ceremony,  and  no  solemnity  of  procedure  can  shield  it  from  exposure 
and  protect  its  structure  from  assault  and  destruction.  The  doctrine 
asserted  here  would  not  be  applied  to  uphold  the  pettiest  business  trans 
action,  and  I  can  never  believe  that  the  Commission  will  give  to  it  any 
greater  weight  in  a  transaction  affecting  the  Chief  Magistracy  of  the 
nation. 

But  the  gentlemen  do  not  stop  here.  I  put  the  further  question  to 
them :  Supposing  the  canvassers  were  coerced  by  physical  force,  by 
pistols  presented  to  their  heads,  to  certify  to  the  election  of  persons  not 
chosen  by  the  people,  and  the  persons  thus  declared  elected  cast  the 
vote  of  the  State — was  there  no  remedy?  and  the  answer  was  the  same 
as  that  given  before.  For  any  wrong,  mistake,  fraud,  or  coercion  in  the 
action  of  the  canvassers,  say  these  gentlemen,  the  remedy  must  be  ap 
plied  before  the  electors  have  voted ;  the  work  of  the  electors  is  done 
when  they  have  acted,  and  there  is  no  power  under  existing  law  by 
which  the  wrong  can  be  subsequently  righted. 

The  canvass  of  the  votes  in  Florida  was  not  completed  until  the  morn 
ing  of  the  day  of  the  meeting  of  the  electoral  college,  and  within  a  few 
hours  afterward  its  vote  was  cast.  To  have  corrected  any  mistake  or 
fraud  during  these  hours,  by  any  proceeding  known  to  the  law,  would 
have  been  impossible.  The  position  of  these  gentlemen  is,  therefore, 
that  there  is  no  remedy,  however  great  the  mistake  or  crime  committed. 
If  this  be  sound  doctrine,  if  the  representatives  in  Congress  of  forty-two 
millions  of  people  possess  no  power  to  protect  the  country  from  the  in 
stallation  of  a  Chief  Magistrate  through  mistake,  fraud,  or  force,  we  are 
the  only  self-governing  people  in  the  world  held  in  hopeless  bondage  at 
the  mercy  of  political  jugglers  and  tricksters. 

This  doctrine,  which  seems  to  me  to  be  as  unsound  in  law  as  it  is 
shocking  in  morals,  is  supported  upon  the  notion  that  if  we  are  permitted 
to  look  behind  the  certificate  of  the  governor,  and  of  the  canvassing- 
board  upon  which  that  certificate  is  founded,  we  shall  open  the  door  to 
an  investigation  which  may  not  be  brought  to  a  close  before  the  4th  of 
March.  The  argument  is  that  as  the  new  President  is  to  be  installed  on 
that  day,  and  the  votes  of  the  electoral  colleges  are  to  be  counted  in 
February,  all  inquiry  as  to  the  truth  of  that  certificate  is  forbidden, 
because  it  may  be  impracticable  to  carry  the  inquiry  to  a  termination  in 
time  for  the  installation.  This  position  was  taken  by  counsel  before  the 
Commission,  and  presented  in  every  possible  form,  and  was  repeated 
yesterday  by  Commissioners  Hoar  and  Garfield,  and  dwelt  upon  by 
them  as  though  it  were  conclusive  of  the  question.  The  argument 
amounts  only  to  this,  that  the  difficulty  of  exposing  in  time  a  mistake 
or  fraud  of  the  canvassing-board  is  a  sufficient  reason  for  not  attempting 
the  exposure  at  all,  and  for  quietly  submitting  to  the  consequent  perpe 
tration  of  a  monstrous  wrong. 

It  is  true  that  the  machinery  for  the  election  of  President,  devised  by 
the  framers  of  the  twelfth  amendment  to  the  Constitution,  contemplates 
the  induction  of  the  successful  candidate  into  office  on  the  4th  of  March, 
and  that  the  office  shall  not  on  that  day  be  either  vacant  or  disputed. 
I  admit,  therefore,  to  the  fullest  extent  claimed  by  gentlemen,  that  no 
proceedings  can  be  permitted  which  will  postpone  the  counting  of  the 
votes  so  as  to  prevent  a  declaration  within  that  period  of  the  person 
elected,  or  a  reference  of  the  election  to  the  House  of  Representatives  . 


982  ELECTORAL    COUNT    OF    1877. 

But  this  limitation  of  time,  so  far  from  being  a  reason  for  submitting  to 
a  mistake  or  to  a  fraud,  is  a  reason  for  immediate  action  to  correct  the 
one  and  expose  the  other.  Whatever  is  done  to  overthrow  the  prima- 
facie  evidence  presented  by  the  certificate  of  the  governor  must  be  com 
menced,  carried  forward,  and  completed,  so  that  the  result  of  the  pro 
ceeding  can  be  considered  by  the  two  Houses  of  Congress  when  the 
certificates  are  opened  in  their  presence  and  the  votes  are  counted. 
The  countervailing  evidence  must  be  presented  in  some  authentic  form, 
like  the  judgment  of  a  competent  tribunal,  or  the  legislative  declaration 
of  a  State,  or  the  finding  of  an  appropriate  committee  approved  by  the 
House  appointing  it ;  and  then  it  will  constitute  a  basis  for  the  action  of 
the  Houses  without  delaying  their  proceedings.  If,  for  example,  the  cer 
tificate  of  the  governor  were  forged,  or  designated  as  electors  persons 
for  whom  no  votes  were  cast,  the  fact,  if  it  were  desired  to  ask  the  action 
of  the  two  Houses  upon  it  in  counting  the  vote,  should  be  presented,  in 
such  a  conclusive  form  as  to  be  the  subject  of  consideration  as  a  fact 
found.  If  an  investigation  is  then  required  to  establish  the  fact  alleged, 
I  admit  that  the  proceeding  cannot  be  had,  except  by  permission  of  the 
two  Houses,  by  reason  of  the  delay  it  would  occasion.  The  two  Houses 
cannot  be  required  to  stop  the  count  to  take  testimony  and  investigate 
the  truth  of  mere  allegations;  but  if  the  fact  of  forgery  or  falsity  has 
already  been  found  by  competent  authority,  and  the  finding  is  laid  be 
fore  the  two  Houses,  the  finding  would  not  only  be  a  proper  subject  of 
consideration  by  them,  but  it  would  be  their  manifest  duty  to  act  upon 
the  finding,  in  order  that  the  nation  might  not  be  defrauded  in  its  choice 
of  a  Chief  Magistrate. 

In  the  view  which  I  take  of  this  subject  there  would  be  no  great  delay 
in  the  counting  of  the  electoral  votes  if  Congress  were  permitted  to  look 
behind  the  action  of  the  governor  or  of  the  canvassiug-board ;  for  the 
facts  to  be  brought  to  the  attention  of  the  two  Houses  would  have  to 
be  presented  in  the  manner  indicated  before  they  could  be  received  and 
acted  upon,  unless  the  two  Houses  should  consent  that  testimony  be 
be  taken  at  the  time.  If  the  fact  alleged  could  be  readily  established 
without  seriously  delaying  the  count,  it  is  not  probable  that  testimony 
upon  the  subject  would  be  refused.  For  example,  testimony  would 
hardly  be  refused  as  to  the  ineligibility  of  an  elector,  or  the  constitution 
of  a  canvassing-board,  or  the  condition  of  a  State  as  under  military  rule 
at  the  time  of  the  election.  But  where  the  fact  alleged  is  one  of  con 
flicting  evidence,  and  is  not  susceptible  of  proof  within  reasonable  limits, 
then,  I  think,  the  fact  must  be  presented  properly  authenticated,  as  I 
have  stated. 

Evidence  in  this  form,  impeaching  the  correctness  of  the  certificate  of 
the  governor  and  canvassing-board,  can  be  furnished  by  the  State  or  by 
either  House  of  Congress ;  by  the  State,  which  is  interested  that  it  shall 
not  be  defrauded  of  its  vote  in  the  election  ;  and  by  either  House  of 
Congress,  which  is  interested  that  the  forty-two  millions  of  people  com 
posing  the  nation  shall  not  be  deprived  of  the  President  of  their  choice. 

In  this  case  the  State  of  Florida  has  furnished  evidence  in  an  authentic 
form  and  conclusive  in  its  character,  that  the  Hayes  electors  were  never 
appointed  and  that  the  certificate  of  the  governor  and  of  the  canvassing- 
board  in  that  respect  is  false ;  and  that  the  Tilden  electors  were  duly 
appointed.  It  has  furnished  the  declaration  of  its  legislature  in  a 
statute  affirming  such  to  be  the  fact,  and  it  has  furnished  a  judicial 
determination  of  its  courts  to  the  same  effect. 

Soon  after  the  canvass  of  the  State  board  was  closed,  and  its  certifi 
cate  of  the  result  was  filed,  Mr.  Drew,  who  had  been  a  candidate  for  the 


• 


ELECTORAL    COUNT    OF    1877.  983 

office  of  governor  at  the  same  election,  against  Stearns,  the  incumbent, 
and  had  been  declared  defeated  by  the  action  of  the  canvassers  in  ex 
cluding  votes  for  him,  instituted  proceedings  by  mandamus  in  the 
supreme  court  of  the  State  to  compel  the  canvassers  to  count  the  votes 
given,  as  shown  by  the  returns.  In  his  petition  for  the  writ  he  averred 
that,  according  to  the  returns  received  at  the  office  of  the  secretary  of 
state,  and  on  file  there,  a  majority  of  the  votes  for  the  office  of  governor 
were  cast  for  him ;  and  charged  against  the  canvassers  the  same  disre 
gard  of  the  law  of  the  State  which  is  alleged  against  them  in  the  count 
for  the  electors.  Indeed,  their  action  affected  equally  the  candidates  for 
governor  and  for  electors.  The  canvassers  appeared  to  the  writ,  and 
proceedings  were  conducted  to  a  judgment  on  the  merits.  The  supreme 
court  adjudged  that  the  canvassers  had  no  authority  to  exclude  the 
votes,  by  which  exclusion  alone  Stearns  had  been  declared  elected,  and 
directed  them  to  restore  the  votes.  In  obedience  to  this  judgment  they 
restored  the  excluded  votes,  and  certified  a  majority  for  Drew,  who  went 
into  office  and  has  ever  since  been  the  accepted  governor  of  the  State. 
It  was  the  exclusion  of  the  same  votes  for  electors  that  enabled  the  can 
vassers  to  declare  the  Hayes  electors  chosen.  In  deciding  this  case  the 
court  gave  a  construction  to  the  statute  under  which  the  canvassers 
acted,  and  delivered  the  opinion  from  which  I  have  already  quoted. 

As  soon  as  it  was  known  that  the  canvassers  had  certified  to  the  elec 
tion  of  the  Hayes  electors,  the  Tilden  electors  filed  an  information  in  the 
nature  of  a  quo  ivarranto  against  them  in  one  of  the  circuit  courts  of  the 
State,  to  determine  the  validity  of  their  respective  claims  to  the  office  of 
electors.  This  proceeding  was  commenced  upon  the  day  on  which  the 
canvass  was  completed,  and  process  was  served  on  the  Hayes  electors 
before  they  had  cast  their  votes.  The  circuit  court  had  jurisdiction  of 
the  proceeding  by  the  constitution  of  the  State,  the  eighth  section  of 
which  provides  in  terms  that  the  circuit  court  and  the  judges  thereof 
shall  have  power  to  issue  writs  of  quo  warranto.  In  the  information  the 
Tilden  electors  alleged  that  they  were  lawfully  elected  to  the  office  of 
electors,  and  that  the  Hayes  electors  were  not  thus  elected,  but  were 
usurpers.  The  Hayes  electors  appeared  to  the  writ,  and,  first  upon  de 
murrer,  and  afterward  upon  an  investigation  of  the  facts,  their  right  to 
act  as  electors  was  determined.  And  it  was  adjudged  that  the  Hayes 
electors  were  never  appointed,  and  were  never  entitled  to  assume  and 
exercise  the  functions  of  that  office,  and  were  usurpers;  but  that  the 
Tilden  electors  were  duly  appointed  at  the  election  on  the  7th  of  Novem 
ber,  and  were  entitled  on  the  6th  of  December  to  receive  certificates  of 
election,  and  on  that  day  and  ever  since  to  exercise  the  powers  and  per 
form  the  duties  of  that  office.  It  matters  not  that  this  judgment  was 
not  reached  until  after  the  Hayes  electors  had  voted;  it  was  an  adjudi 
cation  by  a  competent  court  upon  the  validity  of  their  title  as  electors 
at  the  time  they  assumed  to  cast  the  vote  of  the  State.  That  judgment 
remains  in  full  force ;  the  appeal  from  it  neither  suspends  its  operation 
nor  affects  its  validity.  It  is  certainly  entitled  to  great,  if  not  corclu- 
sive,  weight  upon  the  subject  before  us,  especially  when  considered  in 
connection  with  the  action  of  the  legislature  of  the  State.  That  action 
seems  to  me  to  be  conclusive  of  the  case. 

After  the  supreme  court  in  the  Drew  proceeding  had  given  a  construc 
tion  to  the  election  law,  and  decided  that  the  canvassers  had  disregarded 
its  plain  provisions,  exercised  judicial  functions  which  they  never  pos 
sessed,  and  unlawfully  rejected  votes,  the  legislature  took  steps  to  have 
their  count  corrected  with  respect  to  the  electors,  as  it  had  been  with 
respect  to  the  governor.  And  on  the  17th  of  January  last  it  passed  "an 


• 
984  ELECTORAL    COUNT    OF    1877. 

act  to  provide  for  arecanvass  according  to  the  laws  of  the  State  of  Florida, 
as  interpreted  by  the  supreme  court,  of  the  votes  for  electors  of  Presi 
dent  and  Vice-President  cast  at  the  election  held  November  7,  1876." 
This  act  required  that  the  secretary  of  state,  the  attorney-general,  and  the 
comptroller  of  public  accounts,  or  any  two  of  them,  together  with  any 
other  member  of  the  cabinet  who  might  be  designated  by  them,  should 
meet  forthwith  at  the  office  of  the  secretary,  pursuant  to  a  notice  from 
him,  and  form  a  board  of  State  canvassers,  and  proceed  to  canvass  the 
returns  of  election  of  electors  of  President  and  Vice-President  held  on 
the  7th  of  November,  and  determine  and  declare  who  were  elected  and 
appointed  electors'  at  that  election,  as  shown  by  the  returns  on  file.  The 
act  directed  the  canvassers  to  follow  the  construction  of  the  law  given 
by  the  supreme  court  defining  the  powers  and  duties  of  State  canvass 
ers.  It  directed  that  their  certificate  of  the  result  should  be  recorded 
in  the  office  of  the  secretary  of  state,  and  a  copy  be  published  in  one  or 
more  newspapers  printed  at  the  seat  of  government.  The  canvassers 
accordingly  met  and  made  the  canvass  directed,  and  certified  that  the 
Tilden  electors,  naming  them,  had  received  a  majority  of  the  votes  and 
were  duly  elected. 

Subsequent  to  this,  and  on  the  26th  of  January,  the  legislature  passed 
another  act  in  relation  to  the  Tilden  electors.  That  act  recited,  among 
other  things,  that — 

Whereas  the  board  of  State  canvassers  constituted  under  the  act  approved  February 
27,  1872,  did  interpret  the  laws  of  this  State  defining  the  powers  and  duties  of  the  said 
board  in  such  manner  as  to  give  them  power  to  exclude  certain  regular  returns,  and 
did  in  fact  under  such  interpretation  exclude  certain  of  such  regular  returns,  which 
said  interpretation  has  been  adjudged  by  the  supreme  court  to  be  erroneous  and  illegal; 

And  whereas  the  late  governor,  Marcellus  L.  Stearns,  by  reason  of  said  illegal  action 
and  erroneous  and  illegal  canvass  of  the  said  board  of  State  canvassers,  did  erroneously 
cause  to  be  made  and  certified  lists  of  the  names  of  electors  of  this  State,  containing 
the  names  of  said  Charles  H.  Pearce,  Frederick  C.  Humphreys,  William  H.  Holden,  and 
Thomas  W.  Long — 

The  Hayes  electors — 

and  did  deliver  such  lists  to  said  persons,  when  in  fact  the  said  persons  had  not  received 
the  highest  number  of  votes,  and,  on  a  canvass  conducted  according  to  the  rules  pre 
scribed  and  adjudged  as  legal  by  the  supreme  court,  were  not  appointed  as  electors  or 
entitled  to  receive  such  lists  from  the  governor,  but  Robert  Bullock,  Robert  B.  Hilton, 
Wilkinson  Call,  and  James  E.  Yonge — 

The  Tilden  electors — 

were  duly  appointed  electors,  and  were  entitled  to  have  their  names  compose  the  lists 
made  and  certified  by  the  governor,  and  to  have  such  lists  delivered  to  them  : 

Now,  therefore,  the  people  of  the  State  of  Florida,  represented  in  senate  and  assem 
bly,  do  enact,  &c. 

The  act  then  proceeded  to  declare  that  the  Tilden  electors,  naming 
them,  were  on  the  7th  of  November  duly  chosen  and  appointed  by  and 
on  behalf  of  the  State  of  Florida  in  such  manner  as  the  legislature 
thereof  had  directed,  and  were  from  that  day  entitled  to  exercise  all  the 
powers  and  duties  of  the  office  of  electors  and  had  full  power  and  au 
thority  on  the  6th  of  December,  1876,  to  vote  as  such  electors  for  Presi 
dent  and  Vice-President,  and  to  certify  and  transmit  their  votes  as 
provided  by  law.  The  statute  then  ratified,  confirmed,  and  declared  as 
valid,  to  all  intents  and  purposes,  the  acts  of  such  electors.  It  also 
authorized  and  directed  the  governor  to  make  and  certify  in  due  form 
and  under  the  seal  of  the  State  three  lists  of  the  names  of  the  electors, 
and  to  transmit  the  same,  with  an  authentic  copy  of  the  act,  to  the 
President  of  the  Senate,  and  declared  that  such  lists  and  certificates 
should  be  as  valid  and  effectual  to  authenticate  in  behalf  of  the  State 


• 
ELECTORAL    COUNT    OF    J877.  985 

the  appointment  of  such  electors  by  the  State  as  if  they  had  been  made 
and  delivered  on  or  before  the  6th  of  December,  1876,  and  had  been 
transmitted  immediately  thereafter,  and  that  the  lists  and  certificates 
containing  the  names  of  the  Hayes  electors  were  illegal  and  void.  The 
act  further  authorized  and  directed  the  governor  to  cause  three  other 
lists  of  the  names  of  the  Tilden  electors  to  be  made  and  certified  and 
forthwith  delivered  to  them,  and  required  those  electors  to  meet  at  the 
capitol  of  the  State  and  to  make  and  sign  three  additional  certificates 
of  the  votes  given  by  them  on  the  6th  of  December,  to  each  of  which 
should  be  annexed  one  of  the  lists  of  the  electors  furnished  by  the  gov 
ernor,  and  that  one  of  the  certificates  should  be  transmitted  by  messen 
ger,  and  one  by  mail,  to  the  President  of  the  Senate,  and  the  third 
delivered  to  the  judge  of  the  district,  as  required  by  law. 

Pursuant  to  this  act,  the  governor  of  the  State  made  and  certified 
three  lists  of  the  Tilden  electors  and  delivered  the  same  to  them,  and 
the  said  electors  assembled  and  certified  that  they  had  met  on  the  6th 
day  of  December  at  the  capitol  and  given  their  votes  as  electors  for 
President  and  Vice-President  by  distinct  ballots,  the  votes  for  President 
being  for  Mr.  Tilden  and  the  votes  for  Vice-President  being  for  Mr. 
Hendricks,  and  signed  three  certificates  of  their  action,  which  were  for 
warded  as  required  by  law.  These  certificates  were  accompanied  by  the 
certified  lists  of  the  governor,  by  a  certified  copy  of  the  two  acts  of  the 
State,  and  by  a  certified  copy  of  the  returns  on  file  in  the  office  of  the 
secretary  of  state,  with  a  tabulated  statement  annexed  showing  the  re 
sult  of  the  votes.  The  third  certificate,  which  is  before  us,  embraces  all 
these  proceedings. 

Here,  then,  we  have  the  highest  possible  evidence  of  the  action  of  the 
State  of  Florida.  The  two  sets  of  electors  both  conformed  to  every  re 
quirement  of  the  law  in  their  proceedings.  One  set,  the  Hayes  electors, 
have  the  certificate  of  Governor  Stearns  of  their  election,  based  upon  a 
certificate  of  the  canvassing-board,  which  in  its  nature  is  mere  prima 
facie  evidence;  the  other  set,  the  Tilden  electors,  have  an  adjudication 
of  a  State  court  of  competent  jurisdiction,  that  they  alone  were  the 
legally- appointed  electors.  They  have  the  authoritative  declaration  of 
the  legislature  of  the  State  that  they  alone  were  entitled  to  act  as  elect 
ors  and  vote  for  President  on  the  6th  of  December;  and  they  have  a 
certificate  of  Governor  Drew,  based  upon  a  recanvass  of  the  votes,  that 
they  were  duly  appointed.  And  accompanying  this  evidence  they  have 
a  certified  copy  of  the  returns,  showing  that  they  received  a  majority  of 
the  votes  cast  at  the  election. 

Under  these  circumstances  can  it  be  possible  that  there  is  any  serious 
question  as  to  which  of  the  two  sets  of  electors  was  duly  appointed  f 
As  the  legislature  was  alone  authorized  to  determine  the  manner  in 
which  the  electors  should  be  appointed,  it  could  furnish  in  its  own  way 
evidence  of  their  acts  as  agents  of  the  State,  whatever  may  be  the 
power  of  Congress  for  its  convenience  in  requiring  a  certificate  of  the 
governor.  Were  this  transaction  one  that  involved  merely  questions  of 
property,  instead  of  a  matter  of  great  public  and  political  interest,  1  do 
not  think  there  is  a  lawyer  on  this  Commission  who  could  hesitate  a 
moment  as  to  the  conclusive  character  of  the  evidence  in  favor  of  the 
Tilden  electors. 

In  addition  to  this  action  of  the  State,  Congress  has  moved  in  the 
matter,  and  very  properly  so ;  for  the  entire  people  are  interested  in 
the  election  of  their  Chief  Magistrate.  No  other  officer  can  exercise 
so  great  an  influence  for  good  or  for  evil  upon  the  whole  country. 
He  is  not  only  the  Commander-in-Chief  of  our  Army  and  Navy,  but 


986  ELECTORAL    COUNT    OF    1877. 

he  is  the  executor  of  our  laws,  the  organ  of  intercourse  with  foreign 
nations,  the  bestower  of  offices  of  honor  and  trust,  and  is  charged 
with  the  duty  of  maintaining  and  defending  the  Constitution.  Of 
all  the  obligations  resting  upon  the  representatives  of  the  people  none 
is  greater  than  that  of  seeing  that  no  one  takes  that  high  office  with  a 
defective  and  tainted  title.  Acting  upon  this  obligation  the  House  of 
Representatives  early  in  the  session,  when  it  was  rumored  that  irregular 
and  fraudulent  proceedings  had  characterized  the  election  in  some  of  the 
States,  and  in  Florida  among  others,  appointed  committees  of  investiga 
tion  to  ascertain  the  facts  and  report  who  in  truth  had  been  appointed 
electors  by  those  States.  One  of  those  committees  proceeded  to  Florida 
and  took  there  a  large  amount  of  testimony  on  the  subject,  which  it  has 
returned  to  the  House  with  its  conclusions  as  to  the  result.  This  com 
mittee  has  reported  that  the  Tilden  electors  were  duly  appointed,  con 
curring  in  that  respect  with  the  action  of  the  State  tribunals  and  the 
State  legislature.  Their  report  and  its  conclusions,  if  adopted  by  the 
House,  would  undoubtedly  have  a  controlling  influence  upon  its  action 
in  counting  the  vote  of  the  State,  if  this  Commission  had  not  been 
created,  and  for  that  reason  they  should  be  received,  and  if  not  accepted 
as  final,  at  least  be  considered  by  us.* 

We  are  invested  with  all  the  powers  of  the  two  Houses  of  Congress 
to  ascertain  and  decide  what  persons  were  "duly  appointed"  electors  of 
Florida.  By  the  law  which  has  governed  legislative  bodies  from  their 
earliest  existence,  matters  upon  which  they  may  be  called  to  act  can  be 
investigated  by  committees  appointed  for  that  purpose.  And  either 
House  may  receive  the  testimony  taken  by  its  committee  and  proceed 
upon  that,  or  accept  the  finding  of  its  committee  as  its  judgment,  and 
act  upon  that  as  conclusive.  And  not  until  now  has  it  ever  been  ques 
tioned  that  the  power  of  each  House  to  take  testimony  in  that  way  was 
not  as  extensive  as  the  subjects  upon  which  it  could  act.  One  of  the 
gentlemen  on  this  Commission  [Mr.  Edmunds]  introduced  into  the  Senate 
during  the  present  session  resolutions  for  the  appointment  of  commit 
tees  to  inquire  into  the  matters  which  we  are  now  considering,  and  Sen 
ators  Morton  and  Freliughuysen  voted  for  them.  One  of  the  resolutions 
authorized  the  committees  to  inquire,  among  other  things,  "  whether  the 
appointment  of  electors,  or  those  claiming  to  be  such,  in  any  of  the  States 
has  been  made  by  force,  fraud,  or  other  means  otherwise  than  in  con 
formity  with  the  Constitution  and  laws  of  the  United  States  and  the 
laws  of  the  respective  States;'7  and  in  compliance  with  the  resolutions 
the  committees  have  passed  weeks  in  their  investigations.  It  certainly 
provokes  surprise  and  comment  to  hear  these  gentlemen  now  deny  that 
either  House  of  Congress  has  any  power  to  go  behind  the  certificate  of 

*  The  committee  presented  to  the  House  their  report  on  the  31st  of  January,  in  which 
they  declared  that  the  evidence  was  perfectly  conclusive  that  the  State  of  Florida  had 
cast  her  vote  for  the  Tilden  electors,  and  they  closed  with  recommending  the  passage 
of  the  following  resolution  : 

" Resolved,  That  at  the  election  held  on  November  7th,  A.  D.  1876,  in  the  State  of 
Florida,  Wilkinson  Call,  J.  E.  Yonge,  E.  B.  Hilton,  and  Robert  Bullock  were  fairly  and 
duly  chosen  as  presidential  electors,  and  that  this  is  shown  by  the  face  of  the  returns 
and  fully  substantiated  by  the  evidence  of  the  actual  votes  cast;  and  that  the  said 
electors  having,  on  the  first  Wednesday  of  December,  A.  D.  1876,  cast  their  votes  for 
Samuel  J.  Tilden  for  President  and  for  Thomas  A.  Hendricks  for  Vice-President,  they 
are  the  legal  votes  of  the  State  of  Florida,  and  must  be  counted  as  such." 

This  resolution  was  subsequently  adopted  by  the  House  by  a  vote  of  142  yeas  to  82 
nays. 

The  Subcommittee  on  Privileges  and  Elections  of  the  Senate  also  made  an  investiga 
tion  of  the  Florida  case,  and  a  report  which  was  adverse  in  its  conclusions  to  those  of 
the  House  committee,  but  the  report  was  never  adopted  by  the  Senate. 


'  ELECTORAL    COUNT    OF    1877.  987 

the  governor  and  that  of  the  caiivassing-board  of  the  State,  and  to  in 
quire  into  the  matters  for  which  those  committees  were  appointed. 

It  is  said  that  the  Hayes  electors  were  de  facto  officers,  and,  therefore, 
that  their  action  is  to  be  deemed  valid  until  they  were  adjudged  usurp 
ers.  But  they  were  no  more  de  facto  officers  than  the  Tilden  electors. 
Both  sets  of  electors  acted  at  the  same  time  and  in  the  same  building. 
The  doctrine  that  the  validity  of  the  acts  of  de  facto  officers  cannot  be 
collaterally  assailed,  and  that  they  are  binding  until  the  officers  are 
ousted,  is  usually  applied  where  there  is  a  continuing  office,  and  then 
only  on  grounds  of  public  policy.  Private  individuals  are  not  called 
upon,  and  in  most  cases  are  not  permitted,  to  inquire  into  the  title  of 
persons  clothed  with  the  insignia  of  public  office  and  in  apparent  pos 
session  of  its  powers  and  functions?  They  are  required,  for  the  due 
order  and  peace  of  society,  to  respect  the  acts  of  such  officers,  and  yield 
obedience  to  their  authority,  until  in  some  regular  mode  provided  by 
law  their  title  is  determined  and  they  are  ousted.  As  a  consequence  of 
the  respect  and  obedience  thus  given,  private  individuals  can  claim,  in 
all  that  concerns  themselves  and  the  public,  for  the  acts  of  such  officers, 
the  same  efficacy  as  though  the  officers  were  rightfully  clothed  with 
authority.  The  doctrine  may  be  applied  even  to  a  single  act  of  an 
officer  where  the  office  is  a  continuing  one,  but  it  may  be  doubted 
whether  it  is  applicable  to  the  case  of  a  person  simply  charged  with  the 
performance  of  a  single  act.  In  such  performance  it  would  seem  that 
the  person  could  properly  be  regarded  only  as  the  official  agent  of  the 
State,  and  if,  therefore,  he  was  without  authority,  his  acts  would  be  void. 
If  the  doctrine  is  ever  applicable  to  such  a  case,  it  cannot  be  applied 
where  the  act  performed  has  not  accomplished  its  purpose  before  the 
want  of  right  in  the  officer  to  do  the  act  in  question  is  determined. 
None  of  the  reasons  upon  which  the  doctrine  rests,  of  policy,  conveni 
ence,  or  protection  to  private  parties,  has  any  application  to  a  case  of 
this  kind.  It  does  not  seem,  therefore,  to  me  that  there  is  any  force  in 
the  position. 

Nor  is  there  anything  in  the  language  used  in  the  petition  in  the 
quo  warranto  case  which  can  affect  the  status  of  the  Tilden  electors,  as 
is  supposed  by  one  of  the  counsel  on  the  other  side,  [Mr.  Matthews.] 
Of  the  two  sets  of  electors  each  claimed  to  be  lawfully  entitled  to  act, 
and  for  the  purpose  of  having  a  judicial  determination  of  the  question 
in  controversy,  one  set  brought  the  writ.  Any  allegations  they  may 
have  made  cannot  alter  their  right  or  title;  that  depended  upon  the 
vote  of  the  people,  and  no  consent  or  language  of  theirs  could  change 
their  position  to  the  State  or  to  the  United  States. 

Mr.  President,  I  desire  that  this  Commission  should  succeed  and  give 
by  its  judgment  peace  to  the  country.  But  such  a  result  can  only  be 
attained  by  disposing  of  the  questions  submitted  to  us  on  their  merits. 
It  cannot  be  attained  by  a  resort  to  technical  subtleties  and  ingenious 
devices  to  avoid  looking  at  the  evidence.  It  is  our  duty  to  ascertain  if 
possible  the  truth,  and  decide  who  were  in  fact  duly  appointed  electors 
in  Florida,  not  merely  who  received  certificates  of  such  appointment. 
That  State  has  spoken  to  us  through  her  courts,  through  her  legislature, 
and  through  her  executive,  and  has  told  us  in  no  ambiguous  terms  what 
was  her  will  and  whom  she  appointed  to  express  it.  If  we  shut  our 
ears  to  her  utterances,  and  closing  our  eyes  to  the  evidence  decide  this 
case  upon  the  mere  inspection  of  the  certificates  of  the  governor  and 
canvassing-board,  we  shall  abdicate  our  powers,  defeat  the  demands  of 
justice,  and  disappoint  the  just  expectations  of  the  people.  The  country 
may  submit  to  the  result,  but  it  will  never  cease  to  regard  our  action 


988  ELECTORAL    COUNT    OF    1877. 


as  unjust  in  itself,  and  as  calculated  to  sap  the  foundations  of  public 
morality. 

After  the  Electoral  Commission  had  decided  to  exclude  all  testimony  respecting  the 
vote  of  Florida  except  that  furnished  by  the  papers  opened  by  the  President  of  the 
Senate,  the  following  memorial  from  the  legislature  of  the  State  was  presented  to  the 
Houses  of  Congress  : 

Concurrent  resolution  embodying  a  memorial  to  Congress  relative  to  the  counting  of 

the  electoral  vote. 

Resolved  ~by  the  assembly,  (the  senate  concurring,)  That  Hon.  Charles  W.  Jones  be  re 
quested  to  present  the  following  memorial  to  the  Senate  of  the  United  States,  and  that 
Hon.  Jesse  J.  Finley  be  requested  to  present  the  same  to  the  House  of  Representatives 
of  the  United  States  : 

The  people  of  the  State  of  Florida,  represented  in  the  senate  and  assembly,  memo 
rializing  the  honorable  Senate  and  Hous^  of  Representatives  of  the  United  States,  re 
spectfully  represent  that  the  final  counting  of  the  four  electoral  votes  of  Florida  for 
Rutherford  B.  Hayes  and  William  A.  Wheeler,  when  the  said  votes  had  been  actually 
and  honestly  cast  for  Samuel  J.  Tilden  and  Thomas  A.  Hendricks,  is  a  grievance  of 
such  magnitude  to  your  memorialists  that  in  their  view  this  appeal  is  not  only  fully 
warranted,  but  cogently  demanded  by  the  voice  of  duty.  Your  memorialists  hold 
themselves  to  be  justified  in  treating  as  established  and  unquestionable  the  fact  that 
the  said  electoral  votes  were  diverted  from  their  true  course  and  employed  to  defeat 
the  end  which  they  had  been  set  forth  to  accomplish,  because  the  knowledge  of  this 
fact  has  been  communicated  to  your  honorable  bodies  by  solemn  acts  of  all  departments 
of  the  government  of  Florida.  While  it  is  true  that  the  executive  branch  of  said  gov 
ernment  had  previously  averred  the  contrary,  it  has  been  made  known  to  your  hon 
orable  bodies,  and  is  rapidly  becoming  known  throughout  the  civilized  world,  that 
according  to  the  hig-hest  judicial  authority  of  the  State  that  averment  is  false. 

Your  memorialists  may  be  forced  to  admit  that  there  is  no  remedy  for  the  specific 
wrong  of  which  they  herein  complain,  but  they  implore  the  early  and  earnest  atten 
tion  of  your  honorable  bodies  to  the  vices  or  defects  in  the  Constitution  or  laws  of  the 
United  States  by  reason  of  which  such  a  wrong  became  possible.  If  it  is  true  that 
under  the  Federal  Constitution  an  exigency  may  arise  in  which  one  fraudulent  act 
performed,  or  one  mistake  committed  by  a  majority  of  a  canvassing-board,  must  neces 
sarily  defeat  the  will  of  the  American  people  and  determine  the  occupancy  of  the  high 
est  position  open  to  human  ambition,  your  memorialists  fear  that  the  great  instrument 
which  they  have  been  accustomed  to  regard  as  the  unapproachable  master-piece  of 
statesmanship  will  become  an  object  of  derision  and  scorn. 

Your  memorialists  venture  to  express  the  hope  that  the  wisdom  which  characterizes 
your  honorable  bodies  will  be  speedily  applied  to  the  devising  of  some  expedient 
whereby  it  shall  be  made  certain  that  the  nation  will  never  again  prove  utterly  im 
potent  to  protect  itself  against  the  illegal  action  of  a  board  of  canvassers.  And  your 
memorialists  will  ever  pray,  &c. 

Adopted  by  the  assembly,  February  12,  1877. 

Adopted  by  the  senate,  February  13,  1877.  .    . 

STATE  OP  FLORIDA, 

Office  of  Secretary  of  State,  ss  : 

I,  William  D.  Bloxham,  secretary  of  state,  do  hereby  certify  that  the  foregoing  is  a 
correct  transcript  of  the  original  now  on  file  in  this  office. 

Given  under  my  hand  and  the  great  seal  of  the  State  of  Florida,  at  Tallahassee,  the 
capital,  this  26th  day  of  February,  A.  D.  1877. 

[SEAL.]  W.  D.  BLOXHAM, 

Secretary  of  State. 

OREGON. 

On  the  23d  of  February,  the  Commission  having  under  consideration  the  electoral 
vote  of  Oregon — 

Mr.  Justice  FIELD  said  : 

Mr.  PRESIDENT  :  I  have  but  a  few  words  to  say  in  this  case,  and 
they  will  be  said,  not  in  the  expectation  of  affecting  the  judgment  of 
any  one  of  the  Commission,  but  in  order  to  explain  the  reasons  which 
will  govern  my  action. 

It  appears  that  Odell,  Watts,  and  Cartwright  received  at  the  election 
in  Oregon,  in  November  last,  a  higher  number  of  votes  for  electors  of. 
President  and  Vice-President  than  the  candidates  against  them.  Odell 


ELECTORAL    COUNT    OF    1877.  989 

and  Cartwright  were  accordingly  elected 5  of  that  there  is  no  question. 
Watts  would  also  have  been  elected  had  he  been  at  the  time  eligible  to 
the  office.  He  was  then  and  for  some  time  afterward  a  postmaster  at 
La  Fayette,  in  the  State.  The  office  he  held  was  one  of  trust  and  profit 
under  the  United  States ;  it  imposed  trusts,  and  was  one  to  which  a 
pecuniary  compensation  was  attached.  He  was,  therefore,  ineligible  to 
the  office  of  an  elector  ;  he  was  at  the  time  incapable  of  being  appointed 
to  that  office.  Such  is  the  language  of  the  Constitution,  which  declares 
that  "No  Senator  or  Representative,  or  person  holding  an  office  of  trust 
or  profit  under  the  United  States,  shall  be  appointed  an  elector."  The 
prohibition  here  made  is  unqualified  and  absolute.  All  the  power  of 
appointment  possessed  by  the  State  comes  from  the  Constitution.  The 
office  of  elector  is  created  by  that  instrument.  Her  power  of  selec 
tion  is,  therefore,  necessarily  limited  by  its  terms ;  and  from  her  choice 
the  class  designated  is  excluded.  The  object  of  the  exclusion  was  to 
prevent  the  use  of  the  patronage  of  the  Government  to  prolong  the  offi 
cial  life  of  those  in  power. 

The  clause  in  question  is  one  that  operates  by  its  own  force.  Like  the 
prohibition  against  passing  an  ex  post  facto  law,  or  a  bill  of  attainder, 
or  a  law  impairing  the  obligation  of  contracts,  it  executes  itself ;  it  re 
quires  no  legislation  to  carry  it  into  effect.  As  applied  to  Watts,  it  must 
be  read  as  if  his  name  were  inserted  in  the  text,  and  was  as  follows : 
"  The  State  of  Oregon  shall  appoint,  in  such  manner  as  the  legislature 
thereof  may  direct,  a  number  of  electors  equal  to  the  whole  number  of 
Senators  and  Representatives  to  which  the  State  may  be  entitled  in  the 
Congress;  but  Watts  shall  not  be  appointed  one  of  them."  The  power 
to  appoint  him  not  existing  in  the  State,  the  votes  cast  for  him  availed 
nothing;  he  was  incapable  of  receiving  them.  He  was  not,  therefore, 
appointed  the  third  elector. 

The  provision  of  the  Constitution  excluding  from  the  choice  of  the 
State  as  electors  certain  classes  of  officers  is  very  different  from  those 
provisions  which  create  a  mere  personal  disqualification  to  hold  particu 
lar  offices.  Thus  the  clause  declaring  that  "  No  person  shall  be  a  Repre 
sentative  who  shall  not  have  attained  to  the  age  of  twenty-five  years." 
and  the  clause  that  "  No  person  shall  be  a  Senator  who  shall  not  have  at 
tained  to  the  age  of  thirty  years,"  do  not  forbid  an  election  of  persons  thus 
disqualified ;  they  only  prohibit  them  from  holding  the  office  so  long  as 
the  disqualification  exists.  They  can  take  the  office  whenever  that 
ceases.  But  with  respect  to  electors  the  case  is  different ;  there  is  an  in 
capacity  on  the  part  of  the  State  to  appoint  as  electors  certain  classes  of 
officers.  This  distinction  between  ineligibility  to  an  office  and  disquali 
fication  to  hold  the  office  is  well  marked.  The  one  has  reference  to  the 
time  of  election  or  appointment ;  the  other  to  the  time  of  taking  pos 
session  of  the  office.  The  ineligibility  existing  at  the  date  of  the  elec 
tion  is  incurable  afterwards;  the  disqualification  to  hold  may  be  re 
moved  at  any  time  before  induction  into  office.  If,  therefore,  at  the  time  of 
the  election  persons  are  within  the  classes  designated,  their  appointment 
is  impossible.  The  Constitution  prohibits  it,  and  unless  the  prohibition 
is  to  be  frittered  away  whenever  conflicting  with  the  wishes  of  political 
partisans,  it  should  be  enforced  equally  with  the  provision  fixing  the 
number  of  electors.  One  clause  of  the  same  section  cannot  be  disre 
garded  any  more  than  the  other,  and  surely  the  appointment  of  a  greater 
number  of  electors  than  the  State  was  entitled  to  have  would  be  a  vain 
proceeding. 

The  ineligibility  of  Watts  was  a  fact  known  to  the  governor.  He  had 
held  the  office  of  postmaster  for  years,  and  was  in  its  possession  and  ex- 


990  ELECTORAL    COUNT    OF    1877. 

ercise  at  the  time  of  the  election.  This  was  a  fact  of  public  notoriety, 
and  was  not  denied  by  any  one.  It  was  asserted  by  parties  who  protested 
against  the  issue  of  a  certificate  of  election  to  him,  and  it  was  abund 
antly  proved.  Besides  this,  the  rule  of  law  is  that,  whenever  the  ineligi- 
bility  of  a  candidate  arises  from  his  holding  a  public  office  within  the 
State,  the  people  are  chargeable  with  notice  of  the  fact.  The  governor 
is,  of  course,  bound  by  the  Constitution,  and  whenever  the  performance 
of  a  duty  devolved  upon  him  is  affected  by  the  existence  of  public  offices 
under  the  United  States,  he  may  take  notice  officially  of  such  offices  and 
ascertain  who  are  their  incumbents.  This  is  a  doctrine  which  I  had  not 
supposed  open  to  question.  But  I  find  that  I  am  mistaken  ;  and  I  am 
told  by  some  gentlemen  on  this  Commission  that  it  was  not  competent 
for  the  governor  to  consider  the  question  of  the  ineligibility  of  the  can 
didate,  though  made  known  to  him  in  every  possible  way  ;  and  that  its 
determination  involved  the  exercise  of  judicial  functions,  with  which  he 
was  not  invested.  The  general  position  advanced  by  them  is  that  the 
duty  of  the  governor,  as  a  commissioning  officer,  is  to  issue  his  certifi 
cate  of  election  to  any  one  who  may  obtain,  according  to  the  determina 
tion  of  the  canvassers,  the  highest  number  of  votes,  however  ineligible 
the  person  and  however  imperative  the  prohibition  may  be  against  his 
taking  the  office. 

To  test  this  doctrine  I  put  this  question  to  these  gentlemen :  Suppos 
ing  the  law  declared  that  only  white  persons  should  be  eligible  to  an  of 
fice,  and  the  highest  number  of  votes,  according  to  the  canvassers,  should 
be  cast  for  a  colored  man,  would  the  governor  be  bound  to  issue  a  com 
mission  to  him  ?  The  gentlemen  answered  that  he  would  be  thus  bound  ; 
that  the  governor  could  not  in  such  case  decide  the  question  of  the  col 
ored  man's  ineligibility.  Mr.  Senator  Thurman  put  this  further  question  : 
Supposing  the  law  of  the  State  declared  that  only  males  should  be 
elected  to  an  office,  and  the  highest  number  of  votes  were  cast,  accord 
ing  to  the  report  of  the  canvassers,  for  a  female,  would  the  governor  be 
bound  to  issue  a  commission  to  her?  The  gentlemen  replied,  as  before, 
that  he  would  be  thus  bound ;  that  the  governor  could  not  determine 
the  ineligibility  of  the  party  on  the  ground  of  her  sex.  There  is  some 
thing  refreshing  in  these  days  of  sham  and  pretense  to  find  men  who  will 
thus  accept  the  logic  of  their  principles,  to  whatever  result  they  may 
lead. 

A  different  doctrine,  I  think,  prevails  in  this  country.  Every  depart 
ment  of  Government,  when  called  upon  to  apply  a  provision  of  the  Con 
stitution,  must,  in  the  first  instance,  pass  upon  its  construction  and  de 
termine  the  extent  of  its  obligation.  A  just  man  empowered  to  issue  a 
certificate  of  election  will,  it  is  true,  hesitate  to  decide  on  the  question 
of  the  ineligibility  of  a  candidate,  where  there  is  any  serious  doubt  on 
the  subject,  and  for  that  reason  to  refuse  his  certificate.  He  will  in 
such  a  case  leave  the  matter  to  the  determination  of  the  judicial  tribu 
nals.  But  where  there  is  no  doubt  on  the  subject,  and  the  language  of 
the  Constitution  forbidding  the  appointment  is  clear  and  imperative,  he 
cannot,  without  violating  his  oath  of  office,  disregard  its  mandate. 

The  law  is  laid  down  in  numerous  adjudications  in  conformity  with 
these  views.  In  the  case  of  the  State  of  Missouri  on  the  relation  of 
Bartley  against  the  governor,  which  is  cited  by  counsel,  (39  Missouri, 
399,)  the  doctrine  for  which  I  contend  is  stated  with  great  clearness  and 
precision.  There  a  mandamus  was  prayed  against  the  governor  to  com 
pel  him  to  issue  a  commission  to  the  relator  as  one  of  the  justices  of  the 
county  court.  The  supreme  court  refused  the  writ  on  the  ground 
the  issuing  of  a  commission  was  the  exercise  of  political  power,  and 


ELECTORAL    COUNT    OF    1877.  991 

* 

a  mere  ministerial  act.  After  reciting  that  by  the  constitution  the  duty 
devolved  upon  the  governor  to  commission  all  officers  not  otherwise 
provided  by  law,  the  court  said  : 

The  governor  is  bound  to  see  that  the  laws  are  faithfully  executed,  and  he  has  taken 
an  oath  to  support  the  constitution.  In  the  correct  and  legitimate  performance  of  his 
duty  he  must  inevitably  have  a  discretion  in  regard  to  granting  commissions;  for 
should  a  person  be  elected  or  appointed  who  was  constitutionally  ineligible  to  hold 
any  office  of  profit  or  trust,  would  the  executive  be  bound  to  commission  him  when  his 
ineligibility  was  clearly  and  positively  proven  ?  If  he  is  denied  the  exercise  of  any 
discretion  in  such  case,  he  is  made  the  violator  of  the  constitution,  not  its  guardian. 
Of  what  avail  then  is  his  oath  of  office  ?  Or,  if  he  has  positive  and  satisfactory  evi 
dence  that  no  election  has  been  held  in  a  county,  shall  he  be  required  to  violate  the 
law  and  issue  a  commission  to  a  person  not  elected,  because  a  clerk  has  certified  to  the 
election  ?  In  granting  a  commission  the  governor  may  go  behind  the  certificate  to  de 
termine  whether  an  applicant  is  entitled  to  receive  a  commission  or  not,  where  the 
objection  to  the  right  of  the  applicant  to  receive  it  rests  upon  the  ground  that  a  con 
stitutional  prohibition  is  interposed. 

In  Gulick  against  New,  also  cited  by  counsel,  (14  Indiana,  93,)  the 
supreme  court  of  Indiana  used  language  substantially  to  the  same  effect, 
holding  that  the  governor,  who  was  authorized  to  commission  officers, 
might  determine  even  against  the  decision  of  a  board  of  canvassers 
whether  an  applicant  was  entitled  to  receive  a  commission  or  not,  where 
the  objection  to  his  right  to  receive  it  rested  upon  a  constitutional  pro 
hibition. 

Other  adjudications  might  be  cited,  but  I  believe  these  express  the 
law  as  recognized  generally  throughout  the  country.*  The  question 
then  arises,  Watts  being  ineligible,  whether  the  person  receiving  the 
next  highest  number  of  votes,  he  being  eligible,  was  elected.  Governor 
Grover  held  that  such  person  was  elected  and  issued  a  certificate  of 
election  to  him.  In  his  action  in  this  respect  he  followed  the  rule  which 
obtains  in  England,  where,  if  the  voters  having  knowledge  of  the  ineli 
gibility  of  a  candidate  persist  in  voting  for  him,  their  votes  are  consid 
ered  as  thrown  away,  and  the  eligible  candidate  receiving  the  next  high 
est  number  of  votes  is  declared  elected.  There  are  numerous  decisions 
by  courts  of  the  highest  character  in  this  country  to  the  same  effect. 
They  have  been  cited  to  us  by  counsel  in  their  elaborate  arguments,  and 
in  view  of  them  an  honorable  and  conscientious  man  might  well  have 
acted  as  the  governor  did.  But  I  do  not  yield  my  assent  to  them ;  they 

*  In  the  debate  which  took  place  in  the  Senate  on  the  16th  of  December,  1876,  on  the 
electoral  vote  of  Oregon,  Senator  Thurman  replied  to  some  remarks  of  Senator  Morton 
upon  the  action  of  Governor  Grover,  as  follows  : 

"The  Senator  from  Indiana  says  that  the  question  whether  Watts  was  eligible  or 
not  was  a  judicial  question,  and  that  the  sole  duty  of  the  governor  was  a  ministerial 
duty,  that  he  had  no  judicial  function  whatever,  that  it  was  therefore  his  duty  simply 
to  certify  to  the  person  who  received  the  highest  number  of  votes.  He  states  that  in 
the  most  absolute  manner.  If  his  statement  be  correct,  then,  if,  instead  of  voting  for 
Watts,  the  voters  who  cast  their  votes  for  him  had  voted  for  Queen  Victoria,  it  would 
have  been  the  duty  of  the  governor  to  issue  a  certificate  of  election  to  Her  Majesty  the 
Queen  that  she  was  chosen  elector  of  President  and  Vice-President  for  the  State  of 
Oregon.  *  *  *  It  is  very  true  in  Oregon,  as  in  every  State  in  the  Union  and  in  the 
Federal  Government,  that  there  is  a  department  of  government  which  is  called  the 
judiciary,  and  another  department  called  the  executive,  and  another  the  legislative, 
and  the  constitutions  endeavor  to  partition  out  the  great  powers  of  government 
between  these  three  departments  ;  but  does  it  follow  from  that  that  no  power  to  judge 
in  any  case  can  be  devolved  either  upon  the  legislative  department  or  upon  the  execu 
tive  department  of  the  government  or  an  executive  officer  ?  We  could  not  get  along 
with  the  government  one  day  on  such  an  idea  as  that.  The  judicial  power  which  the 
governor  of  Oregon  cannot  exercise,  which  the  legislature  cannot  exercise ;  the  judicial 
power  that  Congress  cannot  exercise,  that  the  President  cannot  exercise,  is  the  power 
of  deciding  litigated  cases  that  arise  in  jurisprudence,  and  is  a  wholly  different  thing 
from  the  exercise  of  that  quasi-judicial  power  which  executive  officers  are  called  upon 
every  day  to  exercise  and  which  they  must  exercise." 


992  ELECTORAL    COUNT    OF    1877. 

* 

are  not  in  harmony  with  the  spirit  of  our  system  of  elections.  The 
theory  of  our  institutions  is  that  the  majority  must  govern;  and 
their  will  can  only  be  carried  out  by  giving  the  offices  to  those  for 
whom  they  have  voted.  In  accordance  with  this  view,  the  weight  of 
judicial  opinion  in  this  country  is,  that  votes  given  for  an  ineligible 
candidate  are  merely  ineffectual  to  elect  him,  and  that  they  are  not  to 
be  thrown  out  as  blanks,  aud  the  election  given  to  the  eligible  candidate 
having  the  next  highest  number  of  votes.  It  is  fairer  and  more  just  to 
thus  limit  the  operation  of  votes  for  an  ineligible  candidate  than  to  give 
them,  as  said  in  the  California  case,  "the  effect  of  disappointing  the 
popular  will  and  electing  to  office  a  man  whose  pretensions  the  people 
had  designed  to  reject.'7  (Saunders  vs.  Haynes,  13  California,  154.) 

I  cannot,  therefore,  vote  that  Cronin,  the  candidate  having  the  next 
highest  number  of  votes  to  Watts,  "  was  duly  appointed  "  an  elector  of 
the  State  at  the  election  in  November.  As  there  was,  in  my  opinion,  a 
failure  to  appoint  a  third  elector,  the  question  arises  whether  a  vacancy 
was  thus  produced  which  the  other  electors  could  fill.  In  a  general 
sense,  an  office  may  be  said  to  be  vacant  when  it  is  not  filled,  though 
this  condition  arise  from  non-election,  or  the  death,  resignation,  or  re 
moval  of  an  incumbent.  Cases  have*been  cited  before  us  where  the 
term  "vacancy"  is  used  in  both  these  senses.  But  the  question  for  us 
to  decide  is  whether  there  was  a  vacancy  within  the  meaning  of  the 
legislation  of  Congress.  That  legislation  distinguishes  between  cases 
of  non-election  and  cases  of  vacancy,  evidently  treating  the  latter  as 
only  occurring  after  the  office  has  been  once  filled.  I  refer  to  sections  133 
and  134  of  the  Eevised  Statutes,  which  are  as  follows : 

SEC.  133.  E*ach  State  may  by  law  provide  for  the  filling  of  any  vacancies  which  may 
occur  in  its  college  of  electors  when  such  college  meets  to  give  its  electoral  vote. 

SEC.  134.  Whenever  any  State  has  held  an  election  for  the  purpose  of  choosing  elect 
ors,  and  has  failed  to  make  a  choice  on  the  day  prescribed  by  law,  the  electors  may 
be  appointed  on  a  subsequent  day  in  such  manner  as  the  legislature  of  such  State 
may  direct.* 

Under  this  legislation  the  State  of  Oregon  has  provided  for  filling 
vacancies  in  its  electoral  college,  treating,  as  does  Congress,  a  vacancy 
as  arising  only  after  the  office  has  once  been  filled.  Its  code  of  general 
laws  declares  when  vacancies  in  any  office  shall  be  deemed  to  have  oc 
curred,  as  follows : 

Every  office  shall  become  vacant  on  the  occurring  of  either  of  the  following  events 
before  the  expiration  of  the  term  of  such  office : 

1.  The  death  of  the  incumbent ; 

2.  His  resignation; 

3.  His  removal ; 

4.  His  ceasing  to  be  an  inhabitant  of  the  district,  county,  town,  or  village  for  which 
he  shall  have  been  elected  or  appointed,  or  within  which  the  duties  of  his  office  are  re 
quired  to  be  discharged : 

5.  His  conviction  of  an  infamous  crime,  or  [of  any  offense  involving  a  violation  of 
his  oath ; 

*  These  provisions  are  taken  from  the  act  of  January  23,  1845,  which  is  as  follows : 

An  act  to  establish  a  uniform  time  for  holding  elections  for  electors  of  President  and 
Vice-President  of  the  United  States. 

SECTION  ].  Be  it  enacted,  <fc.,  That  the  electors  of  the  President  and  Vice-President 
shall  be  appointed  in  each  State  on  the  Tuesday  next  after  the  first  Monday  in  the 
month  of  November  of  the  year  in  which  they  are  to  be  appointed :  Provided,  That 
each  State  may  by  law  provide  for  the  filling  of  any  vacancy  or  vacancies  which  may 
occur  in  its  college  of  electors,  when  such  college  meets  to  give  its  electoral  vote:  And 
provided  also,  When  any  State  shall  have  held  an  election  for  the  purpose  of  choosing 
electors,  and  shall  fail  to  make  a  choice  on  the  day  aforesaid,  then  the  electors  may  be 
appointed  on  a  subsequent  day,  in  such  manner  as  the  State  shall  by  law  provide. 

Approved  January  23,  1845. 


ELECTORAL   COUNT   OF    It77.  993 

6.  His  refusal  or  neglect  to  take  his  oath  of  office,  or  to  give  or  renew  his  official 
bond,  or  to  deposit  such  oath  or  bond  within  the  time  prescribed  by  law  ; 

7.  The  decision  of  a  competent  tribunal  declaring  void  his  election  or  appointment. 
— General  Laws  of  Oregon,  page  576,  section  48. 

On  the  subject  of  vacancies  in  the  electoral  college,  the  same  code  of 
general  laws  provides  that  when  the  electors  convene — 

If  there  shall  be  any  vacancy  in  the  office  of  an  elector,  occasioned  by  death,  refusal 
to  act,  neglect  to  attend,  or  otherwise,  the  electors  present  shall  immediately  proceed 
to  fill,  by  viva  voce  and  plurality  of  votes,  such  vacancy  in  the  electoral  college. — Gen 
era  I  Laws  of  Oregon,  page  578,  section  59. 

It  seems  evident  from  these  provisions  that  there  could  be  no  vacancy 
in  the  office  of  elector  unless  the  office  had  once  been  filled.  The  events, 
upon  the  occurrence  of  which  the  statute  declares  that  a  vacancy  shall 
occur  in  any  office,  all  imply  the  existence  of  a  previous  incumbent. 

The  word  "  otherwise,7'  used  with  respect  to  a  vacancy  in  the  electoral 
college,  does  not  enlarge  the  scope  of  that  term.  The  code  having 
enumerated  under  one  title  the  events  upon  which  a  vacancy  may  arise, 
including  death,  resignation,  and  other  causes,  proceeds  to  declare, 
under  another  title  of  the  same  chapter,  that  when  a  vacancy  occurs  in 
the  office  of  elector  by  death,  refusal  to  act,  or  otherwise,  meaning 
thereby  any  other  cause  which  would  remove  an  incumbent,  the  electors 
present  may  fill  the  vacancy.  As  here  there  never  had  been  an  incum 
bent,  there  could  be  no  vacancy  in  the  sense  of  the  statute  by  death  or 
otherwise. 

The  two  electors,  Odell  and  Cartwright,  undertook  to  appoint  Watts 
as  the  third  elector  upon  the  assumption  that  he  had  resigned  the  office, 
and  that  a  vacancy  was  thereby  created.  But  inasmuch  as  he  had 
never  been  elected,  he  had  nothing  to  resign.  The  case  was  not  one  of 
a  vacancy,  but  of  a  failure  to  elect ;  and  the  legislature  of  the  State  had 
made  no  provision  for  a  subsequent  election  in  case  of  such  failure,  as 
it  might  have  done  under  the  legislation  of  Congress. 

For  these  reasons,  Mr.  President,  I  shall  vote  in  this  case  as  follows : 

First.  That,  as  Watts  held  on  the  day  of  election  an  office  of  trust 
and  profit  under  the  United  States,  he  was  then  ineligible  as  an  elector 
within  the  express  terms  of  the  Constitution  ; 

Second.  That,  as  of  the  three  persons  who  received  the  highest  num 
ber  of  votes  for  electors  at  the  election,  only  two  of  them,  Odell  and 
Cartwright,  were  then  eligible,  they  were  the  only  persons  "  duly  ap 
pointed"  electors,  and  there  was  a  failure  on  the  part  of  the  State  to 
appoint  a  third  elector  5  and 

Third.  That,  as  the  legislature  has  made  no  provision  for  the  appoint 
ment  of  an  elector  under  the  act  of  Congress  where  there  is  a  failure 
to  make  a  choice  on  the  day  prescribed  by  law,  the  attempted  election 
of  a  third  elector  by  the  two  persons  chosen,  as  in  case  of  a  vacancy, 
was  inoperative  and  void. 

I  have  prepared  resolutions  expressive  of  these  views  which  I  shall 
in  proper  time  present  to  the  Commission  for  its  action. 

Upon  the  question  whether  Watts,  by  his  appointment  to  fill  a  sup 
posed  vacancy,  or  by  virtue  of  the  election  in  November,  was  a  de  facto 
officer,  whose  act  is  to  be  treated  as  valid,  I  have  only  a  word  or  two  to 
say: 

First.  There  could  be  no  filling  of  a  vacancy  if  no  vacancy  within  the 
meaning  of  the  statute  existed.  As  already  said,  Watts  could  not  create 
such  a  vacancy  by  assuming  to  resign  an  office  which  he  had  never  held. 
There  could  be  no  de  facto  officer  where  there  was  no  office. 

Second.  The  doctrine  that  the  acts  of  officers  de  facto  are  to  be  held 
63  E  c 


994  ELECTORAL    COUNT    OF   1877. 

as  valid  is  usually  applied  to  cases  where  the  office  filled  is  a  continuing 
one,  like  that  of  a  judgeship  of  a  court,  or  a  directorship  of  a  corporation, 
or  a  commissionership  of  a  county  ;  and  is  properly  applicable  only  to 
such  cases,  and  to  cases  where  the  functions  of  the  office  consist  in  super 
vising  or  recording  the  acts  of  numerous  parties,  like  an  inspectorship 
or  clerkship  of  an  election,  or  a  registership  of  deeds  ;  and  then  is  applied 
simply  on  grounds  of  public  policy,  for  the  protection  of  the  public  and 
parties  who  have  relied  upon  such  acts.  It  is  not  properly  applicable 
to  cases  where  the  entire  iunction  of  the  office  consists  in  the  perform 
ance  of  a  single  act ;  although  there  are  dicta  that  it  has  been  so  ap 
plied.  The  only  instances  mentioned  of  such  application  are  those  where 
there  was  colorable  appointment  of  a  deputy,  or  other  under-officer,  to 
do  a  particular  act  for  his  principal ;  and  the  acts  of  the  subordinate 
officers  in  those  instances  were  sustained  on  other  grounds.  In  the  case 
of  a  continuing  office,  a  single  act  of  the  officer  may  be  upheld,  as  for 
instance  the  order  of  a  judge  de  facto,  though  he  should  exercise  his 
authority  in  no  other  instance.  But  where  there  is  no  continuing  office, 
and  an  isolated  act  is  to  be  performed,  the  person  undertaking  the  exe 
cution  of  the  act  as  agent  of  the  State  must  be  legally  invested  with 
authority,  or  his  action  will  be  void.  All  the  authorities  cited  in  the 
argument  of  one  of  the  objectors  [Mr.  Mitchell]  relate  to  cases  of  the 
former  kind,  and  have  no  application  to  a  case  like  the  one  before  us. 

Third.  If  Watts  can  be  considered  as  having  acted  by  virtue  of  the 
election  in  November,  a  position  which  is  not  claimed  for  him  in  the 
certificate  transmitted  to  the  President  of  the  Senate,  then  the  doctrine 
asserted  is  not  applicable  to  his  acts,  for  the  further  reason  that  such 
application  would  nullify  an  express  provision  of  the  Constitution.  The 
doctrine  invoked  is  that  if  a  person  whose  appointment  is  prohibited  is, 
nevertheless,  permitted  to  act  upon  a  certificate  of  election ,  the  prohibition 
as  to  him  is  abrogated,  and  his  acts  are  as  valid  as  though  the  prohibition 
had  never  existed.  He  shall  not  be  appointed,  says  the  Constitution ; 
but  if  he  is  appointed,  says  this  doctrine,  that  fact  will  make  no  differ 
ence  ;  the  prohibition  will  not  impair  the  validity  of  his  action  -,  the  pro 
hibition  is  a  dead  letter. 


REMARKS  OF  MR,  COMMISSIONER  STRONG. 

FLORIDA. 

The  Electoral  Commission  having  under  consideration  an  offer  of  evidence  to  im 
peach  the  canvass  of  the  November  election  in  Florida  for  presidential  electors  made 
by  the  State  canvassing-board— 

Mr.  Commissioner  STRONG  said: 

Mr.  PRESIDENT:  If  the  evidence  offered  can  have  any  legitimate 
and  constitutional  bearing  upon  the  decision  of  the  questions  sent  to 
this  Commission  by  the  act  of  Congress  which  has  conferred  upon  us 
our  powers,  it  is  pertinent  within  the  meaning  of  the  act,  and  it  ought 
to  be  received.  But  if,  on  the  other  hand,  it  has  no  such  bearing — if, 
when  received,  it  could  not  lawfully  affect  the  decision  we  are  empow 
ered  to  make,  it  is  impertinent,  and  it  should  not  be  admitted.  It  is, 
therefore,  a  vital  inquiry  for  what  precise  purpose  the  evidence  is  offered. 
Without  undertaking  to  call  attention  to  it  in  detail,  it  may  be  said  that, 
primarily  and  substantially,  the  attempt  of  those  who  offer  it  is  to  show 
that  the  persons  who,  for  convenience,  are  called  the  Hayes  electors 
were  not  in  fact  elected  by  the  people  of  Florida ;  that  the  return  of 


ELECTORAL   COUNT   OF    1877  995 

their  election,  and  the  governor's  certificate  founded  on  the  return,  were 
not  a  true  representation  of  the  votes  cast,  but  that  the  Tilden  electors 
were  elected,  and  that  the  canvass  and  decision  of  the  board  of  State 
canvassers  should  have  so  declared.  What  we  are  asked  to  do,  then, 
is  to  recanvass  a  State  election  for  State  agents  or  officers,  or,  rather,  to 
try  a  contested  election  for  presidential  electors,  such  a  contested  election 
as  is  provided  for  in  most  of  the  States  by  established  tribunals  created 
for  the  purpose  of  determining  election  contests,  on  which  courts  of  law 
frequently  decide  in  cases  of  quo  warranto. 

Hence,  the  question  that  meets  us  at  the  outset  is :  Has  this  Commission 
power  to  try  a  case  of  contested  election  in  a  State?  It  has,  by  virtue 
of  the  act  which  created  it,  all  the  powers  over  the  Florida  election  for 
electors  which  Congress  itself  has,  and  all  which  either  House  has,  as 
well  as  all  which  the  two  Houses  in  convention  have.  It  can  have  no 
more.  Congress  could  have  conferred  no  more,  and  it  has  made  no  at 
tempt  to  confer  more.  The  statute  directs  us  to  consider  all  certificates, 
votes,  and  papers  from  a  State  objected  to,  and  all  papers  accompanying 
the  same,  with  the  objections,  and  directs  us  to  consider  them  "  with  the 
same  powers,  if  any,  now  possessed  for  that  purpose  by  the  two  Houses, 
acting  separately  or  together,  and  by  a  majority  of  votes  decide  whether 
any  and  what  votes  from  such  State  are  the  votes  provided  for  by  the  Con 
stitution  of  the  United  States,  and  how  many  and  what  persons  were  duly 
appointed  electors  in  such  State,  and  [we]  may  therein  take  into  view 
such  petitions,  depositions,  and  other  papers,  if  any,  as  shall  by  the  Con 
stitution  and  now  existing  law  be  competent  and  pertinent  in  such  con 
sideration.77  We  are,  therefore,  to  have  whatever  powers  Congress  has, 
if  any,  under  the  Constitution  for  the  purpose  of  considering  the  papers 
laid  before  us,  and  the  same  powers  for  deciding  what  are  the  votes 
provided  for  by  the  Constitution.  In  making  our  decision  and  report, 
as  well  as  in  receiving  extrinsic  evidence,  we  can  only  act  within  the 
limits  of  the  constitutional  power  conferred  upon  Congress.  This  is 
plain  from  the  language  of  the  act,  as  I  have  quoted  it. 

The  question,  then,  restated  and  carried  back  one  step,  is  this:  Has 
Congress  pcwer  to  recanvass  the  votes  and  returns  of  votes  given  in  a 
State  for  presidential  electors,  or  has  it  power  to  try  a  contested  elec 
tion  in  a  State?  The  answer  to  this  must  be  sought  in  the  Constitution. 
Congress,  confessedly,  has  no  powers  which  the  Constitution  has  not 
conferred  upon  it,  either  expressly  or  by  fair  implication  from  the  grant 
of  some  express  power.  This  will  not  be  questioned  by  any  one. 

Now,  if  it  be  that  Congress,  or  either  House  of  Congress,  has  any 
power  to  canvass  the  votes  cast  for  electors,  or  the  returns  of  such  votes, 
that  power  must  be  found  in  the  clause  of  the  Constitution  which  or 
dains  that  the  President  of  the  Senate  "  shall,  in  the  presence  of  the 
Senate  and  House  of  Representatives,  open  all  the  certificates  "  [of  the 
lists  of  persons  voted  for  for  President  and  Vice-President,  and  of  the 
number  of  votes  for  each,J"  and  the  votes  shall  then  be  counted."  The 
opening  of  the  certificates  and  the  counting  of  the  votes  is  not  the  elec 
tion.  Nor  is  the  voting  done  on  the  second  Tuesday  in  November  the 
presidential  election.  It  is  only  preparatory  to  such  election.  The 
presidential  election  takes  place  on  the  first  Wednesday  of  December, 
when  the  appointed  electors  meet  and  cast  their  votes,  and  all  that  the 
President  of  the  Senate  and  the  two  Houses  of  Congress  have  to  do 
after  that  time  is  to  ascertain  the  result.  And  it  is  worthy  of  notice 
that  in  this  constitutional  provision,  which  alone  is  the  basis  of  all  claim 
set  up  for  congressional  power  to  canvass  the  votes  and  returns  of  the 
November  State  election,  there  is  no  reference  to  that  election,  or  to 


996  ELECTORAL    COUNT    OF    1877. 

anything  antecedent  to  the  act  of  voting  by  the  electors.  The  reference 
is  exclusively  to  matters  that  must  occur  after  they  have  performed 
their  duties. 

Now,  certainly  no  one  can  contend  that  the  direction  that  the  votes  (that 
is,  the  votes  of  the  appointed  electors)  shall  be  counted  in  the  presence 
of  the  Senate  and  House  of  Kepresentatives  is  an  express  bestowal  of 
power  upon  any  body  to  inquire  and  determine  whether  a  State  canvass 
of  the  election  of  electors  was  correct  or  not.  The  framers  of  the  Con 
stitution  well  understood  what  was  necessary  to  confer  upon  Congress, 
or  upon  either  House,  power  to  canvass  elections  or  returns,  and  the 
subject  did  not  escape  their  attention.  When  such  power  was  intended 
to  be  granted,  it  was  given  in  plain  language.  Each  House  was  made 
a  judge  "  of  the  elections,  returns,  and  qualifications  of  its  own  members." 
No  such  language  was  used  respecting  electors,  and  for  what  appears 
to  me  to  be  the  plainest  reason.  The  scheme  of  the  Constitution  was  to 
make  the  appointment  of  electors  exclusively  a  State  affair,  free  from 
interference  of  the  legislative  department  of  the  Government,  excepting 
only  that  Congress  was  permitted  to  determine  the  time  for  choosing 
electors,  and  the  day  on  which  they  shall  give  their  votes,  with  this  lim 
itation,  that  the  day  shall  be  the  same  throughout  the  United  States. 
And  it  was  ordained  that  no  Senator  or  Eepresentative  shall  be  ap 
pointed  an  elector. 

The  States,  as  such,  were  required  to  appoint,  in  such  manner  as 
their  legislatures  might  direct;  the  plain  object  of  which  was  to  make 
State  governments,  in  the  matter  of  choosing  a  President,  as  independ 
ent  as  possible  of  any  possible  action  by  the  General  Government. 

It  will,  then,  I  think,  be  admitted  that  the  power  claimed  for  Con 
gress,  and  of  course  for  this  Commission,  by  the  proponents  of  the  evi 
dence  offered,  has  not  been  expressly  granted.  Is  there  any  implica 
tion  of  such  a  grant?  I  am  unable  to  find  it  in  the  Constitution.  I 
have  already  remarked  that  when  the  grant  of  such  a  power  was  in 
tended  to  be  made  it  was  given  in  unmistakable  language,  expressly 
making  each  House  a  judge  of  the  elections,  returns,  and  qualifications 
of  its  members.  The  express  gift  in  that  case  tends  to  repel  the  idea  of 
an  implied  grant  of  the  same  power  in  any  other.  I  think  it  may  safely 
be  said  that  no  powers  were  granted  to  Congress  by  the  Constitution, 
either  expressly  or  impliedly,  that  were  not  intended  to  be  granted,  and 
it  is  difficult  to  believe  there  was  an  intention  to  grant  to  Congress  by 
implication  power  to  canvass  and  judge  of  elections  and  returns  of  elec 
tions  of  State  electors  when  it  was  thought  necessary  to  grant  that 
power  expressly  in  cases  of  elections  of  Senators  and  Kepresentatives. 

An  implication  of  power  must  have  something  upon  which  it  can  rest, 
and  certainly  there  is  in  the  Constitution  no  basis  for  an  implication 
such  as  is  sought  to  be  made  here,  except  it  be  found  in  the  required 
presence  of  the  two  Houses  when  the  electoral  votes  are  to  be  opened 
and  counted.  I  know  of  no  other  implication  of  congressional  power 
which  rests  on  so  shadowy  a  foundation,  and  I  find  it  impossible  to  in 
fer  from  that  any  grant  of  power  of  canvassing  elections  iii  the  States. 
Yet  if  we  receive  the  evidence  offered  we  shall  be  claiming  and  exerting 
the  exact  power  which  Congress  would  have  possessed  if  the  Constitu 
tion  had  expressly  declared  that  Congress  shall  be  the  judge  of  the 
elections,  returns,  and  qualifications  of  presidential  electors. 

The  truth  is,  the  framers  of  the  Constitution  seem  never  to  have  con 
templated  the  possibility  of  disputes  respecting  the  appointment  of 
electors,  and  hence  they  made  no  provision  for  the  decision  of  such 
controversies.  They  were  wise  men,  but  they  did  not  foresee  every- 


ELECTORAL    COUNT    OF    1877.  997 

thing.  They  would  have  been  more  than  human  if  they  had.  I  doubt 
whether  they  had  in  mind  at  all  the  idea  of  a  popular  election  as  a 
mode  of  appointing  State  electors.  They  used  the  word  "appoint," 
doubtless  thinking  that  the  legislatures  of  the  States  would  themselves 
select  the  electors,  or  empower  the  governor  or  some  other  State  officer 
to  select  them.  The  word  "  appoint'7  is  not  the  most  appropriate  word 
for  describing  the  result  of  a  popular  election.  Such  a  mode  of  appoint 
ment,  I  submit,  is  allowable,  but  there  is  little  reason  to  think  it  was 
contemplated,  and  still  less  reason  to  suppose  that  the  idea  of  a  con 
tested  popular  election  for  electors  had  any  existence  in  the  minds  of 
its  framers  when  the  Constitution  was  formed.  It  was  not  until  years 
afterward  that  the  electors  were  chosen  by  popular  vote.  It  is  altogether 
improbable,  therefore,  that  any  necessity  was  felt  in  the  constitutional 
convention  for  giving  to  Congress,  or  any  other  branch  of  the  new 
Government,  the  decision  of  contests  over  the  results  of  such  elections, 
and  hence  it  is  not  surprising  that  we  find  no  provision  made  for  deter 
mining  them. 

And  it  seems  to  me,  if  such  contest  had  been  foreseen,  that  it  is  by 
no  means  clear  the  convention  would  have  provided  for  their  decision 
by  any  Federal  tribunal.  There  are  inherent  difficulties  in  the  way. 
As  I  have  said,  the  appointment  of  electors,  however  it  may  be  made, 
is  peculiarly  and  exclusively  a  State  affair.  The  .action  of  electors  after 
their  appointment  has  relation  to  the  General  Government,  but  the 
appointment  itself  is  a  different  matter.  Before  the  first  Wednesday  of 
December,  when  the  electors  cast  their  votes,  neither  Congress  nor  any 
Department  of  the  General  Government  has  anything  to  do  with  them, 
or  with  the  proceeding  for  appointing  them.  The  State  confessedly  has. 
She  has  entire  control  over  the  elections,  over  the  returns,  and  over  the 
canvass.  And  so,  after  the  votes  of  the  electors  have  been  cast,  if  there 
be  any  power  over  the  election,  the  returns,  or  the  canvass,  confessedly 
the  State  has  it.  Now,  if  Congress  had  power  also  to  enter  upon  a 
recanvass,  or  to  try  a  contest  over  the  results,  its  exercise  might  lead 
to  untold  confusion  and  difficulty.  Congress  might  decide  that  one  set 
of  electors  had  bean  appointed,  while  the  State,  which  has  undoubted 
authority,  might  decide  another  set  were  the  true  appointees.  If  the 
decisioiTof  Congress  is  to  prevail,  where  then  is  the  right  of  the  State 
to  appoint  in  its  own  manner  I  I  cannot  believe  the  Constitution  j  ustifies 
any  such  possible  conflict,  or  any  such  invasion  of  the  domain  of  a 
State.  The  implication  of  such  a  power  ought  to  be  clear,  if  it  exists  at 
all.  It  ought  not  to  rest  on  any  other  than  a  substantial  foundation. 
Somebody  ought  to  be  able  to  put  his  finger  on  some  clause  in  the  Con 
stitution  that  justifies  it.  No  such  clause  has  been  pointed  out,  and  I 
can  find  none.  The  present  juncture  sometimes  tempts  me  to  wish  I 
could  find  some  power  in  Congress  and  in  this  Commission  to  explore 
to  the  bottom  the  election  and  returns  in  Florida;  and  could  I  find 
anything  upon  which  to  build  a  fair  implication  of  such  a  power,  I 
would  exert  it.  But  I  cannot  construe  the  Constitution  as  I  may  wish 
it  to  be ;  I  must  construe  it  as  I  find  it. 

If,  then,  Congress  has  not  the  power  to  enter  into  the  consideration 
of  the  evidence  offered,  it  would  be  idle  to  admit  it. 

But  we  are  asked,  Is  there  no  way  of  avoiding  the  possibility  of 
having  electoral  votes  cast  on  the  faith  of  false  returns  of  elections  ? 
Can  no  inquiry  be  made  into  the  correctness  of  such  returns  I  To  such 
questions  I  reply,  there  is  ample  power  in  the  State.  She  may  provide 
in  any  way  to  purify  her  elections,  and  may  devise  means  to  correct  an 
erroneous*  canvass,  or  rectify  false  returns,  or  throw  out  illegal  votes. 


998  ELECTORAL    COUNT    OF    1877. 

She  may  do  this  in  the  most  summary  way.  She  may  accomplish  it 
completely  before  the  day  for  casting  the  electoral  vote  arrives.  But  I 
find  no  power  in  Congress,  either  express  or  implied,  to  do  this  work 
which  the  State  may  do. 

There  may  be  a  necessity  for  its  lodgment  somewhere  outside  of  the 
State,  but  when  Congress  undertakes  to  act  it  must  find  a  warrant  for 
its  action  in  some  provision  of  the  Constitution.  There  are  many  things 
the  experience  of  ninety  years  has  taught  us  it  would  be  desirable  to 
have,  some  things  that  seem  to  be  necessary,  which  the  Constitution 
has  not  given. 

In  all  elections  there  are  and  there  must  be  finalities.  There  must  be 
an  ultimate  canvass  and  ascertainment  of  the  result.  That  must  be 
final  and  conclusive  until  reversed,  though  it  may  not  be  in  exact 
accordance  with  the  actual  facts. 

The  statute  of  Florida  provides  that  its  presidential  electors  shall  be 
appointed  by  a  popular  vote,  and  it  directs  that  the  result  of  that  vote 
shall  be  determined  and  declared  by  a  State  board  of  canvassers  con 
stituted  as  directed.  That  board  is  made  by  the  statute  the  ultimate 
determinant  and  declarant  of  what  the  vote  was  and  of  its  result,  and 
it  has  power  in  certain  cases  to  exclude  county  returns.  The  board  is 
to  determine  and  declare.  Such  is  the  plain  direction  of  the  act.  Deter 
mination  is  a  quasi-judicial  act;  the  declaration  which  is  to  follow  is  an 
announcement  of  the  determination ;  and  after  the  determination  and 
declaration  the  governor  is  required  to  give  a  certificate  to  the  persons 
elected  electors.  But  how  is  he  to  know  who  has  been  elected,  except 
from  the  determination  and  declaration  of  the  board  ?  He  has  no 
authority  to  canvass  the  returns,  and  he  cannot  overrule  the  action  of 
the  board.  He  must  be  governed  by  that  action  if  he  obeys  the  law 
and  certifies  as  required. 

I  admit  the  declaration  and  determination  of  the  board  may  be  set 
aside  by  any  authority  the  State  may  designate  to  try  contested  elec 
tions.  It  may  be  shown  to  be  erroneous  on  the  trial  of  a  quo  warranto. 
But  until  thus  reversed,  it  is  and  must  be  final,  obligatory  upon  the 
governor  as  upon  all  others.  The  certificate  he  is  required  by  law  to 
give  is  a  certificate  of  a  fact,  and  of  a  fact  which  can  appear  only  in 
that  determination  of  the  State  board  of  canvassers,  which  is  in  ex 
istence  unreversed  when  the  certificate  is  to  be  given.  Surely,  he  cannot 
certify  that  a  person  has  been  elected  who,  at  the  time  of  his  certificate, 
is  shown  by  the  determination  of  the  State  board  not  to  have  been  elected. 
Such  a  certificate  would  be  a  palpable  falsehood  and  fraud. 

Now,  in  this  case,  it  is  not  offered  to  be  shown  that  Governor  Steam s's 
certificate  of  the  election  of  what  are  called  the  Hayes  electors  did  not 
truly  represent  the  conclusions  and  determination  of  the  State  board  ; 
and  if  it  did  truly  conform  to  that  determination,  it  was  such  a  certificate 
as  he  was  authorized  and  required  to  make.  It  was  neither  untrue  nor 
fraudulent. 

I  admit  the  governor's  certificate  is  not  unimpeachable.  It  may  be 
shown  to  be  untrue  by  proof  that  it  does  not  correspond  with  the  de 
termination  of  the  canvassing-board.  It  may  be  proved  to  be  a  forgery. 
But  in  the  present  case  these  things  are  not  alleged.  The  certificate 
must  be,  therefore,  at  least prima-facie  evidence  that  the  persons  certified 
to  be  elected  were  in  fact  elected,  and,  therefore,  that  they  were  the 
State's  appointees.  They  derived  their  title  from  the  election,  and  what 
was  the  result  of  the  election  was  determined  by  the  State  canvassing- 
board.  The  determination,  I  have  said,  may  have  been  subject  to  revision 


ELECTORAL    COUNT    OF    1877.  999 

by  process  of  State  law,  but  until  annulled  it  was  the  pronounced  action 
of  the  State. 

Are,  then,  persons  who  have  received  a  governor's  certificate  that  they 
have  been  appointed  electors,  a  certificate  which  the  governor  is  required 
by  law  to  give,  and  which  is  founded  on  a  quasi-judicial  determination 
of  the  results  of  the  election,  incapable  of  acting  until  it  shall  be  decided 
by  another  tribunal,  in  some  proceeding  which  may  or  may  not  after 
ward  be  commenced,  whether  the  determined  and  declared  result  of  the 
election  was  erroneous  or  not  f 

Must  every  person  who  has  received  a  commission  to  fill  an  office,  the 
duties  of  which  are  to  be  performed  immediately,  if  at  all,  decline  acting 
under  the  commission  because  subsequent  investigation  may  have  shown, 
that  he  was  not  entitled  to  it  ?  No  such  doctrine,  I  think,  has  ever  been 
asserted  by  any  tribunal. 

Now,  then,  the  persons  who  voted  for  Hayes  on  the  6th  day  of  Decem 
ber  had  all  the  insignia  of  title  when  they  voted.  They  had  the  gov 
ernor's  certificate  of  their  right.  They  had  the  judicial  determination, 
and  declaration  of  the  State  canvassing-board  that  they  had  been  elected. 
No  other  persons  had  even  a prima-facie  right.  The  Tilden  electors  had 
no  decision  in  their  favor  of  any  board  or  tribunal  authorized  by  law  to 
ascertain  and  declare  the  results  of  the  election.  They  had  no  certificate 
from  anybody  empowered  to  certify  that  they  were  electors.  They  were 
not  even  electors  de  facto. 

I  do  not  care  to  discuss  the  question  how  far  the  acts  of  officers  de 
facto  are  effective.  It  is  admitted  that  they  generally  are  valid  as 
against,  or  for,  others  than  themselves.  Bat  I  maintain  that  the  acts  of 
such  officers  are  dejure.  When  they  have  at  the  time  of  their  action  all 
the  evidences  of  right  known  to  the  law,  their  right  is  absolute  and 
perfect  until  annulled  or  revoked.  I  do  not  see  how  anybody  can  con 
tend  that  acts  of  officers  who  have  received  certificates  of  their  election 
from  the  authority  empowered  and  directed  to  issue  such  certificates — 
certificates  truly  representing  the  final  returns  of  the  election,  as  de 
termined  and  declared  by  the  ultimate  board  constituted  by  law  for 
making  such  determination — are  not  dejure.  How  can  it  be  maintained 
that  such  officers  are  personally  responsible  for  acts  done  in  pursuance 
of  their  apparent  right,  even  though  it  may  subsequently  be  shown 
that  they  were  not  in  fact  elected  ?  Could  the  Hayes  electors  have 
been  sued  for  intrusion  T  If  they  had  been,  would  not  the  governor's 
certificate  and  the  determination  of  the  State  canvassing-board  have 
been  a  complete  protection  ?  If  a  sheriff  has  a  commission  from  a  gov 
ernor,  are  his  acts,  while  he  holds  the  commission,  rendered  invalid  by 
a  subsequent  judicial  decree  that  he  was  not  entitled  to  the  office? 
Surely  this  will  not  be  claimed.  And  if  it  cannot  be,  it  is  because  the 
acts  of  such  officers  are  rightful,  or  dejure. 

In  my  judgment,  it  follows  inevitably  that  what  was  done  in  Florida 
after  the  6th  of  December  is  immaterial.  Neither  the  action  of  the 
legislature,  nor  apost  hoc  decision  of  a  court,  can  affect  an  act  rightfully 
done,  when  it  was  done  and  completed  before  the  legislature  and  the 
court  attempted  to  annul  the  authority  for  it. 

Mr.  Commissioner  TH0KMAN.  Are  we  not  now  counting  the  vote? 
Is  it  not  a  matter  in  fieri  f 

Mr.  Commissioner  STRONG.  We  are  now  counting  the  electoral 
vote.  But  the  offer  of  evidence  assumes  that  we  may  count  the  State 
vote  for  electors,  an  antecedent  matter.  I  have  already  attempted  to 
show  that  there  is  no  constitutional  power  in  Congress,  and  conse 
quently  none  in  us,  to  count  the  votes  of  States,  or  to  review  a  State 
canvass. 


1000  ELECTORAL    COUNT    OF    1877. 

But  to  return  to  the  subject  I  was  considering.  There  must  be  a 
finality  in  ascertaining  the  results  of  an  election,  and  when  the  election 
is  a  mode  of  appointment  of  persons  to  cast  a  vote  for  a  State  on  an  ap 
pointed  day,  the  finality  must  be  on  or  before  that  day,  else  nothing  can 
be  settled.  The  electors  of  the  State  of  New  York  cast  the  votes  of  the 
State  on  the  6th  of  December  last.  Can  those  votes  now  be  nullified  by 
any  subsequent  action  of  the  New  York  legislature  declaring  that  the 
persons  who  voted  were  not  elected,  or  creating  a  new  board  to  make  a 
new  canvass,  or  by  the  judgment  of  an  inferior  court,  or  any  other 
court,  that  other  persons  were  entitled  to  cast  the  votes  of  the  State  ? 
If  that  is  possible,  the  new  President  to  be  installed  on  the  4th  of 
March  next  can  be  ousted  by  the  declaration  of  a  State  legislature  or 
the  judgment  of  a  State  court.  There  is  no  statute  of  limitations  to  bar 
such  action  by  any  State.  If  the  votes  of  electors  can  be  destroyed  by 
State  action  after  they  have  been  cast,  it  may  be  done  next  July  as  well 
as  it  can  be  now. 

But  I  have  detained  the  Commission  too  long.  I  will  only  add  some 
references  to  a  few  decisions  that  bear  directly  on  the  question  before 
us,  and  show  the  conclusive  effect  of  the  decision  of  a  statutory  can- 
vassing-board. 

In  25  Maine  Beports,  507,  may  be  found  a  unanimous  opinion  of  the 
supreme  judicial  court  in  answer  to  a  question  propounded  to  the  court 
by  the  governor.  The  question  was,  "  Is  it  competent  for  the  governor 
and  council,  in  counting  votes  for  county  officers,  under  the  provisions 
of  the  act  providing  for  the  election  of  county  officers,  approved  Feb 
ruary  22,  1842,  to  receive  from  the  town  clerk  and  selectmen  evidence  to 
show  that  the  return  made  by  them  does  not  correspond  with  the  rec 
ords  P  The  constitution  and  statutes  of  the  State  required,  in  the 
choice  of  county  officers,  that  the  votes  of  towns  and  plantations  should 
be  received  by  their  selectmen  and  assessors  respectively,  in  the  pres 
ence  of  their  respective  town  and  plantation  clerks,  and  that  the  clerks 
should  make  a  list  of  the  persons  voted  for  with  the  number  of  votes  for 
each  against  his  name,  and  that  the  same  should  be  recorded  in  the 
presence  of  the  selectmen  and  assessors  respectively,  in  the  open  town 
and  plantation  meetings,  and  that  fair  copies  of  the  lists  should  be 
attested  by  the  selectmen  and  assessors  of  their  respective  towns  and 
plantations,  and  by  the  clerks  of  each,  and  sealed  up  in  open  town  and 
plantation  meetings.  The  votes  so  sealed  up  are  required  to  be  trans 
mitted  to  the  governor  and  council  within  thirty  days  thereafter,  who 
are  to  "  open  and  count  the  votes  returned."  Open  and  count  the  votes — 
such  is  the  language  of  the  law.  The  court  was  of  opinion  that  the 
governor  and  council  had  no  authority  to  receive  any  other  evidence  in 
relation  to  the  votes  than  what  the  certificates  so  prepared,  transmit 
ted,  and  received,  may  contain — not  even  evidence  that  the  township 
records  differ  from  the  return-lists.  A  similar  decision  was  made  in 
Bacon  vs.  The  York  Commissions,  26  Maine,  494 ;  and  a  like  opinion 
was  given  in  1867,  reported  in  54  Maine,  602. 

In  The  People  ex  rel.  Bailey  vs.  The  Supervisors  of  Greene,  17  Barb., 
217,  it  was  held  that  after  a  board  of  county  canvassers  has  met  and 
organized  according  to  law,  and  proceeded  to  estimate  the  votes  of  the 
county,  and  to  make  the  statement  prescribed  by  the  statute,  and  to  de 
termine  who  have  been  elected  county  officers,  and  a  copy  of  their  de 
termination  has  been  published  and  filed  and  become  a  matter  of  record, 
and  the  board  has  dissolved,  a  mandamus  will  not  lie  requiring  them  to 
reorganize  and  correct  the  estimate  of  votes  of  the  county,  by  allowing 
counting,  canvassing,  and  estimating  the  votes  of  an  election-district 


ELECTORAL    COUNT    OF    1877.  1001 

alleged  to  have  been  improperly  omitted  by  the  board  at  its  former 
meeting. 

In  Haclley  vs.  The  Mayo,  of  Albany,  33  New  York  (Court  of  Appeals), 
603,  it  was  ruled  that  when  the  law  htis  committed  to  the  common  coun 
cil  of  a  city  the  duty  of  canvassing  the  returns  and  determining  the  re 
sult  of  an  election  from  them,  and  the  council  have  performed  that  duty 
and  made  their  determination  from  them,  they  have  exhausted  their 
power  and  cannot  afterward  reverse  their  decision  by  making  a  different 
determination.  It  was  also  held  that  the  question  as  to  the  effect  of  the 
returns  is  not  open  for  determination  by  a  jury  in  an  action  to  which 
the  title  to  the  office  comes  up  collaterally.  In  that  case  an  offer  was 
made  to  show  that  the  returns  in  fact  showed  (as  is  alleged  in  the.  case 
now  before  us)  that  the  person  determined  and  declared  elected  was  not 
elected.  But  the  evidence  was  ruled  inadmissible,  and  Denio,  the  em 
inent  judge  who  delivered  the  opinion  of  the  court,  said: 

If  the  question  had  arisen  upon  an  action  in  the  nature  of  a  quo  warranto  informa 
tion,  the  evidence  would  have  been  competent.  But  it  would  be  intolerable  to  allow 
a  party  affected  by  the  acts  of  a  person  claiming  to  be  an  officer  to  go  behind  the  offi 
cial  determination  to  prove  that  such  official  determination  arose  out  of  mistake  or 
fraud. 

So  in  Clark  vs.  Buchanan,  2  Minnesota,  346,  it  was  held  that  a  can- 
vassin g-board,  having  made  a  canvass  and  adjourned  sine  die,  was/twc- 
tus  officio  and  had  no  right  to  reconvene  and  correct  errors  in  its  decis 
ions.  I  know  of  no  authorities  in  conflict  with  these.  There  are  very 
many  that  assert  the  same  doctrine. 

My  conclusions,  then,  are  that  neither  Congress  nor  this  Com 
mission  has  authority  under  the  Constitution  to  recanvass  the  vote 
of  Florida  for  State  electors ;  that  the  first  determination  of  the  State 
canvassing-board  was  conclusive  until  it  was  reversed  by  State  au 
thority  j  that  while  it  remained  unreversed  it  conferred  upon  the  per- 
sons  declared  by  it  to  have  been  chosen  electors  rightful  author 
ity  to  cast  the  vote  of  the  State;  and  that  the  act  which  those 
electors  were  appointed  to  do  having  been  done,  it  was  not  in  the 
power  even  of  the  State  afterward  to  undo  the  act  and  call  in  question 
the  authority  by  which  it  was  done. 

It  follows,  in  my  judgment,  that  the  evidence  now  offered  is  imperti 
nent  to  any  question  we  can  decide,  and,  therefore,  that  it  ought  not  to 
be  admitted. 

OREGON. 

The  electoral  votes  of  Oregon  being  under  consideration — 

Mr.  Commissioner  STEONG  said: 

Mr.  PRESIDENT  :  I  do  not  propose  to  present  an  extended  argument  in 
support  of  the  opinions  I  have  respecting  this  case.  The  condition  of 
my  health  forbids  that ;  but  I  wish  to  state  very  briefly  what  my  opin 
ions  are,  together  with  the  conclusions  at  which  I  have  arrived.  I  still 
think,  as  I  thought  when  we  had  the  Florida  and  Louisiana  cases  under 
consideration,  that  when  the  laws  of  a  State  have  appointed  a  tribunal, 
either  a  board,  a  council,  an  officer,  or  any  authority,  to  ascertain,  de 
cide,  or  determine  what  have  been  the  results  of  an  election  for  presi 
dential  electors,  the  decision  of  that  board,  officer,  or  authority  is  con 
clusive,  so  long  as  it  remains  unreversed  by  a  judicial  tribunal  em 
powered  by  State  law  to  reverse  it.  If  I  could  have  had  any  doubts 
upon  this  subject  they  would  have  been  removed  by  the  very  able  argu 
ment  of  Judge  Hoadly,  submitted  to  us  night  before  last,  and  by  the 


1002  ELECTORAL   COUNT    OF    1877. 

numerous  authorities  he  cited.  Those  authorities  show  that  it  is  every 
where  held  that  the  decision  or  ascertainment  of  the  result  of  an  election 
by  the  appointed  canvassing  authority  is  final,  and  that  it  must  be  ac 
cepted  as  such.  Not  a  single  authority  has  been  adduced  which  asserts 
any  other  doctrine.  The  right  of  a  person  claiming  to  have  been  elected 
is  to  be  tested,  then,  by  the  results  of  the  State  canvass,  not  by  what 
preceded  it,  and  not  by  what  followed  it.  The  State  canvass  is  the 
determination  by  the  State,  acting  through  its  appointed  agents, 
of  the  question  who  was  elected.  I  have  never  doubted  that  when 
the  legal  profession  of  the  country  shall  come  to  examine  the  sub 
ject  coolly,  as  they  will  after  the  present  excitement  has  passed,  they 
will  agree  that  this  is  a  perfectly  sound  doctrine.  But  I  had  not  ex 
pected  the  doctrine  would,  at  this  early  period,  in  the  midst  of  an  ex 
cited  party  struggle,  receive  the  assent  and  complete  vindication  it  has 
received  from  the  counsel  who  have  addressed  us  on  behalf  of  the  Til- 
den  electors. 

In  view  of  this  principle,  to  which  there  appears  to  be  universal  as 
sent,  let  us  examine  the  statutes  of  Oregon  and  see  what  provision  that 
State  has  made  for  ascertaining  and  determining  the  results  of  elections 
for  presidential  electors.  The  sixtieth  section  of  its  election  laws  en 
acts  that  "  the  votes  for  electors  shall  be  given,  received,  returned,  and 
canvassed  as  the  same  are  given,  returned,  and  canvassed  for  members 
of  Congress,"  and  former  sections  of  the  act  prescribe  how  the  returns 
and  canvass  of  votes  for  members  of  Congress  shall  be  made.  In  each 
county  the  county  clerk  is  required  to  make  an  abstract  of  the  votes 
cast  in  the  county  and  send  it  to  the  secretary  of  state ;  and  the  thirty- 
seventh  section  of  the  law  directs  as  follows : 

It  shall  be  the  duty  of  the  secretary  of  state,  in  the  presence  of  the  governor,  to 
proceed,  within  thirty  days  after  the  election,  and  sooner  if  the  returns  be  all  received, 
to  canvass  the  votes  given  for  *  *  *  members  of  Congress. 

This  provision  plainly  makes  the  secretary  of  state  the  sole  canvass 
ing  officer.  It  may  not  be  proper  to  call  him  a  board,  bufc  he  is  the  sole 
officer  designated  and  appointed  by  the  law  to  make  the  canvass  and 
ascertain  the  result  of  the  election.  It  is  true  he  must  make  the  can 
vass  in  the  presence  of  the  governor,  but  no  duties  in  regard  to  the  can 
vass  are  assigned  by  the  law  to  the  governor.  His  presence  is  required 
to  insure  an  open  canvass,  and  for  no  other  apparent  reason.  Had  it 
been  intended  he  should  take  part  in  the  canvass,  the  language  of  the 
act  would  have  been,  it  shall  be  the  duty  of  the  secretary  of  state  and 
of  the  governor  to  proceed  to  canvass  the  votes,  &c.  But  the  words 
actually  used  have  no  such  meaning.  It  is  worthy  of  notice  that  in  the 
thirty-fifth  section,  where  provision  is  made  for  a  county  canvass,  and 
for  making  up  the  abstract  of  votes  to  be  sent  to  the  secretary  of  state, 
it  is  enacted  that  the  county  clerk,  "taking  to  his  assistance  two  justices 
of  the  peace  of  the  county,  shall  proceed  to  open  the  [returns  received] 
and  make  abstracts  of  the  votes."  There  the  two  justices  selected  are 
made  part  of  the  county  canvassing-board,  because  they  are  to  be  active 
participants  therein,  but  the  provision  in  regard  to  the  State  canvass  is 
widely  different,  and  the  different  language  employed  respecting  that 
indicates  clearly  a  difference  of  intention.  I  think,  therefore,  that  it  is 
beyond  any  reasonable  doubt  that  by  the  law  of  Oregon  the  secretary 
of  state  ife  made  the  sole  canvassing-officer  to  ascertain,  from  the  county 
abstracts  sent  to  him,  and  to  determine  the  results  of  an  election  for 
member  of  Congress,  and  also  for  presidential  electors. 

This  canvass  was  made  in  the  present  case,  and  we  have  it  before  us. 
The  secretary  of  state  has  certified  and  affixed  the  seal  of  the  State  to 


ELECTORAL   COUNT   OF    1877.  1003 

his  certificate  that  the  tabulated  statement  to  which  he  certifies  is  the 
result  of  the  vote  cast  for  presidential  electors  at  a  general  election 
held  in  and  for  the  State  of  Oregon  on  the  7th  day  of  November,  A.  D. 
1876,  as  opened  and  canvassed  in  the  presence  of  his  excellency  L.  F. 
Grover,  governor  of  the  State,  according  to  law,  on  the  4th  day  of  De 
cember,  A.  D.  1876,  at  two  o'clock  of  that  day,  by  the  secretary  of  state. 
That  certificate  shows  that  each  of  the  three  Hayes  electors  received 
over  15,200  votes,  and  that  each  of  the  Tilden  electors  received  less  than 
14,200.  The  secretary  has  also  made  out  and  certified,  over  the  seal  of 
the  State,  a  list  of  the  names  of  the  three  persons  who  received  the 
highest  number  of  votes,  as  it  appears  by  the  returns  of  the  election  on 
file  in  his  office,  and  those  three  persons  are  the  three  Hayes  electors. 

This  result  of  the  canvass,  thus  made  to  appear,  was  the  final  deter 
mination  of  the  officer  appointed  by  the  State  to  make  such  a  determina 
tion.  I  agree  with  the  honorable  Senator  frorh  Delaware  that  there  is  no 
essential  difference  in  the  authority  of  the  State  canvassing-boards  of 
Florida  and  that  of  the  State  canvassing-officer  of  Oregon.  The  duty  of 
each  is  to  ascertain,  as  a  finality,  who  have  been  elected  by  the  popular 
votes.  But  in  Oregon  there  is  a  most  important  statutory  provision.  It 
is  found  in  the  fortieth  section  of  the  law  regulating  elections,  as  follows : 

In  all  elections  in  this  State,  the  person  having  the  highest  number  of  votes  for  any 
office  shall  be  deemed  to  have  been  elected. 

When,  therefore,  the  secretary  of  state,  on  the  4th  day  of  December, 
1876,  canvassed  the  vote  of  the  State,  and  ascertained,  as  he  did,  that 
Odell,  Cartwright,  and  Watts  had  received  the  highest  number  of  votes 
for  presidential  electors,  the  law  declared  them  to  be  elected.  It  required 
that  they  should  be  deemed  elected.  Deemed  by  whom  f  Deemed  elected 
by  the  secretary  of  state,  by  the  governor,  and  by  everybody  else. 
Apart,  then,  from  the  question  respecting  the  alleged  ineligibility  of 
Watts,  of  which  I  shall  speak  hereafter,  the  appointment  of  those  three 
electors  was  complete  on  that  day,  so  soon  as  the  secretary  of  state  had 
completed  his  canvass.  Now,  had  nothing  more  been  done ;  had  no  cer 
tificate  of  their  election  ever  been  given  by  the  secretary  or  by  the  gov 
ernor,  the  three  electors,  having  been  ascertained  by  the  State's  appointed 
officer  to  have  received  the  highest  number  of  votes  and  having  been 
required  by  law  to  be  deemed  elected,  would  have  had  a  complete  and 
unquestionable  right  to  cast  the  vote  of  the  State  for  President  and 
Vice-President.  No  one  doubts  or  denies  this.  Their  right  was  founded 
upon  the  election  as  determined  by  the  law,  and  not  upon  any  certificate 
of  their  having  been  elected  or  of  their  being  electors. 

But  the  sixtieth  section  of  the  statute  imposes  upon  the  secretary  of 
state  an  additional  duty,  to  be  performed  after  he  has  completed  the 
canvass.  He  is  required  to  prepare  two  lists  of  the  names  of  the  electors 
elected,  and  affix  the  seal  of  the  State  to  the  same.  These  lists  are 
required  to  be  signed  by  the  secretary  and  the  governor,  and  to  be  deliv 
ered  by  the  secretary  to  the  college  of  electors  at  the  hour  of  their  meet 
ing  on  the  first  Wednesday  of  December.  This,  I  say,  is  no  part  of  the 
canvass.  It  is  a  simple  ministerial  act,  which  may  be  performed,  and 
which  was  performed  in  the  present  case,  days  after  the  canvass  and 
determination  of  the  question  who  had  the  highest  number  of  votes,  and 
days  after  the  time  when,  by  force  of  law,  the  persons  ascertained  to 
have  received  the  highest  number  were  deemed  to  have  been  elected. 
These  lists,  then,  are  in  no  sense  the  commission  of  the  electors  and 
their  warrant  for  action.  Their  authority  is  complete  before  the  lists 
are  made  out.  Nor  can  there  be  any  pretense  for  saying  that  the  lists 
are  the  decision  of  the  canvassing-officer.  Nobody  claims  that.  What, 


1004  ELECTORAL   COtJNT   OF   1877. 

then,  are  they,  and  what  purpose  were  they  designed  to  subserve  ?  They 
are  not  required  to  give  notice  to  the  electors  that  they  have  been, 
appointed.  This  is  clear,  for  they  are  not  to  be  delivered  to  the  college 
of  electors  until  the  hour  of  their  meeting.  As  notices,  therefore,  they 
would  be  nugatory.  The  chosen  electors  might  reside  hundreds  of  miles 
from  the  capital.  Had  the  lists  been  intended  for  notice  of  appoint 
ment,  service  of  them  must  have  been  required  before  the  hour  of  meet 
ing.  It  is  evident  they  are  intended  to  be  evidence,  on  the  count  here,  of 
a  previous  appointment,  and  they  are  made  out  in  duplicate  that  they 
may  accompany  the  two  certificates  of  votes  required  by  the  act  of  Con 
gress  of  1792  to  be  sent  to  the  President  of  the  Senate.  These  lists,  it 
is  true,  are  required  to  be  signed  by  the  governor  as  well  as  by  the  sec 
retary  of  state.  They  are  not  to  be  made  out  by  the  governor  or  deliv 
ered  by  him.  He,  as  well  as  the  secretary,  signs  to  furnish  evidence 
required  at  Washington  to  show  here  that  the  State  had  previously 
appointed  the  persons  electors  whose  votes  have  been  sent. 

The  truth  is,  the  law  of  Oregon  confers  on  the  governor  no  authority 
to  canvass  the  returns  of  votes  for  presidential  electors,  or  to  commission 
those  who  by  the  ascertainment  and  decision  of  this  canvassing  authority 
are  to  be  deemed  elected,  or  to  certify  who  have  been  appointed.  He 
may  grant  such  a  certificate  of  election  to  the  person  having  the  highest 
number  of  votes  for  certain  other  offices  and  may  issue  a  proclamation 
declaring  the  election  of  such  person.  This  power  is  conferred  by  the 
thirty- seventh  section.  But  the  provisions  in  regard  to  presidential 
electors  are  entirely  different.  His  certificate  of  their  election  is  wholly 
unauthorized.  When,  therefore,  he  certified  that  Odell  received  15,206 
votes,  Oartwright  15,214  votes,  E.  A.  Cronin  14,157  votes  for  electors, 
being  the  highest  number  of  votes  cast  at  the  election  for  persons  eligi 
ble  to  be  appointed  electors,  and  declared  them  duly  elected  electors  for 
the  State  of  Oregon,  he  did  an  act  which  the  law  conferred  upon  him 
no  power  to  do,  and  he  certified  what  was  untrue,  for  the  law  declared 
that  the  persons  who  had  the  highest  number  of  votes  should  be  deemed 
elected. 

This  unauthorized  certificate,  which  alone  is  the  foundation  of  all  claim 
the  Tilden  electors  set  up,  was  the  act  of  the  governor.  It  was  attested, 
it  is  true,  by  the  secretary  of  state,  and  the  seal  of  the  State  is  attached, 
but  it  is  not  the  certificate  of  the  secretary  any  more  than  the  attestation 
of  Mr.  Secretary  Fish  to  a  presidential  proclamation  of  a  thanksgiving 
day  makes  it  Mr.  Fish's  proclamation.  The  attestation  is  to  the  fact 
that  the  governor  signed  the  certificate.  It  is  not  an  assertion  that  the 
certificate  is  true.  The  secretary  of  state  of  Oregon  has  never  certified 
that  Cronin  was  an  elector,  or  that  any  persons  were  other  than  Odell, 
Cartwright,  and  Watts. 

Even  where  the  law  of  the  State  directs  the  governor  to  give  to  elect 
ors  certificates  of  their  election,  as  the  law  of  Florida  does,  I  have  never 
contended,  and  no  one  has  contended,  that  the  certificate  is  conclusive. 
I  said  distinctly,  more  than  once,  when  remarking  upon  the  Florida  case, 
that  the  governor's  certificate  is  not  unimpeachable.  It  may  be  shown  to 
be  untrue,  and  it  is  so  shown  when  it  is  proved  to  be  different  from  the 
conclusions  of  the  State  canvassing  authority  or  board.  I  say  so  now. 
Unless  the  decisions  of  all  courts  are  to  be  disregarded,  the  result  of  an 
election  for  electors  is  that  ascertained  and  determined  by  the  State 
canvassing-board  or  officer  designated  by  law  for  that  duty.  That  is 
what  we  held  in  both  the  Florida  and  Louisiana  cases,  and  that  I  hold 
now.  But  if  such  were  not  the  law,  an  unauthorized  certificate  of  the 
governor  can  be  evidence  of  no  fact  asserted  in  it. 


ELECTORAL   COUNT   OF    1877.  1005 

A  few  words  in  regard  to  the  ineligibility  of  Watts.  I  believe  that 
neither  this  Commission  nor  Congress  has  any  power  under  the  Consti 
tution  to  judge  of  the  qualifications  of  a  State  elector,  no  more  than  we 
have  to  judge  of  the  State  election  and  returns.  Ineligibility  is  a  dis 
qualification.  But  I  will  not  discuss  the  question  of  our  power ;  I  have 
sufficiently  discussed  it  heretofore.  If  it  be  conceded  that  Watts  was 
ineligible  on  the  7th  of  November,  the  day  of  the  election,  his  disquali 
fication  for  appointment  ceased  on  the  14th  of  that  month,  and  there 
was  nothing  in  the  way  of  his  appointment  on  the  6th  of  December. 
Concede,  for  the  sake  of  the  argument,  that  he  was  ineligible  on  the  7th 
of  November,  and,  therefore,  was  not  elected,  though  he  received  a  higher 
number  of  votes  than  any  competitor,  then  there  were  two  chosen,  and 
the  college  consisting  of  three  was  not  fall.  One  elector  was  wanting. 
There  was  a  vacancy,  and  that  vacancy  was  filled  on  December  6,  by 
the  action  of  the  two  electors  who  were  chosen,  who  then  appointed 
Watts  to  fill  it.  Our  friends,  however,  whose  opinions  do  not  concur 
with  mine,  earnestly  insist  that  the  deficiency  in  the  college  having  been 
caused  by  a  failure  to  elect  more  than  the  two  electors,  there  was  no 
vacancy  within  the  meaning  of  the  law  which  the  two  electors  could 
fill.  A  vacancy,  they  say,  can  only  exist  when  the  office  has  had  an  in 
cumbent.  Bather  technical,  I  think !  The  statute  of  Oregon  declares 
that  if,  at  the  hour  of  twelve  o'clock  at  noon  on  the  first  Wednesday  of 
December  after  their  election,  "  there  shall  be  any  vacancy  in  the  office 
of  an  elector,  occasioned  by  death,  refusal  to  act,  neglect  to  attend,  or  oth 
erwise,  the  electors  present  shall  immediately  proceed  to  fill,  by  viva  voce 
and  plurality  of  votes,  such  vacancy  in  the  electoral  college,  and  when 
all  the  electors  shall  appear,  or  the  vacancies,  if  any,  shall  have  been 
filled,  as  above  provided,  such  electors  shall  proceed  to  perform  the  du 
ties  required  of  them  by  the  Constitution  and  laws  of  the  United  States." 
The  language  is  very  broad — as  comprehensive  as  possible.  It  is  not 
only  vacancies  occasioned  in  specified  ways  that  may  be  filled,  but  va 
cancies  occasioned  otherwise.  The  statute  is  plainly  remedial,  and  the 
mischief  or  evil  it  was  intended  to  remedy  was  a  college  of  electors  only 
partly  filled  when  the  time  for  voting  came.  If  there  was  a  vacancy 
then,  if  there  were  not  in  being  the  entire  number  of  electors  to  which 
the  State  was  entitled,  the  State  would  lose  her  just  share  in  the  choice 
of  a  President  and  Vice-President.  This  was  the  mischief  the  statute 
proposed  to  remedy,  and  the  mischief  was  precisely  the  same,  whether 
the  incompleteness  of  the  college  was  caused  by  the  death,  refusal  to 
act,  or  neglect  to  attend  of  one  of  the  persons  elected,  or  whether  it 
was  caused  by  a  failure  to  elect  a  sufficient  number  of  electors. 

Now,  if  there  be  any  rule  of  construction  which  no  one  doubts,  it  is 
that  remedial  statutes  are  to  be  liberally  construed,  and  that  such  eifecfc 
is  to  be  given  to  them,  if  possible,  as  to  remove  the  whole  mischief  they 
are  intended  to  cure.  In  view  of  this  principle,  I  cannot  see  how  it  can 
be  maintained  that  Odell  and  Cartwright  were  not  authorized  to  appoint 
a  third  elector,  as  they  did,  and  thus  complete  the  college.  The  argu 
ment  that  they  had  no  such  right  is  based,  if  it  has  any  basis,  upon  the 
most  refined  technicality.  Together  with  those  who  act  with  me,  I  have 
been  charged  with  standing  on  technicalities  to  defeat  justice.  If  to 
stand  on  the  Constitution  of  the  United  States  and  the  decisions  of  all 
the  courts,  as  I  have  done,  is  to  be  technical,  what  is  to  be  said  of  the 
argument  that  under  the  Oregon  statute  two  admittedly  chosen  electors 
had  no  right  to  fill  the  electoral  college,  if  its  incompleteness  was  occa 
sioned  by  a  failure  of  the  people  to  elect  more  than  two  electors  I 

Mr.  President,  such  are  my  opinions  respecting  the  principal  questions 


1006  ELECTORAL    COUNT    OF    1877. 

in  this  case.  They  lead  inevitably  to  the  conclusion  that,  under  the  law 
of  Oregon,  Odell,  Oartwright,  and  Watts  were  the  duly-appointed  elect 
ors  of  the  State,  and  that  the  votes  cast  by  them  should  be  counted. 


EEMAEKS  OF  ME.  COMMISSIONEE  M1LLEE. 

FLORIDA. 

The  Commission  having  under  consideration  the  electoral  vote  of  Florida — 

Mr.  Commissioner  MILLER  said: 

Mr.  PRESIDENT  :  As  all  the  members  of  the  Commission  have  spoken 
to  the  matter  before  us  but  you,  my  brother  Bradley,  and  myself,  and  as 
I  am  aware  that  before  the  vote  is  taken  both  you  and  he  desire  to  give 
expression  to  your  views,  it  seems  appropriate  and  it  is  probably  ex 
pected  that  I  shall  do  the  same. 

The  only  question  which  I  consider  to  be  properly  before  the  Com 
mission  is  the  one  propounded  by  us  to  counsel,  namely,  whether  any 
other  evidence  can  be  received  and  considered  by  the  Commission  than 
that  which  was  submitted  by  the  President  of  the  Senate  to  the  two 
Houses  of  Congress,  being  the  different  certificates  and  the  papers 
accompanying  the  same.  The  other  members  of  the  Commission  who 
have  taken  part  in  this  discussion  have  not  limited  themselves  to  this, 
but  have  inquired  into  the  effect  of  the  action  of  the  State  courts  of 
Florida,  and  of  her  legislature,  and  the  certificates  of  Attorney-General 
Cocke,  and  Governor  Drew,  as  found  in  those  papers  j  and  in  consider 
ing  the  effect  of  the  certificate  of  Governor  Stearns  and  the  action  of 
the  returning-board  of  the  State,  in  excluding  other  evidence  of  the 
appointment  of  electors,  it  was  not  easy  to  keep  wholly  out  of  view  the 
papers  I  have  mentioned. 

I  shall  therefore  give  them  a  few  moments'  consideration.  But  as 
they,  with  another  matter  much  insisted  on,  lie  outside  of  the  general 
and  what  I  believe  to  be  the  more  legitimate  course  of  reasoning,  on 
which  the  true  solution  of  the  question  must  rest,  I  will  dispose  of  them 
first. 

It  is  strongly  urged  upon  us  that  a  large  pile  of  papers,  a  half-bushel 
perhaps  in  quantity,  of  the  contents  of  which  both  this  Commission 
and  the  two  Houses  of  Congress  are  profoundly  ignorant,  has  become 
legitimate  evidence  and  must  necessarily  be  considered  by  us,  because 
they  are  in  a  very  general  way  referred  to  in  the  paper  filed  by  certain 
members  of  the  two  Houses  as  their  objection  to  what  has  been  famil 
iarly  referred  to  as  certificate  No.  1,  by  which  I  understand  the  certifi 
cate  of  Governor  Stearns  that  the  electors  who  have  since  cast  their 
votes  for  Hayes  and  Wheeler  were  the  duly-appointed  electors  for  the 
State  of  Florida.  This  proposition  has  been  defended  by  Mr.  Commis 
sioner  Hunton  on  the  ground  that  by  analogy  to  the  exhibits  accom 
panying  a  bill  or  answer  in  chancery,  these,  being  exhibits  to  the 
objections  which  the  statute  requires  to  be  made  in  writing,  become 
part  of  those  objections.  But  if  the  principle  were  sound  the  analogy 
wholly  fails,  because  every  exhibit  referred  to  in  a  bill  in  chancery 
must  not  only  have  its  pertinency  shown  by  describing  its  nature  or 
character  in  the  bill,  but  the  exhibit  itself  must  be  identified  by  a  mark 
or  reference,  as  a  number,  a  letter,  or  some  other  mode  by  which  that 
identity  is  clearly  established.  Nothing  of  the  kind  is  done  here.  JSo 
statement  of  the  character,  or  nature,  or  source  of  a  single  paper,  out 


ELECTORAL    COUNT    OF    1877.  1G07 

of  perhaps  a  hundred,  is  made.  No  reference  is  made  to  anything  by 
which  these  papers  can  be  identified.  There  is  nothing  to  hinder  alter 
ations  or  substitutions  among  them.  They  may  be  ex  parte  affidavits 
taken  in  the  morasses  of  Florida,  the  slums  of  New  York,  or  the  private 
office  of  retained  counsel  in  this  city.  It  would  be  very  strange  indeed 
if  the  act  of  Congress,  under  which  we  sit,  intended  to  furnish  in  this 
manner  the  materials  on  which  our  decisions  must  be  founded.  Such, 
however,  is  the  argument  of  Mr.  Commissioner  Thurman,  who,  constru 
ing,  as  I  venture  to  say  erroneously,  an  important  phrase  in  that  act, 
insists  that  all  the  papers  accompanying  the  objections  must  be  consid 
ered  by  us.  The  language  he  relies  on  is  this : 

When  all  such  objections  so  made  to  any  certificate,  vote,  or  paper  from  a  State  shall 
have  been  received  and  read — 

In  the  joint  meeting  of  the  two  Houses — 

all  such  certificates,  votes,  and  papers  so  objected  to,  and  aft  papers  accompanying  the 
same,  together  with  said  objections,  shall  be  forthwith  submitted  to  said  Commission, 
which  shall  proceed  to  consider  the  same,  &c. 

The  good  sense  of  the  framers  of  this  bill  is  vindicated  by  the  critical 
accuracy  with  which  they  have  clearly  expressed  that  the  certificates, 
votes,  and  papers  so  objected  to,  and  all  papers  accompanying  them, 
are  to  be  considered,  and  the  objections  also,  the  latter  only  on  their 
merits,  with  no  directions  to  consider  any  papers  filed  with  them,  even 
if  fully  described  and  identified.  This  seems  so  clear  to  me  that  I  shall 
pass  from  the  consideration  of  the  point  without  further  remark. 

Another  matter,  much  relied  on  by  counsel  and  urged  again  in  the 
Commission,  is  the  action  of  the  courts  of  Florida  in  two  cases  which 
are  supposed  to  affect  the  right  of  the  electors  mentioned  in  the  first 
certificate. 

The  first  of  these  was  the  suit  between  Stearns  and  Drew,  rival  candi 
dates  for  the  office  of  governor  at  the  same  general  election  in  which 
the  electors  are  said  to  have  been  chosen.  It  is  not  claimed  that  this 
suit  of  itself  determined  who  were  the  lawfully-appointed  electors,  but 
that  the  opinion  of  the  supreme  court  of  the  State  settles  principles  of 
law,  binding  on  us,  which  show  that  the  action  of  the  returning-board 
is  not  conclusive.  I  am  not  satisfied  that  the  principles  laid  down  in 
that  opinion,  if  applied  to  the  action  of  that  board  in  the  case  of  the 
electors,  would  have  the  effect  claimed  for  it  now.  But  whether  this  be 
so  or  not,  I  am  very  clear  that  the  opinion  of  the  court  in  that  case  is 
not  of  the  class  which  binds  this  body  in  construing  the  statute  of 
Florida  on  that  subject.  It  is  the  well-settled  doctrine  of  the  Supreme 
Court  in  case  of  writs  of  error  to  the  decisions  of  the  State  courts,  that 
where  the  matter  to  be  considered  is  the  constitutionality  or  validity  of 
a  State  law,  the  Supreme  Court  must  for  itself  determine  that  question, 
and  that  to  follow  implicity  the  State  decision  on  the  construction  of 
the  statute  is  to  abdicate  the  power  and  refuse  to  perform  the  duty  de 
volved  on  it  in  that  case.  (Bridge  Proprietors  vs.  Hoboken  Company, 
2  Wallace,  116.)  Such  is  precisely  the  case  here.  If  Congress  or  the 
two  Houses,  whose  power,  neither  more  nor  less,  we  exercise  to-day, 
had  a  right  to  determine  on  the  validity  and  effect  of  the  certificate  of 
the  returning-board  to  these  electors,  it  was  a  power  called  into  exist 
ence  before  any  action  of  the  State  court  of  Florida,  and  could  not  be 
forestalled,  nor  could  the  principles  on  which  it  must  be  decided  be  con 
cluded  by  any  anticipatory  action  of  the  courts  of  Florida,  whether  had 
with  that  view  or  not.  The  effect  of  that  opinion  on  our  action  must, 
therefore,  be  limited  to  the  force  of  its  reasoning  and  the  weight  of 
character  which  the  court  brings  to  its  support. 


1008  ELECTORAL    COUNT    OF    1377. 

I  confess  that  if  the  opinion  is  fairly  construed  to  hold  that  the  re- 
turnip  g-board  of  elections  of  that  State  had  no  other  than  the  mere 
ministerial  function  of  adding  up  and  comparing  the  columns  of  votes, 
and  could  exercise  no  judgment  on  questions  of  fraud  or  other  matters, 
and  was  wholly  without  power  in  reviewing  and  rejecting  the  poll  of 
any  voting-precinct,  it  is  so  much  at  variance  with  the  language  and 
spirit  of  the  statute  it  was  construing  as  to  have  Httle  weight  with  me 
in  forming  a  judgment  on  the  same  subject. 

The  other  case  in  the  State  courts  was  a  proceeding  in  quo  warranto, 
brought  in  person  by  those  whom  1  shall,  to  avoid  circumlocution,  call 
the  Tilden  electors  against  the  Hayes  electors,  in  the  local  circuit  court 
of  Leon  County,  to  test  the  title  to  said  office. 

Of  this  suit  no  record  is  before  us.  We  know  nothing  of  it  except  a 
very  short  statement  in  a  certificate  given  by  Governor  Drew  that  such 
a  suit  had  been  instituted  in  the  circuit  court  of  the  State  for  the  second 
judicial  district,  and  resulted  in  a  judgment  in  favor  of  the  relators.  It 
is  not  stated  when  the  suit  was  commenced,  or  when  the  judgment  was 
rendered.  It  seems  to  have  been  conceded  in  argument  that  service  of 
the  writ  or  notice  of  the  suit  was  made  on  the  6th  day  of  December,  the 
day  on  which  by  act  of  Congress  the  electors  everywhere  must  cast  their 
vote,  and  the  day  on  which  the  electors  declared  by  the  returning-board 
and  by  Governor  Stearns — the  governor  then  in  power  by  undisputed 
right — did  cast  the  electoral  vote  of  the  State  of  Florida  ;  but  whether 
the  notice  was  before  or  after  they  had  voted  is  not  shown.  Can  the 
right  to  cast  one  of  the  electoral  votes  of  a  State  for  President  be  thus 
tried  in  a  court  of  law  ?  It  is  not  asserted  that  any  such  right  is  found 
in  any  act  of  Congress  or  in  any  statute  of  Florida. 

The  single  function  of  an  elector  is  to  give  one  of  the  votes  to  which 
the  State  is  entitled  for  President  and  Vice-President.  His  powers  be 
gin  there  and  end  there.  He  has  no  permanent  office  with  continuing 
functions,  in  which  he  may  repeatedly  perform  acts  of  authority  unless 
prevented  by  the  courts.  There  is,  therefore,  no  necessity  for  the  appli 
cation  of  such  a  writ.  An  injunction  would  be  much  more  appropriate, 
if  any  judicial  remedy  existed  at  all,  for  by  that  writ  the  single  act 
which  he  can  perform  might  be  prohibited.  If  a  county  which  had 
taken  stock  in  a  railroad  company  should  attempt  to  appoint  an  agent 
to  cast  its  vote  in  the  election  of  directors,  would  a  quo  warranto  lie  to 
test  his  authority  ?  Yet  he  is  exercising  a  function  precisely  similar  to 
an  elector,  except  that  one  represents  a  State  and  the  other  a  county. 

It  is  perhaps  not  the  most  satisfactory  test  of  the  soundness  of  a 
principle  to  look  to  its  consequences,  but  where  the  principle  rests  on 
no  statute,  but  on  some  general  common-law  doctrine,  this  is  usually  a 
very  fair  test  of  its  correctness.  If  the  doctrine  be  true  of  Florida,  it 
must  be  equally  so  of  other  States.  In  New  York  there  are  thirty-two 
judges  of  the  supreme  court  of  that  State,  a  court  which  exercises  orig 
inal  jurisdiction  all  over  the  State.  Under  the  principle  asserted  any 
one  of  these  thirty- two  judges  may  issue  his  writ  of  quo  warranto,  or  of 
injunction,  or  other  appropriate  writ,  the  day  before  the  votes  must  by 
law  be  cast  for  President  and  Vice-President,  and  by  this  exercise  of 
his  power  prevent  the  35  votes  of  the  State  from  being  given  or  counted 
in  the  election.  And  if  you  say  it  is  only  the  final  judgment  which  is 
effectual,  that  may  be  delayed  until  after  the  4th  of  March,  when  it  will 
be  of  no  avail  to  give  any  judgment,  whether  it  be  right  or  whether  it 
be  wrong.  It  is  safe  to  say  that  no  such  power  exists  in  any  man  or  in 
any  tribunal,  unless  it  is  placed  there  by  the  expressed  will  of  the  law- 
making  power. 


ELECTORAL    COUNT    OF    1877.  1009 

The  Constitution  declares  that  no  person  holding  an  office  of  trust  or 
profit  under  the  United  States  shall  be  appointed  an  elector,  and  the 
objectors  to  certificate  No.  1  propose  to  give  evidence  to  show  that  Mr. 
Humphreys,  one  of  the  electors  named  in  that  certificate,  was  at  the 
date  of  his  election  holding  the  office  of  shipping-commissioner  under 
the  appointment  of  the  circuit  court  of  the  United  States  for  the  dis 
trict  of  Florida.  There  are  two  reasons  why  I  do  not  think  such  evi 
dence  admissible.  The  first  is  that  the  inquiry  comes  too  late,  because 
Mr.  Humphreys,  acting  under  the  credentials  which  the  law  prescribes 
as  his  authority,  has  already  cast  his  vote  for  President  and  Vice- 
President.  That  vote  being  a  fact  accomplished,  cannot  be  annulled 
by  any  subsequent  proceeding  to  question  his  eligibility.  The  sec 
ond  is,  that  like  many  other  provisions  of  the  Constitution,  it  is 
not  self-executing;  and  as  no  means  of  enforcing  it  have  been  pro 
vided  it  remains  ineffectual,  save  as  its  directions  shall  be  observed  by 
those  who  appoint  the  electors.  In  this  regard  the  provision  of  the 
Constitution  in  question  is  not  singular.  A  very  large  residuum  of  the 
powers  conferred  by  the  Federal  Constitution  has  never  been  called  into 
action  by  appropriate  legislation.  As  regards  the  grant  of  judicial 
power  by  that  instrument,  it  has  been  the  frequent  subject  of  comment 
that  a  large — perhaps  until  very  recently  the  largest — part  of  this 
power  has  never  been  called  into  exercise  because  Congress  has  not 
conferred  the  necessary  jurisdiction  on  any  court  or  other  judicial  tri 
bunal.  It  was  early  decided  that  the  provision  for  the  rendition  of 
persons  held  to  service  in  one  State  escaping  into  another  was  inopera 
tive  because  no  statute  to  enforce  it  had  been  enacted.  And  after  the 
fugitive-slave  law  had  been  supposed  to  provide  ample  means  to  secure 
the  object  of  the  constitutional  provision,  it  was  decided  in  the  case  of 
Kentucky  vs.  Dennison,  governor  of  Ohio,  24  Howard,  66,  Chief- Justice 
Taney  delivering  the  opinion  of  the  court,  that  while  the  party  might 
arrest  his  slave  or  recover  damages  for  his  detention  or  for  aiding  in  his 
escape  or  concealment,  the  duty  of  the  governor  of  the  State  to  cause 
his  rendition  was  not  capable  of  enforcement  by  any  judicial  proceed 
ing,  and  had  only  the  sanction  of  a  moral  and  political  obligation. 

In  the  case  before  us,  neither  the  Constitution  of  the  United  States, 
nor  any  act  of  Congress,  nor  any  statute  of  the  State  of  Florida  has 
created  a  tribunal  or  provided  a  mode  of  procedure  by  which  the  ques 
tion  of  the  eligibility  of  an  elector  may  be  inquired  into  and  deter 
mined. 

Having  disposed  of  these  extraneous  matters,  I  now  proceed  to  the 
consideration  of  others  which,  iroin  their  essential  nature,  are,  in  my 
judgment,  conclusive  of  the  questions  before  us, 

The  business  of  electing  a  President  and  Vice-President,  as  it  is  laid 
down  in  the  Constitution,  may  be  divided  into  three  distinct  acts  or 
stages  of  the  grand  drama.  They  are  the  appointment  of  electors,  the 
voting  of  those  electors,  and  the  counting  of  their  votes.  The  first  of 
these  acts  or  functions  belongs  by  the  Constitution  wholly  to  the 
States,  "  who  shall  appoint  in  such  manner  as  the  legislature  thereof 
may  direct"  the  number  of  electors  to  which  each  respective  State  is 
entitled.  The  casting  of  this  vote  must  be  by  the  persons  so  appointed, 
and  can  be  cast  by  no  one  else. 

These  propositions  are  very  clear ;  but  who  is  to  count  the  votes  after 
they  are  given  is  matter  of  grave  dispute,  into  which  I  do  not  propose  to 
enter.  But  the  power  of  counting  does  not  reside  with  the  States  nor  with 
the  electors,  but  somewhere  within  the  domain  of  Federal  power,  as  rep 
resented  by  the  President  of  the  Senate  and  the  two  Houses  of  Cougress- 
t>4  E  c 


1010  ELECTORAL    COUNT    OF    1877. 

What  we  are  mainly  concerned  to  ascertain  just  now  is  the  proper  evi 
dence  to  be  furnished  of  the  appointment  of  electors  by  the  appointing 
power,  the  nature  and  effect  of  that  evidence,  and  the  nature  and  ex 
tent  of  the  inquiry  which  the  counting  power  can  make  into  the  fact  of 
appointment. 

It  is  manifestly  the  duty,  and  therefore  the  right,  of  the  State,  which 
is  the  appointing  power,  to  decide  upon  the  means  by  which  the  act  of 
appointment  shall  be  authenticated  and  certified  to  the  counting  power 
and  to  the  electors  who  are  to  act  on  that  authority.  To  this  proposi 
tion  I  have  heard  no  dissent  from  any  quarter.  This  evidence  of  ap 
pointment  must  in  its  nature  vary  according  to  the  manner  in  which 
the  electors  are  appointed.  If  elected  by  the  legislature,  as  they  may 
"be,  an  appropriate  mode  would  be  the  signatures  of  the  presiding  offi 
cers  of  the  two  Houses  to  the  fact  of  such  appointment,  or  a  certified 
copy  of  the  act  by  which  they  were  elected.  If  appointed  by  the  gov 
ernor,  his  official  certificate  with  the  seal  of  the  State  would  be  an  ap 
propriate  mode.  If-  elected  by  popular  suffrage,  that  election  should  be 
ascertained  and  authenticated  in  the  mode  which  the -law  of  the  State 
prescribes  for  that  purpose. 

In  the  case  before  us  they  were  elected  by  popular  suffrage,  and  the 
statute  of  Florida  prescribes  a  well-defined  mode  of  ascertaining  the 
result  of  that  election,  and  of  giving  official  expression  to  that  result. 

By  the  fourth  section  of  the  act  of  February  27,  1872— 

The  secretary  of  state,  the  attorney-general,  and  the  comptroller  of  public  accounts, 
or  any  two  of  them,  together  with  any  other  member  of  the  cabinet  who  may  be  des 
ignated  by  them,  shall  constitute  a  board  of  State  canvassers  for  any  general  or  spe 
cial  election  of  State  officers,  who  shall  canvass  the  returns  of  said  election,  and  de 
termine  and  declare  who  shall  have  been  elected  to  any  such  office,  or  as  such  member, 
as  shown  by  such  returns.  If  any  such  return  shall  be  shown,  or  shall  appear  to  be,  so 
irregular,  false,  or  fraudulent,  that  the  board  shall  be  unable  to  determine  the  true 
vote  for  any  such  officer  or  member,  they  shall  so  certify,  and  shall  not  include  such 
return  in  their  determination  and  declaration. 

The  board  shall  make  and  sign  a  certificate  *  *  *  and  therein  declare  the  re 
sult,  which  certificate  shall  be  recorded  in  the  office  of  the  secretary  of  state  in  a  book 
to  be  kept  for  that  purpose. 

By  another  act  the  governor  is  required  to  make  out,  sign,  and  cause 
to  be  sealed  with  the  "seal  of  the  State,  and  transmit  to  each  person  so 
elected  elector  or  Representative  in  Congress,  a  certificate  of  his  elec 
tion. 

These  two  provisions  prescribe  the  manner  in  which  the  result  of  an 
election  for  electors  shall  be  "determined  and  declared"  and  how  that 
result  shall  be  duly  authenticated.  When  the  canvassing-board  herein 
mentioned  has  canvassed  the  returns  of  the  election,  has  determined 
who  is  elected,  and  has  declared  that  fact  by  signing  the  certificate,  which 
is  to  be  deposited  with  the  secretary  of  state,  the  person  named  in  that 
certificate  is  from  that  moment,  a  duly  appointed  elector,  The  fact  of  his 
appointment,  that  is,  his  election,  has  been  ascertained  and  declared  by 
the  tribunal,  and  the  oul>  tribunal,  to  which  the  duty  and  power  of  so  de 
claring  has  been  confided  by  law.  I  have  already  shown  that  this  power 
belonged  to  the  State  of  Florida — to  its  legislature.  It  cannot  be  vested 
in  two  independent  and  distinct  bodies.  It  rests  with  the  State  of 
Florida.  The  law  is  clear,  perspicuous,  methodical. 

It  is  said  by  way  of  impeachment  of  this  certificate  that  the  board  of 
canvassers  exceeded  its  jurisdiction  by  rejecting  returns  which  were 
neither  irregular,  false,  nor  fraudulent ;  and  that  this  can  now  be  shown 
by  proof  before  this  Commission.  But  what  is  the  jurisdiction  of  this 
board  ?  It  is  not  merely  to  count  up  and  compare  the  returns,  but  upon 
all  the  facts  submitted  to  them  to  determine,  that  is,  to  decide,  who  is 


ELECTORAL    COUNT    OF    1877.  1011 

elected.  This  is  its  duty,  and  its  jurisdiction  is  commensurate  with  its 
duty,  If  it  mistakes  the  law,  or  does  not  properly  weigh  the  facts,  these 
do  not  affect  the  jurisdiction,  or  invalidate  the  judgment  which  it  ren 
ders. 

Jurisdiction  is  the  power  to  examine  and  decide,  to  hear  and  deter 
mine,  the  subject-matter  submitted  to  the  tribunal  by  which  the  juris 
diction  is  to  be  exercised.  When  jurisdiction  is  given  over  the  whole 
subject,  as  in  this  case,  to  decide  who  are  elected,  it  carinot  be  limited 
to  that  which  is  directory  in  the  mode  of  proceeding.  It  may  not  follow 
that  mode,  yet  its  decision  be  valid.  Its  decision  may  be  erroneous, 
but  it  is  nevertheless  the  decision  of  the  only  tribunal  having  jurisdic 
tion,  and  it  must  be  conclusive.  I  say  it  must  be  conclusive,  because 
there  is  no  other  tribunal  which  is  by  law  authorized  to  review  this 
decision  or  to  correct  its  errors  if  any  exist.  I  shall  presently  consider 
the  claim  here  set  up  that  this  Commission,  in  the  exercise  of  powers 
belonging  to  the  two  Houses  of  Congress,  can  do  this,  and  I  lay  out  of 
view  the  right  of  the  State  to  oust  an  officer  declared  by  this  board  to 
be  elected,  by  a  writ  of  quo  warranto,  because  that  writ  by  its  very 
nature  admits  that  the  party  against  whom  it  is  directed  is  in  office, 
and  is  exercising  its  functions,  and  demands  of  him  by  what  authority 
he  does  so. 

In  all  governments  where  rights  are  secured  by  law,  it  has  been  found 
necessary  where  those  rights,  whether  public  or  private,  depend  upon 
the  existence  of  certain  facts,  to  appoint  an  officer,  a  commission,  a  tri 
bunal,  by  whatever  name  it  may  be  called,  to  ascertain  these  facts  and 
declare  the  rights  which  they  give.  This  is  a  necessity  of  civil  society, 
and  on  it  courts  of  justice  are  founded.  It  is  also  a  principle  necessary 
to  the  existence  of  law  and  order  and  to  the  security  of  these  rights,  that 
the  decision  of  this  tribunal  should  be  respected,  whether  those  rights 
be  public  or  private.  And  except  where  there  is  a  provision  in  the  law 
for  an  appeal  from  such  decision,  or  a  review  of  it  in  some  recognized 
legal  mode,  it  must  be  conclusive.  As  regards  courts  of  justice,  this 
principle  is  everywhere  recognized  and  is  acted  on  every  day.  There  is 
no  reason  why  it  should  not  be  equally  applicable  to  all  other  tribunals 
acting  within  the  scope  of  their  authority,  and  it  is  so.  As  illustrations 
I  will  cite  a  few  instances  from  the  highest  judicial  authority  in  this 
country  with  whose  decisions  I  am  familiar.  We  have  had  in  that 
court  a  vast  number  of  suits  founded  on  bonds  issued  by  counties,  cities, 
towns,  ftnd  townships,  in  which  the  defense  was  that  the  bonds  were 
issued  without  authority  of  law,  and  by  frauds  practiced  by  the  officers 
who  issued  them.  In  most  of  these  cases  the  authority  to  issue  the 
bonds  could  only  be  given  by  the  vote  of  the  majority  of  the  citizens  of 
the  municipality.  In  the  case  of  Knox  County  vs.  Aspinwall,  21  Wal 
lace,  539,  when  this  question  first  came  up,  the  court  decided  that  inas 
much  as  the  commissioners  who  issued  the  bonds  were  also  authorized 
to  ascertain  and  determine  whether  there  had  been  such  a  vote  and 
whether  the  election  had  been  lawfully  held,  their  action  in  issuing  the 
bonds  was  conclusive  on  both  these  questions,  and  could  not  be  after 
ward  questioned  in  any  action  to  recover  the  amount  of  the  bonds 
against  the  counties. 

Perhaps  no  decision  has  been  more  controverted  than  this.  At  every 
term  of  the  court,  for  now  nearly  twenty  years,  similar  cases  have  come 
up  and  been  so  decided  from  the  date  of  that  case  to  the  case  of  The 
Town  of  Coloma  vs.  Eaves,  92  Supreme  Court  R.,  484,  at  the  recent  term  of 
the  court ;  and  by  those  decisions  millions  of  dollars  of  debt  have  been 
fastened  upon  the  citizens  of  these  municipalities  to  the  ruin  of  many  of 


1012  ELECTORAL    COUNT    OF    1877. 

them,  which  they  were  denied  the  privilege  of  showing  were  created  with 
out  authority  and  by  fraud  and  chicanery.  These  decisions  are  all  based 
upon  the  principle  that  the  decision  of  the  tribunal  created  for  that 
purpose,,  on  the  existence  of  the  facts  necessary  to  make  valid  the  issue 
of  bonds,  is  final  and  conclusive  as  to  the  existence  of  those  facts. 

Again,  in  the  administration  of  the  system  of  public  lands  of  the 
United  States,  questions  of  conflicting  rights  are  perpetually  arising 
which  by  the  acts  of  Congress  are  to  be  decided  by  the  officers  of  the 
Land  Department  of  the  Government.  Many  applications  have  been 
made  to  the  courts  to  control  the  action  of  these  officers  by  writs  of 
mandamus  to  compel  them  to  do  something,  or  of  injunction  to  restrain 
them  ;  but  the  Supreme  Court  has  uniformly  held  that  in  the  perform 
ance  of  their  functions,  which  required  the  exercise  of  judgment  or  dis 
cretion,  they  were  beyond  the  control  of  the  courts,  because  to  them, 
and  to  them  alone,  had  the  law  confided  the  exercise  of  that  judgment, 
and,  except  as  by  appeal  from  one  officer  of  that  department  to  an 
other,  no  right  of  reviewing  that  judgment  had  been  provided.  (Gaines 
vs.  Thompson,  7  Wallace,  347 ;  Litchfield  vs.  Eegister  and  Eeceiver,  9 
Wallace,  575  ;  Secretary  vs.  McGarrahan,  9  Wallace,  248.) 

The  same  principle  has  been  repeatedly  asserted  when  contests  for 
titles  to  lands  derived  from  the  Government  have  arisen  after  the  action 
of  these  officers  has  been  ended,  and  the  title  passed  from  the  Govern 
ment  to  a  private  claimant.  A  very  recent  case  of  that  kind  instructive 
in  the  matter  before  us  is  that  of  French  vs.  Fyan,  decided  at  the  pres 
ent  term  of  the  Supreme  Court. 

A  contest  for  a  quarter-section  of  land  in  Missouri  arose  between  a 
party  claiming  title  under  the  swamp-land  grant  of  1850  and  another 
who  claimed  under  a  grant  to  railroads  of  1852.  Both  parties  had  reg 
ular  evidence  of  title,  each  under  his  own  grant,  and  as  the  swamp 
land  grant  was  the  elder,  it  must,  if  valid,  prevail.  To  show  that  it  was 
not  valid  the  plaintiff  offered  to  prove  by  parol  evidence  that  the  land 
was  not  in  fact  and  never  had  been  "overflowed  and  swamp  land,  made 
thereby  unfit  for  cultivation,"  which  is  the  description  of  the  lauds 
granted  by  the  act  of  1850.  But  the  circuit  court  first,  and  the  Supreme 
Court  on  writ  of  error,  held  that  this  could  not  be  done.  The  swamp 
land  act  made  it  the  duty  of  the  Secretary  of  the  Interior  to  make  out 
accurate  lists  of  these  swamp-lands  and  certify  them  to  the  States  and 
issue  patents  therefor  when  required,  and  the  Supreme  Court  held  that 
his  action  in  so  doing  was  final  and  conclusive  and  could  not  be  im 
peached  by  parol  testimony.  And  this  it  founds,  as  it  says,  on  "  the 
general  doctrine  that  where  the  law  has  confided  to  a  special  tribunal 
the  authority  to  hear  and  determine  certain  matters  arising  in  the 
course  of  its  duties,  the  decision  of  that  tribunal,  within  the  scope  of  its 
authority,  is  conclusive  upon  all  others,"  and  it  cites  the  previous  case 
of  Johnson  vs.  Towsley,  13  Wallace,  72,  from  which  the  extract  is  taken. 
That  the  same  principle  applies  to  affairs  of  more  public  character  is 
shown  by  the  cases  of  Luther  vs.  Borden,  7  Howard,  1,  and  the  Com 
monwealth  of  Virginia  vs.  West  Virginia,  11  Wallace,  39.  • 

In  the  former  case  where  the  issue  in  an  action  of  trespass  depended 
upon  which  was  the  true  government  of  the  State  of  Ehode  Island,  that 
set  up  and  known  as  the  Dorr  government,  which  was  alleged  as  in  the 
case  before  us  to  have  the  support  of  a  majority  of  the  popular  vote, 
or  the  ancient  government  which  was  resisting  overthrow  by  the  Dorr 
movement,  this  court  shut  its  eyes  resolutely  to  any  inquiry  into  the 
facts  on  which  either  government  claimed  to  be  the  right  one,  and  said 
that  the  Constitution  of  the  United  States  had  confided  to  the  political 


ELECTORAL    COUNT    OF    1877  1013 

department  of  the  Government  the  right  to  determine  that  question, 
and  that  though  the  private  rights  before  the  court  were  judicial  in 
character,  the  court  was  bound  by  the  action  of  President  Tyler,  who 
in  issuing  a-  proclamation  requiring  the  supporters  of  the  so-called 
Dorr  government  to  disperse  had  treated  them  as  insurgents  and  had 
recognized  the  ancient  government  as  the  true  one.  Behind  this  action 
the  court  could  not  inquire,  but  must  accept  it  as  decisive  of  the  ques 
tion. 

In  the  latter  case,  in  the  process  of  constructing  the  State  of  West 
Virginia  out  of  certain  counties  of  the  commonwealth  of  Virginia,  it 
had  been  determined  to  refer  the  question  of  which  State  should  include 
the  counties  of  Berkeley  and  Jefferson  to  the  popular  vote  of  these 
counties.  By  a  statute  of  the  commonwealth  the  governor  of  that 
State  was  authorized  to  call  such  an  election  by  proclamation  to  ascer 
tain  the  result,  and,  if  carried,  to  certify  the  same  to  the  governor  of 
West  Virginia,  whereupon  those  counties  became  part  of  the  new  State. 
All  this  was  done.  But  a  few  years  after  the  commonwealth  tiled  her 
bill  in  chancery  in  the  Supreme  Court  of  the  United  States  against  West 
Virginia,  claiming  to  recover  back  jurisdiction  of  those  counties  upon 
the  grounds,  among  others,  that  no  fair  vote  had  been  taken,  that  the 
majority  was  the  other  way,  and  that  the  governor  was  imposed  upon 
by  false  and  fraudulent  returns.  The  case  was  heard  on  demurrer,  and 
on  this  subject  the  court  said  : 

We  are  of  the  opinion  that  the  action  of  the  governor  is  conclusive  of  the  vote  as 
between  the  States  of  Virginia  and  West  Virginia.  He  was  in  legal  effect  the  State 
of  Virginia  in  this  matter.  In  addition  to  his,  position  as  executive  head  of  the  State, 
the  legislature  had  delegated  to  him  all  its  own  power  in  the  premises.  It  vested  him 
with  large  control  as  to  the  time  of  taking  the  vote,  and  it  made  his  opinion  of  the 
result  the  condition  of  final  action. 

This  language  is  eminently  applicable  to  the  case  before  us.  The  leg 
islature  of  Florida  has  vested  in  her  board  of  canvassers  the  authority 
to  determine  who  are  elected  electors.  It  has  conferred  no  power  on 
any  tribunal  to  revise  that  decision.  The  board  in  this  respect  repre 
sents  the  State.  Its  judgment  is  her  judgment  and  its  official  certificate 
is  her  authorized  expression  of  what  she  has  done  in  the  matter,  and 'it 
is  conclusive. 

Mr.  President,  I  might  well  rest  here,  but  as  I  have  said  that  I  would 
consider  the  question  of  the  right  of  this  Commission  exercising  the 
powers  of  the  two  Houses  of  Congress  to  review  or  inquire  into  the 
truth  of  the  certificate  of  the  board  of  canvassers,  I  will  say  a  few 
words  on  that  point.  It  has,  however,  been  so  clearly  presented  by  my 
brother  Strong,  and  I  concur  so  entirely  in  what  he  has  said,  that  it  is 
hardly  necessary  that  I  should  do  so. 

Conceding  for  the  present,  for  that  is  the  theory  on  which  is  framed 
the  bill  creating  this  Commission,  that  by  the  Constitution  to  the  two 
Houses  of  Congress  has  been  confided  the  duty  of  counting  the  votes 
of  the  presidential  electors  and  declaring  the  result,  it  is  difficult  to  see 
what  right  this  duty  of  counting  gives  those  bodies  to  inquire  into  the 
means  by  which  the  electors  whose  votes  they  are  to  count  obtained 
their  appointment.  The  whole  basis  on  which  this  right  of  the  two 
Houses  to  inquire  into  the  fraudulent  or  honest  character  of  the  vote, 
the  conduct  or  misconduct,  the  mistakes,  errors,  or  corruption  of  the 
judges  of  election  at  every  polling-place  in  an  entire  State  is  this  short 
and  single  sentence  of  the  Constitution : 

The  President  of  the  Senate  shall,  in  the  presence  of  the  Senate  and  House  of  Rep 
resentatives,  open  all  the  certificates,  and  the  votes  shall  then  be  counted. 


1014  ELECTORAL    COUNT    OF    1877 

The  votes  here  mentioned  are  the  votes  of  the  electors  of  President 
and  Vice-President,  and  not  the  votes  by  which  these  electors  were  ap 
pointed,  and  the  certificates  are  the  evidence  of  their  appointment. 

I  have  endeavored  to  show,  and  I  think  successfully,  that  this  latter 
counting  belongs  solely  to  the  State  authorities,  as  well  as  the  mode 
of  authenticating  the  result. 

It  is  not  asserted  by  any  one  that  express  power  to  make  this  inquiry 
is  conferred  on  the  two  Houses  by  the  language  quoted  or  by  any  other. 
The  argument  is  founded  on  two  implications,  both  of  which  are  very 
remote  and  very  unnecessary. 

The  first  of  these,  and  the  one  which  I  think  is  mainly  relied  on,  is 
that  in  order  to  count  the  votes  it  is  necessary  to  know  who  are  the 
electors.  Before  you  can  make  a  correct  count  of  the  votes  for  Presi 
dent  you  must  ascertain  who  are  authorized  to  vote  for  President. 
Undoubtedly  the  reasoning  thus  far  is  sound.  But  since  the  Consti 
tution  says  that  those  who  can  cast  such  votes  are  those  who  are  ap 
pointed  by  the  State  in  such  manner  as  the  legislature  thereof  shall 
direct,  it  amounts  to  nothing  more  than  ascertaining  who  are  appointed 
electors. 

Congress  has  nothing  to  do  with  this  appointment, — neither  with  the 
manner  of  appointment  nor  the  manner  of  authenticating  the  appoint 
ment. 

If,  then,  a  body  of  electors  present  with  the  vote  which  they 
cast  for  President  and  Vice-President  the  evidence  which  the  State 
has  prescribed  of  their  appointment,  the  inquiry  of  the  two  Houses  is 
answered.  They  have  been  legally  and  officially  informed  who  are  en 
titled  to  vote  as  electors  for  that  State.  There  exists  neither  in  the 
nature  of  the  duty  they  are  to  perform  nor  in  any  language  of  the  Con 
stitution  the  right  to  inquire  into  the  validity  of  that  appointment,  the 
means  by  which  it  was  brought  about,  the  fairness  of  the  election  by 
which  it  was  determined,  or  the  misconduct  of  the  tribunal  which  the 
State  had  created  to  determine  the  result.  Much  has  been  said  of  the 
danger  of  the  device  of  returning- boards,  and  it  may  be  that  they  have 
exercised  their  power  in  a  manner  not  always  worthy  of  commendation. 
But  I  take  the  liberty  of  saying  that  such  a  power  lodged  in  one  or  in 
both  Houses  of  Congress  would  be  a  far  more  permanent  menace  to  the 
liberty  of  the  people,  to  the  legitimate  result  of  the  popular  vote,  than 
any  device  for  counting  these  votes  which  has  as  yet  been  adopted  by 
the  States. 

Neither  at  the  time  of  the  adoption  of  the  Constitution  nor  at  any 
time  since  would  the  people  of  the  States  have  placed  in  the  hands  of 
Congress  the  power  to  constitute  itself  a  returning-board  as  to  the  votes 
for  presidential  electors,  and  then  upon  the  vote  cast  by  those  whom 
they  declare  to  be  electors,  decide  who  are  to  be  President  and  Vice-Pres 
ident  of  the  United  States ;  but  that  is  precisely  the  power  claimed  for 
the  two  Houses  of  Congress  and  for  this  Commission  representing  them. 

The  other  implication  is  that  because  the  House  of  Eepreseutatives  is 
authorized,  in  the  event  of  a  failure  to  elect  a  President  by  the  prescribed 
method,  to  proceed  itself  to  make  such  an  election,  it  must  therefore  have 
the  power  of  deciding  all  questions  relating  to  the  appointment  of  elect 
ors.  I  confess  I  do  not  see  the  force  of  the  implication  or  of  the  argument. 
If  it  had  any  force  otherwise,  it  is  liable  to  the  serious  objection  that  it 
makes  that  body  the  sole  judge  of  its  right  to  exercise  the  most  impor 
tant  power  residing  in  the  domain  of  the  Federal  Government.  The 
Senate  would  have  a  corresponding  power  in  regard  to  the  Vice-Presi 
dent,  and  thus  each  House  for  itself,  and  not  the  two  Houses,  would 


ELECTORAL    COUNT    OF    1877.  1015 

count  the  vote.     I  do  not  consider  the  argument  worth  further  atten 
tion,  and  therefore  dismiss  it. 

These  are  the  reasons,  Mr.  President,  which  have  determined  me  to 
vote  that  none  of  the  testimony  offered  in  this  case  outside  of  that  sub 
mitted  to  the  two  Houses  of  Congress  by  the  President  of  the  Senate, 
can  be  lawfully  received  or  considered  by  the  Commission. 

OREGON. 

The  electoral  votes  of  Oregon  being  under  consideration — 

Mr.  Commissioner  MILLEK  said: 

Mr.  PRESIDENT  :  Having  on  the  occasion  of  the  papers  referred  to  this 
Commission  in  the  Florida  case,  upon  the  question  of  the  admissibility 
of  any  testimony  outside  of  the  certificates  and  accompanying  papers  as 
they  were  laid  before  the  two  Houses  of  Congress  by  the  President  of 
the  Senate,  expressed  the  views  which  governed  my  action  on  that  ques 
tion,  as  well  as  on  the  final  vote,  1  took  no  part  in  the  discussion  of  the 
Louisiana  case  in  conference,  because  I  was  of  opinion  that  the  princi 
ples  laid  down  by  me  in  the  former,  and  which  received  the  approval  of 
the  Commission,  must  govern  its  action  in  the  latter.  In  this  I  was  not 
mistaken,  as  will  be  seen  by  an  examination  of  the  brief  grounds  of  the 
decisions  of  those  cases,  as  reported  to  the  two  Houses  of  Congress  un 
der  the  statute. 

It  is  the  purpose  of  the  few  remarks  which  I  propose  to-  make  now  to 
show  that  the  same  principles,  when  applied  to  the  one  before  us,  must 
govern  this  as  it  did  the  two  former  cases. 

We  have,  however,  now  as  then,  an  extraneous  question  of  the 
eligibility  of  one  of  the  electors,  rendered  more  important  because  it 
was  made  the  ground  of  a  refusal  by  the  governor  of  the  State  to  cer 
tify  to  the  election  of  J.  W.  Watts,  whose  election  was  otherwise  be 
yond  controversy,  and  of  the  substitution  in  his  certificate  of  the  name 
of  E.  A.  Cronin,  who  certainly  was  not  elected. 

On  this  subject  I  remain  of  opinion,  as  I  expressed  it  in  the  Florida 
case,  that  the  fact  that  Watts  held  an  office  of  trust  and  profit  under 
the  United  States  at  the  date  of  his  election  did  not  render  that  elec 
tion  void.  I  concede,  as  I  did  then,  that  his  title  to  the  office  could 
have  been  avoided,  if  there  had  been  any  tribunal  competent  to  try  the 
question  of  his  ineligibility  and  it  had  been  so  tried  and  found  before 
he  gave  his  vote  for  President  and  Vice-President.  In  this  case  it  is 
said  that  the  governor  of  the  State  was  such  a  tribunal,  and  that  he  did 
decide  that  Watts  was  ineligible,  and  therefore  his  refusal  to  certify  him 
as  an  elector  is  justified.  But  I  look  in  vain  in  the  Constitution  of  the 
United  States,  in  the  laws  of  Congress,  and  in  the  constitution  and  laws 
of  Oregon,  for  any  support  for  such  authority  in  the  governor.  In  the 
absence  of  such  authority  in  one  or  the  other  of  these  places,  the  action 
of  the  governor  in  that  respect  was  the  merest  assumption  of  power 
without  any  legal  right.  If  he  had  such  authority,  by  what  mode  of 
procedure  was  he  to  be  governed  ?  Under  what  rules  of  law  or  of  evi 
dence  did  he  act  ?  Was  Watts  notified  of  the  trial  ?  Had  he  opportu 
nity  to  be  heard  ?  How  were  the  facts  ascertained  I  There  is  not  a 
shadow  of  pretense  that  any  such  trial  or  hearing  was  had. 

The  question  of  the  disqualification  to  hold  an  office  has  almost  always 
arisen  in  courts  of  justice  alter  the  party  has  been  com  missioned  or  has  en 
tered  upon  the  duties  of  his  office.  Even  in  cases  of  members  of  legisla- 


1016  ELECTORAL    COUNT    OF    1877. 

tive  bodies,  which  are  by  express  constitutional  provision  judges  of  the 
qualification  of  their  own  members,  it  is  nearly  always  tried  after  admis 
sion  to  a  seat.  This  concurrent  course  of  proceeding,  whether  in  courts 
or  in  the  legislature,  is  strong  evidence  that  the  title  is  recognized  until 
the  disability  is  established.  And  this  is  logically  just.  There  can  be  no 
presumption  of  law  that  a  person  elected  is  disqualified.  The  disqualifi 
cation  is  a  fact  to  be  averred  and  established  before  some  tribunal  legally 
authorized  to  inquire  into  that  fact.  I  am  therefore  clearly  of  opinion, 
notwithstanding  the  cases  cited  from  the  courts  of  Indiana,  that  Governor 
Grover  had  no  more  right  to  determine  the  ineligibility  of  an  elector  who 
has  the  required  popular  vote  than  any  other  citizen  of  the  State  of  Ore 
gon.  I  have  already  discussed  the  right  of  this  Commission  to  do  so. 

If  Watts's  election  was  not  void,  his  subsequent  resignation  and  failure 
to  attend  made  a  vacancy  in  the  electoral  college  which  the  other  mem 
bers  were  by  statute  authorized  to  fill,  and  his  appointment  by  them  to  fill 
that  vacancy  was  valid,  because  he  had  then  ceased  to  hold  the  office  of 
postmaster,  which  had  been  the  source  of  the  controversy. 

It  is  urged,  however,  in  opposition  to  counting  the  vote  of  Watts  for 
President  and  Vice-President,  that  he  has  no  certificate  of  his  appoint 
ment  by  the  governor,  and  that  in  the  only  certificate  given  by  that  officer 
his  name  is  omitted  and  that  of  Cronin  is  substituted,  and  it  is  contended 
that  this  certificate  of  the  governor,  under  the  seal  of  the  State,  attested 
by  the  secretary  of  state,  is  the  official  and  conclusive  evidence  of  the 
right  to  act  as  electors  for  the  State.  In  support  of  this  proposition  it  is 
strongly  asserted  that  such  was  the  effect  given  to  the  governor's  certifi 
cates  in  the  Florida  and  Louisiana  cases. 

This  is  a  strange  misconception,  if  it  be  honestly  believed  by  those  who 
assert  it,  as  to  the  grounds  of  the  decision  in  those  cases.  Neither  by  any 
of  the  counsel  who  argued  the  case  on  both  sides  nor  any  member  of  the 
Commission  in  conference  was  any  such  sanctity  claimed  for  the  certifi 
cate  of  the  governor.  The  counsel  for  the  Tilden  electors  insisted,  as 
it  was  necessary  they  should  insist,  that  these  certificates  interposed 
no  legal  barrier  to  an  investigation  of  the  facts  on  which  the  certificates 
were  or  ought  to  have  been  founded.  The  other  side  agreed  to  this,  and 
the  only  difference  of  opinion  was  where  that  inquiry  should  end.  The 
majority  of  the  Commission,  both  in  argument  and  in  the  reasons  attached 
to  their  decision,  as  required  by  the  statute,  said  this  inquiry  could  go  so 
far  as  to  see  what  officer  or  tribunal  was  by  the  laws  of  the  State  author 
ized  to  ascertain  and  declare  who  were  elected  electors  by  the  popular 
vote  and  what  declaration  they  had  made  on  the  subject,  and  could  go  no 
further.  The  minority  of  the  Commission,  and  the  counsel  with  whom 
they  agreed,  made  their  principal  assault  upon  this  position,  and  argued 
manfully  for  the  right  to  go  behind  the  action  of  that  tribunal,  to  recon 
sider  the  evidence  on  which  it  had  acted,  and  to  review  and  reverse  its  de 
cision.  The  majority  were  of  opinion  that  the  tribunal  authorized  to  de 
termine  finally  and  conclusively  who  were  appointed  to  act  aselectorswas 
the  board  which  in  Florida  is  called  the  board  of  State  canvassers,  and  in 
Louisiana  the  returning-officers;  and  it  was  against  what  was  charged  to 
be  the  mistakes,  the  usurpations,  the  frauds,  and  corruption  of  these  offi 
cers  that  arguments  of  counsel  and  of  the  minority  of  this  Commission 
were  mainly  directed.  Over  the  question  of  their  power  and  the  finality 
of  their  decisions,  the  battle  was  fought,  and  it  is  idle  now  to  assert  that 
it  was  over  the  effect  of  the  governor's  certificate. 

But,  Mr.  President,  while  I  am  not  willing  to  have  my  position  in  the 
Florida  case  perverted  or  misrepresented  and  in  this  perverted  shape 
thrust  upon  me  as  a  rule  of  action  in  this  case,  I  can  have  no  right  to  coin- 


ELECTORAL    COUNT    OF    1877.  1017 

plain  and  do  not  complain  if  those  who  in  that  case  regarded  the  gov 
ernor's  certificate  as  of  no  weight  shall  in  the  present  case  insist  upon  it  as 
a  document  against  which  nothing  is  to  be  said,  and  which  must  conclude 
this  Commission.  If  the  statute  of  Florida  had  made  the  governor  the 
officer  to  canvass  the  returns  of  the  elections  and  declare  the  result,  I  am 
not  able  to  see  how  we  could  go  behind  his  official  certificate  of  that  result. 
If  the  statutes  of  Oregon,  which  all  must  concede  differ  from  those  of  Flor 
ida,  give  him  that  power,  then,  according  to  my  view,  his  certificate  must 
prevail  here  and  with  me,  whatever  may  be  the  change  of  front,  if  there 
be  such  a  change,  in  others. 

I  proceed  to  that  inquiry. 

The  first  clause  of  section  60  of  title  IX,  concerning  the  election  of 
presidential  electors,  declares  that  "  the  votes  for  the  electors  shall  be 
given,  received,  returned,  and  canvassed  as  the  same  are  given,  re 
turned,  and  canvassed  for  members  of  Congress."  The  remainder  of  this 
section  directs  what  is  to  be  done  after  this  canvass,  and  will  be  con 
sidered  further  on.  But  I  turn  now  to  section  37  of  title  III,  which 
governs  the  canvassing  of  the  returns  for  members  of  Congress : 

The  county  clerk — 

It  says — 

immediately  after  the  abstract  of  votes  given  in  his  county,  shall  make  a  copy  of  each 
of  said  abstracts  and  transmit  it  by  mail  to  the  secretary  of  state,  at  the  seat  of  gov 
ernment  ;  and  it  shall  be  the  duty  of  the  secretary  of  state,  in  the  presence  of  the 
governor,  to  proceed,  within  thirty  days  after  the  election,  and  sooner  if  the  returna 
be  all  received,  to  canvass  the  votes. 

This  is  all  of  that  section  which  has  any  applicability  to  the  electors. 
Returning  then  to  the  sixtieth  section  of  the  law,  concerning  electors, 
we  find  that  after  making  this  canvass — 

The  secretary  of  state  shall  prepare  two  lists  of  the  names  of  the  electors  elected  and 
affix  the  seal  of  State  to  the  same.  Such  lists  shall  be  signed  by  the  governor  and 
secretary,  and  by  the  latter  delivered  to  the  college  of  electors  at  the  hour  of  their 
meeting  on  such  first  Wednesday  of  December. 

When  we  have  added  to  these  extracts  the  last  sentence  of  section  40 
of  the  general  election  law  of  the  State,  we  have  all  that  I  deem  essen 
tial  to  this  inquiry.  It  is  as  follows  : 

In  all  elections  in  this  State,  the  person  having  the  highest  number  of  votes  for  any 
office  shall  be  deemed  to  have  been  elected. 

I  am  of  opinion  that  these  statutory  provisions  of  the  law  of  Oregon 
make  it  the  duty  of  the  secretary  of  state,  and  of  no  one  else,  to  can 
vass  the  returns  of  all  the  votes  given  for  electors,  to  ascertain  the  re 
sult,  and  to  deliver  to  the  persons  elected  a  certificate  of  that  fact.  It 
follows  from  what  I  said  in  the  Florida  case,  and  which  I  do  not  desire 
to  repeat,  that  his  action  in  the  matter,  within  the  scope  of  his  au 
thority,  that  authority  being  commensurate  with  the  duties  I  have  men 
tioned,  is  binding  and  conclusive.  If  he  has  made  a  canvass  of  the 
votes,  and  ascertained  who  was  elected,  no  other  canvass  can  be  made 
and  no  other  person  is  elected.  If  that  canvass  shows  who  had  the 
highest  number  of  votes,  so  many  as  the  State  is  entitled  to,  and  who 
had  that  number  of  votes  the  laic  declares  them  to  be  elected ;  that  is, 
appointed. 

If,  in  addition  to  this,  he  has  filed  a  full  and  official  statement  of  this 
canvass  in  his  office,  as  the  law  requires,  and  has  delivered  to  the  per 
sons  thus  found  to  be  duly  elected  a  certificate  under  the  seal  of  the 
State  and  his  official  signature  showing  this  statement  and  this  result, 
their  title  to  the  office  and  the  right  to  exercise  its  functions  are  com 
plete. 


1018  ELECTORAL   COUNT    OF    1877. 

The  argument  in  opposition  to  this  view  is,  that  the  governor  is  the 
person  who  must  do  all  this ;  or  if  he  alone  cannot  do  it,  that  he  and 
the  secretary  of  state  must  do  it  jointly;  that  the  provision  that  the 
returns  must  be  canvassed  in  his  presence,  and  that  he  must  sign  the 
certificate  to  be  delivered  to  the  person  elected,  establish  this  proposi 
tion. 

Let  us  examine  into  this  a  little  more  critically.  If  we  separate  what 
the  governor  is  to  do  in  the  matter  of  canvassing  the  vote  from  what 
he  is  to  do  afterward,  we  shall  see  that  his  duty  in  the  former,  if  indeed 
it  be  a  duty  at  all,  is  merely  that  of  being  present  as  a  witness  to  the 
canvass  made  by  the  secretary.  The  returns  are  to  be  transmitted  to 
the  secretary  by  mail.  They  are  to  be  received  by  him  at  his  office  ;  to 
be  opened  by  him.  The  time  of  making  the  canvass  is  to  be  deter 
mined  by  him  as  soon  as  all  the  returns  are  received,  but  in  no  event 
later  than  thirty  days  after  the  election.  The  canvass  is  to  be  made  by 
him.  The  returns  on  which  this  canvass  is  to  be  made,  the  canvass 
itself,  the  result,  are  all  to  remain  in  his  office  under  his  official  control. 
When  this  is  done,  the  law  applies  to  the  result  the  declaration  that  the 
persons  possessing  the  highest  number  of  votes  are  elected.  That  is, 
their  election  is  then  determined.  No  one  has  a  right  to  review  this 
canvass  or  to  declare  a  different  result.  The  right  of  the  successful 
candidate  is  established  and  is  perfect.  And  it  is  here  on  this  action  I 
rest,  as  I  did  on  the  action  of  the  board  of  canvassers  of  Florida,  the 
decision  of  the  question  submitted  to  us,  Who  are  the  lawful  electors  of 
Oregon,  and  whose  votes  are  the  constitutional  votes  of  that  State  for 
President  and  Vice-President  f 

Now,  in  all  this  matter  what  part  has  the  governor  of  the  State  to 
play?  He  receives  no  returns,  he  counts  no  votes,  he  has  custody  of  no 
papers,  he  controls  no  one  in  the  matter ;  and  if  it  were  true,  as  main 
tained  by  some,  that  he  alone  can  execute  the  official  certificate  men 
tioned  hereafter,  it  would  still  remain,  as  I  have  already  said,  that  such 
a  certificate  is  not  conclusive  nor  its  absence  fatal,  but,  as  in  the  cases 
of  Florida  and  Louisiana,  this  tribunal  can  go  behind  it  and  inquire  if  it 
is  in  conformity  to  the  action  of  the  board  or  officer  who  has  the  right 
to  decide  on  the  result  of  the  votes  as  returned  to  him. 

It  may  be  asked,  Why  is  he  required  to  be  present  at  the  canvass  ?  I 
answer,  as  a  witness  to  the  transaction,  as  a  protection  to  its  fairness, 
by  having  some  one  to  watch  the  secretary.  He  may  have  a  right  to 
make  objections,  suggestions,  to  file  a  protest,  to  institute  proceedings 
against  the  secretary,  to  furnish  evidence  of  his  mistake  or  grosser  in 
justice,  but  no  right  to  dictate,  to  control,  or  assist  in  the  process. 

The  canvass  being  made,  the  next  step  is  to  certify  the  result  to  the 
persons  elected.  And  what  part  does  the  governor  perform  in  this? 
u  The  secretary  shall  prepare  two  lists  of  the  names  of  the  persons  elected 
electors,  and  affix  the  seal  of  the  State  to  the  same."  In  doing  this  the 
governor  takes  no  part.  "  Such  lists  shall  be  signed  by  the  governor 
and  secretary,  and  by  the  latter  delivered  to  the  college  of  electors.77 
The  making  out  this  certificate,  the  affixing  to  it  the  seal  of  the  State, 
its  delivery  to  the  electoral  college,  are  all  acts  of  the  same  officer  who 
received  and  canvassed  the  returns  and  in  whose  custody  and  control 
they  remained.  The  governor  is  required  to  place  his  signature  to  this 
paper,  prepared  to  his  hand,  as  a  mere  official  attestation  of  the  result 
arrived  at — a  formal  act,  adding  to  the  paper  prepared  by  the  secretary, 
in  addition  to  his  own  name  and  the  seal  of  the  State,  the  dignity  of  the 
governor's  verification. 

Though  lacking  the  governor's  name,  the  persons  who  received  the 


ELECTORAL    COUNT    OF    1877.  1019 

highest  number  of  votes,  and  whom  the  statute  declares  to  be  elected, 
present  to  the  President  of  the  Senate  and  the  two  Houses  of  Congress 
a  certificate  from  the  secretary  of  state,  under  the  seal  of  the  State,  and 
signed  by  him  in  his  official  capacity,  showing  that,  in  pursuance  of  the 
statute,  he  did,  on  the  4th  day  of  December  last,  in  the  presence  of  the 
governor,  canvass  the  votes  given  for  electors ;  that  the  result  of  that 
canvass  was  that  Odell,  Cartwright,  and  Watts  having  received  the 
three  highest  numbers  of  votes  were  elected  electors;  that  all  this  ap 
pears  from  the  canvass  so  made  by  him  and  on  file  in  his  office  on  the 
6th  day  of  December,  the  date  of  this  certificate.  This  certificate  he 
delivered  as  directed  by  law  to  the  electors  on  the  first  Wednesday  in 
December,  and  thereupon  they  proceeded  to  give  their  votes  for  Presi 
dent  and  Yice-President.  What  is  wanting  to  their  authority  to  do  sol 
They  had  a  majority  of  votes.  They  were  duly  elected.  This  fact  was 
ascertained  in  the  mode  and  by  the  officer  intrusted  with  that  duty  by 
law.  They  have  his  official  certificate  of  that  fact  under  the  seal  of 
the  State. 

I  cannot  believe  that  the  willful  refusal  of  the  governor  to  sign  that 
certificate  is  sufficient  to  nullify  everything  else  that  was  done,  and 
make  it  of  no  effect.  No  such  force  has  been  attributed  to  it  in  the 
other  cases,  and  I  do  not  see  how  it  can  be  here. 

As  to  the  certificate  of  the  governor  given  to  Cronin,  Odell,  and  Cart- 
wright,  if  it  was  perfect  on  its  face,  no  one  has  yet  held  that  it  was  con 
clusive.  No  one  in  the  Commission  has  asserted  that  it  is  valid  as  to 
Cronin,  and  this  is  a  full  admission  that  it  is  not  conclusive  in  any  case. 

I  will  only  add  that  on  its  face  this  certificate  shows  that  the  governor 
undertook  to  decide  the  question  of  some  person's  eligibility  to  the  office, 
and  when  taken  in  connection  with  the  certificate  of  the  secretary  it  estab 
lishes  the  fact  that  he  refused  to  certify  Watts  because  he  held  him  ineli 
gible,  and  did  certify  Cronin  who  was  never  elected.  Of  this  paper  no 
more  need  be  said,  nor  is  it  necessary  for  me  to  detain  the  Commission 
longer. 


REMARKS  OF  ME.  COMMISSIONER  BRADLEY. 

[The  following  opinions  and  remarks  have  been  somewhat  abbreviated, 
and  repetition  of  similar  arguments  in  the  different  cases  has  been  omit 
ted.] 

THE  FLORIDA  CASE. 

Statement. 

In  this  case  the  objectors  to  the  certificate  No.  1  (which  was  authenticated  by  Gov 
ernor  Stearns,  and  contained  the  votes  of  the  Hayes  electors)  proposed  to  prove  by  the 
papers  accompanying  the  certificates  that  a  writ  of  quo  warranto  had  been  issued  from 
a  district  court  in  Florida  against  the  Hayes  electors  on  the  6th  day  of  December,  1876, 
before  they  gave  their  votes  for  President  and  Vice-President,  which  on  January  '26, 
1877,  resulted  in  a  judgment  against  them,  and  in  favor  of  the  Tilden  electors  ;*  also 
an  act  of  the  legislature  passed  in  January,  in  favor  of  the  Tildeu  electors  ;  and  also 
certain  extrinsic  evidence  described  by  the  counsel  of  the  objectors  as  follows : 

"Fifthly.  The  only  matters  which  the  Tilden  electors  desire  to  lay  before  the  Com 
mission  by  evidence  actually  extrinsic  will  now  be  stated : 

"  I.  The  board  of  State  canvassers,  acting  on  certain  erroneous  views  when  making 
their  canvass,  by  which  the  Hayes  electors  appeared  to  be  chosen,  rejected  wholly  the 
returns  from  the  county  of  Manatee  and  parts  of  returns  from  each  of  the  following 
counties  :  Hamilton,  Jackson,  and  Monroe. 

"  In  so  doing  the  said  State  board  acted  without  jurisdiction,  as  the  circuit  and  su- 


1020  ELECTORAL    COUNT    OF    1877. 

preme  courts  in  Florida  decided.  It  was  by  overruling  and  setting  aside  as  not  war 
ranted  by  law  these  rejections,  that  the  courts  of  Florida  reached  their  respective  con 
clusions  that  Mr.  Drew  was  elected  governor,  that  the  Hayes  electors  were  usurpers, 
and  that  the  Tilden  electors  were  duly  chosen. 

"  II.  Evidence  that  Mr.  Humphreys,  a  Hayes  elector,  held  office  under  the  United 
States." 

The  question  was  argued  as  to  the  admissibility  of  this  evidence. 

Mr.  Commissioner  BRADLEY  said  : 

I  assume  that  the  powers  of  the  Commission  are  precisely  those,  and 
no  other,  which  the  two  Houses  of  Congress  possess  in  the  matter  sub 
mitted  to  our  consideration  ;  and  that  the  extent  of  those  powers  is  one 
of  the  questions  submitted.  This  is  my  interpretation  of  the  act  under 
which  we  are  organized. 

The  first  question,  therefore,  is,  whether,  and  how  far,  the  two  Houses, 
in  the  exercise  of  the  special  jurisdiction  conferred  on  them  in  the  matter 
of  counting  the  electoral  votes,  have  power  to  inquire  into  the  validity 
of  the  votes  transmitted  to  the  President  of  the  Senate.  Their  power 
to  make  any  inquiry  at  all  is  disputed  by,  or  on  behalf  of,  the  President 
of  the  Senate  himself.  But  I  think  the  practice  of  the  Government,  as 
well  as  the  true  construction  of  the  Constitution,  has  settled  that  the 
powers  of  the  President  of  the  Senate  are  merely  ministerial,  conferred 
upon  him  as  a  matter  of  convenience,  as  being  the  presiding  officer  of 
one  of  the  two  bodies  which  are  to  meet  for  the  counting  of  the  votes 
and  determining  the  election.  He  is  not  invested  with  any  authority 
for  making  any  investigation  outside  of  the  joint  meeting  of  the  two 
Houses.  He  cannot  send  for  persons  or  papers.  He  is  utterly  without 
the  means  or  the  power  to  do  anything  more  than  to  inspect  the  docu 
ments  sent  to  him  ;  and  he  cannot  inspect  them  until  he  opens  them  in 
the  presence  of  the  two  Houses.  It  would  seem  to  be  clear,  therefore, 
that,  if  any  examination  at  all  is  to  be  gone  into,  or  any  judgment  is  to 
be  exercised  in  relation  to  the  votes  received,  it  must  be  performed  and 
exercised  by  the  two  Houses. 

Then  arises  the  question,  How  far  can  the  two  Houses  go  in  question 
ing  the  votes  received,  without  trenching  upon  the  power  reserved  to 
the  States  themselves? 

The  extreme  reticence  of  the  Constitution  on  the  subject  leaves  wide 
room  for  inference.  Each  State  has  a  just  right  to  have  the  entire  and 
exclusive  control  of  its  own  vote  for  the  Chief  Magistrate  and  head  of  the 
republic,  without  any  interference  on  the  part  of  any  other  State,  acting 
either  separately  or  in  Congress  with  others.  If  there  is  any  State  right 
of  which  it  is  and  should  be  more  jealous  than  of  any  other,  it  is  this. 
And  such  seems  to  have  been  the  spirit  manifested  by  the  framers  of 
the  Constitution.  This  is  evidenced  by  the  terms  in  which  the  mode 
of  choosing  the  President  and  Vice  President  is  expressed :  "Each  State 
Shall  appoint,  in  such  manner  as  the  legislature  thereof  may  direct,  a 
number  of  electors  equal  to  the  whole  number  of  Senators  and  Repre 
sentatives  to  which  the  State  may  be  entitled  in  the  Congress;  but  no 
Senator  or  Representative,  or  person  holding  an  office  of  trust  or  profit 
under  the  United  States,  shall  be  appointed  an  elector.  The  electors  shall 
meet  in  their  respective  States  and  vote  by  ballot,"  &c.  Almost  every 
clause  here  cited  is  fraught  with  the  sentiment  to  which  I  have  alluded. 
The  appointment  and  mode  of  appointment  belong  exclusively  to  the 
State.  Congress  has  nothing  to  do  with  it,  and  no  control  over  it,  ex 
cept  that,  in  a  subsequent  clause,  Congress  is  empowered  to  determine 
the  time  of  choosing  the  electors,  and  the  day  on  which  they  shall  give 
their  votes,  which  is  required  to  be  the  same  day  throughout  the 
United  States.  In  all  other  respects  the  jurisdiction  and  power  of  the 


ELECTORAL    COUNT    OF    1877.  1021 

State  is  controlling  and  exclusive  until  the  functions  of  the  electors  have 
been  performed.  So  completely  is  congressional  and  Federal  influence 
excluded,  that;  not  a  member  of  Congress  nor  an  officer  of  the  General 
Government  is  allowed  to  be  an  elector.  Of  course,  this  exclusive  power 
and  control  of  the  State  is  ended  and  determined  when  the  day  fixed  by 
Congress  for  voting  has  arrived,  and  the  electors  have  deposited  their 
votes  and  made  out  the  lists  and  certificates  required  by  the  Constitu 
tion.  Up  to  that  time  the  whole  proceeding  (except  the  time  of  election) 
is  conducted  under  State  law  and  State  authority.  All  machinery, 
whether  of  police,  examining  boards,  or  judicial  tribunals,  deemed  requi 
site  and  necessary  for  securing  and  preserving  the  true  voice  of  the 
State  in  the  appointment  of  electors,  is  prescribed  and  provided  for  by 
the  State  itself  and  not  by  Congress.  All  rules  and  regulations  for  the 
employment  of  this  machinery  are  also  within  the  exclusive  province  of 
the  State.  Over  all  this  field  of  jurisdiction  the  State  must  be  deemed 
to  have  ordained,  enacted,  and  provided  all  that  it  considers  necessary 
and  proper  to  be  done. 

This  being  so,  can  Congress  or  the  two  Houses  institute  a  scrutiny 
into  the  action  of  the  State  authorities  and  sit  in  judgment  on  what 
they  have  done?  Are  not  the  findings  and  recorded  determinations  of 
the  State  board  or  constituted  authorities  binding  and  conclusive  since 
the  State  can  only  act  through  its  constituted  authorities  ? 

But  it  is  asked,  must  the  two  Houses  of  Congress  submit  to  outrageous 
frauds  and  permit  them  to  prevail  without  any  effort  to  circumvent 
them?  Certainly  not,  if  it  is  within  their  jurisdiction  to  inquire  into 
such  frauds.  But  there  is  the  very  question  to  be  solved.  Where  is 
such  jurisdiction  to  be  found  ?  If  it  does  not  exist,  how  are  the  two 
Houses  constitutionally  to  know  that  frauds  have  been  committed  ?  It 
is  the  business  and  the  jurisdiction  of  the  State  to  prevent  frauds  from 
being  perpetrated  in  the  appointment  of  its  electors,  and  not  the  busi 
ness  or  jurisdiction  of  the  Congress.  The  State  is  a  sovereign  power 
within  its  own  jurisdiction,  and  Congress  can  no  more  control  or  review 
the  exercise  of  that  jurisdiction  than  it  can  that  of  a  foreign  government. 
That  which  exclusively  belongs  to  one  tribunal  or  government  cannot 
be  passed  upon  by  another.  The  determination  of  each  is  conclusive 
within  its  own  sphere. 

It  seems  to  me  to  be  clear,  therefore,  that  Congress  cannot  institute 
a  scrutiny  into  the  appointment  of  electors  by  a  State.  It  would  be 
taking  it  out  of  the  hands  of  the  State,  to  which  it  properly  belongs. 
This  never  could  have  been  contemplated  by  the  people  of  the  States 
when  they  agreed  to  the  Constitution.  It  would  be  going  one  step 
farther  back  than  that  instrument  allows.  While  the  two  Houses  of 
Congress  are  authorized  to  canvass  the  electoral  votes,  no  authority  is 
given  to  them  to  canvass  the  election  of  the  electors  themselves.  To 
revise  the  canvass  of  that  election,  as  made  by  the  State  authorities,  on 
the  suggestion  of  fraud,  or  for  any  other  cause,  would  be  tantamount 
to  a  recanvass. 

The  case  of  elections  of  Senators  and  Representatives  is  different. 
The  Constitution  expressly  declares  that  "each  House  shall  be  the  judge 
of  the  elections,  returns,  and  qualifications  of  its  own  members.7'  No 
such  power  is  given,  and  none  ever  would  have  been  given  if  proposed, 
over  the  election  or  appointment  of  the  presidential  electors.  Again, 
while  the  Constitution  declares  that  "  the  times,  places,  and  manner  of 
holding  elections  of  Senators  and  Representatives  shall  be  prescribed 
in  each  State  by  the  legislature  thereof,"  it  adds,  u  but  the  Congress 
may  at  any  time  by  law  make  or  alter  such  regulations,  except  as  to 


1022  ELECTORAL   COUNT    OF    1877. 

the  places  of  choosing  Senators."  No  such  power  is  given  to  Congress 
to  regulate  the  election  or  appointment  of  presidential  electors.  Their 
appointment,  and  all  regulations  for  making  it,  and  the  manner  of  mak 
ing  it,  are  left  exclusively  with  the  States.  ^^** 

This  want  of  jurisdiction  over  the  subject  makes  it  clear  to  my  mind 
that  the  two  Houses  of  Congress  cannot  institute  any  scrutiny  into  the 
appointment  of  presidential  electors,  as  they  may  and  do  in  reference 
to  the  election  of  their  own  members.  The  utmost  they  can  do  is  to 
ascertain  whether  the  State  has  made  an  appointment  according  to  the 
form  prescribed  by  its  laws. 

This  view  receives  corroboration  from  the  form  of  a  bill  introduced 
into  Congress  in  1800  for  prescribing  the  mode  of  deciding  disputed 
elections  of  President  and  Yice-President,  and  which  was  passed  by 
the  Senate.  It  proposed  a  grand  committee  to  inquire  into  the  consti 
tutional  qualifications  of  the  persons  voted  for  as  President  and  Vice- 
President,  and  of  the  electors  appointed  by  the  States,  and  various 
other  matters  with  regard  to  their  appointment  and  transactions  ;  but 
it  contained  a  proviso,  in  which  both  Houses  seem  to  have  concurred, 
that  no  petition  or  exception  should  be  granted  or  allowed  which  should 
have  for  its  object  to  draw  into  question  the  number  of  votes  on  which 
any  elector  had  been  elected. 

This  bill  was  the  proposition  of  the  federal  party  of  that  day,  which, 
as  is  well  known,  entertained  strong  views  with  regard  to  the  power  of 
the  Federal  Government  as  related  to  the  State  governments.  It  was 
defeated  by  the  opposition  of  the  republican  side,  as  being  too  great 
an  interference  with  the  independence  of  the  States  in  reference  to  the 
election  of  President  and  Vice-President.  And  taken  even  as  the  fed 
eral  view  of  the  subject,  it  only  shows  what  matters  were  regarded  as 
subject  to  examination  under  the  regulation  of  law,  and  not  that  the 
two  Houses  of  Congress,  when  assembled  to  count  the  votes,  could  do 
the  same  without  the  aid  of  legislation.  The  bill  was  rather  an  admis 
sion  that  legislation  was  necessary  in  order  to  provide  the  proper  ma 
chinery  for  making  extrinsic  inquiries. 

It  is  unnecessary  to  enlarge  upon  the  danger  of  Congress  assuming 
powers  in  this  behalf  that  do  not  clearly  belong  to  it.  The  appetite  for 
power  in  that  body,  if  indulged  in  without  great  prudence,  would  have  a 
strong  tendency  to  interfere  with  that  freedom  and  independence  which 
it  was  intended  the  States  should  enjoy  in  the  choice  of  the  national 
Chief  Magistrate,  and  to  give  Congress  a  control  over  the  subject  which 
it  was  intended  it  should  not  have. 

As  the  power  of  Congress,  therefore,  does  not  extend  to  the  making 
of  a  general  scrutiny  into  the  appointment  of  electors,  inasmuch  as  it 
would  thereby  invade  the  right  of  the  States,  so  neither  can  it  draw  in 
question,  nor  sit  in  judgment  upon,  the  determination  and  conclusion  of 
the  regularly  constituted  authorities  or  tribunals  appointed  by  the  laws 
of  the  States  for  ascertaining  and  certifying  such  appointment. 

And  here  the  inquiry  naturally  arises,  as  to  the  manner  in  which  the 
electors  appointed  by  a  State  are  to  be  accredited.  What  are  the  proper 
credentials  by  which  it  is  to  be  made  known  who  have  been  appointed  T 
Obviously,  if  no  provision  of  law  existed  on  the  subject,  the  proper 
mode  would  be  for  the  governor  of  the  State,  as  its  political  head  and 
chief,  through  whom  its  acts  are  made  known  and  by  whom  its  exter 
nal  intercourse  is  conducted,  to  issue  such  credentials.  But  we  are  not 
without  law  on  the  subject.  The  Constitution,  it  is  true,  is  silent  5  but 
Congress  by  the  act  of  1792  directed  that  "  it  shall  be  the  duty  of  the 
executive  of  each  State  to  cause  three  lists  of  the  names  of  the  electors 


ELECTORAL   COUNT    OF    1877.  1023 

of  such  State  to  be  made  and  certified  and  to  be  delivered  to  the  elect 
ors  on  or  before  the  day  on  which  they  are  required  to  meet  f  and  one 
of  these  certificates  is  directed  to  be  annexed  to  each  of  the  certificates 
of  the  votes  given  by  the  electors.  And  if  it  should  be  contended  that 
this  enactment  of  Congress  is  not  binding  upon  the  State  executive, 
the  laws  of  Florida,  in  the  case  before  us,  impose  upon  the  governor  of 
that  State  the  same  duty.  I  think,  therefore,  that  it  cannot  be  denied 
that  the  certificate  of  the  governor  is  the  proper  and  regular  credential 
of  the  appointment  and  official  character  of  the  electors.  Certainly  it 
is  at  least  prima-facie  evidence  of  a  very  high  character. 

But  the  Houses  of  Congress  may  undoubtedly  inquire  whether  the 
supposed  certificate  of  the  executive  is  genuine ;  and  I  think  they 
may  also  inquire  whether  it  is  plainly  false,  or  whether  it  contains  a 
clear  mistake  of  fact,  inasmuch  as  it  is  not  itself  the  appointment, 
nor  the  ascertainment  thereof,  but  only  a  certificate  of  the  fact  of 
appointment.  While  it  must  be  held  as  a  document  of  high  nature, 
not  to  be  lightly  questioned,  it  seems  to  me  that  a  State  ought  not  to 
be  deprived  of  its  vote  by  a  clear  mistake  of  fact  inadvertently  con 
tained  in  the  governor's  certificate,  or  (if  such  a  case  may  be  supposed) 
by  a  willfully  false  statement.  It  has  not  the  full  sanctity  which  be 
longs  to  a  court  of  record,  or  which,  in  my  judgment,  belongs  to  the 
proceedings  and  recorded  acts  of  the  final  board  of  canvassers. 

In  this  case,  it  is  not  claimed  that  the  certificate  of  the  governor  con 
tains  any  mistake  of  fact,  or  that  it  is  willfully  false  and  fraudulent.  It 
truly  represents  the  result  of  the  State  canvass,  and  if  erroneous  at  all, 
it  is  erroneous  because  the  proceedings  of  the  canvassing-board  were 
erroneous  or  based  on  erroneous  principles  and  findings. 

It  seems  to  me  that  the  two  Houses  of  Congress,  in  proceeding  with 
the  count,  are  bound  to  recognize  the  determination  of  the  State  board 
of  canvassers  as  the  act  of  the  State,  and  as  the  most  authentic  evi 
dence  of  the  appointment  made  by  the  State ;  and  that  while  they  may 
go  behind  the  governor's  certificate,  if  necessary,  they  can  only  do  so  for 
the  purpose  of  ascertaining  whether  he  has  truly  certified  the  results  to 
which  the  board  arrived.  They  cannot  sit  as  a  court  of  appeals  on  the 
action  of  that  board. 

The  law  of  Florida  declares  as  follows  : 

On  the  thirty-fifth  day  after  the  holding  of  any  general  or  special  election  for  any 
State  officer,  member  of  the  legislature,  or  Representative  in  Congress,  or  sooner  if  the 
returns  shall  have  been  received  from  the  several  counties  wherein  the  elections  shall 
have  been  held,  the  secretary  of  state,  attorney-general,  and  the  comptroller  of  public 
accounts,  or  any  two  of  them,  together  with  any  other  member  of  the  cabinet  who  may 
be  designated  by  them,  shall  meet  at  the  office  of  the  secretary  of  state,  pursuant  to 
notice  to  be  given  by  the  secretary  of  state,  and  form  a  board  of  State  canvassers,  and 
proceed  to  canvass  the  returns  of  said  election  and  determine  and  declare  who  shall  have 
teen  elected  to  any  such  office  or  as  such  member,  as  shown  by  such  returns. 

The  governor's  certificate  is  prima-facie  evidence  that  the  State  can 
vassers  performed  their  duty.  Indeed,  it  is  conceded  by  the  objectors 
that  they  made  a  canvass  and  certified  or  declared  the  same.  It  is  not 
the  failure  of  the  board  to  act,  or  to  certify  and  declare  the  result  of 
their  action,  but  an  illegal  canvass,  of  which  they  complain.  To  review 
that  canvass,  in  my  judgment,  the  Houses  of  Congress  have  no  jurisdic 
tion  or  power. 

The  question  then  arises,  whether  the  subsequent  action  of  the  courts 
or  legislature  of  Florida  can  change  the  result  arrived  at  and  declared 
by  the  board  of  State  canvassers,  and  consummated  by  the  vote  of  the 
electors  and  the  complete  execution  of  their  functions  ? 

If  the  action  of  the  State  board  of  canvassers  were  a  mere  statement 
of  a  fact,  like  the  certificate  of  the  governor,  and  did  not  involve  the  exer- 


1024  ELECTORAL    COUNT    OF    1877. 

else  of  decision  and  judgment,  perhaps  it  might  be  controverted  by  evi 
dence  of  an  equally  high  character;  like  the  return  to  a  habeas  corpus, 
which  could  not,  in  former  times,  be  contradicted  by  parol  proof,  but 
might  be  contradicted  by  a  verdict  or  judgment  in  an  action  for  a  false 
return. 

Looking  at  the  subject  in  this  point  of  view,  I  was  atone  time  inclined 
to  think  that  the  proceedings  on  quo  warranto  in  the  circuit  court  of 
Florida,  if  still  in  force  and  effect,  might  be  sufficient  to  contradict  the 
finding  and  determination  of  the  board  of  canvassers — supposing  that 
the  court  had  jurisdiction  of  the  case.  But  the  action  of  the  board  in 
volved  more  than  a  mere  statement  of  fact.  It  was  a  determination,  a 
decision  quasi-judicial.  The  powers  of  the  board  as  denned  by  the 
statute  which  created  it  are  expressed  in  the  following  terms:  u  They 
shall  proceed  to  canvass  the  returns  of  said  election  and  determine  and 
declare  who  shall  have  been  elected  to  any  office  5"  and  "  if  any  such  re 
turns  shall  be  shown,  or  shall  appear  to  be,  so  irregular,  false,  or  fraudulent 
that  the  board  shall  be  unable  to  determine  the  true  vote  for  any  such 
officer  or  member,  they  shall  so  certify,  and  shall  not  include  such  return 
in  their  determination  and  declaration."  This  clearly  requires  quasi- 
judicial  action.  To  controvert  the  finding  of  the  board,  therefore,  would 
not  be  to  correct  a  mere  statement  of  fact,  but  to  reverse  the  decision 
and  determination  of  a  tribunal.  The  judgment  on  the  quo  warranto 
was  an  attempted  reversal  of  this  decision  and  the  rendering  of  another 
decision.  If  the  court  had  had  jurisdiction  of  the  subject-matter,  and 
had  rendered  its  decision  before  the  votes  of  the  electors  were  cast,  its 
judgment,  instead  of  that  of  the  returning-board,  would  have  been  the 
final  declaration  of  the  result  of  the  election.  But  its  decision  being 
rendered  after  the  votes  were  given,  it  cannot  have  the  operation  to 
change  or  affect  the  vote,  whatever  effect  it  might  have  in  a  future  ju 
dicial  proceeding  in  relation  to  the  presidential  election.  The  judicial 
acts  of  officers  de  facto,  until  they  are  ousted  by  judicial  process  or  other 
wise,  are  valid  and  binding. 

But  it  is  a  grave  question  whether  any  courts  can  thus  interfere  with 
the  course  of  the  election  for  President  and  Vice  President.  The  re 
marks  of  Mr.  Justice  Miller  on  this  subject  are  of  great  force  and 
weight. 

The  State  may,  undoubtedly,  provide  by  law  for  reviewing  the  action 
of  the  board  of  canvassers  at  any  time  before  the  electors  have  executed 
their  functions.  It  may  provide  any  safeguard  it  pleases  to  prevent  or 
counteract  fraud,  mistake,  or  illegality  on  the  part  of  the  canvassers. 
The  legislature  may  pass  a  law  requiring  the  attendance  of  the  supreme 
court  or  any  other  tribunal  to  supervise  the  action  of  the  board,  and  to 
reverse  it,  if  wrong.  But  no  such  provision  being  made,  the  final  action 
of  the  board  must  be  accepted  as  the  action  of  the  State.  No  tampering 
with  the  result  can  be  admitted  after  the  day  fixed  by  Congress  for  cast 
ing  the  electoral  votes,  and  after  it  has  become  manifest  where  the 
pinch  of  the  contest  for  the  Presidency  lies,  and  how  it  may  be  manipu 
lated. 

I  am  entirely  clear  that  the  judicial  proceedings  in  this  case  were  des 
titute  of  validity  to  affect  the  votes  given  by  the  electors.  Declared 
by  the  board  of  canvassers  to  have  been  elected,  they  were  entitled,  by 
virtue  of  that  declaration,  to  act  as  such  against  all  the  world  until 
ousted  of  their  office.  They  proceeded  to  perform  the  entire  functions 
of  that  office.  They  deposited  their  votes  in  a  regular  manner,  and  on 
the  proper  and  only  day  designated  for  that  purpose,  and  their  act 
could  not  be  annulled  by  the  subsequent  proceedings  on  the  quo  war 
ranto,  however  valid  these  might  be  for  other  purposes.  When  their 


ELECTORAL    COUNT    OF    1877.  1025 

votes  were  given,  they  were  the  legally-constituted  electors  for  the  State 
of  Florida. 

The  supreme  court  of  Florida  said  in  the  Drew  case,  it  is  true,  that 
the  board  of  canvassers  exceeded  their  jurisdiction,  and  that  their  acts 
were  absolutely  void.  In  this  assertion  I  do  not  concur;  and  it  was 
not  necessary  to  the  judgment,  which  merely  set  aside  the  finding  of  the 
board  and  directed  a,  new  canvass.  Under  the  Florida  statute,  the 
board  had  power  to  cast  out  returns.  They  did  so.  The  court  thought 
they  ought  to  have  cast  out  on  a  different  principle  from  that  which 
they  adopted.  This  was  at  most  error,  not  want  or  excess  of  jurisdic 
tion.  They  certainly  acted  within  the  scope  of  their  power,  though  they 
may  have  acted  erroneously.  This  is  the  most  that  can  be  said  in  any 
event;  and  of  this  the  Houses  of  Congress  cannot  sit  in  judgment  as  a 
court  of  appeal. 

The  question  is  asked,  whether  for  no  cause  whatever  the  declaration 
and  certificate  of  the  board  of  canvassers  can  be  disregarded?  as  if  they 
should  certify  an  election  when  no  election  had  been  held,  and  other 
extreme  cases  of  that  sort.  I  do  not  say  that  a  clear  and  evident  mis 
take  of  fact,  inadvertently  made,  and  admitted  to  have  been  made  by 
the  canvassers  themselves,  or  that  such  a  gross  fraud  and  violation  of 
duty  as  that  supposed,  might  not  be  corrected,  or  that  it  might  not 
affect  the  validity  of  the  vote.  On  that  subject,  as  it  is  not  necessary 
in  this  case,  I  express  no  opinion.  Such  extreme  cases,  when  they 
occur,  generally  suggest  some  special  rule  for  themselves  without 
unsettling  those  general  rules  and  principles  which  are  the  only  safe 
guides  in  ordinary  cases.  The  difficulty  is  that  the  two  Houses  are 
not  made  the  judges  of  the  election  and  return  of  the  presidential  elect 
ors. 

I  think  no  importance  is  to  be  attached  to  the  acts  performed  by  the 
board  of  canvassers  after  the  6th  day  of  December,  nor  to  the  acts  of 
the  Florida  legislature  in  reference  to  the  canvass.  In  my  judgment, 
they  are  all  unconstitutional  and  void.  To  allow  a  State  legislature  in 
any  way  to  change  the  appointment  of  electors  after  they  have  been 
elected  and  given  their  votes,  would  be  extremely  dangerous.  It  would, 
in  effect,  make  the  legislature  for  the  time  being  the  electors,  and  would 
subvert  the  design  of  the  Constitution  in  requiring  all  the  electoral 
votes  to  be  given  on  the  same  day. 

My  conclusion  is  that  the  validity  of  the  first  certificate  cannot  be 
controverted  by  evidence  of  the  proceedings  had  in  the  courts  of  Flor 
ida  by  quo  warranto,  and  that  said  evidence  should  not  be  received. 
.  It  is  further  objected  that  Humphreys,  one  of  the  Hayes  electors,  held 
an  office  of  trust  and  profit  under  the  Government  of  the  United  States 
at  the  time  of  the  general  election,  and  at  the  time  of  giving  his  vote. 
I  think  the  evidence  of  this  fact  should  be  admitted.  Such  an  office  is 
a  constitutional  disqualification.  I  do  not  think  it  requires  legislation 
to  make  it  binding.  What  may  be  the  effect  of  the  evidence  now  pro 
duced,  I  am  not  prepared  to  say.  I  should  like  to  hear  further  argu 
ment  on  the  subject  before  deciding  the  question. 

[It  being  shown  that  Humphreys  resigned  his  office  before  the  elec 
tion,  the  question  of  ineligibility  became  unimportant.  Justice  Brad 
ley  held,  however,  that  the  constitutional  prohibition,  that  no  member 
of  Congress  or  officer  of  the  Government  should  be  appointed  an  elector, 
is  only  a  form  of  declaring  a  disqualification  for  the  electoral  office,  and 
does  not  have  the  effect  of  annulling  the  vote  given  by  one  who,  though 
disqualified,  is  regularly  elected,  and  acts  as  an  elector;  likening  it  to 
the  case  of  other  officers  de  facto.~ 


1026  .  ELECTORAL    COUNT    OF    1877. 

THE  LOUISIANA   CASE. 

Statement. 

The  objections  to  the  votes  of  the  electors  certified  by  Kellogg  as  governor  of  Lou 
isiana,  being  condensed,  are  in  substance  as  follows  : 

First.   That  the  government  of  Louisiana  is  not  republican  in  form. 

Second.  That  Kellogg  was  not  governor. 

Third.  That  at  the  time  of  the  election,  in  November  last,  there  was  no  law  of  the 
State  directing  the  appointment  of  electors. 

Fourth.  That  so  much  of  the  election  law  which  was  in  force  as  relates  to  the  return- 
ing-board  was  unconstitutional  and  void. 

Fifth.  That  the  board  was  not  constituted  according  to  the  law  ;  having  only  four 
members  of  one  political  party,  when  there  should  have  been  five  members  of  different 
political  parties. 

Sixth.  That  they  acted  fraudulently  and  without  jurisdiction  in  casting  out  and 
rejecting  the  returns  or  statements  of  various  commissioners  of  election,  without  hav 
ing  before  them  any  statement  or  affidavit  of  violence  or  intimidation  as  required  by 
law  to  give  them  j  urisdiction  to  reject  returns ;  that  they  neglected  to  canvass  the  returns 
of  the  commissioners  amd  canvassed  those  of  the  supervisors  of  registration— that  is, 
the  parish  abstracts  instead  of  the  precinct  returns  ;  that  they  did  not  canvass  all  of 
these,  (which  would  have  elected  the  Tilden  electors,)  but  falsely  and  fraudulently 
counted  in  the  Hayes  electors,  knowing  the  count  to  be  false;  and  that  they  offered  to 
give  the  votes  the  other  way  for  a  bribe  ;  and  that  the  certificate  given  by  Kellogg  to 
the  Hayes  electors  was  the  result  of  a  conspiracy  between  Kellogg  and  the  returning- 
board  and  others  to  defraud  their  opponents  of  their  election  and  the  State  of  her  right 
to  vote;  and  that  the  Hayes  electors  were  not  elected,  but  their  opponents  were. 

Seventh.  That  two  of  the  electors  certified  by  Kellogg  were  ineligible  at  the  time 
of  the  election  by  holding  office  under  the  Government  of  the  United  States  ;  and  that 
others  were  ineligible  by  holding  State  offices,  and  that  Kellogg  could  not  legally  cer 
tify  himself  as  an  elector. 

FEBRUARY  16, 1877. 

Mr.  Commissioner  BRADLEY  said  : 

The  first  two  objections,  that  the  State  is  without  a  republican  form 
of  government,  and  that  Kellogg  was  not  governor,  are  not  seriously 
insisted  upon. 

The  question  whether  the  State  had  any  law  directing  the  appoint 
ment  of  electors  of  President  and  Vice-President,  and  regulating  their 
proceedings,  depends  upon  whether  the  presidential  electoral  law  of 
1868  was  or  was  not  repealed  by  the  general  elecMon-law  of  1872, 
which  is  admitted  to  have  been  in  force  at  the  time  of  the  last  elec 
tion. 

The  repealing  clause  relied  on  is  in  the  last  section  of  the  act,  and  is 
in  these  words : 

That  this  act  shall  take  effect  from  and  after  its  passage,  and  that  all  others  on  the 
subject  of  election  Zawsbe,  and  the  same  are  hereby,  repealed. 

The  question  is,  whether  the  act  relating  to  presidential  electors  is  an 
act  u  on  the  subject  of  election  laws  "  within  the  meaning  of  this  repeal 
ing  clause.  I  am  entirely  satisfied  that  it  is  not,  and  that  no  part  of  it 
is  repealed  by  the  act  of  1872,  except  one  section  which  relates  to 
the  mode  of  returning  and  ascertaining  the  votes  for  electors.  My  rea 
sons  are  these: 

In  the  session  of  1868,  Jin  act  was  passed,  approved  October  19,  1868, 
which  professed  to  be  a  general  election  law,  regulating  the  mode  of 
holding  and  ascertaining  the  result  of  all  elections  in  the  State,  making 
provision  for  preserving  order  thereat,  and  for  executing  generally  the 
one  hundred  and  third  article  of  the  constitution,  which  declares  that 
"  the  privilege  of  free  suffrage  shall  be  supported  by  laws  regulating 
elections  and  prohibiting  under  adequate  penalties  all  undue  influence 
thereon  from  power,  bribery,  tumult,  or  other  improper  practice."  A 


ELECTOEAL    COUNT    OF    1677.  1027 

distinct  act  was  passed  at  the  same  session,  approved  October  30, 1868, 
which  is  the  act  relating  to  presidential  electors,  before  referred  to.  Jt 
certainly  was  not  supposed  that  one  of  these  acts  conflicted  with  the 
other.  The  one  regulated  the  manner  of  holding  and  ascertaining  the 
results  of  elections  generally;  the  other  prescribed  the  mode  of  appoint 
ing  the  presidential  electors  to  which  the  State  was  entitled,  namely, 
that  they  should  be  elected  on  the  day  fixed  by  Congress,  two  for  the 
State  at  large,  and  one  for  each  congressional  district ;  prescribed  their 
qualifications,  and  the  time  arid  place  of  their  meeting  to  perform  their 
duties ;  authorized  them  when  met  to  fill  any  vacancies  caused  by  the 
failure  of  any  members  to  attend;  and  regulated  their  pay.  One  sec 
tion,  it  is  true,  directed  the  manner  in  which  the  returns  should  be  can 
vassed,  namely,  by  the  governor  in  presence  of  the  secretary  of  state, 
the  attorney-general,  and  a  district  judge  ;  and  the  first  section  directed 
that  the  election  for  electors  should  be  held  on  the  day  appointed  by 
the  act  of  Congress,  and  that  if  should  be  held  and  conducted  in  the 
manner  and  form  provided  by  law  for  general  State  elections. 

At  the  same  session  (1868)  provision  was  made  for  revising  all  the 
general  statutes  of  the  State  under  the  direction  of  a  committee  ap 
pointed  for  that  purpose.  This  committee  appointed  Mr.  John  Kay  to 
make  the  revision.  It  was  duly  reported  and  adopted  during  the  session 
of  1870.  It  contained,  under  the  title  of  "  Elections,"  the  act  of  Octo 
ber  19,  1868 ;  and  under  the  title  "  Presidential  Electors,"  the  act  of 
October  30,  1868,  showing  conclusively  that  at  that  time  the  two  acts 
were  not  deemed  incompatible  with  each  other. 

A  new  election  law  was  passed  at  the  same  session  as  a  substitute 
for  that  of  October  19,  1868,  repealing  all  conflicting  laws ;  but  it  was 
not  inserted  in  the  revised  statutes,  because  they  did  not  contain  any 
of  the  laws  of  that  session.  A  law  was  passed,  however,  authorizing 
the  reviser  (Mr.  Ray)  to  publish  a  new  edition,  under  the  name  of  a  di 
gest,  which  should  embrace  the  acts  of  1870.  This  was  done,  and  the 
new  election  law  was  inserted  under  the  title  "  Elections  "  in  the  place 
of  the  old  law.  The  act  relating  to  presidential  electors  was  untouched, 
except  to  insert  in  it  the  new  method  of  making  the  returns  of  the 
elections  by  the  returning-board,  which  was  the  only  part  of  the  new 
law  which  conflicted  with  it.  It  is  apparent,  therefore,  that  the  election 
law  of  1870  was  not  deemed  repugnant  to  the  law  relating  to  "  Presi 
dential  Electors,"  except  in  the  one  particular  mentioned. 

Now,  the  act  of  1872,  which  it  is  alleged  does  repeal  the  law  relating 
to  presidential  electors,  is  simply  a  substitute  for  the  general  election 
law  of  1870,  going  over  and  occupying  exactly  the  same  ground,  and  no 
more,  and  making  very  slight  alterations.  The  principal  of  these  is  the 
reconstruction  of  the  returniug-board.  With  this  exception  it  does  not 
in  the  least  conflict,  any  more  than  did  the  act  of  1870,  with  the  provis 
ions  of  the  law  relating  to  "  presidential  electors."  And  as  the  repeal 
ing  clause  therein  (before  referred  to)  is  expressly  confined  to  "  acts  on 
the  subject  of  election  laws,"  it  seems  to  me  most  manifest  that  the  intent 
was  to  repeal  the  election  law  only,  and  not  that  relating  to  u  presiden 
tial  electors."  This  view  is  corroborated  by  the  sixty-ninth  section, 
which  has  this  expression:  "  The  violation  of  any  provision  of  the  act, 
or  section  of  the  act  repealed  by  this  act,  shall  be  considered,"  &e.  Re 
pealing  clauses  should  not  be  extended  so  as  to  repeal  laws  not  in  con 
flict  with  the  new  law,  unless  absolutely  necessary  to  give  effect  to  the 
words.  And  when  we  consider  the  consequences  which  a  repeal  of  the 
law  relating  to  presidential  electors  would  have  in  depriving  the  State 
of  its  power  to  have  vacancies  in  its  electoral  college  tilled,  in  introdu- 


1028  ELECTORAL    COUNT    OF    1  77. 

eing  confusion  and  uncertainty  as  to  the  districts  they  should  be  chosen 
from,  and  by  leaving  no  directions  as  to  the  time  and  place  of  their 
meeting,  it  seems  clear  that  it  could  never  have  been  in  the  mind  of  the 
legislature  to  repeal  that  law. 

There  is  a  section  in  the  act  of  1872  relating  to  vacancies  which  it  has 
been  suggested  is  repugnant  to  the  authority  of  the  electoral  college  to 
fill  vacancies  in  that  body.  It  is  section  24  which  enacts,  "  that  all  elec 
tions  to  be  held  in  this  State  to  fill  any  vacancies  shall  be  conducted 
and  managed,  and  returns  thereof  shall  be  made,  in  the  same  manner 
as  is  provided  for  general  elections."  But  this  is  explained  by  the  fact 
that  both  the  constitution  and  the  election  law  itself  direct  vacancies 
in  certain  offices  named  (including  that  of  members  of  the  legislature) 
to  be  filled  by  a  new  election.  The  twenty-fourth  section  means  only, 
that  where  elections  are  to  be  held  to  fill  vacancies,  they  shall  be  held 
in  the  usual  manner.  It  cannot  mean  that  all  vacancies  shall  be  filled 
by  another  election ;  because  the  constitution  expressly  gives  to  the 
governor  the  power  to  fill  vacancies  in  certain  cases. 

I  am  clearly  of  opinion,  therefore,  that  the  law  relating  to  presiden 
tial  electors  has  not  been  repealed,  except  as  to  the  mode  of  canvassing 
the  returns ;  and  that  that  is  to  be  performed  by  the  returning-board 
created  by  the  act  of  1872,  in  lieu  of  the  Lynch  returning-board  created 
by  the  act  of  1870,  and  in  lieu  of  the  method  originally  prescribed  in 
the  law  relating  to  presidential  electors. 

This  disposes  of  the  objection,  that  the  electoral  college  has  no  power 
to  fill  vacancies  in  its  own  body,  since  the  electoral  law  has  a  section 
which  expressly  authorizes  the  college  to  fill  any  vacancy  that  may 
occur  by  the  non-attendance  of  any  of  the  electors  by  four  o'clock  in 
the  afternoon  of  the  day  for  giving  their  votes. 

But  it  is  insisted  that  that  part  of  the  election  law  of  1872  which  re 
establishes  the  returning-board,  and  gives  it  its  powers,  is  unconstitu 
tional.  The  act  declares  "  that  five  persons,  to  be  elected  by  the  Senate 
from  all  political  parties,  shall  be  the  returuiug-officers  for  all  elections. 
In  case  of  any  vacancy  by  death,  resignation,  or  otherwise,  by  either  of 
the  board,  then  the  vacancy  shall  be  filled  by  the  residue  of  the  board 
of  returning-officers." 

The  powers  and  duties  of  the  board  are,  to  meet  in  New  Orleans  with 
in  ten  days  after  the  election,  canvass  and  compile  the  statements  of 
votes  made  by  the  commissioners  of  election,  and  make  returns  of  the 
election  to  the  secretary  of  state,  and  publish  a  copy  in  the  public  jour 
nals,  declaring  the  names  of  all  persons  and  officers  voted  for,  the  num 
ber  of  votes  for  each  person,  and  the  names  of  the  persons  who  have 
been  duly  and  lawfully  elected.  It  is  declared  that  the  returns  thus 
made  and  promulgated  shall  be  prima  facie  evidence  in  all  courts  of 
justice  and  before  all  civil  officers,  until  set  aside  after  contest  accord 
ing  to  law,  of  the  right  of  any  person  declared  elected.  On  receiving 
notice  from  any  supervisor  of  election,  supported  by  affidavits,  and 
being  convinced  by  examination  and  testimony  that  by  reason  of  riot, 
tumult,  acts  of  violence,  intimidation,  armed  disturbance,  bribery,  or 
corrupt  influences,  the  purity  and  freedom  of  election  at  any  voting- 
place  were  materially  interfered  with,  or  a  sufficient  number  of  quali 
fied  voters  to  change  the  result  were  prevented  from  registering  and 
voting,  it  is  made  the  duty  of  the  board  to  exclude  from  their  returns 
the  votes  given  at  such  voting-place. 

Why  this  law  is  unconstitutional,  I  cannot  perceive.  The  powers  given 
may  be  abused,  it  is  true,  but  that  is  the  case  with  all  powers.  The  con 
stitutionality  of  the  board  has  been  considered  by  the  supreme  court  of 


ELECTORAL    COUNT    OF    1877.  1029 

Louisiana,  and  has  been  fully  sustained.  It  is  said  that  the  term  of 
office  is  indefinite,  and  might  continue  for  life.  But  where  no  period  is 
fixed  for  the  tenure  of  an  office,  it  is  held  at  the  will  of  the  appointing 
power,  which  may  at  any  time  make  a  new  appointment.  So  that  no 
evil  consequences  can  ensue  from  this  cause.  If  the  members  of  the 
board  were  appointed  for  a  term,  the  senate  could  re- appoint  them. 
Allowing  them  to  remain  when  power  exists  to  remove  them  at  will,  is 
substantially  the  same  thing. 

The  objection  that  there  were  only  four  members  constituting  the 
board  at  the  canvass  in  December  last  is  met  by  the  general  rule  of  law 
in  regard  to  public  bodies,  that  the  happening  of  a  vacancy  does  not 
destroy  the  body  if  a  quorum  still  remains.  The  Supreme  Court  con 
sists  of  nine  justices  ;  but  the  court  may  be  legally  held  though 
there  are  three  vacancies,  only  six  being  required  for  a  quorum.  A 
vacancy  in  a  branch  of  the  legislature,  in  the  board  of  supervisors  of  a 
county,  in  the  commissioners  or  selectmen  of  a  town,  in  the  trustees  of 
a  school  district,  does  not  destroy  the  body  nor  vitiate  its  action,  unless 
there  be  an  express  law  to  make  it  do  so. 

But  it  is  said  that  the  power  given  to  the  board  to  fill  vacancies  in 
its  own  body  is  mandatory.  It  is  in  exactly  the  same  terms  as  those 
contained  in  the  election  law  of  1870  on  the  same  subject.  In  several 
cases  arising  under  that  act,  the  supreme  court  of  Louisiana  decided 
that  this  language  was  not  compulsory,  or  at  least  did  not  affect  the 
legal  constitution  of  the  board  if  not  complied  with  ;  but  that  the  board 
was  a  legal  board  though  only  four  members  remained  in  it.  Had 
the  board  never  been  filled  at  all,  it  might  be  urged  with  more  plausi 
bility  that  it  was  never  legally  constituted.  If  a  court  be  created 
to  consist  of  five  judges,  although  if  once  legally  organized  a  single 
judge  might  hold  the  court  in  the  absence  of  the  others,  yet  if  only 
one  judge  were  ever  appointed,  it  might  very  properly  be  said  that 
no  legal  organization  had  ever  taken  place.  In  this  case  the  vacancy 
in  the  board  occurred  after  it  had  been  duly  constituted  by  the  appoint 
ment  of  the  full  number  of  members.  Afterward  the  vacancy  occurred. 
And  if  it  be  the  correct  view,  as  was  decided  by  the  supreme  court  of 
Louisiana  in  regard  to  the  Lynch  board,  that  the  power  given  to  the  re 
maining  members  to  fill  the  vacancy  is  not  mandatory,  a  neglect  on  their 
part  to  fill  it  does  not,  it  seems  to  me,  destroy  the  existence  of  the  board 
or  deprive  it  of  power  to  act.  If  it  be  true,  as  alleged,  that  members  of 
only  one  political  party  remained  on  it,  it  may  have  been  an  impropriety 
in  proceeding  without  filling  the  vacancy,  and  the  motives  of  the  mem 
bers  may  have  been  bad  motives,  corrupt,  fraudulent,  what  not;  but 
with  improprieties  and  with  the  motives  of  the  members  we  have  noth 
ing  to  do.  We  are  not  the  judges  of  their  motives.  The  question  with 
which  we  have  to  do  is  a  question  of  power,  of  legal  authority  in  four 
members  to  act.  And  of  this  I  have  no  doubt.  The  board  was  directed 
"to  be  elected  by  the  senate  from  all  political  parties,"  it  is  true.  It 
does  not  appear  that  this  was  not  done.  Can  it  be  contended  that  the 
resignation  or  death  of  one  of  the  members,  who  happened  to  be  alone 
in  his  party  connections,  deprives  the  remainder  of  the  power  to  act  ? 
I  think  not.  If  the  four  members  remaining  were  all  of  different  poli 
tics,  the  objection  would  lose  all  its  force.  So  that  it  is  resolved  to  this  : 
that  the  power  to  fill  a  vacancy  is  mandatory  when  any  political  party 
ceases  to  be  represented  by  the  death  or  resignation  of  a  member,  and 
is  not  mandatory  in  any  other  case.  Suppose,  instead  of  dying  or  re 
signing,  the  member  changes  his  party  affiliations ;  is  there  a  vacancy 
then  ?  Can  the  other  members  oust  him,  or  can  he  oust  them  ?  The 


1030  ELECTORAL   COUNT   OF    1877.       „ 

senate,  with  whom  resides  the  power  of  appointing  a  new  board  when 
ever  it  sees  fit,  might  be  in  duty  bound  to  act ;  but  the  same  cannot  be 
said  of  the  board  itself.  If  this  were  not  Louisiana,  but  some  State  in 
which  no  charges  of  fraud  and  disorder  were  made,  the  objection  would 
hardly  be  thought  of  as  having  any  legal  validity. 

The  next  question  relates  to  the  alleged  illegality  and  fraud  in  the 
proceedings  of  the  returning-board.  Can  the  two  Houses  of  Congress 
go  behind  their  returns  and  certificate  and  examine  into  their  conduct  ! 
I  have  already  discussed  this  subject  to  some  extent  in  the  Florida  case. 
I  shall  now  only  state  briefly  the  conclusions  to  which  I  have  come  in 
this  case : 

First.  I  consider  the  governor's  certificate  of  the  result  ol  the  canvass 
as  prima  facie  evidence  of  the  fact,  but  subject  to  examination  and  con 
tradiction.  This  point  has  already  been  considered  in  the  Florida  case. 

Secondly.  The  finding  and  return  of  the  State  canvassers  of  the  elec 
tion  are,  in  their  nature,  of  greater  force  and  effect  than  the  governor's 
certificate,  being  that  on  which  his  certificate  is  founded  and  being  the 
final  result  of  the  political  machinery  established  by  the  State  to  ascer 
tain  and  determine  the  very  fact  in  question.  "  Each  State  shall  appoint," 
is  the  language  of  the  Constitution.  Of  course  the  two  Houses  must  be 
satisfied  that  the  State  has  appointed  and  that  the  votes  presented  were 
given  by  its  appointees.  The  primary  proof  of  this,  as  prescribed  by 
the  laws  of  the  United  States,  is  the  certificate  of  the  governor.  But, 
as  before  stated,  I  do  not  deem  that  conclusive.  It  may  be  shown  to  be 
false  or  erroneous  in  fact,  or  based  upon  the  canvass  and  return  of  a  board 
or  tribunal  that  had  no  authority  to  act.  This  was  conceded  in  the  pro 
ceedings  which  took  place  with  regard  to  the  votes  of  Louisiana  in  1873. 

Was  the  returning-board  of  Louisiana  a  tribunal,  or  body,  constituted 
by  the  laws  of  the  State,  with  power  to  ascertain  and  declare  the  result 
of  the  election,  and  did  that  board,  in  the  exercise  of  the  jurisdiction 
conferred  upon  it,  ascertain  and  declare  that  result  ?  This,  it  seems  to 
me,  is  the  point  to  be  ascertained. 

This  involves  an  examination  of  the  laws  of  the  State  to  ascertain 
what  that  tribunal  is  and  what  general  powers  it  is  invested  with,  not 
for  the  purpose  of  seeing  whether  all  the  proceedings  of  the  board,  or  of 
the  election-officers  whose  action  preceded  theirs,  were  in  strict  compli 
ance  with  the  law,  but  for  the  purpose  of  seeing  whether  the  result 
comes  from  the  authorities  provided  by  the  State,  acting  substantially 
within  the  scope  of  their  appointment.  This  is  necessary  to  be  done  in 
order  to  see  whether  (whatever  irregularities  may  have  occurred)  it  was 
the  State  which  made  the  appointment  or  some  usurping  body  not  au 
thorized  by  the  State  at  all. 

The  examination  to  be  made  is  somewhat  analogous  to  that  made  into 
the  jurisdiction  of  a  court  when  its  judgment  is  collaterally  assailed. 
If  the  board  declared  the  result  of  the  election,  and  in  so  doing  acted 
within  the  general  scope  of  its  powers,  it  seems  to  me  that  the  inquiry 
should  there  end.  The  constitutional  power  of  the  two  Houses  of  Con 
gress  does  not  go  further. 

On  the  question  of  jurisdiction,  I  think  it  competent  for  the  Houses 
to  take  notice  of  the  fact  (if  such  was  the  fact)  that  the  returning-board 
had  no  returns  before  it  at  all,  and,  in  effect,  (to  speak  as  we  do  of  judi 
cial  proceedings,)  without  having  a  case  before  it  to  act  on  ;  or  of  the 
fact  (if  such  was  the  fact)  that  the  board  which  pretended  to  act  was 
not  a  legal  board.  This  view  was  taken  by  both  Houses,  if  I  understand 
their  action  aright,  in  the  count  of  1873  in  rejecting  the  electoral  votes 
from  Louisiana  OH  that  occasion.  (Document  on  Electoral  Counts,  407.) 


ELECTORAL    COUNT    OF    1C77.  1031 

Anything  which  shows  a  clear  want  of  jurisdiction  in  'the  returning- 
board  divests  its  acts  of  authority,  and  makes  it  cease  to  be  the  repre 
sentative  of  the  will  of  the  State.  But  it  must  appear  that  there  was  a 
clear  and  most  manifest  want  of  authority;  for,  otherwise,  the  State 
might  be  deprived  of  its  franchise  by  mere  inadvertence  of  its  agents 
Or  an  honest  mistake  made  by  them  as  to  the  law. 

In  the  case  before  us,  the  board  had  ample  powers,  as  we  have  seen. 
These  powers  have  frequently  been  sustained  by  the  supreme  court  of 
the  State.  The  law  of  Louisiana  not  only  gives  the  board  power  to 
canvass  the  returns,  but  to  reject  returns  whenever  in  their  opinion, 
upon  due  examination  had,  they  are  satisfied  that  the  vote  was  affected 
by  violence  and  intimidation.  They  did  no  more  in  this  case,  suppos 
ing  them  to  have  done  all  that  is  alleged.  It  is  said  that  they  pro 
ceeded  without  jurisdiction,  because  they  did  not  canvass  the  statements 
of  the  commissioners  of  election,  but  only  the  abstracts  of  the  parish 
supervisors  of  registration.  It  is  not  denied  that  they  had  both  and  all 
of  these  statements  before  them.  If  they  acted  wrongfully  in  relying 
on  the  abstracts  and  not  examining  the  original  statements,  it  may 
have  been  misconduct  on  their  part,  but  it  cannot  be  said  that  they 
were  acting  beyond  the  scope  of  their  jurisdiction.  If,  in  a  single  case, 
and  without  coming  to  an  erroneous  result,  they  took  the  abstracts 
instead  of  the  original  returns,  it  would  be  just  as  fatal  as  a  matter  of 
jurisdiction  (and  no  more  so)  as  if  they  relied  on  the  abstracts  in  all 
cases.  It  would  only  be  error  or  misconduct,  and  not  want  of  jurisdic 
tion.  And  the  Houses  of  Congress,  as  before  said,  are  not  a  court  of 
errors  and  appeals,  for  the  purpose  of  examining  regularity  of  proceed 
ings. 

It  is  also  said  that  they  acted  without  jurisdiction  in  rejecting  returns 
without  having  before  them  certificates  of  violence  or  intimidation.  It 
is  admitted  that  they  took  a  large  quantity  of  evidence  themselves 
on  the  subject;  but  it  is  contended  that  they  had  no  jurisdiction  to 
enter  upon  the  inquiry  without  a  supervisor's  certificate  first  had.  Is 
this  certain  I  The  one  hundred  and  third  article  of  the  constitution 
made  it  the  duty  of  the  legislature  to  pass  laws  regulating  elections,  to 
support  the  privilege  of  free  suffrage,  and  to  prohibit  undue  influence 
thereon  from  power,  bribery,  tumults,  or  other  improper  influences. 
The  election  law  was  passed  to  carry  out  this  article.  As  one  means 
of  carrying  it  out  in  spirit,  the  returning-board  were  prohibited  from 
counting  a  return,  if  it  was  accompanied  by  a  certificate  of  violence, 
until  they  had  investigated  the  matter  by  examination  and  proof. 
Eeceiving  such  a  certificate,  they  could  not  count  a  return  if  they  wanted 
to.  Now,  is  it  certain  that  under  such  a  law,  if  the  board  had  knowl 
edge  from  other  sources  than  a  certificate  that  violence  and  intimidation 
had  been  exercised  and  had  produced  the  result,  they  could  not  inquire 
into  it  ?  And  more,  is  their  whole  canvass  to  be  set  aside,  because  they 
made  an  investigation  under  such  circumstances  "?  There  is  no  other 
tribunal  in  Louisiana  for  making  it.  The  supreme  court  has  decided 
that  the  courts  cannot  go  behind  these  returns.  In  my  judgment,  we 
have  no  more  authority  to  reject  their  canvass  for  this  cause  than  for 
that  of  not  using  the  original  statements.  It  is  as  if  a  court  having 
jurisdiction  of  a  cause  used  a  piece  of  evidence  on  the  trial  which  it  had 
no  jurisdiction  to  take.  It  would  be  mere  irregularity  at  most,  and 
would  not  render  its  judgment  void  in  any  collateral  proceeding. 

I  cannot  bring  my  mind  to  believe  that  fraud  and  misconduct  on  the 
part  of  the  State  authorities,  constituted  for  the  very  purpose  of  declar 
ing  the  final  will  of  the  State,  is  a  subject  over  which  the  two  Houses 


1032  ELECTORAL    COUNT    OF    1877. 

of  Congress  have  jurisdiction  to  institute  an  examination.  The  ques 
tion  is  not  whether  frauds  ought  to  be  tolerated,  or  whether  they  ought 
not  to  be  circumvented  ;  but  whether  the  Houses  of  Congress,  in  exer 
cising  their  power  of  counting  the  electoral  votes,  are  intrusted  by  the 
Constitution  with  authority  to  investigate  them.  If  in  any  case  it 
should  clearly  and  manifestly  appear,  in  an  unmistakable  manner,  that 
a  direct  fraud  had  been  committed  by  a  returning-board  in  returning 
the  electors  they  did,  and  if  it  did  not  require  an  investigation  on  the 
part  of  the  two  Houses  to  ascertain  by  the  taking  of  evidence  the  truth 
of  the  case,  I  have  no  doubt  that  the  Houses  might  rightfully  reject  the 
vote — as  not  being  the  vote  of  the  State.  But  where  no  such  manifest 
fraud  appears,  and  fraud  is  only  charged,  how  are  the  two  Houses  to 
enter  upon  a  career  of  investigation  ?  If  the  field  of  inquiry  were  once 
opened,  where  is  its  boundary  ?  Evidently  no  such  proceeding  was  in 
the  mind  of  the  framers  of  the  Constitution.  The  short  and  explicit 
directions  there  given,  that  the  votes  shall  be  first  produced  before 
the  Houses  when  met  for  that  purpose,  and  that  "the  votes  shall  then 
be  counted,"  is  at  variance  with  any  such  idea.  An  investigation 
beforehand  is  not  authorized  and  was  not  contemplated,  and  would  be 
repugnant  to  the  limited  and  special  power  given.  What  jurisdiction 
have  the  Houses  on  the  subject,  until  they  have  met  under  the  Consti 
tution,  except  to  provide  by  law  for  facilitating  the  performance  of 
their  duties  ?  An  investigation  afterward,  such  as  the  question  raised 
might  and  frequently  would  lead  to,  would  be  utterly  incompatible 
with  the  performance  of  the  duty  imposed. 

At  all  events,  on  one  or  two  points  I  am  perfectly  clear.  First,  that 
the  two  Houses  do  not  constitute  a  canvassiug-board  for  the  purpose 
of  investigating  and  deciding  on  the  results  of  the  election  for  electors 
in  a  State.  The  proposed  act  of  1800  carefully  excluded  any  inquiry 
into  the  number  of  votes  on  which  an  elector  was  elected  5  and  I  think 
it  cannot  well  be  pretended  that  the  Houses  have  power  to  go  further 
into  the  inquiry  than  was  proposed  by  that  bill.  Secondly,  that  the 
two  Houses  are  not  a  tribunal,  or  court,  for  trying  the  validity  of  the 
election-returns  and  sitting  in  judgment  on  the  legality  of  the  proceed 
ings  in  the  course  of  the  election.  The  two  Houses,  with  only  their 
constitutional  jurisdiction,  are  neither  of  these  things;  though  as  to 
the  elections,  qualifications,  and  returns  of  their  own  members,  they  are 
certainly  the  latter,  having  the  right  to  judge  and  decide. 

I  have  thus  far  spoken  of  the  power  of  the  two  Houses  of  Congress  as 
derived  from  the  Constitution.  Whether  the  legislative  power  of  the 
Government  might  not,  by  law,  make  provision  for  an  investigation 
into  frauds  and  illegalities,  I  do  not  undertake  to  decide.  It  cannot  be 
done,  in  my  judgment,  by  any  agency  of  the  Federal  Government  with 
out  legislative  regulation.  The  necessity  of  an  orderly  mode  of  taking 
evidence  and  giving  opportunity  to  cross-examine  witnesses  would  re 
quire  the  interposition  of  law.  The  ordinary  power  of  the  two  Houses 
as  legislative  bodies,  by  which  they  investigate  facts  through  the  agency 
of  committees,  is  ill  adapted  to  such  an  inquiry. 

It  seems  to  me,  however,  the  better  conclusion,  that  the  jurisdiction 
of  the  whole  matter  belongs  exclusively  to  the  States.  Let  them  take 
care  to  protect  themselves  from  the  perpetration  of  frauds.  They  need 
no  guardians.  They  are  able,  and  better  able  than  Congress,  to  create 
every  kind  of  political  machinery  which  human  prudence  can  contrive, 
for  circumventing  fraud,  and  preserving  their  true  voice  and  vote  in 
the  presidential  election. 

In  my  judgment,  the  evidence  proposed  cannot  be  received. 


ELECTORAL    COUNT    OF    1677.  1033 

Then,  as  to  the  alleged  ineligibility  of  the  candidates.  First,  their 
alleged  ineligibility  under  the  laws  of  the  State,  I  think  we  have  noth 
ing  to  do  with.  It  has  been  imposed  for  local  reasons  of  State  policy, 
but  if  the  State  sees  fit  to  waive  its  own  regulations  on  this  subject,  it 
is  its  own  concern.  If  the  State  declares  that  no  person  shall  hold  two 
offices,  or  that  all  officers  shall  possess  an  estate  of  the  value  of  $1,000, 
or  imposes  any  other  qualification,  or  disqualification,  it  is  for  the  State 
to  execute  its  own  laws  in  this  behalf.  At  all  events,  if  persons  are 
appointed  electors  without  having  the  qualifications,  or  having  the  dis 
qualifications,  and  they  execute  the  function  of  casting  their  votes,  their 
acts  cannot  be  revised  here. 

Two  of  the  electors,  however,  Levissee  and  Brewster,  are  alleged  to 
have  held  offices  of  trust  and  profit  under  the  United  States,  when  the 
election  was  held  on  the  7th  of  November.  It  is  not  alleged  that  they 
did  so  on  the  6th  of  December,  when  they  gave  their  votes.  Being 
absent  when  the  electoral  college  met,  their  places  were  declared  vacant, 
and  the  college  itself  proceeded  to  re-appoint  them,  under  the  law,  and 
sent  for  them.  They  then  appeared  and  took  their  seats.  So  that,  in 
point  of  fact,  the  objection  does  not  meet  the  case,  unless  their  being 
Federal  office-holders  at  the  time  of  the  election  affects  it. 

Though  not  necessary  to  the  decision  of  this  case,  I  have  re-examined 
the  question  of  constitutional  ineligibility  since  the  Florida  case  was 
disposed  of,  and  must  say  that  I  am  not  entirely  satisfied  with  the  con 
clusion  to  which  I  then  came,  namely,  that  if  a  disqualified  elector  casts 
his  vote  when  disqualified,  the  objection  cannot  be  taken.  I  still  think 
that  this  disqualification  at  the  time  of  his  election  is  not  material,  if 
such  disqualification  ceases  before  he  acts  as  an  elector.  But,  as  at 
present  advised,  I  am  inclined  to  the  opinion  that  if  constitutionally 
disqualified  when  he  casts  his  vote,  such  vote  ought  not  to  be  counted. 

I  still  think,  as  I  thought  in  discussing  the  Florida  case,  that  the 
form  of  the  constitutional  prohibition  is  not  material ;  that  it  is  all  one, 
whether  the  prohibition  is  that  a  Federal  officer  shall  not  be  an  elector, 
or,  that  he  shall  not  be  appointed  an  elector.  The  spirit  and  object  of 
the  prohibition  is  to  make  office-holding  under  the  Federal  Government 
a  disqualification.  That  is  all.  And  this  is  the  more  apparent  when 
we  recollect  the  reasons  for  it.  When  the  Constitution  was  framed, 
the  great  object  of  creating  the  office  of  electors  to  elect  the  President 
and  Vice-President  was  to  remove  this  great  duty  as  far  as  possible 
from  the  influence  of  popular  passion  and  prejudice,  and  to  place  it  in 
the  hands  of  men  of  wisdom  and  discretion,  having  a  knowledge  of 
public  affairs  and  public  men.  The  idea  was  that  they  were  to  act  with 
freedom  and  independence.  The  jealousy  which  was  manifested  in  the 
convention  against  the  apprehended  influence  and  power  of  the  General 
Government,  and  especially  of  the  legislative  branch,  induced  the  pro 
hibition  in  question.  It  was  feared  that  the  members  of  the  Houses  of 
Congress  and  persons  holding  office  under  the  Government  would  be 
peculiarly  subject  to  these  influences  in  exercising  the  power  of  voting 
for  Chief  Magistrate.  It  was  not  in  the  process  of  appointment  that 
this  influence  was  dreaded,  but  in  the  effect  it  would  have  on  the  elector 
himself  in  giving  his  vote. 

It  seems  to  me,  therefore,  that  if  a  person  appointed  an  elector  has 
no  official  connection  with  the  Federal  Government  when  he  gives  his 
vote,  such  vote  cannot  be  justly  excepted  to;  and  that  substantial 
effect  is  given  to  the  constitutional  disqualification  if  the  electoral  vote 
given  by  such  officer  is  rejected.  And  my  present  impression  is  that  it 
should  be  rejected. 


1034  ELECTORAL    COUNT    OF    1377. 

Circumstances,  it  is  true,  have  greatly  changed  since  the  Constitu 
tion  was  adopted.  Instead  of  electors  being,  as  it  was  supposed  they 
would  be,  invested  with  power  to  act  on  the  dictates  of  their  own  judg 
ment  and  discretion  in  choosing  a  President,  they  have  come  to  be  mere 
puppets,  elected  to  express  the  preordained  will  of  the  political  party 
that  elects  them.  The  matter  of  ineligibility  has  come  to  be  really  a 
matter  of  no  importance,  except  as  it  still  stands  in  the  Constitution, 
and  is  to  be  interpreted  as  it  was  understood  when  the  Constitution 
was  adopted.  Hence  we  must  ascertain,  if  we  can,  what  was  its  original 
design  and  meaning,  without  attempting  to  stretch  or  enlarge  its 
force. 

[It  may  be  proper  that  I  should  here  add  that  I  concede  that  there 
is  great  force  in  what  is  urged  by  other  members  of  the  Commission 
respecting  the  difficulty  which  still  remains,  of  the  two  Houses,  when 
assembled  to  count  the  votes,  undertaking  an  investigation  of  facts  to 
determine  a  question  of  ineligibility,  which  might  be  extended  in  such 
a  manner  as  materially  to  interfere  with  the  main  duty  for  which  they 
assemble.  This  was  probably  seen  when  the  law  of  1800  was  proposed 
for  the  purpose  of  having  such  matters  determined  by  a  grand  commit 
tee  preparatory  to  the  meeting  of  the  two  Houses  in  joint  convention. 
The  passage  of  some  law  regulating  the  matter  is  on  all  accounts  desira 
ble.] 

THE  OREGON  CASE. 
Statement. 

The  laws  of  Oregon  do  not  provide  for  a  board  of  Stato  canvassers,  but  direct  as  fol 
lows  : 

"  It  shall  be  the  duty  of  the  secretary  of  state,  in  presence  of  the  governor,  to  proceed 
within  thirty  days  after  the  election,  and  sooner  if  the  returns  be  all  received,  to  can 
vass  the  votes  given  for  secretary  and  treasurer  of  state,  State  printer,  justices  of  the 
supreme  court,  members  of  Congress,  and  district  attorneys." 

And  then,  with  regard  to  State  officers,  directs :  "  The  governor  shall  grant  a  certifi 
cate  of  election  to  the  person  having  the  highest  number  of  votes,  and  shall  also  issue 
a  proclamation  declaring  the  election  of  such  person." 

But  with  regard  to  presidential  electors,  it  directs :  "  The  votes  for  the  electors  shall 
be  given,  received,  returned,  and  canvassed  as  the  same  are  given,  returned,  and  can 
vassed  for  members  of  Congress.  The  secretary  of  state  shall  prepare  two  lists  of  the 
names  of  the  electors  elected,  and  affix  the  seal  of  the  State  to  the  same.  Such  lists 
shall  be  signed  by  the  governor  and  secretary,  and  by  the  latter  delivered  to  the  col 
lege  of  electors  at  the  hour  of  their  meeting  on  such  first  Wednesday  of  December." 

When  the  electors  are  met  on  the  day  for  casting  their  votes,  the  law  directs :  "  If 
there  shall  be  any  vacancy  in  the  office  of  an  elector,  occasioned  by  death,  refusal  to 
act,  neglect  to  attend,  or  otherwise,  the  electors  present  shall  immediately  proceed  to 
fill,  by  viva  voce  and  plurality  of  votes,  such  vacancy  in  the  electoral  college." 

Watts,  one  of  the  electors  having  the  highest  number  of  votes,  was  a  postmaster  at 
the  time  of  the  election,  November  7, 1876,  but  resigned  that  office  during  the  month. 

On  the  4th  of  December,  the  secretary  of  state,  in  presence  of  the  governor,  canvassed 
the  votes  for  presidential  electors,  made  a  statement  of  the  result,  authenticated  it 
under  the  seal  of  the  State,  and  filed  Lit  in  his  office.  The  following  is  a  copy  of  this 
document: 


ELECTORAL    COUNT    OF    1877. 


1035 


Abstract  of  votes  cast  at  the  presidential  election  held  in  the  State  of  Oregon  November  7, 1876, 

for  presidential  electors. 


Counties. 

_: 

I 

n 
& 

1 

fc 

hi 

J.  C.  Cartwright. 

Henry  Klippel. 

E.  A.  Cronin. 

"W.  B.  Laswell. 

i 

c 

fi 

F.  Sutherland. 

Sj 

o 

M 

Baker 

318 

319 

319 

549 

550 

549 

1 

1 

1 

Benton  

615 

615 

615 

567 

567 

567 

77 

77 

77 

Clackamas 

949 

950 

950 

724 

7°4 

724 

17 

17 

17 

Clatsop  ... 

432 

432 

432 

386 

385 

386 

Columbia 

157 

156 

157 

179 

179 

179 

<v> 

22 

22 

Coos  

571 

571 

571 

512 

516 

515 

131 

131 

131 

1°4 

124 

1°4 

3 

3 

3 

Douglas  

1  002 

1  002 

1  003 

847 

847 

847 

43 

43 

43 

Grant  

315 

314 

316 

279 

279 

277 

3 

3 

3 

Jackson  

585 

585 

586 

827 

840 

840 

5 

5 

5 

Josephine  

209 

20!) 

209 

252 

252 

252 

4 

4 

4 

Lane   .  . 

949 

949 

949 

946 

946 

946 

33 

33 

33 

Lake  

173 

173 

173 

258 

258 

258 

X/inn 

1  323 

1  324 

1  323 

1  404 

1  404 

1  404 

140 

141 

140 

Marion  

1  780 

1  782 

1  781 

1  154 

1  154 

1  155 

24 

23 

22 

Multnomah 

2  124 

2  122 

2  122 

1  525 

1  528 

1  525 

0 

• 

0 

Polk  .«  

'  607 

'608 

608 

542 

'  542 

542 

54 

55 

54 

Tillamook 

119 

119 

119 

76 

76 

76 

1 

1 

1 

Umatilla  ... 

486 

486 

486 

742 

742 

742 

42 

42 

42 

Union  

366 

366 

366 

525 

525 

525 

32 

32 

32 

"Wasco  .  .  . 

491 

491 

493 

6^1 

6-)l 

619 

Washington  .  .  . 

693 

692 

693 

423 

424 

423 

Yamhill 

811 

810 

812 

674 

674 

674 

6 

6 

g 

Total 

15  206 

15  206 

15  214 

14  136 

14  157 

14  149 

509 

510 

507 

Simpson,  1 ;  Gray,  1 ;  Saulabury,  1 ;  McDowell,  1. 

SALEM.  STATE  OF  OREGON: 

I  hereby  certify  that  the  foregoing  tabulated  statement  is  the  result  of  the  vote  cast 
for  presidential  electors  at  a  general  election  held  in  and  for  the  State  of  Oregon  on 
the  7th  day  of  November,  A.  I).  1876,  as  opened  and  canvassed  in  the  presence  of  his 
excellency  L.  F.  Grover,  governor  of  said  State,  according  to  law,  on  the  4th  day  of  De 
cember,  A.  D.  1876,  at  two  o'clock  p.  m.  of  that  day,  by  the  secretary  of  state. 

[SEAL.]  S.  F.  CHADWICK, 

Secretary  of  State  of  Oregon. 

The  statute  of  Oregon  declares,  "  in  all  elections  in  this  State  the  person  having  the 
highest  number  of  votes  for  any  office  shall  be  deemed  to  be  elected." 

On  the  6th  of  December,  when  the  electors  met  to  give  their  votes  for  President  and 
Vice-President,  Watts  resigned  as  elector,  and  was  re-appointed  by  Odell  and  Cart- 
wright  to  fill  the  vacancy.  The  governor  refused  them  the  usual  certificate,  but  cer 
tified  that  Odell,  Cartwright,  and  Cronin  received  the  highest  number  of  votes  cast  for 
persons  eligible  under  the  Constitution  of  the  United  States,  and  declared  them  duly 
elected.  As  Odell  and  Cartwright  refused  to  meet  with  Cronin,  he  assumed  to  fill  two 
vacancies.  This  proceeding  of  the  governor  and  of  Cronin  raised  the  principal  question 
in  the  Oregon  case. 

FEBRUARY  23,  1877. 

Mr.  Commissoner  BRADLEY  said  : 

This  case  differs  from  the  two  eases  already  heard  in  this  :  By  the  laws 
both  of  Florida  and  Louisiana,  the  final  determination  of  the  result  of 
the  election  was  to  be  made  by  a  board  of  canvassers  invested  with  power 
to  judge  of  the  local  returns  and  to  reject  them  for  certain  causes  assigned. 
In  Oregon,  no  such  board  exists.  The  general  canvass  for  the  State  is 
directed  to  be  made  by  the  secretary  of  state,  in  presence  of  the  gov 
ernor,  from  the  abstracts  sent  to  him  by  the  county  clerks.  This  can 
vass  having  been  made,  the  result  is  declared  by  the  law.  The  canvass 
is  the  last  act  by  which  the  election  is  decided  and  determined.  This 
canvass  was  made  in  the  present  case  on  the  4th  day  of  December, 
1876;  the  result  was  recorded  in  a  statement  in  writing  made  by  the 


1036  ELECTORAL    COUNT    OF    1877. 

secretary  and  filed  by  him  in  his  office.  This  statement  or  abstract  thus 
became  the  record  evidence  of  the  canvass.  It  remains  in  the  secretary's 
office  to-day  as  the  final  evidence  and  determination  of  the  result.  We 
have  before  us,  under  the  great  seal  of  the  State,  a  copy  of  this  state 
ment,  which  shows  the  result  to  have  been  a  clear  plurality  of  over  a 
thousand  votes  in  favor  of  the  three  electors,  Odell,  Cartwright,  and 
Watts ;  and  there  is  added  thereto  a  list  of  the  votes. 

This  document,  after  exhibiting  a  tabulated  statement  of  the  votes 
given  for  each  candidate  in  each  county  of  the  State,  footing  up  for 
Odell,  15,206;  Watts,  15,206;  Cartwright,  15,214;  Klippel,  14,136; 
(Jronin,  14,157;  Laswell,  14,149,  and  a  few  scattering  votes,  was  certified 
and  authenticated  at  the  end,  as  follows : 

SALEM,  STATE  OF  OREGON  : 

:4l  hereby  certify  that  the  foregoing  tabulated  statement  is  the  result  of  the  vote  cast 
for  presidential  electors  at  a  general  election  held  in  and  for  the  State  of  Oregon,  on 
the  7th  day  of  November,  A.  D.  1876,  as  opened  and  canvassed  in  the  presence  of  his 
excellency  L.  F.  Grover,  governor  of  said  State,  according  to  law,  on  the  4th  day  of 
December,  A.  D.  1876,  at  two  o'clock  p.  m.  of  that  day,  by  the  secretary  of  state. 
[SEAL.]  S.  F.  CHADWICK, 

Secretary  of  State  of  Oregon. 

This  document,  with  this  certificate  and  authentication  upon  it,  was 
filed  by  the  secretary  in  his  office  on  the  4th  day  of  December. 

To  the  exemplified  copy  of  it,  which  was  sent  to  the  President  of  the 
Senate,  (and  which  we  have  before  us,)  is  added  another  document, 
entitled  u  List  of  votes  cast  at  an  election  for  electors  of  President  and 
Vice-President  of  the  United  States  in  the  State  of  Oregon,  held  on  the 
7th  day  of  November,  1876,"  which  contains  the  votes  given  for  each 
candidate,  (the  same  as  in  the  canvass,)  written  out  in  words  at  length, 
and  certified  by  the  secretary  of  state,  also  under  the  great  seal  of  the 
State,  to  be  the  entire  vote  cast  for  each  and  all  persons  for  the  office  of 
electors  as  appears  by  the  returns  of  said  election  on  file  in  his  office. 

Having  made  this  canvass,  recorded  it,  and  filed  it  in  his  office,  the 
secretary  of  state  WBfifunctws  officio  with  regard  to  the  duty  of  ascertain 
ing  the  result  of  the  election.  He  could  not  change  it ;  he  could  not 
tamper  with  it  in  any  way.  By  his  act  and  by  this  record  of  his  act, 
the  ascertainment  of  the  election  in  Oregon  was  closed.  Its  laws  give 
no  revisory  power  to  any  other  functionary  and  give  none  to  the  secre 
tary  himself.  And  this,  as  we  have  seen,  was  done  and  completed  on 
the  4th  day  of  December,  at  two  o'clock  in  the  afternoon,  in  the  presence 
of  the  governor,  according  to  the  law  of  Oregon. 

Now,  what  is  the  decree  of  the  law  on  this  transaction !  It  is  clear 
and  unmistakable : 

In  all  elections  in  this  State  the  person  having  the  highest  number  of  votes  for  any 
office  shall  be  deemed  to  be  elected. 

It  is  not  left  for  any  functionary  to  say  that  any  other  person  shall  be 
deemed  to  be  elected.  No  discretion,  no  power  of  revision  is  given  to 
any  one,  except  as  the  general  law  of  the  State  has  given  to  the  judicial 
department  power  to  investigate  the  right  of  persons  elected  to  hold  the 
offices  to  which  they  have  been  elected. 

Now,  what  is  the  next  step  to  be  performed  ?     It  is  this  : 

The  secretary  of  state  shall  prepare  two  lists  of  the  names  of  the  electors  elected,  and 
affix  the  seal  of  the  State  to  the  same.  Such  lists  shall  be  signed  by  the  governor  and 
secretary,  and  by  the  latter  delivered  to  the  college  of  electors  at  the  hour  of  their 
meeting  on  such  first  Wednesday  of  December. 

This  direction  seems  to  be  intended  as  a  compliance  with  the  act  or 
Congress  of  1792.  It  is  true  that  this  act  requires  three  lists  instead  o 


ELECTORAL    COUNT    OF    Ib77.  1037 

two  to  be  delivered  to  the  electors  ;  but  the  number  required  by  the  State 
law  was  probably  an  inadvertence.  Be  this,  however,  as  it  may,  what 
names  was  the  secretary  required  by  law  to  insert  in  his  certificate  ? 

He  made  out  his  certificate  on  the  6th  day  of  December,  two  days  after 
his  canvass  had  been  completed,  recorded,  and  deposited  in  the  public 
archives.  In  making  this  certificate  he  was  performing  a  mere  minis 
terial  duty.  It  was  his  clear  duty  to  insert  in  his  certificate  the  names 
of  the  persons  whom  the  law  declared  to  be  elected.  Doing  otherwise 
was  not  only  a  clear  violation  of  duty,  but  he  made  a  statement  untrue 
in  fact ;  and  the  governor  putting  his  name  to  the  certificate  joined  in 
that  misrepresentation.  It  may  not  have  been  an  intended  misrepre 
sentation,  and  the  use  of  the  word  u  eligible"  may  have  been  thought  a 
sufficient  qualification  ;  nevertheless  it  was  a  misrepresentation  in  fact 
and  in  law,  and  it  all  appears  from,  the  record  itself.  It  needs  no  ex 
trinsic  evidence. 

But  it  is  said  that  the  governor  has  the  power  to  disregard  the  can 
vass  and  to  reject  an  elector  who  he  is  satisfied  is  ineligible.  There 
is  no  law  in  Oregon  which  gives  him  this  power.  In  my  judgment,  it 
was  a  clear  act  of  usurpation.  It  was  tampering  with  an  election  which 
the  law  had  declared  to  be  closed  and  ascertained. 

It  is  said,  however,  that  he  may  refuse  a  commission  to  an  ineligible 
person  elected  to  a  State  office.  If  so,  it  does  not  decide  this  case. 
And  it  seems  to  me  that  such  an  act,  even  with  regard  to  State  officers, 
would  be  an  encroachment  on  the  judicial  power.  A  case  is  referred 
to  as  having  been  decided  in  Oregon  in  which  the  appointment  by  the 
governor  to  fill  a  vacancy  in  a  State  office  caused  by  the  incumbent 
being  appointed  to  a  United  States  office  was  sustained.  But  surely 
the  judgment  in  that  case  must  have  been  based  on  the  fact  that  there 
was  a  vacancy,  and  not  on  the  fact  that  the  governor  assumed  to  judge 
whether  there  was  a  vacancy  or  not.  His  executive  act,  whether  in 
determining  his  own  action  he  had  the  right  to  decide  the  question  of 
eligibility  or  not,  was  valid  or  not  according  as  the  very  truth  of  the 
fact  was. 

But  in  the  case  before  us  he  had  a  mere  ministerial  act  to  perform. 
He  had  no  discretionary  power. 

If  any  one  could  have  taken  notice  of  the  question  of  supposed  in- 
eligibility,  it  was  the  secretary  of  state  when  making  his  oanvass.  Had 
he  taken  it  upon  himself  to  throw  out  the  votes  given  for  Watts,  he 
would  have  had  a  much  more  plausible  ground  of  justification  for  his 
act  than  the  governor  had,  to  whom  no  power  is  given  on  the  subject. 

But  it  is  said,  no  matter  whether  the  governor  and  secretary  acted 
right  or  wrong,  they  were  the  functionaries  designated  for  giving  final 
expression  to  the  will  of  the  State,  and  their  certificate  must  be  received 
as  such,  under  the  decision  in' the  cases  of  Florida  and  Louisiana.  To 
this  view,  however,  there  is  a  conclusive  answer.  As  I  said  before,  the 
certificate  to  be  given  by  the  secretary  and  governor  to  these  electors 
was  not  intended  as  any  part  of  the  machinery  for  ascertaining  the  re 
sult  of  the  election,  but  as  a  mere  certificate  of  the  fact  of  election,  as 
a  credential  to  be  used  by  the  electors  in  acting  as  such  and  transmit 
ting  their  votes  to  the  President  of  the  Senate  of  the  United  States,  as 
required  by  the  act  of  Congress  of  1792.  As  such  it  is  prima  fade  evi 
dence,  it  is  true ;  but  no  person  has  contended  that  it  cannot  be  contra 
dicted  and  shown  to  be  untrue,  especially  by  evidence  of  equal  dignity. 
We  did  not  so  decide  in  the  other  cases.  We  held  that  the  final  decis 
ion  of  the  canvass  by  the  tribunal  or'authority  constituted  for  that  pur- 


1038  ELECTORAL    COUNT    OF    1877. 

pose  could  not  be  revoked  by  the  two  Houses  of  Congress,  by  going 
into  evidence  behind  their  action  and  return. 

The  only  remaining  question  is,  whether  there  was  a  vacancy  in  the 
college  at  the  time  when  Odell  and  Carfcwright  assumed  to  fill  a  vacancy 
on  the  6th  day  of  December,  1876.  It  seems  to  me  that  there  was, 
whether  there  was  a  failure  to  elect  on  account  of  the  ineligibility  of 
Watts  or  on  account  of  his  resignation  afterward. 

It  is  agreed  by  a  large  majority  of  the  Commission  that  Cronin  was 
not  elected.  Some  of  this  majority  take  the  ground  that  Watts  was 
duly  elected,  whatever  effect  his  ineligibility,  had  it  continued,  might 
have  had  on  his  vote.  Others  take  the  ground  that  there  was  no  elec 
tion  of  a  third  elector.  It  s-eerns  to  me  that  it  makes  no  difference  in 
this  case  which  of  these  views  is  the  correct  one ;  there  was  a  clear 
vacancy  in  either  case. 

The  act  of  Congress  of  1845  declares  that  u  each  State  may  by  law 
provide  for  the  filling  of  any  vacancies  which  may  occur  in  its  college 
of  electors  when  such  college  meets  to  give  its  electoral  vote  j"  and  also, 
"  that  whenever  any  State  has  held  an  election  for  the  purpose  of 
choosing  electors,  and  has  failed  to  make  a  choice  on  the  day  prescribed 
by  law,  the  electors  may  be  appointed  on  a  subsequent  day  in  such 
manner  as  the  legislature  of  such  State  may  direct." 

The  first  contingency  would  occur  when  some  of  the  electors  were 
elected  and  could  meet  and  fill  any  vacancy  in  their  number.  The  sec 
ond  contingency  would  occur  when  no  electors  were  appointed,  and 
therefore  no  meeting  could  be  held.  It  is  evident  that  these  are  two 
very  different  cases,  and  that  the  one  before  us  does  not  belong  to  the 
latter,  but  to  the  former.  It  is  the  difference  between  a  college  which 
is  not  full  and  no  college  at  all.  In  Oregon,  according  to  the  exigency 
supposed,  the  case  belonged  to  that  of  a  vacancy  under  the  act  of  1845. 

The  act  of  Oregon  in  relation  to  vacancies  in  the  electoral  college 
was  evidently  passed  in  view  of  the  act  of  Congress  upon  which  it  was 
based ;  and  its  terms  are  so  broad  and  comprehensive  that  I  cannot 
doubt  that  it  was  intended  to  apply  to  every  case  of  vacancy.  The 
words  are  that  "  if  there  shall  be  any  vacancy  in  the  office  of  an  elector, 
occasioned  by  death,  refusal  to  act,  neglect  to  attend,  or  other  ivise,  the 
electors  present  shall  immediately  proceed  to  fill,"  &c.  This  clearly 
covers  every  supposable  case,  and  must  be  intended  to  be  as  broad  as 
the  corresponding  section  of  the  act  of  Congress.  It  is  more  general 
in  its  terms  than  the  act  relating  to  vacancies  in  State  offices,  which 
specifies  only  certain  classes  of  cases. 

As  the  electors  Odell  and  Cartwright  filled  the  vacancy  in  a  regular 
manner,  I  cannot  avoid  the  conclusion  that  they,  together  with  Watts, 
were  the  true  electors  for  the  State  of  Oregon  on  the  6th  day  of  Decem 
ber,  and  that  their  votes  ought  to  be  counted. 

Their  credentials  are  not  signed  by  the  governor,  it  is  true ;  but  that 
is  not  an  essential  thing  and  was  not  their  fault.  They  have  presented 
the  records  of  the  State,  found  in  its  archives ;  and  these  show  that  the 
act  of  the  governor  was  grossly  wrong;  and  they  have  also  presented 
the  certificate  of  the  secretary  of  state,  under  the  great  seal  of  the 
State,  conclusively  showing  their  election.  They  have  also  shown  by 
their  own  affidavit  that  they  applied  to  the  governor  for  his  certificate 
and  that  he  refused  it.  I  think  their  credentials,  under  the  circum 
stances,  are  sufficient. 

It  is  urged  that  the  distinction  made  between  this  case  and  that  of 
Florida  and  Louisiana  is  technical  and  will  not  give  public  satisfaction. 
My  belief  is  that  when  the  public  come  to  understand  (as  they  will  do 


ELECTORAL    COUNT    OF    1877.  1039 

in  time)  that  the  decision  come  to  is  founded  on  the  Constitution  and 
the  laws,  they  will  be  better  satisfied  than  if  we  should  attempt  to  fol 
low  the  clamor  of  the  hour.  The  sober  second  thought  of  the  people  of 
this  country  is  in  general  correct.  But  while  the  public  satisfaction  is 
always  desirable,  it  is  a  poor  method  of  ascertaining  the  law  and  the 
truth  to  be  alert  in  ascertaining  what  are  the  supposed  wishes  of  the 
public.  And  as  to  deciding  the  case  on  technicalities,  I  do  not  know 
that  technicalities  are  invoked  on  the  one  side  more  than  on  the  other. 
In  drawing  the  true  boundary-line  between  conflicting  jurisdictions  and 
establishing  certain  rules  for  just  decision  in  such  cases  as  these,  it  is 
impossible  to  avoid  a  close  and  searching  scrutiny  of  written  constitu 
tions  and  laws.  The  weight  due  to  words  and  phrases  has  to  be  ob^ 
served,  as  well  as  the  general  spirit  and  policy  of  public  documents. 
Careful  and  exact  inquiry  becomes  a  necessity.  And  in  such  a  close 
political  canvass  as  this,  in  which  the  decision  of  a  presidential  election 
may  depend  not  only  on  a  single  electoral,  but  a  single  individual  vote, 
the  greatest  strain  is  brought  to  bear  on  every  part  of  our  constitutional 
machinery,  and  it  is  impossible  to  avoid  a  close  examination  of  every 
part.  There  is  a  natural  fondness  for  solving  every  doubt  on  some 
"  broad  and  general  view77  of  the  subject  in  hand.  "  Broad  and  general 
views,'7  when  entirely  sound  and  clearly  applicable,  are  undoubtedly  to 
be  preferred;  but  it  is  extremely  easy  to  adopt  broad  and  general  views 
that  will,  if  adhered  to,  carry  us  into  regions  of  error  and  absurdity. 
The  only  rule  that  is  always  and  under  all  circumstances  reliable  is  to 
ascertain,  at  whatever  cost  of  care  and  pains,  the  true  and  exact  com 
mands  of  the  Constitution  and  the  laws,  and  implicitly  to  obey  them. 

THE  SOUTH  CAROLINA  CASE. 

Mr.  Commissioner  BRADLEY  said: 

It  is  not  pretended  that  the  votes  of  the  Tilden  electors,  as  presented 
in  certificate  No.  2,  in  this  case,  are  legal.  The  entire  controversy 
arises  upon  the  objections  to  certificate  No.  1,  containing  the  votes  for 
Hayes  and  Wheeler. 

These  objections  are — 

First.  That  the  November  election  in  South  Carolina  was  void  because 
the  legislature  of  that  State  has  never  passed  a  registration  law  as  re 
quired  by  the  constitution  of  the  State,  article  8,  section  3,  which  is  as 
follows: 

Ife  shall  be  the  duty  of  the  general  assembly  to  provide  from  time  to  time  for  the 
registration  of  all  electors. 

This  constitution  was  passed  in  1868,  and  from  that  time  to  this  elec 
tions  have  been  held,  and  the  various  elective  officers  of  the  State,  as 
well  as  the  office  of  Representative  in  Congress,  have  been  filled  with 
out  a  registration  law  having  been  passed.  If  the  effect  of  the  omission 
has  been  to  render  all  these  elections  absolutely  void,  South  Carolina 
has  for  some  years  been  without  any  lawful  government.  But  if  the 
effect  has  only  been  to  render  the  elections  voidable,  without  affecting 
the  validity  of  the  acts  of  the  government  in  its  various  departments, 
as  a  government  de  facto ,  then  the  election  of  presidential  electors  and 
their  giving  their  votes  have  the  same  validity  as  all  other  political 
acts  of  that  body-politic.  But,  in  my  opinion,  the  clause  of  the  consti 
tution  in  question  is  only  directory,  and  cannot  affect  the  validity  of 
elections  in  the  State,  much  less  the  official  acts  of  the  officers  elected. 
The  passage  of  a  registration  law  was  a  legislative  duty  which  the  mem- 


1040  ELECTORAL    COUNT    OF    1877. 

bers  on  their  oatbs  were  bound  to  perform.  But  their  neglect  to  per 
form  it  ought  not  to  prejudice  the  people  or  the  State. 

The  objection  that  it  does  not  appear  by  the  certificate  that  the  elect 
ors  voted  by  ballot,  or  that  they  took  an  oath  of  office  as  required  of  all 
officers  in  South  Carolina,  are  so  formal  and  manifestly  frivolous  that 
I  shall  not  discuss  them.  The  presumption  is  that  all  due  formalities 
were  complied  with. 

The  only  objections  of  any  weight  are  those  which  charge  that  there 
was  such  anarchy  and  disturbance  in  the  State  during  the  election, 
and  such  interference  of  United  States  troops  and  others  therewith,  that 
no  valid  election  was  held  in  the  State,  and  it  is  impossible  to  know 
what  the  will  of  the  State  was.  This  is  placing  the  objections  and  the 
offer  of  proof  to  support  them,  in  their  strongest  light. 

I  think  it  unquestionably  true  that  such  a  state  of  things  as  this  ob 
jection  contemplates  ought  to  exclude  any  vote  purporting  to  come  from 
the  State,  for  no  such  vote  can  be  regarded  as  expressing  the  will  of  the 
State.  But  that  is  not  the  only  question  to  be  considered. 

The  first  and  great  question  is  as  to  the  constitutional  power  of  the 
two  Houses  of  Congress,  when  assembled  to  count  the  votes  for  Presi 
dent  and  Vice-President,  to  institute  an  investigation  by  evidence  such 
as  is  necessary  to  determine  the  facts  to  be  proved.  This  power  of  can 
vassing  the  electoral  votes  is  constantly  confounded  with  that  of  can 
vassing  the  votes  by  which  the  electors  themselves  were  elected — a 
canvass  with  which  Congress  has  nothing  to  do.  This  belongs  to  the 
jurisdiction  of  the  States  themselves,  and  not  to  Congress.  All  that 
Congress  has  to  do  with  the  subject  is  to  ascertain  whether  the  State 
has  or  has  not  appointed  electors — an  act  of  the  State  which  can  only 
be  performed  by  and  through  its  own  constituted  authorities. 

It  seems  to  be  also  constantly  overlooked  or  forgotten  that  the  two 
Houses,  in  their  capacity  of  a  convention  for  counting  the  electoral 
votes,  have  only  a  special  and  limited  jurisdiction.  They  are  not  at  all 
invested  with  that  vast  and  indefinite  power  of  inquisition  which  they 
enjoy  as  legislative  bodies.  Until  met  for  the  specific  purpose  of  the 
count,  they  have  no  power  over  the  subject,  except  to  pass  such  laws  as 
it  is  competent  for  the  legislative  branch  of  the  Government  to  pass. 
The  electoral  votes  are  in  sealed  packages,  over  which  the  two  Houses 
have  no  control.  They  have  not,  constitutionally,  any  knowledge  of 
these  until  they  are  opened  in  their  presence.  Their  jurisdiction  over 
the  subject  of  the  count,  and  the  votes,  and  the  appointment  of  electors, 
commences  at  that  moment.  They  have  no  power  before  this  to  make 
investigations  affecting  the  count.  Could  it  have  been  in  the  contem 
plation  of  the  Constitution  that  the  two  Houses,  after  commencing  the 
count,  should  institute  such  an  investigation  as  the  objectors  propose, 
involving  (as  it  would  be  likely  to  do)  many  weeks  in  the  process  ?  It 
seems  to  me  impossible  to  come  to  such  a  conclusion. 

When  the  state  of  things  in  a  State  is  of  such  a  public  character  as 
to  be  within  the  judicial  knowledge  of  the  two  Houses,  of  course  they 
may  take  notice  of  it  and  act  accordingly,  as  was  done  in  the  times  of 
secession  and  the  late  civil  war,  or  as  might  have  been  done  -at  any 
time,  so  long  as  the  seceding  States  were  not  in  harmonious  relations 
with  the  General  Government.  But  when  a  State  is  in  the  enjoyment 
of  all  those  relations,  when  it  is  represented  in  both  Houses  of  Congress, 
is  recognized  by  the  other  departments  of  the  Government,  and  is 
known  to  have  a  government  republican  in  form — in  other  words,  when 
all  the  public  relations  of  the  State  are  the  same  as  those  of  all  other 
States,  how  can  the  two  Houses  in  convention  assembled  (and  assem- 


ELECTORAL   COUNT   OF    ]877.  1041 

bled  for  such  a  special  purpose)  go  into  aii  investigation  for  the  purpose 
of  ascertaining  the  exact  state  of  things  within  the  State,  so  as  to  de 
cide  the  question  (perhaps  a  very  nice  question  to  be  decided)  whether 
the  tumults  and  disorders  existing  therein  at  the  time  of  the  election,  or 
the  presence  of  the  troops  sent  there  by  the  President  for  the  preserva 
tion  of  the  public  peace,  had  such  an  influence  as  to  deprive  the  State 
of  its  autonomy  and  the  power  of  expressing  its  will  in  the  appointment 
of  electors'?  Such  an  investigation,  or  one  of  any  such  character  and 
extent,  was  surely  never  contemplated  to  be  made  while  the  votes  were 
being  counted. 

That  South  Carolina  is  a  State  and  that  she  has  a  republican  form  of 
government  are  public  facts  of  which  the  two  Houses  (and  we  in  their 
stead)  must  take  judicial  notice.  We  know  that  she  is  such  a  State. 
That  she  is  capable  of  preserving  the  public  order,  either  with  or  with 
out  the  aid  of  the  Federal  authority,  and  that  the  executive  interfer 
ence,  if  made  at  all,  was  made  in  the  exercise  of  his  proper  authority 
for  the  reasons  set  forth  in  his  public  proclamations  and  orders,  are 
facts  to  be  presumed.  At  all  events  the  two  Houses,  under  their  special 
authority  to  count  the  electoral  votes,  are  not  competent  to  take  evidence 
to  prove  the  contrary. 

I  do  not  doubt  that  Congress,  in  its  legislative  capacity,  with  the 
President  concurring,  or  by  a  two-thirds  vote  after  his  veto,  could  pass 
a  law  by  which  investigation  might  be  had  in  advance,  under  proper 
regulations  as  to  notice  and  evidence  and  the  cross-examination  of 
witnesses ;  the  results  of  which  could  be  laid  before  the  two  Houses  at 
their  meeting  for  the  count  of  votes,  and  could  be  used  by  them  as  a 
basis  for  deciding  whether  such  a  condition  of  anarchy,  disturbance, 
and  intimidation  existed  in  a  State  at  a  time  of  the  election  of  its  elect 
ors  as  to  render  its  vote  nugatory  and  liable  to  be  rejected.  But  with 
out  the  existence  of  a  law  of  this  sort,  it  is,  in  my  judgment,  impractica 
ble  and  unconstitutional  for  the  two  Houses  to  enter  upon  such  an 
inquiry.  The  investigations  made  by  legislative  committees,  in  the 
loose  manner  in  which  they  are  usually  made,  are  not  only  not  adapted  to 
the  proper  ascertainment  of  the  truth  for  such  a  purpose,  but  are  totally 
unauthorized  by  the  Constitution.  As  methods  of  inquiry  for  ordinary 
legislative  purposes  or  for  the  purpose  of  laying  the  foundation  of  reso 
lutions  for  bringing  in  an  impeachment  of  the  President  for  unconstitu 
tional  interference,  of  course  they  are  competent;  but  not  for  the  pur 
pose  of  receiving  or  rejecting  the  vote  of  a  State  for  tire  presidential 
office.  They  are  not  made  such  by  any  constitutional  provision  or  by 
any  law.  Legislation  may  be  based  on  the  private  knowledge  of  mem 
bers,  and  a  resolution  to  bring  in  an  impeachment  may  rest  on  ex  parte 
affidavits  or  on  general  information ;  and,  therefore,  the  evidence  taken 
by  a  committee  cannot  be  deemed  incompetent  for  such  a  purpose,  but 
is  often  of  great  service  in  giving  information  to  the  Houses  as  legisla 
tive  bodies,  and  to  the  House  of  Representatives  as  the  grand  inquest 
of  the  nation.  But  the  decision  to  receive  or  reject  the  vote  of  a  State 
is  a  final  decision  on  the  right  of  the  State  in  that  behalf,  and  one  of  a 
most  solemn  and  delicate  nature,  and  cannot  properly  be  based  on  the 
depositions  of  witnesses  gathered  in  the  drag  net  of  a  congressional 
committee. 

For  these  reasons  I  am  clear  that  the  evidence  offered  in  support  of 
the  objections  made  to  the  electoral  votes  of  South  Carolina  cannot  be 
received. 

These  are,  in  brief,  the  views  which  I  entertain  in  reference  to  this 
case;  and  under  them  I  am  forced  to  the  conclusion  that  the  objections 
66  E  c 


1042  ELECTOKAL    COUNT    OF    1877, 

made  to  the  votes  given  by  the  electors  certified  by  the  governor  of  the 
State,  and  the  evidence  offered  in  support  of  the  same,  are  insufficient, 
and  that  the  said  votes  ought  to  be  counted. 


,      EEMAEKS  OF  ME.  COMMISSIONEE^CLIFFOED. 

INTRODUCTORY  EXPLANATIONS. 

More  than  one  return,  purporting  to  be  certificates  of  the  electoral 
votes  of  the  State  of  Florida,  having  been  received  by  the  President  of 
the  Senate  and  opened  by  that  officer  in  the  presence  of  the  two  Houses, 
and  objections  thereto  having  been  filed  in  the  manner  required  by  law, 
the  certificates,  votes,  and  all  papers  accompanying  the  same,  together 
with  such  objections,  were  duly  submitted  to  the  judgment  and  decision 
of  the  Electoral  Commission  to  decide  which,  if  either,  was  the  true  and 
lawful  vote  of  the  State  from  which  the  returns  were  received. 

Prior  to  the  commencement  of  the  hearing  the  Commission  adopted 
certain  rules  to  regulate  the  course  of  its  proceedings,  to  two  of  which 
it  is  proper  to  refer  in  order  to  a  better  understanding  of  what  took  place. 
They  are  in  substance  and  effect  as  follows:  (1)  Objectors  to  a  certificate 
may  select  two  of  their  number  to  support  their  objections  and  to  advo 
cate  the  validity  of  any  one  or  more  of  the  other  certificates,  under  the 
prescribed  limitations.  (2)  Counsel,  not  exceeding  two  on  each  side, 
may  aiterward  be  heard  on  the  merits  of  the  case. 

Pursuant  to  the  rule  first  named,  the  objectors  to  the  Hayes  certificate, 
called  certificate  No.  1,  were  fully  heard,  and  the  objectors  to  the  Tildeu 
certificates,  called  certificates  Nos.  2  and  3,  were  also  fully  heard. 
Special  leave  was  given  by  the  Commission  that  three  counsel  might 
speak  on  each  side,  and  the  time  allowed  by  the  rule  was  enlarged. 

Pending  the  argument  it  was  suggested  to  counsel  that  if  they  pro 
posed  to  introduce  evidence  to  support  their  objections,  it  would  facilitate 
the  hearing  if  they  should  make  known  to  the  Commission  in  some  proper 
form  what  the  evidence  was  that  they  proposed  to  introduce.  Offers  of 
proof  were  accordingly  made  by  the  counsel  supporting  the  objections 
to  certificate  No.  1,  as  appears  in  the  published  proceedings  of  the  Com 
mission.  No  offer  of  proof  was  submitted  to  the  Commission  by  the 
counsel  supporting  the  objections  to  the  other  two  certificates,  at  that 
stage  of  the  hearing.  I---T 

Without  entering  into  details,  suffice  it  say  that  a  portion  of  the  time 
allowed  under  the  rule  for  the  discussion  of  the  merits  of  the  case  having 
been  spent  before  the  offer  of  proof  was  made,  it  was  moved  by  Mr. 
Justice  Miller  uthat  counsel  be  allowed  two  hours  on  each  side  to 
discuss  the  question  whether  any  evidence  will  be  considered  by  the 
Commission  that  was  not  submitted  to  the  two  Houses  by  the  President 
of  the  Senate,  and,  if  so,  what  evidence  can  properly  be  considered,  and 
also  what  is  the  evidence  now  before  the  Commission.'7  Debate  ensued, 
but  the  motion  was  adopted  and  the  argument  proceeded  under  that 
regulation  and  restriction.  J"<3 

Both  sides  were  heard,  and  at  the  close  of  the  arguments  all  persons 
present,  except  the  members  of  the  Commission  and  the  officers  thereof, 
retired  and  the  Commission  went  into  consultation  with  closed  doors. 
Opportunity  for  debate  was  extended  to  every  member  of  the  Commis 
sion  and  all  participated  in  the  discussion  before  the  final  votes  were 
taken.  Certain  remarks  were  made  at  the  close  of  the  debate  by  Mr. 
Justice  Clifford,  in  substance  and  effect  as  follows: 


ELECTORAL    COUNT    OF    1877 
REMARKS. 

Since  the  case  was  submitted  to  the  Commission,  pursuant  to  the 
recent  act  of  Congress,  I  have  carefully  examined  the  several  certificates 
in  question  and  all  the  written  objections  to  the  same  transmitted  here 
by  the  President  of  the  Senate,  in  order  to  ascertain  what  the  matters 
in  controversy  are  and  what  questions  are  presented  to  the  judgment 
and  decision  of  the  Commission.  Beyond  doubt,  those  documents,  with 
the  accompanying  papers,  were  intended  by  the  act  of  Congress  to  pre 
sent  the  matters  in  contestation  to  be  submitted  to  the  judgment  and 
decision  of  the  tribunal  created  for  the  purpose  of  hearing  and  deter 
mining  such  controversies.  Fifteen  commissioners  have  been  appointed 
for  the  purpose,  and  they,  as  required  by  the  act  of  Congress,  have 
severally  been  sworn  impartially  to  examine  and  consider  all  questions 
submitted  to  the  tribunal,  and  to  render  a  true  judgment  in  the  premises, 
agreeably  to  the  Constitution  and  the  laws. 

Sitting  under  that  act  of  Congress  I  shall  assume  that  it  is  a  consti 
tutional  act  and  that  it  correctly  describes  and  defines  the  duties  and 
the  jurisdiction  of  the  Commission. 

Differences  of  opinion  existed  upon  that  subject  before  the  act  of  Con 
gress  creating  the  Commission  was  passed.  Two  theories  were  advanced : 
one  that  the  power  to  decide  what  persons  were  duly  appointed  electors 
in  a  State  is  vested  in  the  President  of  the  Senate,  and  the  other  that 
the  sole  power  in  that  regard  is  vested  in  the  two  Houses  of  Congress. 
Discussion  upon  that  topic  is  closed  by  the  act  of  Congress,  which  makes 
it  the  duty  of  the  Commission,  in  a  case  submitted  to  it  under  the  second 
section  of  the  act,  to  "decide  whether  any  and  what  votes  from  such 
State  are  the  votes  provided  for  by  the  Constitution  of  the  United  States, 
and  how  many  and  what  persons  were  duly  appointed  electors  in  such 
State.'7 

Appointed,  as  the  members  of  the  Commission  have  been,  under  that 
act,  they  are  bound  by  its  provisions,  and  it  is  the  duty  of  the  tribunal 
to  perform  in  good  faith  the  duties  which  it  prescribes. 

Three  returns  or  certificates  are  submitted  to  the  Commission  from 
the  State  of  Florida,  and  the  tribunal  is  required  to  decide  what  per 
sons  are  duly  appointed  electors  from  that  State.  Certificate  No.  1,  if 
unexplained,  shows  that  the  Hayes  electors  are  duly  appointed,  and 
certificates  Nos.  2  and  3  show  that  the  Tildeii  electors  were  duly  elected 
by  a  majority  of  the  votes  cast  at  the  election. 

Such  an  issue  must  be  decided  by  the  Commission,  and  all  just  and 
intelligent  persons  must  admit  that  it  cannot  be  properly  decided  with 
out  an  inquiry  into  the  facts  and  a  hearing  of  the  parties.  Inquiry 
to  a  very  limited  extent,  it  is  admitted,  may  be  made,  but  the  amazing 
proposition  is  advanced  that  the  inquiry  cannot  extend  beyond  the  ex 
amination  of  the  papers  presented  by  the  President  of  the  Senate  to 
the  two  Houses  and  which  were  subsequently  submitted  to  the  Commis 
sion.  Attempt  is  made  to  support  that  proposition  chiefly  by  the  argu 
ment  of  inconvenience.  Should  the  inquiry  be  opened  to  a  wider  inves 
tigation  the  argument  is  that  the  Commission  would  not  be  able  to  close 
its  duties  in  season  to  render  the  electoral  votes  effectual  for  the  purpose 
prescribed  by  the  Constitution. 

Support  to  that  view  is  attempted  to  be  drawn  from  the  most  extrava 
gant  suppositions  that  ingenious  minds  can  devise  or  imagine.  If  the 
suggestions  were  well  founded,  they  would  be  entitled  to  weight;  but  a 
few  observations,  I  think,  will  be  sufficient  to  show  that  the  supposed 
dangers  are  merely  imaginary  and  without  any  foundation  whatever. 


1044  ELECTORAL    COUNT    OF    1877. 

Arguments  unsupported  by  fact  are  entitled  to  no  weight  and  may 
be  dismissed  without  consideration  as  mere  sound  and  fury,  signifying 
nothing.  Judging  from  the  issues  presented  by  the  certificates  and  the 
objections  thereto  tiled  in  behalf  of  the  contestants,  I  assume  that  the 
Commission  is  not  expected  to  enter  into  any  scrutiny  of  the  votes  cast 
at  the  general  election  of  the  State,  nor  of  the  qualifications  of  the  voters 
who  voted  for  President  and  Vice-President  at  that  election.  Nothing  of 
the  kind  is  suggested  in  any  one  of  the  written  objections  and  no  such  ex 
travagant  proposition  has  been  advanced  by  any  member  of  the  Commis 
sion.  Matters  of  that  sort  may,  therefore,  be  dismissed  without  further 
remark  5  and  it  is  equally  clear  that  no  attack  is  made  upon  the  local 
officers  who  presided  in  the  precincts,  nor  does  any  one  of  the  objections 
filed  in  the  case  impeach  their  conduct  in  receiving,  sorting,  or  counting 
the  votes,  or  in  declaring  the  result.  Questions  of  the  kind  sometimes 
arise  in  other  forums,  which  give  rise  to  difficult  and  protracted  investi 
gations,  but  no  question  of  that  character  is  involved  in  this  investiga 
tion,  nor  can  it  be  without  a  willful  departure  from  the  issues  presented 
in  the  written  objections  filed  in  the  case. 

Impartial  men  everywhere  must*  admit  that  the  act  of  Congress  makes 
it  the  duty  of  the  Commission  to  decide  uwhat  persons  were  duly  ap 
pointed  electors"  in  that  State;  and  if  so,  it  may  be  assumed  that  no 
member  of  the  Commission  is  willing  to  be  deterred  from  performing 
the  prescribed  duty  by  any  imaginary  dangers,  which  have  no  real 
foundation  in  fact. 

Sufficient  has  already  been  remarked  to  show  that  none  of  the  objec 
tions  to  the  certificates  requires  any  scrutiny  into  the  votes  cast  at  the 
primary  election  or  calls  in  question  the  returns  made  by  the  officers 
who  presided  in  the  precincts.  Throughout,  the  controversy  has  re 
spect  to  the  conduct  of  the  State  board  of  canvassers  in  dealing  with 
the  returns  made  by  the  county  canvassers  to  the  secretary  of  state. 

Precinct  inspectors  are  required  to  make  duplicate  certificates  of  the 
result  and  deliver  one  of  the  same,  with  the  poll-lists,  to  the  clerk  of  the 
circuit  court,  and  the  other  to  the  county  judge.  Six  days  later  the 
county  canvassers  are  required  to  meet  and  to  make  and  sign  duplicate 
certificates  containing  in  words  and  figures,  written  in  full  length,  the 
whole  number  of  votes,  the  names  of  the  persons  voted  for,  and  the 
number  of  votes  given  to  each  person  for  each  office.  Duplicate  returns 
must  be  made  and  recorded,  and  the  requirement  also  is  that  one  of  the 
duplicates  shall  be  transmitted  by  mail  to  the  secretary  of  state  and  the 
other  to  the  governor.  Provision  is  also  made  for  a  board  of  State  can 
vassers,  whose  duty  it  is,  within  a  prescribed  period,  to  canvass  the  re 
turns  of  election  received  from  the  several  counties,  and  to  determine 
and  declare  who  shall  have  been  elected  to  such  office  or  as  such  mem 
ber,  as  shown  by  such  returns. 

The  State  canvassers  are  to  determine  and  declare  who  have  been 
elected,  as  shown  by  the  county  returns  received  from  the  county  can 
vassers. 

Unless  these  views  can  be  successfully  controverted — and  I  submit 
with  entire  confidence  that  they  cannot — then  it  follows  that  there  are 
but  three  questions  involved  in  the  main  feature  of  the  resolution 
adopted  by  the  Commission  on  motion  of  Mr.  Justice  Miller,  which  I 
assume  is  the  proper  guide  of  the  Commission  in  the  present  consulta 
tion. 

1.  Whether  the  certificate  No.  1  is  absolutely  conclusive  of  the  elec 
tion  of  the  Hayes  electors  and  has  the  effect  to  exclude  all  evidence  to 


ELECTORAL    COUNT    OF    Ic77.  1045 

prove  the  matters  charged  in  the  written  objections  submitted  to  the 
Commission  at  the  same  time  with  the  certificate  I 

Charges  of  the  kind  involve  the  imputation  of  fraud,  perjury,  and 
forgery;  and  if  evidence  to  sustain  such  imputations  cannot  be  admitted, 
then  the  Congress,  the  President,  and  the  Supreme  -Court  have  been 
misled  and  deceived. 

2.  Whether  the  action  of  the  board  of  State  canvassers  is  conclusive 
that  the  Hayes  electors  were  duly  appointed,  and  has  the  effect  to  shut 
out  evidence  to  show  error,  fraud,  perjury,  or  willful  forgery? 

3.  Whether  certificates  Nos.  2  and  3  are  valid,  supported  as  they  are 
by  the  action  of  all  the  branches  of  the  State  government,  which,  if 
admissible  in  evidence,  show  to  a  demonstration  that  the  Hayes  electors 
were  never  duly  appointed,  and  that  they  are  mere  usurpers. 

When  a  person  is  elected  to  the  office  of  elector,  the  requirement  of 
the  State  statute  is  that  the  governor  shall  make  out  and  sign  a  certifi 
cate  of  his  election,  cause  the  same  to  be  sealed  with  the  seal  of  the 
State,  and  transmit  the  same  to  the  person  elected  to  such  office.  Cer 
tificates  of  the  kind  to  persons  chosen  to  any  State  office  are  made  out 
by  the  secretary  of  state,  whose  duty  it  is  to  transmit  the  same  to  the 
person  having  the  highest  number  of  votes  cast,  and  the  provision  is 
that  the  ''certificate  shall  be prima  facie  evidence  of  his  election  to  such 
office." 

Votes  cast  for  electors  are  canvassed  for  the  same  purpose  as  votes 
cast  for  State  officers,  and  the  certificate  given  by  the  governor  to  an 
elector  is  given  for  the  same  purpose  that  the  certificate  of  the  secre 
tary  of  state  is  given  to  a  person  supposed  to  be  elected  to  a  State  office, 
and  there  is  no  reason  for  holding  that  the  certificate  of  the  governor 
was  intended  to  have  any  other  or  different  effect  than  the  certificate 
of  the  secretary  of  state  when  given  to  a  State  officer,  as  required  by 
the  same  statute. 

Truth  and  justice,  it  is  admitted,  ought  to  prevail,  but  the  argument 
is  that  such  an  investigation  is  impracticable  for  the  want  of  time  to 
complete  it,  and  in  order  to  give  plausibility  to  that  theory  it  is  assumed 
that  the  objectors  to  certificate  No.  1  propose  to  enter  into  a  scrutiny 
of  the  qualification  of  the  voters,  and  of  the  votes  cast  at  the  primary 
election,  and  of  the  conduct  of  the  officers  who  presided  in  the  precincts, 
and  of  their  returns.  Assumptions  of  the  kind  are  entirely  without 
foundation,  as  sufficiently  appears  from  the  certificates  and  the  written 
objections  filed  to  the  same,  which  clearly  present  the  issues  to  be  tried 
and  determined  by  the  Commission. 

1.  Certificate  No.  1,  dated  December  6, 1876,  signed  by  M.  L.  Stearns, 
governor,  certifies  that  Frederick  C.  Humphreys,  Charles  H.  Pearce, 
William  H.  Holden,  and  Thomas  W.  Long  have  been  chosen  electors 
of  the  State,  agreeably  to  the  laws  of  the  State  and  in  conformity  to 
the  Constitution  of  the  United  States. 

Six  specifications  of  objections  were  duly  filed  to  that  certificate,  which 
in  substance  and  effect  are  as  follows:  (1)  That  the  persons  therein 
named  as  electors  were  not  appointed  as  such  in  the  manner  directed 
by  the  legislature  of  the  State.  (2)  That  they  were  not  appointed 
electors  of  President  and  Vice-President  in  such  manner  as  the  legisla 
ture  of  the  State  directed.  (3)  That  the  qualified  voters  of  the  State 
did,  on  the  7th  of  November,  1876,  execute  the  power  of  appointing  such 
electors,  and  did  appoint  Wilkinson  Call,  James  E.  Yonge,  Robert  B. 
Hilton,  and  Eobert  Bullock  to  be  such  electors.  (4)  That  certificate 
No.  1  is  untrue,  and  was  corruptly  procured,  and  made  in  pursuance  of 
a  conspiracy  therein  more  particularly  described.  (5)  That  the  papers 


1046  ELECTORAL   COUNT   OF    1877. 

falsely  purporting  to  be  votes  are  fictitious  and  unreal,  and  were  made 
out  and  executed  in  pursuance  of  the  same  fraudulent  conspiracy.  (6) 
That  tbe  printed  certificate  has  -been  annulled  and  declared  void  by 
the  executive  and  by  the  legislature  and  judiciary  of  the  State. 

Apart  from  that,  the  objectors  also  allege  that  certificate  No.  1  was 
annulled  by  the  subsequent  certificate  to  the  Tilden  electors,  by  which 
the  latter  were  declared  duly  appointed  in  the  manner  provided  by  the 
legislature  of  the  State  and  the  Constitution,  the  legislature  having 
declared  that  the  title  of  the  persons  named  as  electors  in  the  last-named 
certificate  is  good  and  valid.  Nor  do  the  objectors  rest  the  case  entirely 
•upon  the  certificate  of  the  governor  and  the  legislative  act,  but  they 
also  set  up  the  judgment  of  the  circuit  court  rendered  in  the  suit  in  the 
nature  of  quo  warranto,  and  allege  that  it  was  adjudged  by  the  court  in 
that  case  that  the  four  persons  named  in  certificate  No.  1  were  not 
elected,  chosen,  or  appointed  electors  for  the  State,  and  that  the  court 
also  decided  that  they  were  mere  usurpers,  and  were  not  entitled  to 
assume  or  exercise  any  of  the  powers  or  functions  of  electors  of  Presi 
dent  and  Yice-President. 

Superadded  to  these  general  specifications,  they  also  file  a  special 
objection  to  one  of  the  four  persons  named  in  certificate  No.  1,  to  wit, 
that  Frederick  C.  Humphreys  was  ineligible  as  an  elector  because  he 
held  at  the  time  of  the  election  the  office  of  shipping-commissioner,  which, 
under  the  act  of  Congress  of  the  7th  of  June,  1872.  is  an  office  of  trust 
and  profit  within  the  meaning  of  the  Constitution. 

II.  On  December  6, 1876,  the  attorney-general  of  the  State,  one  of  the 
board  of  State  canvassers,  executed  a  certificate  to  Wilkinson  Call, 
James  E.  Yonge,  Eobert  B.  Hilton,  and  Eobert  Bullock,  called  certifi 
cate  No.  2,  that  it  appears  by  the  authentic  returns  on  file  in  the  office 
of  the  secretary  of  state  that  they,  on  the  7th  of  November,  1876,  were 
chosen  the  four  electors  of  the  State,  and  that  the  law  of  the  State 
makes  no  provision  whereby  the  result  shown  by  those  returns  can  be 
certified  to  the  executive  of  the  State.  Under  that  certificate  the  per 
sons  therein  named  as  electors  on  the  same  day  met  and  cast  their  votes 
for  Samuel  J.  Tildeii  for  President  and  Thomas  A.  Heudricks  for  Vice- 
President. 

Two  objections  are  filed  to  that  certificate:  (1)  That  it  is  not  authen 
ticated  according  to  the  Constitution  and  laws  of  the  United  States,  so 
as  to  enable  the  votes  given  by  those  four  persons  to  be  counted.  (2) 
That  the  package  inclosing  that  certificate,  when  opened  in  the  presence 
of  the  two  Houses,  did  not  contain  any  paper  from  the  executive  of  the 
State  showing  that  the  persons  therein  named  were  the  electors  ap 
pointed  by  the  State,  nor  is  said  certificate  accompanied  by  any  lawful 
authentication  that  they  were  appointed  to  cast  the  electoral  vote  of 
the  State. 

Florida,  on  the  17th  of  January,  1877,  enacted  a  statute  creating  a 
board  of  State  canvassers,  and  by  the  same  statute  directed  that  board 
to  proceed  to  canvass  the  returns  of  the  election  of  electors  held  on  the 
7th  of  November,  1876,  and  to  determine  and  declare  who  were  elected 
and  appointed  electors  at  said  election,  as  shown  by  such  returns  on  file 
in  the  office  of  the  secretary  of  state.  By  the  second  section  of  the 
statute  the  new  State  board  was  required  to  canvass  those  returns 
according  to  the  fourth  section  of  the  election  law  which  was  in  force  at 
the  time  the  election  was  held  for  the  choice  of  electors,  as  construed 
by  the  supreme  court, of  the  State.  Pursuant  thereto,  the  said  State 
board  was  duly  constituted,  consisting  of  the  secretary  of  state,  the  gov 
ernor  of  the  State,  the  comptroller  of  public  accounts,  and  the  treasurer 


ELECTORAL    COUNT    OF    1877.  1047 

of  the  State,  and  they  met  at  the  capital  of  the  State  on  the  19th  of 
January  in  the  same  year,  and  made  the  canvass  of  the  said  returns  on 
file  in  the  office  of  the  secretary  of  state,  by  which  it  appears  that  the 
four  persons  designated  as  the  Tilden  electors  received  a  majority  of  all 
the  votes  cast  for  electors  in  the  several  precincts  of  the  State,  and  that 
they  were  duly  appointed  such  electors. 

Enough  also  appears  to  show  that  those  persons  claimed  title  as 
electors  duly  appointed  under  certificate  No.  2,  and  that  they,  on  the 
Gth  of  December,  1876,  instituted  a  suit  in  the  circuit  court  of  the  sec 
ond  judicial  circuit,  in  the  nature  of  quo  warranto,  against  the  Hayes 
electors,  alleging  that  the  respondents  were  not  entitled  to  those  offices, 
and  praying  judgment  of  ouster  against  them  as  wrongfully  in  posses 
sion  of  the  same.  Service  was  made  and  the  respondents  appeared  and 
filed  an  answer.  Proofs  were  subsequently  taken,  and  the  court  rendered 
judgment  in  favor  of  the  relators. 

Contemporaneous  action  upon  the  subject  was  also  taken  by  the  leg 
islature.  On  the  26fch  of  the  same  month  the  legislature  passed  a  stat 
ute  declaring  that  the  four  persons  called  the  Tilden  electors  were,  on 
the  7th  of  November  preceding,  duly  chosen  and  appointed  electors, 
and  that  they  were  from  that  time  entitled  to  exercise  all  the  powers 
and  duties  of  the  office  of  electors,  and  had,  on  the  6fch  of  December  then 
next,  full  power  and  authority  to  vote  as  such  electors  and  to  certify 
and  transmit  their  votes  as  provided  by  law. 

Explicit  recognition  of  their  power  and  authority  is  there  declared, 
and  the  statute  proceeds  to  ratify,  confirm,  and  declare  valid  all  their 
acts  as  such  electors  to  all  intents  and  purposes,  and  to  declare  that 
they  are  thereby  appointed  electors  as  of  the  day  of  the  prior  general 
election. 

Section  2  of  the  same  act  authorizes  and  directs  the  governor  to  make 
and  certify  in  due  form  and  under  the  great  seal  of  the  State  three  lists 
of  the  names  of  those  persons  as  such  electors,  and  to  transmit  the  same, 
with  an  authenticated  copy  of  that  act,  to  the  President  of  the  Senate 
of  the  United  States.  Three  lists  of  like  character  were  also  directed  to 
be  certified  by  the  governor,  and  he  was  directed  forthwith  to  deliver 
the  same  to  the  said  electors. 

III.  These  directions  were  obeyed  by  the  governor,  and  on  the  same 
day  he  made  and  delivered  to  the  said  electors  the  certificates  designated 
in  the  proceedings  before  the  Commission  as  certificate  No.  3,  which,  as 
well  as  No.  2,  was  given  to  the  Tilden  electors. 

Three  grounds  of  objection  are  stated  in  the  paper  filed  in  opposition 
to  that  certificate :  (1)  That  it  is  not  duly  certified  by  any  one  holding 
the  office  of  governor  at  the  time  the  electors  were  appointed,  nor  at  the 
time  when  they  exercised  their  functions,  nor  until  after  their  duties  had 
been  fully  discharged.  (2)  Because  the  alleged  preceedings  are  ex  post 
facto  and  do  not  confer  any  right  to  those  persons  to  cast  the  electoral 
vote  of  the  State.  (3)  Because  the  proceedings,  being  retroactive,  are 
null  and  void  and  of  no  effect. 

Mention  should  also  be  made  that  an  objection  was  also  filed  in  the 
case  applicable  to  both  of  the  two  preceding  certificates,  in  which  the 
objectors  deny  the  validity  of  those  certificates  upon  the  ground  that 
certificate  No.  1  is  in  all  respects  regular,  valid,  and  sufficient,  and  that 
the  electors  therein  named  were  duly  appointed  to  cast  the  electoral 
vote  of  the  State. 

Properly  analyzed  and  construed,  it  is  clear,  from  the  several  objec 
tions  filed  to  the  certificates,  that  the  returns  of  the  State  canvassers, 
including  that  made  by  the  attorney-general,  are  the  only  returns 


1048  ELECTORAL    COUNT    OF    1877. 

called  in  question,  the  charge  being  that  the  return  of  the  State  board, 
which  is  the  basis  of  the  Hayes  certificate,  is  false,  forged,  and  coun 
terfeit. 

Exception  is  also  taken  by  the  other  side  to  certificates  Nos.  2  and  3, 
but  it  is  not  alleged  that  they  are  false  or  forged,  nor  that  the  returns 
on  which  they  are  based  are  false  or  manufactured,  nor  that  the  election 
to  which  they  refer  was  not  lawfully  held  and  properly  conducted. 

Intelligent  inquirers  will  see  at  a  glance  that  all  of  the  certificates 
refer  to  the  same  election,  to  wit,  to  the  election  held  on  the  7th  of 
November,  and  that  no  one  of  the  objections  calls  in  question  either 
the  validity  or  the  regularity  or  fairness  of  that  election.  Neither  side 
proposes  to  institute  any  scrutiny  into  the  votes  cast  or  to  require  any 
investigation  as  to  the  qualification  of  the  voters  who  cast  the  votes, 
nor  do  they  attack  the  conduct  of  the  officers  who  presided  in  the  pre 
cincts,  nor  the  returns  which  the  precinct  officers  made  to  the  county 
canvassers.  Everything  of  that  sort  may  be  dismissed  from  considera 
tion  as  not  within  the  jurisdiction  of  the  Commission,  because  not  sub 
mitted  to  its  judgment  and  decision,  and  the  remarks  apply  with  equal 
force  to  the  returns  made  by  the  county  canvassers,  for  the  reason  that 
none  of  the  objections  attack  either  the  truthfulness  or  fairness  of  those 
returns,  nor  do  they  propose  any  inquiry  into  the  conduct  of  the  officers 
who  made  those  returns. 

Strenuous  opposition  is  made  to  certificate  No.  1,  and  those  who  ob 
ject  to  it  insist  that  the  return  of  the  State  canvassers  on  which  it  is 
founded  is  false,  and  the  offers  of  proof  point  out  more  particularly  the 
specific  grounds  of  the  charge.  Decided  opposition  is  also  made  to  the 
other  two  certificates,  chiefly  that  the  officers  who  made  the  instruments 
were  unauthorized  to  give  any  such  certification,  and  that  the  certifi 
cates  are  of  no  legal  validity. 

Viewed  in  the  light  of  these  suggestions,  it  is  clear  that  the  argument 
of  inconvenience  is  a  mere  hollow  pretense,  and  that  it  is  entitled  to  no 
weight. 

Precinct  returns  were  duly  made  to  the  county  canvassers  and  the 
county  canvassers  made  due  returns  to  the  secretary  of  state,  where 
they  still  remain  on  file,  as  appears  by  the  certified  copies  of  the  same 
among  the  papers  submitted  to  the  Commission  by  the  two  Houses. 
What  the  objectors  to  certificate  No.  1  charge,  when  expounded  in  the 
light  of  the  offers  of  proof,  is  that  the  State  canvassers  unlawfully  re 
jected  the  entire  return  from  the  county  of  Manatee  and  parts  of  the 
respective  returns  from  the  counties  of  Hamilton,  Jackson,  and  Mon 
roe  5  that  the  State  board  by  those  unlawful  acts  changed  the  result  of 
the  election,  and  created  the  unlawful  basis  on  which  certificate  No.  1  is 
founded. 

Both  the  certificate  of  Governor  Stearns  and  the  certificate  of  the 
attorney-general  are  founded  upon  the  same  oounty  returns,  except  the 
returns  from  the  county  of  Manatee,  and  parts  of  the  respective  returns 
from  the  counties  of  Hamilton,  Jackson,  and  Monroe,  which  were  ex 
cluded  from  the  basis  on  which  Governor  Stearns  issued  his  certificate. 
He  adopted  the  basis  formed  by  the  State  canvassers,  excluding  the 
whole  of  the  return  from  one  county  and  parts  of  the  returns  from  the 
three  other  counties. 

All  the  county  returns,  as  before  remarked,  are  on  file  in  the  office  of 
the  secretary  of  state,  and  the  attorney-general,  who  was  one  of  the 
State  canvassing-board,  denying  the  right  of  the  board  to  reject  a 
county  return  without  good  cause  shown,  or  to  mutilate  or  tamper  with 
such  returns  under  any  circumstances,  dissented  from  the  acts  of  the 


ELECTORAL    COUNT    OF    1877.  1049 

other  two  members  of  the  board.  Apparently,  his  conduct  was  open 
and  frank,  and  he,  on  the  same  day,  canvassed  the  entire  county  re 
turns,  and  finding  that  the  returns  when  honestly  counted  elected  the 
Tilden  electors,  he  executed  certificate  No.  2,  and  it  appears  that  the 
four  persons  therein  named  met  on  the  same  day  in  the  same  building 
with  the  persons  named  in  certificate  No.  1,  and  cast  their  votes  for 
President  and  Vice-President. 

None  of  these  facts  can  be  successfully  controverted,  as  all  the  returns 
are  on  file  in  the  office  of  the  secretary  of  state,  and  duly  certified  copies 
of  the  same,  together  with  the  original  certificates,  are  now  before  the 
Commission,  having  been  submitted  by  the  order  of  the  two  Houses  in 
the  regular  course  of  their  action. 

Few,  I  presume,  will  deny  that  it  is  competent  for  the  Commission  to 
take  notice  of  the  statutes  of  the  State  relating  to  the  matter  in  contro 
versy  without  any  formal  proof  of  their  legal  authenticity.  Suppose 
that  is  so,  then  there  are  no  matters  involved  in  the  issues  presented 
which  may  not  be  thoroughly  examined  in  a  very  few  hours.  Differ 
ences  of  opinion  may  exist  as  to  the  legal  effect  of  the  evidence  if  ad 
mitted,  but  I  have  yet  to  learn  that  any  one  denies  that  the  alleged 
facts  are  capable  of  being  proved  by  authentic  documents  in  the  ar 
chives  of  the  State.  Certified  copies  of  the  record  and  judgment  of  the 
court  in  the  quo  warranto  proceedings  are  also  here,  ready  to  be  intro 
duced,  and  no  one,  I  suppose,  will  deny  that  a  duly  exemplified  copy  of 
a  record  and  judgment  between  the  same  parties  would  be  admissible 
in  this  case,  unless  it  be  held  that  the  action  of  the  State  canvassers  or 
the  certificate  of  the  governor  closes  the  door  to  all  investigations  and 
is  sufficient  to  show  that  this  Commission  is  so  high  that  it  has  no 
power  to  investigate  either  fraud,  perjury,  or  forgery. 

Extended  argument  to  show  that  the  certificate  of  the  governor  is  not 
conclusive  seems  to  be  unnecessary,  as  the  opening  counsel  supporting 
certificate  No.  1  disclaims  that  proposition,  and  very  properly  admits 
that  it  is  only  prima  facie  evidence  of  what  it  certifies  to  be  true.  Such 
a  certificate  made  by  an  officer  charged  with  the  duty  of  making  it  im 
ports  verity,  and  it  is  doubtless  true  that  it  affords  a  prima  facie  right  in 
the  holder  in  the  absence  of  any  showing  whatever  to  the  contrary. 

Grant  that,  but  I  suppose  it  was  never  heard  that  evidence  of  a  mere 
prima  facie  right  could  have  the  effect  to  exclude  all  opposing  testi 
mony  to  show  that  the  right  did  not  exist,  or  that  it  had  no  other  founda 
tion  than  fraud  and  forgery.  Fraud,  it  is  said,  will  vitiate  everything, 
and  it  is  a  maxim  which  has  fewer  exceptions  than  any  other  known  to 
the  common  law. 

Evidence  of  error  is  sufficient  to  overcome  a  prima  facie  presumption^ 
but  it  was  never  heard  that  such  a  presumption  is  sufficient  to  shut  out 
all  proof  of  fraud.  With  all  respect  to  those  who  advocate  that  propo 
sition,  I  must  be  allowed  to  say  that  such  a  decision  was  never  made, 
and  it  is  presumed  never  will  be,  by  any  just  and  intelligent  tribunal. 
Considerable  time  was  spent  in  argument  by  counsel  who  support  the 
Hayes  certificate  to  convince  the  Commission  that  they.do  not  maintain 
any  such  proposition,  and  I  am  convinced  that  if  they  do,  it  cannot 
properly  be  adopted  by  the  Commission. 

Concede  that,  and  it  follows  that  evidence  in  a  proper  case  may  be 
admitted  to  prove  fraud  or  forgery  in  the  certificate  given  in  such  a 
case  by  the  governor  of  the  State.  Credentials  of  the  kind  are  founded 
upon  a  prescribed  basis,  regulated  by  law,  which  is  usually  dependent 
for  its  accuracy  not  upon  the  doings  of  the  governor,  but  upon  the  acts 
of  other  public  agents.  Whether  that  basis  is  truth  or  error,  he  does 


1050  ELECTORAL    COUNT    OF    1877. 

not  know,  and  consequently  the  legal  effect  of  his  certificate  is,  what 
ever  may  be  its  form,  that  it  appears  to  him,  in  view  of  that  prescribed 
basis,  that  the  party  interested  is  duly  elected  to  the  particular  office 
in  question,  which  is  sufficent  to  show  that  it  would  be  monstrous  to 
hold  that  such  a  certificate  is  a  muniment  of  title  which  cannot  be  con 
tradicted. 

Even  suppose  that  is  so,  still  it  is  insisted  by  the  same  counsel  that 
the  action  of  the  State  canvassers,  pursuant  to  the  fourth  section  of  the 
State  act  of  the  27th  of  February,  1872,  is  conclusive,  and  that  this  Com 
mission,  in  view  of  the  action  of  that  board  and  of  the  provision  of  the 
State  law,  is  not  authorized  to  admit  evidence  of  any  kind  to  show  that 
their  return  is  not  true  or  that  it  is  fraudulent,  nor  even  that  it  is  a 
forgery.  Startling  as  the  proposition  is,  it  will  require  careful  exami 
nation  in  view  of  that  statute. 

Certain  persons  are  designated  in  the  introductory  part  of  the  fourth 
section  of  the  statute  to  meet  at  a  prescribed  time,  at  the  office  of  the 
secretary  of  state,  to  form  a  board  of  State  canvassers,  and  that  board 
is  required  to  canvass  the  returns  of  the  election — meaning  the  county 
returns  filed  in  the  office  of  the  secretary  of  state — and  to  determine 
and  declare  who  shall  have  been  elected  *  *  *  as  shown  by  such 
returns. 

Obviously,  they  are  required  to  canvass  the  county  returns  filed  in 
the  office  of  the  secretary  of  state  and  to  determine  who  are  elected, 
as  shown  by  such  returns.  If  the  provision  stopped  there,  it  would  be 
clear  that  the  sole  duty  of  that  board  would  be  to  canvass  and  declare 
the  result  shown  by  those  returns  5  but  it  does  not  stop  there,  and  con 
sequently  it  becomes  necessary  to  examine  the  residue  of  the  section. 

They  are  required  to  examine  those  returns  and  no  others,  and  the 
further  provision  is  that  if  any  such  return  shall  be  shown,  or  shall  ap 
pear  to  be  "so  irregular,  false,  or  fraudulent"  that  the  board  shall  be 
unable  to  determine  the  true  vote  for  any  such  officer  or  member,  they 
shall  so  certify,  a.nd  shall  not  include  such  return  in  their  determina 
tion  and  declaration.  Unless  the  return  shall  be  shown  or  shall  appear 
to  be  so  irregular,  false,  or  fraudulent  that  the  board  is  unable  to  deter 
mine  the  true  vote,  they  have  no  authority  to  reject  such  a  return,  and 
they  have  no  jurisdiction  to  mutilate  or  alter  it  under  any  circum 
stances.  Where  the  return  is  so  irregular,  false,  or  fraudulent  that  they 
cannot  determine  the  result  without  rejecting  such  a  return,  they  shall 
not  include  it  in  their  return,  but  they  must  certify  that  fact.  It  is 
difficult  to  see  why  they  are  required  to  certify  the  fact  unless  their 
action  is  subject  to  review.  Confirmation  of  that  view  is  also  derived 
from  the  fact  that  the  secretary  of  state  is  required  to  preserve  and  file 
in  his  office  all  such  returns,  with  such  other  documents  and  papers  as 
he  may  receive. 

Proof  that  any  such  irregular,  false,  or  fraudulent  return  from  a  county 
was  filed  in  the  office  of  the  secretary  of  state  is  entirely  wanting,  and 
noshing  of  the  kind  is  suggested  in  the  objections  filed  by  either  party; 
nor  would  it  afford  any  argument  to  exclude  investigation  if  it  were 
otherwise,  as  the  case  shows  that  all  the  evidence  is  preserved  in  the 
office  of  the  secretary  of  state,  and  certified  copies  of  the  same  are  among 
the  papers  transmitted  to  the  Commission. 

Beyond  question,  the  provision  assumes  that  a  county  return  may  be 
so  irregular,  false,  and  fraudulent  that  the  board  will  be  unable  to  de 
termine  the  true  result  unless  such  defective  return  be  rejected;  and,  if 
so,  they  shall  so  certify  and  shall  not  include  such  return,  but  the  return 
is  to  be  filed  and  preserved  in  the  office  of  the  secretary  of  state. 


ELECTORAL    COUNT    OF    1877.  1051 

None  of  the  objections  set  up  any  such  state  of  things,  nor  does  any 
one  pretend,  I  think,  that  any  of  the  returns  filed  in  the  office  of  the 
secretary  of  state  come  within  the  category  of  that  provision.  Should 
it  be  said  that  the  presumption  is  that  the  board  performed  its  duty,  the 
answer  to  that  is  that  such  a  presumption  is  merely  a  prima  facie  one, 
which  may  be  overcome  by  competent  proof,  and  that  a  brief  examina 
tion  of  the  documents  will  be  sufficient  to  enable  the  Commission  to  de 
termine  whether  the  board,  in  order  to  change  the  result  of  the  election, 
were  or  were  not  guilty  of  fraud,  perjury,  or  forgery.  Opportunity  to 
introduce  evidence  is  asked,  and  the  proper  response  to  the  request,  in 
my  judgment,  is,  let  the  evidence  determine  the  issue  between  the  parties. 

Candid  men  everywhere  will  agree,  I  think,  that  the  board  were 
directed  to  include  regular  returns,  and  that  they  had  no  right  to  ex 
clude  any  one  unless  it  was  so  irregular,  false,  or  fraudulent  that  if  in 
cluded  they  would  be  unable  to  ascertain  and  determine  the  true  vote 
or  result.  Those  supporting  the  objections  to  certificate  No.  1  allege 
and  propose  to  prove  that  the  board  threw  out  returns  which  were 
neither  irregular,  false,  nor  fraudulent,  in  order  to  change  the  result  of 
the  election,  and  in  my  opinion  they  are  entitled  to  that  privilege  if  the 
evidence  offered  is  competent  and  tends  to  prove  the  charge. 

Imputations  of  the  kind  are  explicitly  made,  and  the  main  question, 
under  the  order  adopted  by  the  Commission,  is  whether  evidence  is 
admissible  to  prove  the  accusation.  No  one  here,  I  suppose,  will  deny 
that  in  general  such  evidence  in  an  issue  between  party  and  party  is 
admissible,  but  the  argument  is  that  in  the  case  under  consideration 
neither  Congress  nor  the  Commission  has  jurisdiction  to  try  such  an 
issue. 

Electoral  votes  are  to  be  transmitted  to  the  President  of  the  Senate, 
and  the  provision  of  the  Constitution  is  that  the  President  of  the 
Senate  shall,  in  the  presence  of  the  Senate  and  the  House  of  Eepre- 
seutatives,  open  all  the  certificates,  and  that  "  the  votes  shall  then  be 
counted." 

Wide  differences  of  opinion  prevailed,  pending  the  passage  of  the 
act  creating  the  Commission,  as  to  the  meaning  of  that  clause;  one 
side  maintaining  that  the  votes  should  be  counted  by  the  President  of 
the  Senate,  and  the  other  that  it  was  both  the  right  and  the  duty  of 
the  two  Houses  to  inquire  and  determine  whether  the  votes  returned 
and  opened  in  the  presence  of  the  two  Houses  are  the  true  votes  given 
by  u  the  duly  appointed  electors  "  of  the  State.  Discussion,  rarely  ever 
surpassed,  followed.  Suffice  it  to  say,  the  bill  became  a  law  almost  by 
general  consent.  Parties  and  counsel  seem  indisposed  to  open  that 
discussion,  nor  is  it  my  purpose  to  enter  that  field,  except  to  say  that 
in  my  judgment  the  verdict  of  posterity  will  be  that  it  is  the  duty  of 
Congress  to  count  the  votes  and  to  solve  every  question  involved  in  the 
performance  of  that  duty. 

Under  the  act  creating  the  Commission,  the  provision  is  that  where 
more  than  one  return  from  a  State  has  been  received  by  the  President 
of  the  Senate,  the  same  shall  be  opened  by  him  in  the  presence  of  the 
two  Houses,  and  shall  be  submitted  to  the  Commission  to  determine 
which  is  the  true  and  lawful  electoral  vote  of  the  State.  Written  objec 
tion  may  be  made  to  such  certificates,  and  when  made,  if  there  be  more 
than  one,  the  requirement  is  that  all  such  certificates,  votes,  and  papers, 
and  all  papers  accompanying  the  same,  together  with  the  objections, 
shall  be  forthwith  submitted  to  the  Commission,  which  shall  proceed  to 
consider  the  same,  with  the  same  powers,  if  any,  now  possessed  for  that 
purpose  by  the  two  Houses  acting  separately  or  together. 

Important  duties  are  required  of  the  Commission,  as  follows:   (1J 


1052  ELECTORAL    COUNT    OF    1877. 

they  are  required  to  consider  all  such  certificates,  votes,  and  papers 
objected  to,  and  all  papers  accompanying  the  same;  (2)  they  are  re 
quired  to  decide  by  a  majority  of  votes  whether  any  and  what  votes 
from  such  State  are  the  votes  provided  for  by  the  Constitution  of  the 
United  States,  and  how  many  and  what  persons  were  duly  appointed 
electors  by  such  State. 

Express  requirement  is  made  that  the  Commission  shall  perform  those 
duties,  and  the  act  further  provides  that  they  "  may  therein  take  into 
view  such  petitions,  depositions,  and  other  papers,  if  any,  as  shall  by 
the  Constitution  and  now  existing  law  be  competent  and  pertinent  in 
such  consideration." 

Duties  such  as  those  required  cannot  be  properly  performed  without 
evidence  nor  without  hearing  the  parties  interested.  By  the  express 
words  of  the  act  the  Commission  may  take  into  view  such  petitions 
and  depositions,  if  admissible  by  the  Constitution  and  the  existing 
laws,  provided  they  are  pertinent  to  the  matter  under  consideration, 
which  shows  to  a  demonstration  that  Congress  never  intended  that  the 
Commission  should  determine  the  questions  submitted  without  evi 
dence,  any  more  than  without  giving  the  parties  an  opportunity  to  be 
heard. 

Conclusive  support  to  that  view  is  also  derived  from  the  form  of  the 
oath  the  Commissioners  are  required  to  take  and  subscribe  before 
entering  upon  the  duties  prescribed  by  the  act.  Every  member  of  the 
Commission  solemnly  engaged  by  that  oath  that  he  would  impartially 
examine  and  consider  all  questions  submitted  to  the  Commission  and 
a  true  judgment  give  thereon,  agreeably  to  the  Constitution  and  the 
laws. 

Two  of  the  questions  submitted  are  as  follows:  (1)  "What  votes  from 
the  State  are  the  true  votes  ?  (2)  What  persons  were  duly  appointed 
electors  in  such  State  ?  You  are  all  sworn  to  impartially  examine  and 
consider  those  questions  and  a  true  judgment  give  thereon,  agreeably 
to  the  Constitution  and  the  laws.  How  can  you  comply  with  that 
requirement  unless  you  admit  in  evidence  the  documentary  evidence 
from  the  office  of  the  secretary  of  state  and  an  exemplified  copy  of  the 
record  and  judgment  in  the  suit  between  these  contestants  ? 

Jurisdiction  is  the  power  to  hear  and  determine,  and  it  is  to  me  past 
comprehension  how  any  person  accustomed  to  legal  investigation  can 
read  the  act  of  Congress  creating  the  Commission  and  still  entertain  a 
doubt  that  the  Congress  intended  that  the  Commission  should  examine 
and  consider  those  two  questions  and  give  a  true  judgment  thereon 
agreeably  to  the  Constitution  and  the  laws.  Common  experience  is 
sufficient  to  convince  every  person  of  ordinary  intelligence  that  a  true 
judgment  cannot  be  given  without  evidence  nor  without  a  hearing. 
Tribunals  of  justice  are  not  expected  to  shut  their  eyes  to  evidence  and 
decide  blindly  without  hearing  the  parties. 

Unless  parties  are  allowed  to  give  evidence  they  are  not  benefited  by 
being  heard  upon  the  merits  of  the  controversy.  By  the  terms  of  the 
order  under  which  they  have  been  heard  the  merits  are  excluded,  and 
if  the  Tihlen  electors  are  not  permitted  to  give  evidence  the  merits  must 
be  decided  in  favor  of  the  other  party  without  any  hearing.  Worse 
than  that;  the  case  was  practically  decided  before  it  was  submitted  to 
the  Commission,  and  it  must  be  sent  back  without  any  one  of  the 
questions  presented  in  the  objections  having  been  examined  or  con 
sidered  by  the  Commission. 

Congress  never  would  have  passed  the  law  if  those  who  favored  its 
passage  had  supposed  that  the  only  duty  the  Commission  had  to  perform 


ELECTORAL    COUNT    OF    1877.  1053 

was  to  certify  to  the  two  Houses  the  enumeration  made  by  the  State 
board  of  canvassers.  Nor  would  the  President  of  the  United  States 
have  considered  it  his  duty  to  send  a  special  message  to  Congress  coni- 
rueuding  the  measure  if  he  had  supposed  that  the  jurisdiction  of  the 
Commission  was  limited  to  a  mere  clerical  enumeration  of  the  votes 
certified  and  transmitted  to  the  President  of  the  Senate. 

Two  branches  of  the  Government  were  stopped  to  enable  the  members 
of  the  Commission  to  sit  and  hear  these  cases,  and  now  it  is  gravely 
contended  by  members  of  the  tribunal  that  the  Commission  can  neither 
hear  evidence  nor  decide  the  questions  presented  in  the  written  objec 
tions  submitted  to  the  Commission  by  the  two  Houses,  beyond  the  mere 
enumeration  of  the  votes.  Duties  of  the  kind  are  usually  performed  by 
a  county  judge  upon  the  desk  before  him,  without  referring  the  cause 
to  a  master.  Others  may  argue  such  a  question  if  they  see  fit,  but  I 
cannot,  as  it  seems  to  me  that  the  proposition  calls  in  question  the  wis 
dom  of  Congress  and  involves  a  theory  which  is  past  belief. 

Both  Houses  of  Congress  knew  full  well  that  there  were  in  the  con 
tested  cases  charges  of  fraud,  perjury,  and  forgery,  and  it  is  clear  to  a 
demonstration,  in  my  judgment,  that  those  charges  in  respect  to  the 
returns  made  by  the  State  board  should  be  examined,  considered,  and 
decided  by  this  tribunal,  so  far  as  the  charges  are  involved  in  the  objec 
tions  filed  to  the  certificates  submitted  to  the  Commission  by  the  two 
Houses  of  Congress. 

When  the  Commission  was  organized  the  whole  country  expected  that 
those  charges  would  be  heard  and  that  a  true  judgment  would  be  given 
thereon,  and  sound  discretion  and  a  due  regard  to  the  words  of  the  act 
of  Congress  forbid  the  conclusion  that  the  action  of  the  State  board  in 
rejecting  the  county  returns  from  the  county  of  Manatee  and  parts  of 
the  returns  from  the  three  other  counties  named  is  a  matter  the  Com 
mission  cannot  examine,  consider,  and  decide,  the  charges,  as  alleged, 
involving  fraud,  perjury,  and  forgery.  Such  a  decision,  in  my  judgment, 
is  forbidden  by  every  consideration  of  law  and  justice,  and  if  made,  I 
fear  that  it  will  shock  the  public  sense,  and  when  the  knowledge  of  it 
reaches  other  lauds  I  shall  be  greatly  disappointed  if  it  does  not  shock 
the  wise  and  just  throughout  the  civilized  world. 

Without  the  right  to  introduce  evidence,  a  trial  in  any  case  is  a  mock 
ery,  and  in  this  case  the  refusal  to  hear  evidence  is  the  height  of  injus 
tice,  as  it  amounts  to  an  ex  parte  decision  in  favor  of  the  persons  claiming 
title  under  certificate  No.  1,  without  having  examined  or  considered  any 
one  of  the  objections  filed  to  that  supposed  muniment  of  title. 

Explanations  to  sustain  that  proposition  are  unnecessary,  as  it  is 
obvious  that  they  claim  title  under  the  certificate  of  Governor  Stearns 
founded  upon  the  return  of  the  board  of  State  canvassers.  Unlike  that, 
the  Tilden  electors  allege  that  the  return  which  constitutes  the  basis  of 
that  certificate  is  false  and  fraudulent  and  that  the  canvassers  tortiously 
and  unlawfully  excluded  from  the  count  the  votes  of  one  county  and  part 
of  the  votes  from  three  other  counties,  for  the  express  purpose  of  chang 
ing  the  result  and  of  defeating  the  well-known  choice  of  the  people  at 
the  general  election. 

Formal  charges  of  the  kind  are  made  in  the  objections,  and  are  also 
contained  in  the  offers  of  proof,  and  the  counsel  opposing  the  certificate 
in  question  allege  that  authentic  documents  are  at  hand  to  prove  those 
charges,  and  to  shew  that  the  certificate  signed  by  the  attorney-general, 
which  is  also  based  upon  the  county  returns  filed  in  the  office  of  the 
secretary  of  state,  expresses  the  true  result  of  the  election,  the  sole  dif 
ference  being  that  the  attorney-general  in  his  computation  included  the 


1054  ELECTORAL    COUNT    OF    1877. 

return  from  the  county  of  Manatee  and  the  votes  from  the  other  three  coun 
ties  which  were  excluded  by  the  board  of  State  canvassers,  and  asser 
tions  of  the  kind  may  be  investigated  without  difficulty  and  in  a  brief 
period. 

Contest  arose  at  the  same  time  between  the  rival  candidates  for  gov 
ernor,  in  consequence  of  which  a  suit  was  commenced  in  the  supreme 
court  of  the  State  on  the  relation  of  George  F.  Drew,  one  of  the  candi 
dates,  against  Samuel  B.  McLin  and  others,  which  was  decided  on  the 
25th  day  of  December,  1876,  the  court  holding  to  the  effect  that  the 
State  canvassers  had  no  authority  to  reject  a  county  return  or  the  votes 
given,  except  when  the  canvassers  were  unable  to  ascertain  for  whom 
they  were  cast,  for  the  reason  specified  in  the  fourth  section  of  the  act 
prescribing  their  duties. 

Acquiescence  in  that  decision  was  universal,  and  the  legislature,  on 
the  17th  of  January  following,  passed  a  law  creating  a  new  board  of 
State  canvassers,  and  directed  that  a  new  canvass  should  be  made  of 
the  county  returns  of  the  election  held  on  the  7th  of  November  in  the 
preceding  year.  Agreeably  to  that  law  the  board  was  organized,  and 
they  recanvassed  the  same  returns  and  came  to  the  same  result  as  that 
previously  reached  by  the  attorney-general  of  the  State. 

By  the  third  section  of  the  act  they  were  required  to  make  and  sign 
a  certificate  containing  the  whole  number  of  votes  given  at  the  election 
and  to  declare  the  result,  arid  the  further  requirement  is  that  the  certifi 
cate  shall  be  recorded  in  the  office  of  the  secretary  of  state.  Require 
ments  of  the  kind  were  all  fulfilled  and  the  certificate  was  duly  made  and 
signed,  which  is  the  basis  of  certificate  No.  3,  executed  by  the  present 
governor  of  the  State. 

Viewed  in  any  light,  it  must  be  admitted  that  it  is  "confirmation  strong 
as  proofs  of  Holy  Writ"  that  certificate  No.  2,  signed  by  the  attorney -gen 
eral,  is  true,  and  that  it  gave  the  true  and  honest  result  of  the  election. 
Investigations  made  by  the  legislature  induced  that  body  to  come  to  the 
same  conclusion,  and  on  the  2(>th  of  January  following  the  legislature 
passed  a  statute,  in  which  it  is  enacted  that  the  Tildeu  electors,  on  the 
7th  of  November  previous,  were  daly  chosen  and  appointed  electors  by 
and  on  behalf  of  the  State  and  in  the  manner  directed  by  the  legisla 
ture.  u  Each  State  shall  appoint,  in  such  manner  as  the  legislature 
thereof  may  direct,"  the  number  of  electors  to  which  the  State  is  en 
titled,  subject  to  the  exception  therein  contained. 

None  of  these  proceedings  were  intended  to  choose  new  electors,  but 
merely  to  ascertain  who  were  elected  at  the  antecedent  general  election, 
and  they  show  beyond  peradveuture  that  the  return  of  the  first  board 
of  State  canvassers  was  false  and  fraudulent,  and  that  the  result  could 
only  have  been  reached  by  perjury  and  forgery. 

Power  is  certainly  vested  in  a  State  -to  appoint  electors  in  such  man 
ner  as  her  legislature  shall  direct,  and  all  agree  that  the  statute  of  the 
State  required  that  the  electors  should  be  chosen  by  the  qualified  voters 
of  the  State ;  nor  is  it  controverted  by  any  one  that  the  election  held 
on  the  7th  of  November,  1870,  was  duly  notified  and  regularly  con 
ducted,  nor  that  the  returns  of  the  local  officers  were  regularly  and  in 
due  form  of  law  made  to  the  county  canvassers. 

Prescribed  duties  are  to  be  performed  by  the  county  canvassers,  and 
they  are  required  to  transmit  their  returns  to  the  secretary  of  state, 
and  it  is  certain  that  the  objections  filed  to  the  respective  certificates  do 
not  impugn  the  county  returns,  nor  is  there  any  evidence  before  the 
Commission  to  justify  any  one  in  calling  those  returns  in  question  as 
irregular,  false,  or  fraudulent.  Imputations  of  the  kind  are  explicitly 


ELECTORAL    COUNT    OF    1877.  1055 

made  against  the  returns  of  the  board  of  State  canvassers,  as  before 
fully  explained. 

Electors  are  to  be  appointed  by  the  State,  and  the  State  very  properly 
claimed  the  right  to  inquire  and  ascertain  who  had  been  chosen  at  the 
election  held  for  that  purpose.  Charges  of  fraud,  perjury,  and  forgery 
hanging  over  the  old  board,  the  legislature,  l)y  a  public  law  approved 
by  the  governor,  made  provision  for  a  new  board,  and  directed  the  new 
board  to  canvass  the  same  county  returns  on  file  in  the  office  of  the 
secretary  of  state,  and  to  report  the  result  of  their  doings.  They  per 
formed  that  duty,  and  the  legislature  by  a  public  act  ratified  their 
doings,  and  enacted  that  the  Tilden  electors  were  duly  chosen  on  the 
7th  of  November  previous,  and  that  they  are  the  electors  duly  appointed 
by  the  State. 

Opposed  to  this  there  is  nothing  to  support  the  pretensions  of  the 
Hayes  electors  except  the  certificate  of  Governor  Stearns,  founded  upon 
the  return  of  the  old  board  of  State  canvassers. 

These  proceedings  constitute  the  basis  of  certificate  No.  3,  and  they 
show  that  the  proceedings  and  the  certificate  were  intended  to  confirm 
as  true  what  is  certified  in  the  certificate  of  the  attorney-general,  and 
it  is  clear,  in  my  judgment,  that  they  are  properly  admissible  and  amply 
sufficient  for  that  purpose. 

Matters  of  the  sort  may  be  readily  investigated  in  a  very  brief  space 
of  time,  as  every  impartial  person  must  see  from  the  very  nature  of  the 
transactions. 

States  may  appoint  electors  in  such  manner  as  their  legislatures  may 
direct,  and  the  judiciary  of  the  State  may  interpret  such  laws,  and  the 
decision  of  the  State  court  in  such  a  case  must  be  regarded  as  the  rule 
of  decision,  as  appears  by  the  express  enactment  of  Congress  (1  Stat.  at 
Large,  92  j  McKeeii  vs.  Delancy,  5  Cranch,  22.)  Circuit  courts  in  that 
State  have  power  to  issue  writs  of  quo  warranto  and  all  other  writs 
proper  and  necessary  to  the  complete  exercise  of  their  jurisdiction. 
(State  Const.,  art.  6,  sec.  8.) 

Proof  of  the  most  satisfactory  character  is  exhibited  in  the  papers 
transmitted  to  the  Commission,  that  the  old  board  of  State  canvassers 
did  not  complete  their  canvass  until  the  6th  of  December,  187(3,  and 
that  the  certificate  given  to  the  supposed  Hayes  electors  bears  date  on 
that  day.  It  appears,  also,  that  the  certificate  given  to  the  Tildeii 
electors  and  signed  by  the  attorney-general  bears  the  same  date  as  ex 
hibited  in  the  documents  printed  by  order  of  the  Commission.  Both 
sets  of  electors  met  at  the  capital  of  the  State  on  that  day,  as  required 
by  law,  for  the  purpose  of  executing  the  functions  of  electors,  but  the 
Hayes  electors,  before  they  voted,  were  served  with  process  in  quo 
warranto  sued  out  from  the  circuit  court  of  tbe  second  judicial  circuit 
of  the  State  by  the  Tilden  electors.  They  sued  in  their  own  behalf  as 
well  as  in  behalf  of  the  people  of  the  State,  as  they  had  a  right  to  do 
under  the  law  of  the  State,  inasmuch  as  the  attorney-general  refused  to 
institute  the  proper  proceeding. 

Service  being  made,  the  respondents  appeared  and  filed  an  answer. 
Subsequently  proofs  were  taken  011  both  sides,  and  the  parties  having 
been  fully  heard,  the  court,  on  the  25th  of  January  following,  entered 
a  decree  in  favor  of  the  relators. 

By  that  decree  the  court  adjudged  :  (1)  That  the  Hayes  electors  were 
not,  nor  was  any  one  of  them,  elected,  chosen,  or  appointed  electors. 
(2)  That  they  were  not,  on  the  said  6th  of  December,  or  any  other  time, 
entitled  to  assume  or  exercise  any  of  the  powers  and  functions  of  such 
electors.  (3)  That  they  were  upon  the  said  day  and  date  mere  usurp- 


1056  ELECTORAL    COUNT    OF    1877. 

ers,  and  that  all  and  singular  their  acts  and  doings  as  such  were  and 
are  illegal  and  void.  (4)  That  the  Tilden  electors  all  and  singular  were 
at  said  election  duly  elected,  chosen,  and  appointed  electors  of  the 
State,  and  were,  on  the  said  6th  of  December,  entitled  to  be  declared 
elected,  chosen,  and  appointed  as  such  electors,  and  to  have  and  receive 
certificates  to  that  effect,  and  at  all  times  since  to  exercise  and  perform 
all  and  singular  the  powers  and  duties  of  such  electors. 

Prior  to  the  rendering  of  the  decree  in  this  case,  the  new  board  of 
State  canvassers  had  made  their  report,  and  on  the  following  day  the 
legislature  passed  the  act  to  delare  and  establish  the  appointment  of 
electors,  by  which  it  is  enacted  that  the  Tilden  electors  were,  on  the 
7th  of  November  previous,  duly  chosen  and  appointed  as  such,  with  all 
the  powers  incident  to  such  offices. 

Eepeated  admissions  have  been  made  during  the  discussion  that  a 
State  may  determine  what  persons  the  qualified  voters  have  chosen  and 
appointed  electors  of  President  and  Vice  President,  but  the  proposition 
is  advanced  that  the  determination  must  be  made  before  the  electors 
meet  and  cast  their  votes,  and  that  it  cannot  be  made  at  any  subse 
quent  time.  Antecedent  investigation  could  not  be  made  in  this  case 
before  the  electors  voted,  for  the  reason  that  the  old  board  of  State 
canvassers  did  not  make  their  return  until  the  day  when  the  votes  were 
cast,  nor  were  the  Hayes  electors  furnished  with  the  certificate  of  the 
governor  until  that  day.  All  that  could  be  done  by  the  way  of  inves 
tigation  before  that  time  was  done,  as  appears  by  the  certificate  of  the 
attorney-general,  which  was  also  given  to  the  Tilden  electors  on  the 
same  6th  of  December.  Without  a  moment's  delay  the  Tilden  electors 
sued  out  a  writ  of  quo  warranto  against  the  usurpers,  and  by  extreme 
diligence  caused  it  to  be  served  on  them  one  hour  before  they  cast  their 
votes. 

Weighed  in  the  light  of  these  suggestions,  the  proposition  that  sub 
sequent  investigation  cannot  be  made  is  monstrous,  as  it  shows  a  mock 
ery  of  justice.  You  may  investigate  before  the  votes  are  cast  when  it 
is  impossible  for  want  of  time,  but  you  shall  not  after  that,  as  you  would 
then  have  an  opportunity  to  ascertain  the  truth  ! 

Canvassers  may,  if  they  see  fit,  keep  back  their  report  until  the  day 
appointed  for  the  electors  to  meet,  and  if  they  do  so,  the  effect  of  the 
proposition  is  that  there  can  be  no  investigation,  no  matter  how  enor 
mous  the  fraud  has  been.  Forgery  and  fraud  ought  not  to  go  unex- 
posed  ;  but  if  the  proposition  submitted  is  correct,  it  necessarily  follows 
that  the  State  is  powerless  to  protect  itself  from  the  consequences  of 
such  crimes. 

Whatever  could  be  done  by  every  branch  of  the  State  government  to 
establish  the  truth  was  done,  and  if  it  now  be  decided  that  their  efforts 
are  fruitless,  the  effect  must  be  to  offer  impunity  in  the  future  to  all 
scheming  officers  who  may  tamper  with  subordinate  returns  in  order  to 
change  the  result  of  an  election. 

Opposing  candidates  for  governor  of  the  State  were  in  the  field  at  the 
same  election,  and  it  appears  that  the  board  of  State  canvassers  threw 
out  sufficient  of  the  county  returns  to  elect  the  incumbent  who  gave  the 
certificate  to  the  Hayes  electors.  His  opponent,  the  present  governor, 
(Drew,)  brought  mandamus  against  the  members  of  the  canvassing- 
board,  praying  that  they  might  be  decreed  to  correct  their  return.  Pro 
cess  was  served,  and  the  respondents  appeared  and  filed  an  answer. 
Both  sides  took  proofs,  and  the  parties  went  to  trial. 

Authority  to  issue  mandamus  is  vested  in  all  the  courts  of  the  State. 
The  proceedings  in  this  case  was  in  the  supreme  court,  and  that  court 


ELECTORAL    COUNT    OF    1877.  1057 

decreed  that  all  that  the  State  board  of  canvassers  can  do  in  such  a 
case  under  the  statute  creating  it  must  be  based  upon  the  returns; 
that  everything  they  are  authorized  to  do  is  limited  to  what  is  sanc 
tioned  by  the  authentic  and  true  returns  before  them ;  that  their  final 
act  and  determination  must  be  such  as  appears  from  and  is  shown  by 
the  returns  from  the  several  counties  to  be  correct ;  that  they  have  no 
general  power  to  issue  subpoenas,  to  summon  parties,  to  compel  the 
attendance  of  witnesses,  to  grant  a  trial  by  jury,  or  to  do  any  act  but 
determine  and  declare  who  has  been  elected  as  shown  by  the -returns. 
(State  ex  rel.  George  F.  Drew  vs.  Samuel  B.  McLin  et  al.,  15  Florida  E.) 
Special  reference  is  made  in  that  case  to  the  return  from  the  county 
of  Manatee  and  to  those  from  the  three  counties  of  Hamilton,  Jackson, 
and  Monroe.  By  that  opinion,  it  appears  that  the  answer  set  up  that 
there  was  such  irregularity  and  fraud  in  the  conduct  of  the  election 
that  the  board  could  not  ascertain  the  true  vote.  Eesponsive  to  that 
defense,  the  court  say  that — 

The  facts  stated  in  the  answer  present  a  judicial  question  beyond  the  power  and 
jurisdiction  of  the  board  ;  that  a  return  of  votes  cast  in  a  county  at  such  a  general 
election,  duly  signed  by  the  proper  officers,  and  regular  in  form,  *  *  is  a  return 
which  the  State  officers  must  count,  as  it  is  neither  irregular,  false,  nor  fraudulent 
within  the  meaning  of  the  statute. 

Comment  is  also  made  in  the  same  opinion  upon  the  action  of  the 
State  board  in  respect  to  the  other  three  counties,  and  the  decision  is 
to  the  effect  that  if  the  return  is  genuine  and  in  due  form,  the  ques 
tion  whether  the  irregularities  shown  to  have  existed  at  the  election 
are  sufficient  to  reject  the  same  is  a  question  of  law,  not  within  the 
power  of  the  board  to  determine;  that  what  is  fraud  in  such  an  in 
spector  is  a  question  of  law,  so  also  is  the  question  whether  such  a 
fraud  by  inspectors  can  vitiate  an  election.  Both  are  judicial  questions, 
beyond  the  power  of  the  board,  to  determine. 

Unless  it  be  denied  that  the  construction  of  a  State  statute  given  to 
it  by  the  supreme  court  of  the  State  furnishes  the  rule  of  decision,  it 
would  seem  to  follow  that  the  board  of  State  canvassers  exceeded  their 
jurisdiction;  and,  if  so,  all  must  concede  that  their  acts  are  null  and 
void. 

Five  years  before  that,  the  supreme  court  of  the  State  decided  that 
the  object  of  the  statute  in  question  is  to  ascertain  the  whole  number  of 
votes  cast  and  who  had  received  the  highest  number  of  votes,  so  that 
the  choice  of  the  majority  of  the  voters  might  be  ascertained  and 
respected;  that  if  the  facts  stated  by  the  relator  were  correct,  that 
returns  made  had  not  been  included  in  the  canvass,  then  the  board  of 
State  canvassers  had  not  performed  their  duty ;  that  their  duties  are 
ministerial  beyond  that  of  determining  that  the  papers  received  by 
them  as  returns  are  genuine  authentic  returns  of  the  election ;  that  they 
are  required  by  law  to  meet  on  a  given  day  for  the  purpose,  and  may 
adjourn  from  day  to  day  until  their  duties  are  accomplished,  and  in  case 
legal  returns  are  received  by  them  at  any  time  before  they  complete  the 
canvass  which  would  have  been  counted  if  received  before  the  canvass 
was  commenced,  it  is  their  duty  to  include  such  in  the  canvass  and  cer 
tificate,  and  if  they  refuse  they  may  be  compelled  by  the  writ  of  man 
damus  to  complete  the  canvass  of  all  the  returns  received,  and  to  cer 
tify  the  result  according  to  law.  (State  ex  rel.  Bloxham  vs.  The  Board 
of  State  Canvassers,  13  Florida,  73.) 

Proper  opportunity  to  investigate  such  charges  ought  to  be  permitted 
at  some  time,  and  if  it  is  not  possible  to  accomplish  that  object  before 
the  day  appointed  for  the  meeting  of  the  electors,  justice  and  necessity 
07  E  C 


1058  ELECTORAL    COUNT    OF    1877. 

demand  that  it  shall  be  allowed  subsequent  to  that  time,  for  it  would  be 
too  great  a  triumph,  for  injustice  to  hold  that  it  must  be  postponed  for 
ever  because  the  outrage  was  committed  so  near  to  the  time  designated 
for  the  performance  of  the  duty  that  it  was  impossible  to  institute  and 
close  the  scrutiny  before  the  accessories  in  guilt  have  actually  enjoyed 
the  stolen  privilege  which  belonged  to  the  complaining  party.  (Queen 
vs.  Vestrymen  of  Pancras,  11  Ad.  &  Ell.,  25.) 

Three  points  were  decided  by  the  exchequer  chamber  in  Rochester  vs. 
The  Queen.  (1  Ell.,  Bl.  &  Ell.,  1031,)  which  support  the  proposition  that 
it  was  not  too  late  to  make  the  investigation  :  (1)  That  the  court  ought 
to  compel  the  performance  of  a  public  duty  by  a  public  officer  although 
the  time  prescribed  by  statute  for  the  performance  of  the  same  has 
passed.  (2)  That  if  the  public  officer  to  whom  belongs  the  performance 
of  such  a  duty  has  in  the  mean  time  quitted  his  office  and  has  been  suc 
ceeded  by  another,  it  is  the  duty  of  the  successor  to  obey  the  commands 
of  the  court.  (3)  That  all  statutes  are  to  be  construed  with  reference 
to  the  known,  acknowledged,  recognized,  and  established  power  of  the 
proper  court  to  superintend  and  control  inferior  jurisdictions  and  author 
ities  of  every  kind. 

Due  service  of  process  in  the  quo  warranto  suit  was  made  at  the  earliest 
possible  moment,  and  it  is  not  even  suggested  that  any  greater  diligence 
could  have  been  employed  in  bringing  the  litigation  to  a  close.  Prompt 
investigation  was  made  by  the  new  board  of  State  canvassers,  and  the 
legislature  enacted  the  statute  declaring  that  the  Tilden  electors  were 
duly  chosen  and  appointed  the  next  day  after  the  decree  was  entered  in 
the  quo  icarranto  suit.  Neither  the  public  nor  the  citizens  have  any 
power  to  defeat  the  machinations  of  fraud,  perjury,  and  forgery  if  the 
measures  adopted  for  that  purpose  in  this  case  are  held  to  be  ineffec 
tual  and  insufficient. 

For  these  reasons  I  am  of  the  opinion  that  the  evidence  offered  should 
be  admitted  and  that  the  other  side  should  be  permitted  to  give  evidence 
in  reply. 

Debate  being  closed,  the  Commission  adopted  the  following  order,, 
moved  by  Mr.  Justice  Miller: 

Ordered,  That  no  evidence  will  be  received  or  considered  by  the  Commission  which 
was  not  submitted  to  the  joint  convention  of  the  two  Houses  by  the  President  of  the 
Senate  with  the  different  certificates,  except  such  as  relates  to  the  eligibility  of  F.  C. 
Humphreys,  one  of  the  electors. 

Adopted — yeas  8,  nays  7. 

Commissioner  Abbott  moved  the  following: 

Ordered,  That  in  the  case  of  Florida  the  Commission  will  receive  evidence  relating 
to  the  eligibility  of  Frederick  C.  Humphreys,  one  of  the  persons  named  in  certificate 
No.  1,  as  elector. 

Adopted — yeas  8,  nays  7. 

Notice  was  given  to  counsel  of  the  result,  and  that  the  Commission 
was  ready  to  proceed  with  the  case.  Witnesses  were  examined  on  both 
sides  in  respect  to  the  eligibility  of  Frederick  C.  Humphreys  as  an  elector, 
and  their  testimony  is  fully  reported  in  the  record  of  the  proceedings. 
The  testimony  being  closed,  counsel  were  heard  upon  the  merits  under 
the  third  rule  prescribed  by  the  Commission,  and  at  the  conclusion  of 
the  argument  the  spectators  retired  and  the  Commission  went  into  con 
sultation  with  closed  doors.  Discussion  ensued,  in  which  several  of  the 
members  of  the  Commission  participated.  During  the  discussion  as  to 
the  eligibility  of  Frederick  C.  Humphreys,  Mr.  Justice  CLIFFORD 
stated  his  conclusions  on  the  matter,  as  follows: 

1 .  That  no  person  is  eligible  as  an  elector,  or  can  be  lawfully  appointed 


ELECTORAL    COUNT    OF    1377.  1059 

as  such,  who  holds  an  office  of  trust  or  profit  under  the  United  States 
at  the  time  of  the  election  or  appointment. 

2.  That  the  office  of  shipping-commissioner  is  an  office  of  trust  and 
profit  under  the  United  States. 

3.  That  Frederick  C.  Humphreys  was  legally  appointed  to  that  office. 

4.  That  the  evidence  introduced  fails  to  show  a  complete  legal  resig 
nation  of  the  office  by  the  incumbent  before  the  7th  of  November,  1876. 

5.  That  if  he  had  performed  official  acts  after  the  date  of  the  corre 
spondence  between  him  and  the  judge  of  the  circuit  court,  his  acts  would 
have  been  legal. 

6.  That  if  the  incumbent  had  subseqently  decided,  with  the  consent 
of  the  judge,  to  retain  the  office,  he  might  have  done  so  without  a  new 
appointment,  because  his  letter  to  the  judge  had  never  been  filed. 

7.  That  inasmuch  as  the  evidence  shows  that  both  the  judge  and  the 
incumbent  regarded  the  resignation  as  complete,  and  it  appears  that  the 
incumbent  never  did  perform  any  subsequent  official  act,  I  am  of  the 
opinion  that,  in  an  equitable  view,  the  person  named  ought  to  be  re 
garded  as  having  been  eligible  as  an  elector  on  the  day  when  the  elec 
tion  was  held. 

Other  members  of  the  Commission  discussed  the  whole  case  in  view  of 
the  papers  submitted  to  the  Commission  by  the  President  of  the  Senate, 
but  Mr.  Justice  CLIPFOED,  believing  that  discussion  would  be  unavail 
ing  and  useless,  took  no  further  part  in  the  debate. 

Commissioner  Hunton  moved  an  order  to  the  effect  that  the  Tilden 
electors  were  duly  appointed  by  the  State,  and  their  votes  as  certified  in 
certificate  No.  2  are  the  votes  provided  for  by  the  Constitution.  Ee- 
jected— yeas  7,  nays  8. 

When  that  result  was  announced,  Commissioner  Garfield  moved  that 
the  Hayes  electors  were  duly  appointed  and  that  the  votes  cast  by  them 
are  the  votes  provided  for  by  the  Constitution ;  also,  that  Commissioner 
Edmunds,  Mr.  Justice  Bradley,  and  Mr.  Justice  Miller  be  appointed  a 
committee  to  draught  a  report  of  the  action  of  the  Commission,  as  re 
quired  by  law.  Adopted — yeas  8,  nays  7. 

None  of  the' subsequent  proceedings  in  the  case  need  be  reproduced, 
as  they  are  given  in  full  in  the  Congressional  Eecord. 

Like  submissions  were  made  to  the  Commission  in  the  cases  of  Lou 
isiana,  Oregon,  and  South  Carolina,  the  proceedings  in  which  cases  are 
also  published  in  the  same  Eecord,  but  Mr.  Justice  CLIFFOED  did  not 
participate  in  those  discussions,  having  become  thoroughly  convinced 
hat  nothing  he  could  say  would  be  of  any  public  benefit. 


L I  B  iv 

I  UN IV  <TV  OF 

I  A. 


INDEX  TO  ELECTORAL  COUNT  OF  1877. 


A. 

Abbott,  Josiab  G.,  a  Representative  from  Massachusetts,  member  of  tbe  Com 
mission — 

appointed  by  the  House 7 

sworn  and  certificate  of  oath  filed 7 

motions  made  by — 

to  adjourn _, A... 371,  549,  581 

to  take  a  recess 700 

that  the  papers  accompanying  the  objections  in  the  case  of  Florida  be 

printed 30 

that  Mr.  Jenks  have  a  full  hour  for  argument 231 

that  the  time  for  discussion  be  extended  to  six  hours  on  a  side 262 

that  all  papers  in  the  case  of  Oregon  be  printed 464 

that  each  Commissioner  have  leave  until  March  10,  proximo,  in  which  to 
file  for  publication  in  the  Record  an  opinion  respecting  the  cases  that 

have  at  present  been  acted  on  by  the  Commission . 453 

orders  submitted  by — 

that  in  the  case  of  Florida  the  Commission  will  receive  evidence  relating 
to  the  eligibility  of  Frederick  C.  Humphreys,  one  of  the  persons 
named  in  certificate  No.  1,  as  elector 139 

that  the  injunction  of  secrecy  imposed  on  the  action  had  Friday,  February 

9, 1877,  as  entered  in  the  Journal,  be  removed 198 

that  the  injunction  of  secrecy  imposed  on  all  former  consultations  of  the 

Commission  be  removed 423 

that  the  vote  in  the  matter  now  pending  in  the  case  of  Oregon  be  taken 

at  four  o'clock  p.  m.  on  Friday,  February  23,  1377 637 

resolutions  offered  by — 

that  evidence  will  be  received  to  show  that  so  much  of  the  act  of  Louisiana 
establishing  a  returning-board  for  that  State  is  unconstitutional  and 
the  acts  of  said  returning-board  are  void.  Offered  as  a  substitute 
for  an  order  submitted  by  Mr.  Commissioner  Hoar 416 

that  evidence  will  be  received  to  show  that  the  returning-board  of  Louis 
iana,  at  the  time  of  canvassing  and  compiling  the  vote  of  that  State 
at  the  last  election  in  that  State,  was  not  legally  constituted  under 
the  law  establishing  it,  in  this :  that  it  was  composed  of  four  persons 
all  of  one  political  party,  instead  of  five  persons  of  different  political 
parties,  as  required  by  the  law  establishing  said  board.  Offered  as 
a  substitute  for  an  order  submitted  by  Mr.  Commissioner  Hoar 417 

that  the  Commission  will  receive  testimony  on  the  subject  of  the  frauds 
alleged  in  the  specifications  of  the  counsel  for  the  objectors  to  cer 
tificates  Nos.  1  and  3.  Offered  as  a  substitute  for  an  order  submitted 
by  Mr.  Commissioner  Hoar 417 

that  testimony  tending  to  show  that  the  so-called  returning-board  of  Lou 
isiana  had  no  jurisdiction  to  canvass  the  votes  for  electors  of  Presi 
dent  and  Vice-President  is  admissible.  Offered  as  a  substitute  for 
an  order  submitted  by  Mr.  Commissioner  Hoar 117 

that  evidence  is  admissible  that  the  statements  and  affidavits  purporting 
to  have  been  made  and  forwarded  to  said  returning-board  in  pursu 
ance  of  the  provisions  of  section  26  of  the  election  law  of  1872,  alleg 
ing  riot,  tumult,  intimidation,  and  violence  at  or  near  certain  polls 
and  in  certain  parishes,  were  falsely  fabricated  and  forged  by  certain 
disreputable  persons  under  the  direction  and  with  the  knowledge  of 
said  returuing-board  ;  and  that  said  returning-board,  knowing  said 
statements  and  affidavits  to  be  false  and  forged,  and  that  none  of  the 
said  statements  and  affidavits*  were  made  in  the  manner  or  form  or 
within  the  time  required  by  law,  did  knowingly,  willfully,  and  fraud 
ulently  fail  and  refuse  to  canvass  or  compile  more  than  ten  thou 
sand  votes  lawfully  cast,  as  is  shown  by  the  statements  of  votes  of 
the  commissioners  of  election.  Offered  as  a  substitute  for  an  order 
submitted  by  Mr.  Commissioner  Hoar , 417 


1062  INDEX. 

Page. 
Abbott,  Josiah  G. — Continued. 

interlocutory  remarks  and  questions  by,  on  the — 

husineFsof  the  Commission 109,231,263,284,312,372,549 

Florida  case 30,  31 ,  52,  60,  61, 109, 175, 185 

Louisiana  case 221,  249,  251,  316,  317,  318,  332,  346,  361,  362,  378,  420 

Oregon  case 464,476,495,527,603,617,622 

South  Carolina  case 671,680,682 

arguments  by,  in  the  consultations  on  the — 

Florida  case — . .  932 

Louisiana  case 939 

Oregon  case 941 

South  Carolina  case 948 

Act  of  Congress  under  which  the  Electoral  Commission  was  organized 4,5 

Adams,  George  M.,  Clerk  of  the  House  of  Representatives,  communication  from 

the  House  presented  by 424 

Adjournment  of  the  Electoral  Commission 8.33,74,113,137, 

138, 139, 194, 198,  202, 218, 284,  372,  415,  423,  425,  453, 581,  637, 653,  666, 704, 728 
Alabama,  the  State  of — 

electoral  votes  of,  counted 10 

Allison,  William  B.,  a  Senator  from  Iowa — 

appointment  of,  as  a  teller  on  the  part  of  the  Senate 9 

resolution  offered  by,  that  the  objection  made  to  the  vote  of  Daniel  L. 
Grossman,  one  of  the  electors  of  Michigan,  is  not  good  in  law,  and  is 
not  sustained  by  any  lawful  evidence ;  that  said  vote  be  counted 
with  the  other  votes  of  the  electors  of  said  State,  notwithstanding 

the  objections  made  thereto 444 

Anthony,  Henry  B.,  a  Senator  from  Rhode  Island — 

order  submitted  by,  that  the  Secretary  notify  the  House  of  Representatives 
of  the  decision  of  the  Senate  in  the  case  of  William  S.  Slater,  aft 
elector  of  the  State  of  Rhode  Island,  and  that  the  Senate  is  now 
ready  to  meet  the  House  to  continue  the  count  of  the  electoral 

votes  for  President  and  Vice-President 657 

Arkansas,  the  State  of— 

electoral  votes  of,  counted 10 

Atkins,  John  D.  C.,  a  Representative  from  Tennessee — 

motion  made  by,  that  there  be  a  call  of  the  House . . . , 705 

Authorities,  citations  of— 

Abbott  vs.  Vance,  contested-election  case  of 501, 510 

Abbott's  Digest 532 

Adkins  vs.  Brewer",  3  Cowen,  206 289 

Allen  vs.  Blunt,  3  Story  C.  C.,  742 532 

American  Law  Register,  U.  S 484, 546, 910 

Arkansas  Reports,  volume  1,  pages  21,  595 472,  473 

Arnold  vs.  Lea,  Clarke  &  Hall,  601 534 

Arthur  vs.  Franklin,  16  Ohio,  new  series,  193 276 

Attorneys-General,  Opinions  of,  volumes  2,  14 146,  543 

Badger  and  others  vs.  The  United  States  on  the  relation  of  Bolton 146 

Baird  vs.  The  Bank  of  Washington,  11  Sergeant  &  Rawles 386, 512, 548, 596 

Bank  of  Hamilton  vs.  Dudley,  2  Peters,  492 967 

I'.arncH  r*.  Adams,  2  Bartlett,  760 548 

Barnewall  &  Cresswell,  6, 12 147,361 

Hartley  vs.  Fletcher,  39  Mo.  Reports,  388,  399 568, 629 

1  tatmau  vtt.  Magowan,  1  Metcalfe's  Kentucky  Reports,  533 363 

Battle  vs.  Howard,  13  Texas,  345 682 

Battle  vs.  Mclver,  63  N.  C.  Reports,  469 485,928 

Bean  vs.  Thompson,  19  N.  H.,  115 548 

Black,  2,  page  599 967 

Blacket  m.  Blizard 361 

Blackstone's  Commentaries,  261 684 

Bleecker  r*.  Bond,  3  Wash.  C.  C.  Reports,  531 ..  478 

Bloom  OT,  Burdick,  1  Hill,  330 289 

Bonner  ?•*.  Lynch,  25  Louisiana  Annual  Reports,  268 347,969 

Bouvier'.s  Law  Dictionary,  title  Quorum .  361 

Bradley  r*.  Fisher,  13  Wallace,  348 583 

Bridge  Proprietors  vs.  Hoboken  Companv,  2  Wallace,  116 1007 

Brightly's  Digest,  448-450 ". ..  533,545,546 

Briton  vs.  Lingo, 25  Mo.,  496 „..          272 

Broom  r*.  Hauley,  9  Penn.,  513 '.'.'.'.'.  485 

Broom's  Legal  Maxims,  465 532 


INDEX.  1  063 


Authorities,  citations  of  —  Continued. 

Brown  vs.  The  City  of  Lowell,  8  Mctcalfe,  175  .............................  413 

Burrowes,  3,  1368  ........................................................  289 

Call  vs.  Stearns  ..........................................................  50 

Calder  vs.  Ball,  3  Dallas  ............  ............  .  ..........................  163,684 

Carpenter's  Case,  2  Parsons,  540  .  .....................  ..  ..................  534 

Carson  vs.  McPhetridge,  15  Indiana,  327  ..................................  542 

Candle  vs.  Seymour,  A.  and  E.,  volume  1,  page  892  ........................  406 

Charless  vs.  Lam  berson,  1  Clarke,  (  Iowa,)  435  ..............................  276 

Chase's  Decisions,  1  Johnson's  Reports,  425  ...............................  539,595 

Chief-Justice  Parsons,  5  Mass.,  533  ........................................  568 

Chitty's  Pleading  ........................................................  97 

Christy  vs.  Pridgeou,  4  Wallace  ..........................................  977 

Church,  Chief-Justice,  opinion  of  .............  .  .......................  •.  ..  847 

Clark  vs.  Buchanan,  2  Minnesota,  346  ......................................         1001 

Clark  vs.  Hall,  871  ...................................................  547,682,928 

Clarke  on  Election  Contests,  page  156  ....................................  502 

Cochrane  vs.  Jones,  14  Am.  Law  Register  ................................  541 

Cochrane  &  Rowe,  288  ...................................................          682 

Colchester,  Peckwell  I,  503-507  ..........................................  682 

Collin  vs.  Kuoblock,  25  Louisiana,  263,265  ................................  250,364 

Commonwealth  vs.  Athearn,  3  Mass.,  285  ....................  .  ............  68 

Commonwealth  vs.  Baxter,  35  Penu.,  263  ..............................  363,546,562 

Commonwealth  vs.  Brown,  1  S.  &  R.,  382  ..................................          272 

Commonwealth  vs.  Cluley,  56  Penn.  Reports  ..................   152,  480,  482,  504,  541 

Commonwealth  vs.  G  arrigues,  28  Penn.  Reports,  9  .........................  363 

Common  wealth  vs.  Hanley,  9  Penn.  Reports,  513  ..........................  54G,  591 

Commonwealth  vs.  Jones,  10  Bush,  Kentucky  Reports,  726  .........  .  .  ......          539 

Commonwealth  vs.  Leech,  44  Penn.  Reports,  332...  t  .....................  .•          364 

Commonwealth  vs.  Smith,  45  Penn.  Reports,  59  ...........................  164 

Commonwealth  ex  rel.  Broom  vs.  Hanley,  9  Penn.  Reports,  513  .............  575 

Comyn's  Digest,  title  Parliament  ..........  -  ............................  ...  684 

Congressional  Globe,  volume  5,  pages  80-96  ..............................  388,571 

Congressional  Record,  volume  3,  part  3,  page  160  .......................  „..          899 

Constitution  of  the  United  States,  the.  .65,  92,  160,  183,  186,  268,  288,  467,  468,  488,  490, 

491,  492,  524,  531,  535,  540,  546,  613,  620,  682,  683, 

818,  849,  853,  859,  863,  874,  887,  903,  905,  1013 

Contested  Elections,  Clarke  &  Hall,  872  ..................................          485 

of  1834  to  1865,  page  9  _____  ...................  ,  ......................... 

Cooke  vs.  Lo  veland,  2  Bosanquet  and  Puller,  31  ............................  361 

Cooley  on  Constitutional  Limitations  ..............................  147,  359,  363,  540 

Coolidget's.  Brigham,  1  Allen,  335  ........................................  565 

Corliss  Case,  16  Am.  Law  Register,  N.  S.,  15  ..............................          541 

Court  of  Queen's  Bench,  11  A.  &  E  ....................................... 

Cowen,  volume  4,  page  143  ......................................   ....... 

Cushing's  Law  and  Practice,  sections  634,  747  ............................. 

Daniells'  Chancery  Practice  ..............................................  97 

Davis  m.  State,  7  Maryland,  151  ..........................................  682 

Day  vs.  Kent,  1  Oregon,  123  ..............................................      •     534 

Digest  of  Louisiana  Statutes,  volume  2  ................................... 

Dillon  on  Municipal  Corporations,  volume  1  ..............................  531,540 

Document  No.  123,  26th  Congress,  2d  session,  H.  R  ........................ 

Dodd  ex  parte,  6  Eng.,  (Ark.,)  152  ........................................  485,929 

Downing  vs.  Ruger,  21  Wendell,  181  .........  ,  ............................  531 

Draper  vs.  Johnston,  C.  and  H.,  703  .......................................          682 

Drew  vs.  Stearns  ....................................  '  ....................       49,64 

Duclier's  Report?,  N.  J.,  page  355  .........................................          563 

Duchess  of  Kingston's  case  .............................................. 

Eastern  t».  Scott,  C.  and  IL,  267,  272  ........................  .......  .  ........  682 

Elliott's  Debates,  page  101  ...............................................  169 

Elmdorfi's.  Taylor,  10  Wheaton,  159  .........  -•  ............................          967 

Elmwoodu*.  Macey,  2  Otis,  289  ......  ,  ..........  .  .........................  159 

Eusminger  vs.  Poe,  47  Illinois  ............................................  272 

Federalist,  No.  21,  page  112  ..............................................  684 

Field  -us.  Seabury,  19  Howard,  331  ........................................  365 

Fish  vs.  Collins,  21  Louisiana,  289  ......................................... 

Florida  election  laws,  section  4  ........................  ,  .................. 

French  vs.  Fyan,  case  of  ..................................................         1012 

Furrnanw.  Clute,  50  N.  Y.  Reports  .......................................  152,578 


1064  INDEX. 

Page. 
Authorities,  citations  of — Continued. 

Freeman  on  Judgments,  section  78 5G7 

Gaines  rs.  Thompson,  7  Wallace,  347 1014 

Gallery  rs.  Merrill,  Clarke  &  Hall,  328 682 

Golden  rs.  Sharp,  Clarke  &  Hall,  410 (582 

Gorhain  vs.  Campbell,  2  Cal.,  135 534 

Gould  rs.  Hammond,  1  McAll..  235 531 

Grant  on  Corporations,  page  155 413 

Green  tw.  Neat,  6  Peters 158,190 

Green  rs.  Burke,  23  Wendell,  490,502 .- 133,908 

Greerrs.  Shackleford,  Constitutional  (S.  C.)  Reports,  642 363 

Grindley  rs.  Baker,!  Bosauquet  and  Puller.  229 361 

Groves  rs.  Slaughter,  15  Peters,  500, 503 177 

Gulick  rs:  New,  14  Indiana  Eeports,  93, 96 152,  470,  472,  479,  f>03,  542 

Hadley  vs.  The  Mayor  of  Albany,  33  N.  Y 573, 1001 

Hardenberg  rs.  Farmers'  Bank,  2  Green,  N.  J.,  68... 534 

Hawkins  rs.  The  Governor,  570,  595 568 

Hey  wood  on  County  Elections,  pages  511,535 503,682 

High  on  Extraordinary  Legal  Remedies 46,  67,  479 

Hildreth's  Heirs  rs.  Mclntyre's  Devisee,  1  Marshall's  Ky.  Eeports,  206 134,  908 

House  Document  No.  35,  part  3 158 

Howard's  Reports,  volumes  7,8,11,14,21,23 49,357,967 

Hulsemau  and  Briukworth  vs.  Reeves  and  Siner,  41  Penn.  Reports,  396 366,  562 

Hunter  vs.  Chandler,  45  Missouri,  435 164 

Hntchinson  rs.  Tilden  and  Boardley,  4  Harris  and  McIIenry 482 

Illinois  Reports,  51,55 67,  348 

Impeachment  of  Belknap,  Record,  volume  4,  part  7,  page  12 176 

Indiana  Reports,  volumes  15,  41 470 

Inker  r's.  Commonwealth,  20  Penn.  Reports,  493 

Iowa  Reports,  volume  16,  page  284 361 

Johnson  rs.  Towsley,  13  Wallace,  72 1012 

Johnson's  Reports,  page  184 67 

Johnston's  Reports,  page  364 124 

Jones  vs.  Reed,  1  Johnson's  Cases,  20 289 

Jones  vs.  State,  1  Kansas,  370 534 

Keller  rs.  Chapman,  34  Cal.,  635 534 

Kentucky  rs.  Dennison,  24  Howard,  66 1009 

Kerr  and  others  rs.  Trego  and  others,  47  Penn.  Reports,  292 563 

King  rs.  Allen,  15  Eastman,  33 684 

King  rs.  Hawkins,  10  East,  210 502 

King  rs.  The  Corporation  of  Bedford  Level,  6  East,  368 132 

Knight  rs.  Wells,  Lutwyche,  508 548 

Koerner  et  al.  vs.  Ridgley  et  al.,  21  Illinois  Reports,  65 „ 69 

Lansing's  Reports,  volume  7,  page  275 408 

Limerick,  Perry  and  Knapp,  355 682 

Litchiield  rs.  Register  and  Receiver,  9  Wallace,  575 1012 

Louisiana  Annual  Reports,  volumes  5,  6,  13,  25 245,  347,  364,  388,  389,  564 

Lord  Raymond,  2,  1144 289 

Luther  rs.  Borden,  7  Howard 358,684,1012 

Lyner  vs.  State,  8  Indiana,  490 276 

Lyonrs.  Smith,  Clarke  &  Hall,  101 682 

Madison  Papers,  pages  343,  515 147 

Maine  Judges,  opinions  of,  appendix  to  volume  38  of  Reports 541 

Maine  Reports,  volumes  25,  32,  38 123, 556, 1000 

Male  on  Elections,  page  336 503 

Mansfield  rs.  Moor,  53  Illinois,  428 .".:'>•") 

Marbury  rs.  Madison,  1  Cranch 588 

Martin  rs.  Mott,  12  Wrheaton,  19,  20 532,  568 

Massachusetts  Reports,  volume  17,  page  600 560 

Mayor  of  Rochester  vs.  The  Queen,  1  Blackburn  and  Ellis,  1024 163 

McCrary's  Law  of  Elections ; 414,504,511,529,533,538,547,548,672 

McGregor  v*.  lialch,  14  Vermont,  428 • 5J3,  5t8 

McKenney  vs.  O'Connor,  26  Texas,  5 534 

McLaughlin  vs.  Sheriff  of  Pittsburgh,  Legal  Journal,  July,  1868 541 

McLean's  Reports,  page  512 176 

Metcalfe'fl  Kentucky  Reports,  1,  page  538 348 

Miller  rs.  Supervisors  of  Sacramento  County,  25  Cal 575 

Mills  rs.  Duryee,  7  Cranch,  481 1 875 

Minnesota  Reports,  volume  15,  455 563 


INDEX.  1065 

Page. 
Authorities,  citations  of — Continued. 

Missouri-  Reports,  volume  39 472,  990 

Morgan  vs.  Quackenbush,  22  Barbour,  72,  73,  77 412, 538,  565 

Morgan  vs.  Vance,  4  Bush  (Ky.)  Reports , 280 

Morris  et  al.  vs.  Underwood  et  al.,  19  Georgia  Reports,  563 ,. 68 

Newcum  vs.  Kintley,  13  Ben.  Monroe 587 

New  Hampshire  Reports,  53,  page  640 124 

Newman  vs.  Jacobs,  17  Ohio  Reports 63 

New  York  Reports,  volume  55,  page  527 408 

Nichols  vs.  City  of  Bridgeport,  27  Conn.  Reports 567 

Noble  V8.  United  States,  Dev.,  84 532 

Nourse  vs.  Clarke,  3  Nevada,  566 151 

Ohio  State  Reports,  volume  6,  page  176 681 

Oregon,  constitution  of .496,  497,  498,  525,  526, 528,  530, 539,  540, 556 

election  laws  of 498,499,515,529,852,892 

Orkney  and  Shetland,  .Frazier,  1,  3G9 682 

Pell  vs.  Ullmani,  21  Barbour,  500 922 

Pendleton  vs.  The  United  States,  2  Brockeubrough's  Reports,  75 478 

People  vs.  Amraons,  5  Gilmer,  107 512 

People  vs.  Bates,  11  Michigan,  363 534 

Peoples.  Coghill,  47  California,  361 922 

People  vs.  Cook,  4  Selden's  Reports 333,  361,  512,  563 

People  vs.  Cook,  10  Bush,  743 333 

People  vs.  Clute,  50  N.  Y.  Reports,  2151 507,542 

People  vs.  Ferguson,  4  Cowan 273 

People  vs.  Goodwin,  22  Michigan,  496 363 

People  vs.  Johnson,  6  California,  673 276 

People  vs.  Miller,  16  Michigan,  56 562 

People  vs.  Mizner,  7  Cal.,  524 546 

People  vs.  Moliter,  23  Michigan,  341 541 

People  vs.  Parker,  37  Cal  ifornia  Reports 485, 546,  928, 942 

People  m.  Pease,  27  N.  Y.  Reports,  54,  5» 191,535 

People  vs.  Porter,  6  California  Reports,  27 176 

People  vs.  Reed,  6  Cal.,  288 947 

Peoples.  Stratton,  28  California  Reports,  382 546,928 

People  vs.  Supervisors  of  Greene,  17  Barbour,  217 1000 

People  vs.  Sweeting,  2  Johnson,  184 906 

People  vs.  Tibbetts,  4  Cowden,  358,  381 907 

People  vs.  Tilton,  37  California  Reports,  614 485, 546,  575 

People  vs.  Vail,  20  Wendell,  12 273 

People  vs.  Whitman,  10  California  Reports,  48 546 

Peters,  2,6,15 684,967 

Portertield  vs.  McCoy,  Clarke  &  Hall,  267 682 

Potter's  D warris  on  Statutes,  228 147 

Powers  vs.  The  People,  4  Johnson's  Cases,  292 289 

Powers  vs.  Reed  and  others,  19  Ohio  Reports 607 

Pratt  vs.  People,  29  Illinois,  72 534 

Price  vs.  Baker,  41  Indiana  Reports 482,  542 

Price  vs.  Hopkins,  13  Michigan,  318 276 

Pritchard  et  al.  vs.  The  People,  1  Gilmer's  Reports,  529 512 

PulaskiCo.  vs.  Lincoln,  9  Arkansas,  320 922 

Queen  vs.  Blizzard,  2  Law  Reports  Queen's  Bench,  55 575 

Queen  vs.  Mayor,  3  Law  Reports  Queen's  Bench.  629 ..503,541 

Reg.  vs.  Coaks,  3  El.  and  B.,  253 ' 154 

Revised  Statutes 152,154,249,468,493,524,525,946 

Rex  vs.  Beeston,  3  Term  Reports,  592 361 

Rex  vs.  Justices  of  Leicester,  7 147 

Rex  vs.  Lexdale,  1  Barr,  447 547 

Rex  vs.  Monday,  Cowper,  536 150 

Rhode  Island,  statutes  of 154, 171, 172 

Rice  vs.  Ruddirnann,  10  Michigan,  125 276 

Rochester  vs.  The  Queen,  1  Ell.,  Bl.,  and  Ell.,  1031 1058 

Salkeld,  406 „ 289 

Saunders  vs.  Hayues,  13  California  Reports 505,  541, 547,  992 

Scheuck  vs.  Peay,  1  Wool  worth's  C.  C.  Reports,  175 880,  928,  939, 940 

Seaford,  Laders,  111,3 682 

Searcy  vs.  Grow,  15  California  Reports,  118,  120,  121 151,466,909 

Secretary  vs.  McGarrahan,  9  Wallace,  248 1012 

Sedgwick  on  Constitutional  and  Statutory  Law,  page  370 147 


1066  INDEX. 

Page. 
Authorities,  citations  of— Continued. 

Senate  Journals,  1874-1875 244 

Sergeant's  Court  Law,  (2d  ed.,)  373 928 

Sharp  vs.  Daws,  Law  Reports,  January,  1877 589 

Shelby  vs.  Gray,  11  Wheaton,  361 - 158 

Southwark  on  Elections,  page  259: 502 

Spaulding  vs.  Mead,  Clarke,  &  Hall,  157 682 

Sprague  vs.  Norway,  30  Cal.,  173 534 

Starkie  on  Evidence 97 

State  vs.  Adams,  2  Stewart's  (Ala.)  Reports,  331 545 

State  vs.  Anderson,  Cox's  Reports,  318 579 

State  vs.  Benedict,  15  Minnesota,  199 546,928 

State  vs.  Boal,  46  Missouri,  528 540 

Staters.  Brown,  5  Rhode  Island,  1 907 

Staters.  City  of  Newark,  3  Dutcher,  185... 545 

State  vs.  Cobb.  2  Kansas,  32 546 

State  vs.  Commissioners  of  Marion  County,  14  Ohio  Reports 565 

Staters.  County  Judge,  7  Iowa  Reports,  201 333 

State  vs.  Gastiuel,  18  Louisiana,   517 541 

State  vs.  Gartwell,  20  Louisiana,  114 - 541 

State  vs.  Giles,  1  Chandler,  Wisconsin,  110 541 

State  vs.  Hufty,  11  Louisiana  Reports,  304 362 

State  vs.  Jenkins,  43  Missouri  Reports,  261 485, 546,  929 

State  vs.  Kurf  ule,  44  Missouri,  154 - 272 

State  vs.  Lynch,  25  Louisiana  Reports,  90 364 

Staters.  Marlow,  15  Ohio  Reports,  114 363 

State  rs,Milburn,  9  Gill,  105 684 

Staters.   Newhall,  3  Dutcher,  197 543 

State  rs.  Robinson,  1  Kansas,  17 546 

State  vs.  Smith,  14  Wisconsin,  497 541 

Staters.  Stumpf, 21  Wisconsin, 579 361 

State  vs.  Sweariugen,  12  Georgia,  23 540 

Staters.  Townsley,  56  Missouri,  107 538 

State  rs.  Vail,  53  Missouri 538,568 

State  ex  vel.  Attorney- General  rs.  Irwin,  Nevada,  111 545 

State  ex  rel.  Bashford  rs.  Barstow,  4  Wisconsin,  567 273 

State  ex  rel  Bloxham  rs.  Board  of  State  Canvassers,  13  Florida 1058 

State  Bank  rs.  The  S  tate,  1  Blackford's  Indiana  Repor  ts 272 

State  Trials,  2 400 

State  of  Florida  rs.  Gleason,  Florida  Reports,  109 372 

State  of  Michigan  vs.  Phoenix  Bank,  33  N.  Y.  Reports 135 

Saint  Louis  County  vs.  Sparks,  10  Missouri,  121 512, 548 

Stocking  vs.  State,  7  Indiana,  329 545 

Story  on  the  Constitution 327, 496, 547, 928 

Strange,  1256 289 

Strattonrs.  Oul ton,  28  California  Reports,  51 485,546,923 

Sublettrs.  Bidwell,  47  Mississippi,  266 541 

Sublett  vs.  Treadwell,  47  Mississippi,  266 342 

Supervisors  rs.  Ready,  34  Illinois,  293 276 

Supervisors  rs.  United  States,  4  Wallace,  435 542 

Supremo  Court  of  New  York,  exparte  Heath,  3  Hill 163 

S witzler  vs.  Anderson,  2  Bartlett,  374 529 

Taylor  vs.  The  Governor,  Pike's  Ark.  Reports 568 

Taylor  rs.  Taylor,  20  Minnesota,  107 534 

Term  Reports,  3,  6, 194,  444 289,684 

Thatcher  vs.  Powell,  6  Wheaton,  119 924 

Thompson  rs.  Whitman,  18  Wallace,  467 190 

Tioga  Railway  Company  vs.  Blossburg  Railroad,  20  Wallace,  137 159, 190 

Township  of  Elmwood  vs.  Marcy,  2  Otto,  289 190,874 

United  States  rs.  Fareira,  13  Howard,  40 267 

United  States  vs.  Kirby,  7  Wallace,  482, 486 356 

United  States  rs.  LeBaron,  19  Howard 588,631 

Van  Renslaer  rs.  Van  Allen,  Clarke  &  Hall,  73 682 

Vermont  Reports,  volume  20,  p.  473 564 

Vine's  Abridgment,  16,114 548 

Virginia  rs.  West  Virginia,  11  Wall.,  39 973, 1012 

Walker  rs.  Turner,  9  Wheaton,  541 *. 289 

Wallace  Reports 356,967 

Ware  vs.  Hilton,  3  Dallas 394,  413 


INDEX.  1067 

Page. 
Authorities,  citations  of — Continued. 

Warwick,  Gushing,  S.  &  J.,401 632 

Watts,  vol.  1,  page  54 684 

Wells  vs.  Newkirk,  Uohnson's  Cases,  226 '. 289 

Wendell's  Reports,  volumes  3, 10 334,  361 

Wentworth  vs.  Farmington,  49  N.  H.,  120 : 921,940 

West  Boylston,  Gushing,  S.  &  J.,  394 682 

Wheatou,  12,  167,168 967 

Whitman  vs.  Melony,  10  Cal.,  47 541 

Whitton,  Chief  Justice,  4  Wisconsin,  792 905 

Wilcox  vs.  Smith,  5  Wendell,  231 908 

Wilkes  vs.  Lnttrell,  case  of 503 

Wynehamer  vs.  People,  13  X.  Y.,  (3  Kernan,)  392 684 

B. 

Banks,  Nathaniel  P.,  Representative  from  Massachusetts — 

incidental  remarks  by,  in  joint  convention , * 711 

Bayard,  Thomas  F.,  a  Senator  from  Delaware,  member  of  the  Commission — 

appointed  by  the  Senate 6 

sworn  and  certificate  of  oath  filed. 7 

motion  made  by,  that  the  offers  of  proof  submitted  by  Mr.  Cochraue  be 

printed 695 

resolutions  offered  by — 

that  no  person  holding  an  office  of  trust  or  profit  under  the  United  States 
is  eligible  to  be  appointed  an  elector,  and  that  this  Commission  will 
receive  evidence  tending  to  prove  such  ineligibility  as  offered  by 
counsel  for  objectors  to  certificates  1  and  3.  Offered  as  a  substitute 

for  an  order  submitted  by  Mr.  Commissioner  Hoar 418 

that  the  vote  of  W.  H.  Odell  and  the  vote  of  J.  C.  Cartwright,  cast  for 
Rutherford  B.  Hayes,  of  Ohio,  for  President  of  the  United  States, 
and  for  William  A.  Wheeler,  of  New  York,  for  Vice-President  of 
the  United  States,  are  the  votes  provided  for  by  the  Constitution  of 
the  United  States,  and  that  the  aforesaid  Odell  and  Cartwright,  and 
they  only,  were  the  persons  duly  appointed  electors  in  the  State  of 
Oregon  at  the  election  held  November  7,  A.  D.  1876,  there  having 
been  a  failure  at  the  said  election  to  appoint  a  third  elector  in  ac 
cordance  with  the  Constitution  and  laws  of  the  United  States  and 
the  laws  of  the  State  of  Oregon ;  and  that  the  two  votes  aforesaid 
should  be  counted,  and  none  other,  from  the  State  of  Oregon. 
Offered  as  a  substitute  for  a  resolution  offered  by  Mr.  Commissioner 

Edmunds 639 

interlocutory  remarks  and  questions  by,  on  the — 

business  of  the  Commission 220 

Florida  case » 85 

Louisiana  case 230,315,332,339,340,346 

South  Carolina  case 695 

arguments  by,  in  the  consultations  on  the — 

Florida  case 854 

Louisiana  case 876 

Oregon  case 890 

South  Carolina  case 897 

Black,  Jeremiah  S.,  counsel — 

interlocutory  remarks  by,  on  the  Florida  case 79, 82 

arguments  by,  on  the — 

Florida  case 96 

South  Carolina  case 695 

Blair,  Montgomery,  counsel — 

argument  by,  on  the  South  Carolina  case 688 

Bogy,  Lewis  V.,  a  Senator  from  Missouri — 

motion  made  by,  that  the  testimony  submitted  with  the  objections  in  the 

case  of  South  Carolina  be  read 709 

Bout  well,  George  S.,  a  Senator  from  Massachusetts — 

motion  made  by,  to  take  a  recess 198 

Bradley,   Joseph  P.,  an  Associate  Justice  of  the  Supreme  Court,  member  of 
the  Commission — 

selection  of,  pursuant  to  the  act  of  Congress 6 

sworn  and  certificate  of  oath  filed 7 

motions  made  by — 

to  adjourn , , 198 

to  take  a  recess 138 


1068  INDEX. 

Page. 

Bradley,  Joseph  P. — Continued, 
motions  made  by — 

that  the  rules  reported  be  considered  seriatim 7 

that  there  be  two  arguments  in  the  Florida  ease  this  day,  [Saturday,  Feb 
ruary  3,  1877,]  one  on  each  side 87 

that  counsel  may  take  such  time  as  they  desire,  if  any,  from  the  time 
previously  allowed,  four  and  a  half  hours,  and  employ  it  in  the  dis 
cussion  of  the  question  of  the  admissibility  of  the  proofs,  in  addition 

to  the  two  hours  already  allowed «. 321 

interlocutory  remarks  and  questions  by,  on  the — 

business  of  the  Commission 300,321,550 

Florida  case 29,32,40,43,86,87,147,150 

Louisiana  case 222, 225, 249,  281,  312,  325,  329,  331, 337,  379,  380,  381, 

383,  384, 405,  409,  410 

Oregon  case 551,597,617,632,633 

South  Carolina  case 671 

arguments  by,  in  the  consultations  on  the — 

Florida  case 1019 

Louisiana  case 1026 

Oregon  case 1034 

South  Carolina  case 1039 

Briefs  submitted  to  the  Electoral  Commission  by  counsel  in  the  various  cases 

argued  before  it 729-816 

Burnside,  Ambrose  E.,  a  Senator  from  Rhode  Island — 

resolution  offered  by,  that  the  vote  of  William  S.  Slater  be  counted  with  the 
other  votes  of  the  electors  of  Rhode  Island,  notwithstanding  the 
objections  made  thereto 657 

C. 

California,  the  State  of— 
electoral  votes  of,  counted 10 

Cameron,  Angus,  a  Senator  from  Wisconsin — 

resolution  offered  by,  that  the  vote  of  Daniel  L.  Downs  as  an  elector  for  the 
State  of  Wisconsin  be  counted  together  with  the  other  nine  electoral 
votes  of  that  State,  the  objections  made  thereto  to  the  contrary  not 
withstanding  725 

Cameron,  Simon,  a  Senator  from  Pennsylvania — 

resolution  offered  by,  that  the  vote  of  Henry  A.  Boggs  be  counted  with  the 
other  votes  of  the  electors  of  Pennsylvania,  notwithstanding  the  ob 
jections  made  thereto 652 

Campbell,  John  A.,  counsel — 

interlocutory  remarks  by,  on  the  Louisiana  case 261,262,321,420 

argument  by,  on  the  Louisiana  case 394 

Carpenter,  Matt.  H.,  counsel — » 

interlocutory  remarks  by,  on  the  Louisiana  case 262.  340 

argument  by,  on  the  Louisiana  case 263 

Caswell,  Lucien  B.,  a  Representative  from  Wisconsin — 

resolution  offered  "by,  that  the  vote  of  D.  L.  Downs  be  counted  with  the  other 
votes  of  the  electors  of  the  State  of  Wisconsin,  the  objections  thereto 

notwithstanding 726 

Catlin,  B.  E.,  an  assistant  secretary  of  the  Commission — 

appointed,  on  motion  of  President  Clifford 8 

Caulfield,  Bernard  G.,  a  Representative  from  Illinois — 

question  of  privilege  by 718 

appeal  from  the  decision  of  the  Speaker  by 719 

Christiancy,  Isaac  P.,  an  objector  on  the  part  of  the  Senate — 

interlocutory  remarks  by,  on  the  South  Carolina  case 665 

Clark,  John  B.,  jr.,  a  Representative  from  Missouri — 

motion  made  by,  to  reconsider  certain  vote 720 

Clifford,  Nathan,  an  Associate  Justice  of  the  Supreme  Court,  President  of  the 
Commission — 

act  of  Congress  appointing 4 

sworn  and  certificate  of  oath  filed _"  .!...."."."."".".!"..!  7 

rulings  and  remarks  from  the  chair,  by 29,30, 

31,  32,  33,  34,  35,  39,  52,  53,  64,  72,  73,  74, 75,  76, 77,  79,  80, 81,  82,  84, 85,  86,  87,  88, 
%,  101,  108,  109, 113, 136, 137, 139, 140, 141, 142, 143, 144, 145, 147, 153, 163,  164, 
KM,  182, 185, 186, 192, 194, 218, 219,  220, 231,  261, 262.  263,  283,  284,  299,  300,  312, 
113, 314,  315,  316,  317,  319,  320,  321,  322,  332,  335,  339,  340,  355,  364,  372,  394,  414, 
415,  419, 4(54, 465,  466, 488,  496,  523,  549,  550, 551,  552,  553,  554, 581,  598,  599,  600, 
601, 602, 603, 604,  605, 607, 609,  631,  635,  653,  665,  666,  676,  687,  694,  695,  699,  728 


INDEX.  1069 

Page. 

Clifford.  Nathan— Cotinned. 
approval  of  the  proceedings  of  the  last  day's  session  by,  to  be  considered  as 

if  they  were  approved  by  the  Commission 

argument  by,  in  the  consultation  on  the  Florida  case... 1042 

letters  from*,  to  the  President  of  the  Senate — 
transmitting  the  decision  of  the  Commission  in  the  case  of — 

Florida... 197,198 

Louisiana 

Oregon 641,642 

South  Carolina - - 703,704 

communicating  a  resolution  touching  a  vacancy  in  the  Electoral  Commis 
sion  occasioned  by  the  physical  inability  of  Hon.  Allen  G.  Thurman,  a 
Senator  and  a  member  of  said  Commission,  to  proceed  with  its  duties.  653,654 
letters  from,  to  the  Speaker  of  the  House  of  Representatives,  informing  the 
House  that  he  had  transmitted  the  decision  of  the  Commission  in 
•  the  case  of — 

Florida 197,198 

Louisiana 423,424 

Oregon 641,642 

South  Carolina - -  703, 705 

Clymer,  Hiester,  a  Representative  from  Pennsylvania — 
motions  made  by — 

to  take  a  recess 

that  there  be  a  call  of  the  House 655 

order  submitted  by,  that  the  Senate  be  informed  of  the  action  of  this  House  on 
the  electoral  vote  of  the  State  of  Oregon,  and  that  the  House  of  Repre 
sentatives  is  now  ready  to  meet  them  in  joint  convention  in  its  hall.          646 
Cochrane,  Alexander  G.,  an  objector  on  the  part  of  the  House- 
objections  offered  in  joint  convention  by — 

in  the  Louisiana  case : 439 

in  the  South  Carolina  case 

interlocutory  remarks  by,  on  the  South  Carolina  case 678,  679, 699 

argument  by,  on  the  South  Carolina  case 676 

resolution  offered  by,  that  the  objections  to  the  decision  of  the  Electoral 
Commission  upon  the  electoral  vote  of  South  Carolina  be  sustained 

by  the  House,  and  that  said  votes  be  not  counted 710 

Colorado,  the  State  of — 

electoral  votes  of,  counted 10 

Committees  appointed — 

to  devise  a  mode  for  counting  the  electoral  votes,  and  the  settlement  of  all 

questions  connected  therewith 

to  report  rules  of  proceeding ;  which  were  considered,  amended,  and  adopted.  7 

to  consider  the  allowances  to  be  made  to  the  officers  and  persons  who  had 

been  employed  in  the  service  of  the  Commission 723 

to  call  on  Mr.  Commissioner  Thurman  and  inquire  if  he  will  consent  that 
the  Commission  adjourn  to  his  house  for  the  purpose  of  receiving  his 

vote  on  the  question  relating  to  Oregon 638 

Communications  from  the — 

Senate (5,394,654,655 

House - - 

two  Houses 29,217,463,665 

Conkling,  Roscoe,  a  Senator  from  New  York — 

incidental  remarks  by,  in  joint  convention 10 

Connecticut,  the  State  of — 

electoral  votes  of,  counted - 

Conover,  Simon  B.,  an  objector  on  the  part  of  the  Senate 

Cook,  Philip,  a  Representative  from  Georgia — 

appointment  of,  as  a  teller  on  the  part  of  the  House 

Cooper,  Henry,  an  objector  on  the  part  of  the  Senate 30 

Cox,  Samuel  S.,  a  Representative  from  New  York — 

motion  made  by  that  the  appeal  of  Mr.  Representative  Hale  be  laid  on  the  table 
Cragin,  Aaron  H.,  a  Senator  from  New  Hampshire- 
order  submitted  by,  that  the  Secretary  bo  directed  to  inform  the  House  of 
Representatives  that  the  President  of  the  Electoral  Commission  has 
notified  the  Senate  that  the  Commission  has  arrived  at  a  decision  of 
the  questions  submitted  to  it  in  relation  to  the  electoral  votes  of 
South  Carolina,  and  that  the  Senate  is  now  ready  to  meet  the  House 
for  the  purpose  of  laying  before  the  two  Houses  the  report  of  the 
said  decision,  and  to  proceed  with  the  count  of  the  electoral  votes 
for  President  and  Vice-President 704 


1070  INDEX. 

D. 

Delaware,  the  State  of—  Page- 
electoral  votes  of,  counted 

Duunell,  Mark  H.,  an  objector  on  the  part  of  the  House 

E. 

Eames,  Benjamin  T.,  a  Representative  from  Rhode  Island- 
resolution  offered  by,  that  the  vote  of  William  S.  Slater  as  au  elector  for  the 
State  of  Rhode  Island  be  counted,  the  objection  thereto  to  the  con 
trary  notwithstanding 608 

Edmunds,  George  F.,  a  Senator  from  Vermont,  member  of  the  Commission — 

appointed  by  the  Senate 

sworn  and  certificate  of  oath  filed 7 

motions  made  by — 

that  the  Senate  proceed  to  the  House  of  Representatives 

to  adiourn 32,33,74,202,653 

to  take  a  recess 194, 196, 263,  322,  465,  523,  549,  653,  655 

that  the  motion  of  Mr.  Commissioner  Abbott  be  for  the  time  being  laid 

upon  the  table 31 

that  the  Secretary  of  the  Commission  be  directed  to  prepare  and  have 
printed  on  slips  the  names  of  the  members  of  the  Commission  in 
alphabetical  order  for  the  purpose  of  being  used  in  taking  the  votes.  33 

that  after  six  o'clock  p.  m.  each  Commissioner  be  allowed  to  speak  but 
once,  arid  not  longer  than  five  minutes 

that  those  who  offer  the  proof  shall  have  the  opening  and  the  close 

that  one  copy  of  each  set  of  the  papers  in  the  case  of  Oregon  be  read 464 

that  the  Commission  grant  subposnas  for  the  witnesses  named,  and  also  au 

order  for  the  papers  called  for  from  the  Post-Office  Department....  465 

that  the  Commission  proceed  with  the  case  of  Oregon  at  seven  o'clock  in 
the  Senate  Chamber,  and  that  counsel  have  three  and  a  half  hours 
for  argument  on  the  whole  case 552 

that  a  letter  from  Mr.  Commissioner  Thurman  be  placed  on  file 653 

that  the  public  proceedings  of  the  Commission  be  considered  closed 699 

orders  submitted  by — 

that  Commissioners  Abbott  and  Hoar  be  a  committee  to  consider  and  re 
port  whether  certain  papers  referred  to  in  the  objections  of  C.  W. 
Jones  and  others  ought  to  be  printed  for  use  of  the  Commission 

that  the  decision  and  report  submitted  by  the  committee  appointed  to  pre 
pare  it  be  adopted  as  the  filial  decision  and  report  in  the  matters  sub 
mitted  to  the  Commission  as  to  the  electoral  vote  of  the  State  of 
Florida 196 

that  the  President  inform  the  Senate  by  letter  that  the  Commission  has 
considered  and  decided  upon  the  matter  submitted  to  it,  under  the 
act  of  Congress  concerning  the  same,  touching  the  electoral  votes 
.  from  the  State  of  Florida,  and  transmit  the  same 197 

that  the  President  inform  the  House  of  Representatives  by  letter  that  the 
Commission  has  considered  and  decided  upon  the  matters  submitted 
to  it,  under  the  act  of  Congress  concerning  the  same,  touching  the 
electoral  votes  from  the  State  of  Florida,  and  has  transmitted  said 
decision  to  the  President  of  the  Senate,  and  transmit  the  same -  197 

that  counsel  now  be  heard  on  the  whole  subject  as  the  case  now  stands, 
and  that  four  hours  on  a  side  be  allowed.  Submitted  as  a  substitute 
for  motion  of  Mr.  Commissioner  Strong 314 

that  the  decision  and  report  submitted  by  the  committee  appointed  to  pre 
pare  it,  be  adopted  as  the  final  decision  and  report  in  the  matters^ 
submitted  to  the  Commission  as  to  the  electoral  vote  of  the  State  of 
Oregon 640 

that  the  President  inform  the  Senate  by  letter  that  the  Commission  has 
considered  and  decided  upon  the  matters  submitted  to  it  under  the 
act  of  Congress  concerning  the  same,  touching  the  electoral  votes 

from  the  State  of  Oregon,  and  transmit  the  same 641 

that  the  President  inform  the  House  of  Representatives  by  letter  that  the 
Commission  has  considered  and  decided  Tipon  the  matters  submitted 
to  it,  under  the  act  of  Congress  concerning  the  same,  touching  the 
electoral  votes  from  the  State  of  Oregon,  and  has  transmitted  said 

decision  to  the  President  of  the  Senate,  and  transmit  the  same 642 

that  the  President  of  the  Commission  inform  the  Senate  by  letter  that 
there  is  a  vacancy  therein,  occasioned  by  the  physical  inability  of 
Hon.  Allen  G.  Thurman,  a  Senator  and  a  member  of  said  Commis 
sion,  to  proceed  with  its  duties 653 


INDEX.  1071 

Page. 

Edmunds,  George  F. — Continued, 
motions  made  by — 
that  a  vote  on  the  question  pending  in  the  case  of  South  Carolina  be  taken 

by  six  o'clock  p.  m.  on  Tuesday,  February  27,  1877 700 

point  of  order  raised  by — 

that,  the  two  Houses  having  separated  to  consider  objections  made  to  the 
decision  of  the  Electoral  Comrnisson  as  to  what  votes  returned  from 
the  State  of  South  Carolina  were  the  votes  provided  for  by  the  Con 
stitution  of  the  United  States,  it  was  not  competent  for  the  Senate, 
under  the  provisions  of  the  electoral  law,  to  consider  any  question 
or  resolution  which  did  not  order  a  concurrence  or  non-concurrence 
with  such  decision,  and  hence  the  resolution  of  Mr.  Senator  Merrimon 

was  not  in  order 708 

resolutions  offered  by — 
that  the  decision  of  the  Commission  in  the  case  of  Florida,  as  submitted, 

be  adopted 195 

that  the  certificate  signed  by  E.  A.  Cronin,  J.  N.  T.  Miller,  and  John 
Parker,  purporting  to  cast  the  electoral  votes  of  the  State  of  Oregon, 
does  not  contain  nor  certify  the  constitutional  votes  to  which  the 

State  is  entitled 637 

that  the  President  of  the  Commission  inform  the  Senate  that  Hon.  Allen 
G.  Thurman,  a  member  of  this  Commission,  is  physically  unable  to 
perform  his  duties  as  a  Commissioner,  that  the  vacancy  so  created 

be  filled 653 

that  the  vote  of  Heary  N.  Sollace  as  an  elector  for  the  State  of  Vermont 
be  counted  together  with  the  other  four  electoral  votes  of  that  State, 

the  objections  to  the  contrary  not  withstanding 717 

interlocutory  remarks  and  questions  by,  on  the — 

business  of  the  Commission 33,219,263,284,300,312,313,314 

322, 371, 523, 549,  550, 552,  666 

Florida  case 30,  3D,  51,  53,  60, 69,  73, 75,  85,  88,  94, 150, 189, 191, 192 

Louisiana  case  251,278,279,284,313,314,318,325,330 

331 ,  335,  340, 364, 379, 404, 409, 410, 414 

Oregon  case 464,  465,  482, 486,  527, 554,  571,  578,  592,  601,  633,  634 

South  Carolina  case    665,692,694,699 

Electoral  votes,  proceedings  in  counting  the — 

two  Houses  assemble,  and  count  of  the,  commenced 

State  of  Florida  reached  arid  objections  presented 11-28 

objections  submitted  to  the  Electoral  Commission 

decision  of  the  Commission..., 199 

objections  to  the  decision 200 

action  of  the  Senate  thereon 202 

action  of  the  House  thereon  : 202,203 

result  announced ;-•  203 

State  of  Louisiana  reached,  and  objections  presented 205-217 

objections  submitted  to  the  Commission 217 

decision  of  the  Commission 425 

objections  to  the  decision ..r 426-440 

action  of  the  Senate  thereon 440,  441 

action  of  the  House  thereon 441 

result  announced 442 

State  of  Michigan  reached,  and  objections  presented 442-444 

action  of  the  Senate  thereon „ 444 

action  of  the  House  thereon 445 

result  announced '        446 

State  of  Nevada  reached,  arid  objections  presented ^ .   446-452 

action  of  the  Senate  thereon 453 

action  of  the  House  thereon '. 454 

result  announced 454 

State  of  Oregon  reached,  and  objections  presented 455-463 

objections  submitted  to  the  Commission 463 

decision  of  the  Commission 643 

objections  to  the  decision 644, 645 

action  of  the  Senate  thereon 645 

action  of  the  House  thereon '. 646 

result  announced 647 

State  of  Pennsylvania  reached,  and  objections  presented 647-652 

action  of  the  Senate  thereon 752 

action  of  the  House  thereon 655 

result  announced..  656 


1072  INDEX. 

Page. 
Electoral  votes,  proceedings  iu  counting  the — Continued. 

State  of  Rhode  Island  reached,  and  objections  presented  656 

action. of  the  Senate  thereon 657 

action  of  the  House  thereon 658 

result  announced 659 

State  of  South  Carolina  reached,  and  objections  presented  659-664 

objections  submitted  to  the  C  ominission 665 

decision  of  the  Commission —  - 

objections  to  the  decision 700,707,  708 

action  of  the  Senate  thereon 708, 709 

action  of  the  House  thereon 709, 710 

result  announced 

State  of  Vermont  reached,  and  objections  presented 711-717 

action  of  the  Senate  thereon 717 

action  of  the  House  thereon 717-72 1 

result  announced 721 

State  of  Wisconsin  reached,  and  obj ections  presented 722, 725 

action  of  the  Senate  thereon 725 

action  of  the  House  thereon 725 

result  announced 726 

count  of  the,  concluded  and  the  result  announced 726-728 

Kvarts,  William  M.,  counsel — 

interlocutory  remarks  by,  on  the — 
Florida  case,  30,  31,  73,  75,  77,  79,  80,  81,  86,  87,  88,  101,  103,  109,  136,  137,  140,  141, 

142,  143,  144,  191. 

Louisiana  case,  220,  261,  279,  299,  301,  312,  314,  316,  320,  321,  322.  339,  340,  357,  371, 
412,  413,  414,  415,  420. 

Oregon  case 549,  599,  600,  601,  602,  603,  604,  605,  606,  636,  637 

arguments  by,  on  the — 

Florida  case 49, 113 

Louisiana  case 372 

Oregon  case 609 


Ferry,  T.  W.,  President  of  the  Senate- 
communication  by,  on  the — 

Florida  case 29 

Louisiana  case 217 

Oregon  case 463 

South  Carolina  case 665 

communication  from,  announcing  the  appointment  of  Hon.  Francis  Kernan 
to  fill  the  vacancy  in  the  Commission  created  by  the  inability  of 
Hon.  Allen  G.  Thurman  to  perform  the  duties  required  by  the  act  of 

Congress  establishing  the  said  Commission 654 

rulings  and  remarks  by,  as  presiding  officer  of  the  joint  convention  of  the 

two  Houses,  9,  10,  11,  12,  13,  24,  26,  27,  28,  199,  200,  201,  203,  204,  205,  207, 
209,  212,  215,  216,  217,  425,  426,  439,  440,  441,  442,  444,  445,  446,  452,  454,  455, 
459,  460,  461,  462,  463,  643,  644,  645,  646,  647,  652,  554,  656,  657,  659,  660,  662, 
663,  664,  665,  705,  706,  707,  708,  710,  711,  712,  713,  714,  715,  716,  717,  721,  725, 
726,  727,  728. 
Field,  David  Dudley,  an  objector  on  the  part  of  the  House — 

objections  offered  in  joint  convention  by,  in  the  Florida  case 24,  200,  203 

interlocutory  remarks  by,  on  the — 

Florida  case , 29,  30,  31,  32,  33,  34,  35, 52, 61 

Louisiana  case „ 218 

^argument  by,  on  the  Florida  case 35 

Field,  Stephen  J.,  an  associate  justice  of  the  Supreme  Court,  member  of  the 
Commission — 

act  of  Congress  appointing 4 

sworn  and  certificate  of  oath  filed 7 

motions  made  by— 

to  adjourn 218,415 

that  the  certificates  in  the  case  of  .Louisiana,  and  papers  accompanying 

the  same,  and  the  objections  thereto,  be  printed 218 

orders  submitted  by — 

that  the  injunction  of  secrecy  be  removed  from  the  proceedings  of  the  Com 
mission  419 


INDEX.  1073 

Page. 

Field,  Stephen  J. — Continued, 
resolutions  offered  by — 

that  in  the  opinion  of  the  Commission  evidence  is  admissible  upon  the  sev 
eral  matters  which  counsel  for  the  objectors  to  certificates  Nos.  1 
and  3  offered  to  prove.  Offered  as  a  substitute  for  an  order  sub* 

initted  by  Mr.  Commissioner  Hoar 418 

that  whereas  at  the  election  held  on  the  7th  of  November,  1876,  in  the  State 
of  Oregon,  for  electors  of  President  and  Vice-President,  W.  H.  Odell, 
J.  W.  Watts,  and  John  C.  Cartwright  received  the  highest  number 
of  votes  cast  for  electors,  but  the  said  Watts,  then  holding  an  office 
of  trust  and  profit  under  the  United  States,  was  ineligible  to  the 
office  of  elector :  therefore,  Resolved,  That  the  said  Odell  and  Cart- 
wright  were  the  only  persons  duly  elected  at  said  election,  and  there 
was  a  failure  on  the  part  of  the  State  to  appoint  a  third  elector. 
Offered  as  a  substitute  for  a  resolution  offered  by  Mr.  Commissioner 

Edmunds 633 

that  whereas  the  legislature  of  Oregon  has  made  no  provision  for  the  appoint 
ment  of  an  elector  under  the  act  of  Congress  where  there  was  a  fail 
ure  to  make  a  choice  on  the  day  prescribed  by  law :  therefore,  Re 
solved,  That  the  attempted  election  of  a  third  elector  by  the  two 
persons  chosen  was  inoperative  and  void.  Offered  as  a  substitute  for 

a  resolution  offered  by  Mr.  Commissioner  Edmunds 639 

that  evidence  is  admissible  to  show  that  prior  to  and  during  the  election  on 
the  7th  day  of  November,  1876,  in  the  State  of  South  Carolina,  there 
were  unlawfully  stationed  in  various  parts  of  the  State  at  or  near 
the  polling-places  detachments  of  troops  of  the  Army  of  the  United 
States,  by  whose  presence  and  interference  qualified  voters  of  the 
State  were  deprived  of  the  right  of  suffrage,  and  a  free  choice  by  the 
people  of  presidential  electors  was  prevented:  Resolved,  That  evi 
dence  is  admissible  to  show  that  at  the  election  on  the  7th  day  of 
November,  1876,  in  South  Carolina,  there  were  stationed  at  the  sev 
eral  polling-places  in  the  State  deputy  marshals  of  the  United  States 
exceeding  one  thousand  in  number,  by  whose  unlawful  action  and 
interference,  under  orders  from  the  Department  of  Justice,  qualified 
voters  of  the  State  were  deprived  of  the  right  of  suffrage,  and  a  free 
choice  by  the  people  of  presidential  electors  was  prevented.  Offered 
as  a  substitute  for  a  resolution  offered  by  Mr.  Commissioner  Morton . .  700 

that  whereas  J.  W.  Watts,  designated  in  certificate  No.  1  as  an  elector  of 
the  State  of  Oregon  for  President  and  Vice-President,  on  the  day  of 
election,  namely,  the  7th  of  November,  1877,  held  an  office  of  trust 
and  profit  under  the  United  States :  therefore,  Resolved,  That  the 
said  J.  W.  Watts  was  then  ineligible  to  the  office  of  elector  within 
the  express  terms  of  the  Constitution.  Offered  as  a  substitute  for 

a  resolution  offered  by  Mr.  Commissioner  Edmunds 638 

interlocutory  remarks  and  questions  by,  on  the — 

business  of  the  Commission 218,  263,  284 

Florida  case * 29,  85 

Louisiana  case 218 

arguments,  by,  in  the  consultations  on  the— 

Florida  case ^ r 974 

Oregon  case 988 

Final  result  of  the  electoral  vote,  announcement  of  the 727 

Florida,  the  case  of— 

submitted  to  the  Electoral  Commission 29 

decision  on,  by  the  Electoral  Commission 195, 197, 199 

certificates  and  objections  referred  to  the  Electoral  Commission  in 11-28 

Frelinghuysen,  Frederick  T.,  a  Senator  from  New  Jersey,  member  of  the  Com 
mission — 

appointed  by  the  Senate 

sworn  and  certificate  of  oath  filed v 

motions  made  by — 

to  adjourn 

that  Commissioners  Miller,  Hoar,  and  Bradley  be  the  committee  appointed 

to  prepare  the  report  of  the  Commission  in  the  Louisiana  case 421 

order  submitted  by,  that  at  eleven  o'clock  a.  in.,  the  hour  designated  by  the 
order  of  the  5th  instant  requiring  an  open  session,  the  doors  be 
considered  as  open,  and  the  Commission  at  once  adjourn  the  same 

for  deliberation 138 

68  E  C 


1074 

Page. 

Frelinghuvsen,  Frederick  T.— Continued. 

resolution  ottered  by,  that  Theodore  K.  Barker,  fe.  McGowan,  James  W.Har- 
riagton,  John  Isaac  Ingram,  William  Wallace,  John  B.  Erwin,  and 
Robert  Aldrich,  the  persons  named  as  electors  in  certificate  No.  2, 
were  not -the  lawful  electors  for  the  State  of  South  Corolina,  and 
That  their  votes  are  not  the  votes  provided  for  by  the  Constitution 

of  the  United  States,  and  should  not  be  counted 701 

interlocutory  remarks  and  questions  by,  on  the — 

business  of  the  Commission 33, 66t 

Louisiana  case 315,384 

Oregon  case - 

argument  by,  and  opinion  of,  in  consultation 

Gh 

Garfield,  James  A.,  a  Representative  from  Ohio,  member  of  the  Commission— 

appointed  by  the  House .  .  -  - 7 

sworn  and  certificate  of  oath  filed - 

motions  made  by— 

to  adjourn 42,3,  642, 704 

to  take  a  recess 453 

that  the  committee  on  rules  be  directed  to  report  rules  to  regulate  the  or 
der  of  business  of  the  Commission 

that  the  motion  of  Mr.  Commissioner  Abbott  be  amended  by  striking  out 

"six"  and  inserting  "four" - 262 

that  Commissioners  Edmunds,  Bradley,  and  Miller  be  the  committee  ap 
pointed  to  prepare  the  report  of  the  Commission  in  the  Louisiana 

case - .--•-.-••          421 

that  counsel  in  the  case  of  Oregon  be  granted  ten  minutes  more  in  view 

of  interruptions 635 

that  the  public  session  of  the  Commission  be  closed,  and  that  they  go  into 

consultation 637 

resolutions  offered  by — 

that  the  four  persons,  to  wit,  Frederick  C.  Humphreys,  Charles  H.  P.earce, 
William  A.  Holden,  and  Thomas  W.  Long  were  duly  appointed 
electors  of  President  and  Vice-President  for  the  State  of  Florida,  and 
that  the  votes  cast  by  the  aforesaid  four  persons  are  the  votes  pro 
vided  for  by  the  Constitution  of  the  United  States 195 

that  Mr.  Edmunds,  Mr.  Bradley,  and  Mr.  Miller  be  appointed  a  committee 
to  draft  a  report  of  the  action  of  the  Commission,  as  required  by 

law.....'..... ! 196 

interlocutory  remarks  and  questions  by,  on  the — 

business  of  the  Commission 194,  372,  419,  523,  600,  603, 635,  637,  666 

Florida  case 32,60,84,186 

Louisiana  case 219,  270,  279, 285,  319,  320, 332, 347, 380 

Oregon  case 472,495,553,567,595,598,600,635 

South  Carolina  case 689 

arguments  by,  in  the  consultations  on  the — 

Florida  case 

Louisiana  case j 966 

Georgia,  the  State  of— 

electotal  votes  of,  counted 204 

Gibson,  Randall  L.,  a  Representative  from  Louisiana — 

objections  offered  in  joint  convention  by,  in  the  Louisiana  case 215,  426 

Gorham,  George  C.,  Secretary  of  the  Senate — 
communications  from  the  two  Houses  in  joint  session,  presented  by.. 29,  217,  463,  665 

communications  from  the  Senate  presented  by 425,  642 

Green,  Ashbel,  counsel — 

interlocutory  remarks  by,  on  the — 

Florida  case 1 140,141,142,193 

Oregon  case 607,608,609 

argument  by,  on  the  Florida  case 155 

brief  submitted  by,  in  the  Florida  case 729 

H. 

Kale,  Eugene,  a  Representative  from  Maine — 

appeal  from  decision  of  the  Speaker,  by 200 

iiiotion  made  by,  that  a  motion  to  reconsider  certain  vote  be  laid  on  the 

table ..  718,720 


INDEX.  1075 

Page. 
Hale,  Eugene — Continued. 

order  submitted  by,  that  the  count  of  the  electoral  vote  of  the  State  of 
Oregon  shall  proceed  in  conformity  with  the  decision  of  the  Electoral 

Commission 646 

points  of  order  raised  by 444,  643 

resolution  offered  by,  that  the  Clerk  of  the  House  notify  the  Senate  that  the 
House  of  Representatives  is  now  in  session  and  ready  to  meet  the 
Senate  in  the  hall  for  further  proceedings  under  the  provisions  of 
the  act  to  provide  for  and  regulate  the  counting  of  votes  for  Presi 
dent  and  Vice-President 199 

Hamlin,  Hannibal,  a  Senator  from  Maine — 

orders  submitted  by,  that  the  Secretary  notify  the  House  of  Representatives 
of  the  decision  of  the  Senate,  and  that  the  Senate  is  now  ready  to 
meet  the  House  to  continue  the  count  of  the  electoral  votes  for  Pres 
ident  and  Vice-President 440,  453 

resolutions  offered  by — 

that  the  Secretary  be  directed  to  inform  the  House  of  Representatives  that 
the  President  of  the  Electoral  Commission  has  notified  the  Senate 
that  the  Commission  has  arrived  at  a  decision  of  the  question  sub 
mitted  to  them  in  relation  to  the  electoral  votes  of  the  State  of  Flor 
ida  ;  and  that  the  Senate  is  now  ready  to  meet  the  House  to  receive  . 
the  same,  and  to  proceed  with  the  count  of  the  electoral  vote  for  Pres 
ident  and  Vice-President 198 

that  the  Secretary  be  directed  to  inform  the  House  of  Representatives  that 
the  President  of  the  Electoral  Commission  has  notified  the  Senate 
that  the  Commission  has  arrived  at  a  decision  of  the  question  sub 
mitted  to  them  in  relation  to  the  electoral  vote  of  the  State  of 
Louisiana  ;  and  that  the  Senate  is  now  ready  to  meet  the  House  to 
receive  the  same  and  to  proceed  with  the  count  of  the  electoral  vote 

for  President  and  Vice-President 424 

Hancock,  John,  a  Representative  from  Texas- 
point  of  order  raised  by 646 

Hewitt,  Abram  S.,  a  Representative  from  New  York — 
remarks  by,  on  tendering  certain  package  said  to  contain  electoral  votes  from 

the  State  of  Vermont,  to  the  Presiding  Officer 712 

Hoadley,  George,  counsel — 
interlocutory  remarks  by,  on  the — 

Florida  case 144 

Louisiana  case - 412,  413 

Oregon  case 523,  527,549,  550,  C51,  555,  556,  622 

arguments  by,  on  the —   • 

Florida  case 145 

Oregon  case 555 

brief  submitted  by,  in  the  Oregon  case ,...       x  778 

Hoar,  George  F.,  a  Representative  from  Massachusetts,  member  of  the  Com 
mission — 

appointed  by  the  House 7 

sworn  and  certificate  of  oath  filed 7 

motions  made  by —     • 

to  take  a  recess 217,421,653 

that  the  President  of  the  Commission  be  requested,  on  consultation  with 
Commissioners  Edmunds  and  Payne,  to  nominate  officers  to  the 

Commission 8 

that  the  Secretary  have  printed  for  the  use  of  the  Commission  such  laws 

as  may  be  directed  by  the  President  of  the  Commission 33 

that  counsel  be  now  heard  for  two  hours  on  each  side  upon  thje  effect  of 
.     the  matters  laid  before  the  two  Houses  by  the  President  of  the  Sen 
ate,  and  of  the  -offer  of  testimony  made  by  Mr.  O'Conor  and  objected 
to  by  Mr.  Evarts.    Submitted  as  a  substitute  for  an  order  of  Mr.  Com 
missioner  Miller 85 

that  the  Commission  go  into  consultation 420 

that  counsel  be  permitted  to  offer  proof  in  the  case  of  Oregon  before  the 

question  of  an  extension  of  time  is  decided 550 

that  in  arguing  the  question  of  admissibility  of  evidence,  counsel  be  per 
mitted  to  take,  in  addition  to  the  fifteen  minutes  allowed  by  the 

rule,  as  much  of  the  time  remaining  to  them  as  they  see  fit... ". 554 

that  the  vote  on  the  question  of  the  admission  of  testimony  in  the  case  of 
Louisiana  be  taken  at  four  o'clock  p.  m.,  on  Friday,  February  16, 
1^77 415 


1076  INDEX. 

Page. 

Hoar,  George  F.— Continued, 
orders  submitted  by — 

that  no  action  be  taken  by  the  committee  referred  to  in  the  resolution  of 
Mr.  Commissioner  Edmunds  until  the  next  meeting  of  the  Commis 
sion  for  consultation 

that  the-  proceedings  of  the  session  of  Wednesday,  February  7,  1877,  as 
entered  in  the  Journal,  be  read  by  the  Secretary  at  the  public  ses 
sion  of  the  Commission  on  the  following  day 139 

that  the  evidence  offered  in  the  case  of  Louisiana  be  not  received 416 

that  the  Commission  now  proceed  to  the  house  of  Mr.  Commissioner  Thur- 

man,  there  to  go  on  with  the  case  now  before  it 638 

that  the  Secretary  notify  counsel  to  be  present  at  four  o'clock  and  fifteen 
minutes  p.  in.  Friday,  February  16, 1877,  to  proceed  under  the  direc 
tion  of  the  Commission 416 

resolutions  offered  by — 
that  the  President  appoint  a  temporary  clerk  until  the  committee  on  rules 

report 

that  the  proceedings  of  the  Commission,  until  otherwise  ordered,  be  con 
sidered  confidential,  except  as  to  the  fact  of  the  organization 

that  Senators  Bayard  and  Frelinghuysen  be  a  committee  to  call  at  once 
on  Mr.  Commissioner  Thurman  to  learn  if  he  will  consent  that  the 
Commission  adjourn  to  his  house  for  the  purpose  of  receiving  his 

vote  on  the  question  relating  to  Oregon 638 

interlocutory  remarks  and  questions  by,  on  the— 

business  of  the  Commission 262,284,419,523 

Florida  case 49,  £0,  81, 85,  87, 137, 176, 185 

Louisiana  case 249, 250, 270,  276;  279,  319,  336,  350,  357,  368,  409,  419 

Oregon  case 465,  491,  549,  550,  553,  554,  572, 577,  630,  632 

South  Carolina  case 665, 668,  679 

argument  by,  in  the  consultations  on  the  Florida  case 955 

Hopkins,  James  H.,  a  Representative  from  Pennsylvania — 
resolution  offered  by — 

that  this  House  requires  that  the  package  tendered  by  the  member  from 
New  York  (Mr.  Hewitt)  to  the  President  of  the  Senate  in  the  pres 
ence  of  the  two  Houses  on  yesterday,  and  purporting  to  be  a  cer 
tificate  of  the  electoral  votes  for  President  and  Vice-President  of  the 
United  States  in  the  State  of  Vermont,  shall  be  opened  by  the  Presi 
dent  of  the  Senate  in  the  presence  of  the  two  Houses ;  and,  if  found 
to  be  such  a  certificate,  the  same  shall  be  submitted,  together  with 
the  certificate  read  in  the  presence  of  the  two  Houses,  to  the  Elect 
oral  Commission  for  its  judgment  and  decision  ;  and  that  the  Sen 
ate  be  requested  to  make  a  like  order  requiring  the  President  of 
the  Senate  to  open  said  package  in  the  presence  of  the  two  Houses  719 
Howard,  George  A.,  an  assistant  secretary  of  the  Commission — 

appointed1  on  motion  of  President  Clifford 8 

Howe,  Timothy  O.,  an  objector  on  the  part  of  the  Senate — 

objection  offered  in  joint  convention  by,  in  the  Louisiana  case 216 

argument  by,  in  the  Louisiana  case 252 

Humphreys,  Frederick  C.,  a  witness — 

examination  of,  in  the  Florida  case 143, 144 

Hunton,  Eppa,  a  Representative  from  Virginia,  member  of  the  Commission — 

appointed  by  the  House 7 

sworn  and  certificate  of  oath  filed 7 

motions  made  by — 

to  adjourn 416,  637,  66t> 

to  take  a  recess 416 

that  the  papers  referred  to  the  Commission  in  the  case  of  South  Carolina 

be  printed 665 

that  a  stenographer  be  allowed  to  attend  the  secret  sessions  of  the  Com 
mission  l 416 

resolutions  offered  by  — 

that  the  electors  named  in  certificate  No.  2,  to  wit,  Wilkinson  Call,  J.  E. 
Yonge,  Robert  Bullock,  and  Robert  B.  Hilton,  are  the  four  persons  who 
were  duly  appointed  electors  by  the  State  of  Florida  on  the  7th  day 
of  November,  1876,  and  that  their  votes  as.certified  in  such  certifi 
cate  are  the  votes  provided  for  by  the  Constitution  of  the  United 
States.  Offered  as  a  substitute  for  the  resolution  of  Mr.  Commis 
sioner  Edmunds..  195 


INDEX.  1077 

Page. 

Hunton,  Eppa— Continued, 
resolutions  offered  by — 

that  evidence  be  received  to  prove  that  the  votes  cast  and  given  at  said 
election  on  the  7th  of  November  last  for  the  election  of  electors,  as 
shown  by  the  returns  made  by  the  commissioners  of  elections  from 
the  several  polls  or  voting-places  in  said  State  have  never  been  com 
piled  or  canvassed,  and  that  the  said  returning-board  never  even 
pretended  to  compile  or  canvass  the  returns  made  by  said  commis 
sioners  of  election,  but  that  the  said  returning-board  only  pretended 
to  canvass  the  returns  made  by  said  supervisors.  Offered  as  a  sub 
stitute  for  an  order  submitted  by  Mr.  Commissioner  Hoar 418 

that  the  votes  purporting  to  be  the  electoral  votes  of  the  State  of  Louisi 
ana  be  not  counted.  Offered  as  an  amendment  to  a  resolution  offered 

by  Mr.  Commissioner  Morton 421 

that  the  resolution  of  Mr.  Commissioner  Morton  be  amended  by  striking 

out  the  name  of  John  W.  Watts 639 

interlocutory  remarks  and  questions  by,  on  the — 

business  of  the  Commission 523, 666 

Florida  case 87 

Louisiana  case 230,231,338,350 

South  Carolina  case 665,687,688 

arguments  by,  in  the  consultations  on  the — 

Florida  case 901 

Louisiana  case 912 

Oregon  case 926 

South  Carolina  case 929 

Kurd,  Frank  11.,  an  objector  on  the  part  of  the  House — 

interlocutory  remarks  by,  on  the  South  Carolina  case 665 

argument  by,  on  the  South  Carolina  case 666 

Hurlbut,  Stephen  A.,  an  objector  on  the  part  of  the  House — 
argument  by,  on  the  Louisiana  case 243 

I. 

Ingalls,  John  J.,  a  Senator  from  Kansas — 

appointment  of,  as  a  teller  on  the  part  of  the  Senate 9 

Illinois,  the  State  of— 

electoral  votes  of,  counted 204 

Indiana,  the  State  of — 

electoral  votes  of,  counted 204 

Iowa,  the  State  of — 

electoral  votes  of,  counted 204 

J. 

Jenks,  George  A.,  an  objector  on  the  part  of  the  House — 

interlocutory  remarks  by,  on  the  Louisiana  case 231 

argument  by,  on  the — 

Louisiana  case 231 

Oregon  case 476 

resolution  offered  by,  that  the  vote  of  Daniel  L.  Grossman,  an  elector  of  the 

State  of  Michigan,  be  counted 445 

Joint  meeting  of  the  two  Houses. 9, 199,  203,  425,  441,  445, 454,  643,  646, 656,  658, 705, 710, 

721,726 
Jones,  Charles  W.,  an  objector  on  the  part  of  the  Senate — 

objections  offered  in  joint  convention  by,  in  the  Florida  case 28 

Jones,  John  P.,  a  Senator  from  Nevada — 

resolution  offered  by,  that  the  vote  of  R.  M.  Daggett  be  counted  with  the 
other  votes  of  the  electors  of  Nevada,  notwithstanding  the  objec 
tions  made  thereto 453 

Jones,  Thomas  W.,  a  Representative  from  Kentucky — 
resolution  offered  by,  that  the  decision  of  the  Electoral  Commission  upon  the 

electoral  vote  of  South  Carolina  be  not  concurred  in  by  this  House..  710 

incidental  remarks  by,  in  joint  convention .* 711 

Journal  of  the  Commission  read  and  approved,  29,  34, 74, 113, 138, 139, 194, 217,  219, 284, 

372,  453,  463,  581,  637, 653, 723 
K. 
Kansas,  the  State  of— 

electoral  votes  of,  counted 204 

Kasson,  John  A.,  an  objector  on  the  part  of  the  House — 

objections  offered  in  joint  convention  by,  in  the  Florida  case 27 

points  of  order  raised  by 1 424,712 


1078  INDEX. 

Page. 
Kassou,  John  A.— Continued. 

interlocutory  remarks  by,  on  the  Florida  case 34,  52,  53, 73 

argument  by,  on  the  Florida  case 54 

Kelly,  James  K.,  an  objector  on  the  part  of  the  Senate — 

objections  offered  in  joint  convention  by,  in  the  case  of  Oregon 461,  644 

interlocutory  remarks  by,  on  the  Oregon  case 484,  465 

argument  by,  on  the  Oregon  case 466 

Kelley,  William  D.,  Representative  from  Pennsylvania — 

resolution  offered  by,  that  the  vote  of  Henry  A.  Boggs  be  counted  as  an 
elector  for  the  State  of  Pennsylvania,  the  objections  to  the  contrary 

notwithstanding 655 

Kentucky,  the  State  of— 

electoral  vote  of,  counted 204 

Kernan,  Francis,  a  Senator  from  New  York,  member  of  the  Commission — 

appointed  by  the  Senate  to  fill  the  vacancy  in  the  Commission  created  by 

the  inability  of  Hon.  Allen  G.  Thurman 655 

sworn  and  certificate  of  oath  filed 655 

Knett,  J.  Proctor,  a  Representative  from  Kentucky — 

order  submitted  by,  that  the  Clerk  of  this  House  notify  the  Senate  of  the 
decision  of  the  House  in  the  case  of  the  State  of  Rhode  Island,  and 
that  the  House  of  Representatives  will  meet  the  Senate  in  this  hall 
at  ten  o'clock  to-morrow  morning  to  proceed  with  the  counting  of 
the  electoral  vote  for  President  and  Vice-President  of  the  United 
States C58 

resolution  offered  by,  that  this  House  require  that  the  package  tendered  by 
the  member  from  New  York  (Mr.  Hewitt)  to  the  President  of  the 
Senate  in  the  presence  of  the  two  Houses  on  yesterday,  and  pur 
porting  to  be  a  certificate  of  the  electoral  vote  for  the  President 
and  Vice-President  of  the  United  States  in  the  State  of  Vermont, 
shall  be  opened  by  the  President  of  the  Senate  in  the  presence  of 
the  two  Houses,  and  if  found  to  be  such  a  certificate,  the  same  shall 
be  submitted,  together  with  the  certificate  read  in  the  presence  of 
the  two  Houses,  to  the  Electoral  Commission  for  its  judgment  and 
decision,  and  that  the  Senate  be  requested  to  make  a  like  order,  re 
quiring  the  President  of  the  Senate  to  open  said  package  in  the 
presence  of  the  two  Houses ;  and  until  such  order  be  made  the  House 
will  not  be  ready  to  meet  the  Senate  to  proceed  with  the  count  of 
the  electoral  vote 719 

L. 

Laniar,  Lucius  Q.  C.,  a  Representative  from  Mississippi — 

motion  made  by,  to  take  a  recess 425 

resolution  offered  by,  that  the  Clerk  of  the  House  notify  the  Senate  that  the 
House  of  Representatives  will  be  prepared  at  eleven  o'clock  a.  m.  on 
Monday  to  receive  the  Senate  in  the  hall  for  the  purpose  of  proceed 
ing  under  the  provisions  of  the  act  to  provide  for  and  regulate  the 

counting  the  votes  for  President  and  Vice-President .. 424 

Lane,  Lafayette,  a  Representative  from  Oregon — 

motion  made  by,  to  reconsider  certain  vote 719 

order  submitted  by,  that  the  vote  purporting  to  be  an  electoral  vote  for  Pres 
ident  and  Vice-President,  and  which  was  given  by  one  J.  \V.  Watts, 
claiming  to  be  an  elector  for  the  State  of  Oregon,  be  not  counted. . .  646 

incidental  remarks  by,  in  joint  convention 450 

Lawrence,  William,  an  objector  on  the  part  of  the  House — 

objections  offered  in  joint  convention  by,  in  the  Oregon  case 462 

interlocutory  remarks  by,  on  the — 

Oregon  case 469,487,560,574 

South  Carolina  case 665 

arguments  by,  on  the — 

Oregon  case 522 

South  Carolina  case 678 

Logan.  John  A.,  a  Senator  from  Illinois — 

order  submitted  by,  that  the  Secretary  be  directed  to  inform  the  House  of 
Representatives  that  the  President  of  the  Electoral  Commission  Las 
notified  the  Senate  that  the  Commission  has  arrived  at  a  decision  of 
the  questions  submitted  to  it  in  relation  to  the  electoral  votes  of 
Oregon,  and  that  the  Senate  is  now  ready  to  meet  the  House  for  the 
purpose  of  laying  before  the  two  Houses  the  report  of  the  said  decis 
ion,  and  to  proceed  with  the  count  of  the  electoral  votes  for  Presi 
dent  and  Vice-President  ..  642 


INDEX.  1079 

Page. 
Louisiana,  the  case  of — 

submitted  to  the  Electoral  Commission 217 

decision  on,  by  the  Electoral  Commission 421,  422, 425 

certificates  and  objections  referred  to  the  Electoral  Commission  io 205-217 

Lynde,  William  P.,  a  Representative  from  Wisconsin — 

"objections  offered  in  joint  convention  by,  against  counting  the  vote  of  Will 
iam  L.  Downs  as  an  elector  for  the  State  of  Wisconsin 122 

motions  made  by,  to  take  a  recess 722,  725 

resolution  offered  by,  that  the  vote  of  Daniel  L.  Downs  as  an  elector  of  the 
State  of  Wisconsin  should  not  be  counted,  because  he  held  an  office 
of  trust  and  profit  under  the  United  States,  and  therefore  was  not 
constitutionally  appointed  an  elector  by  the  said  State  of  Wiscon 
sin  725 

M. 
Maine,  the  State  of — 

electoral  votes  of,  counted 442 

Maryland,  the  State  of — 

electoral  votes  of,  counted ..,. 442 

Massachusetts,  the  State  of— 

electoral  votes  of,  counted 442 

Matthews,  Stanley,  counsel — 

interlocutory  remarks  by,  on  th* — 

Louisiana  case 1 338 

Oregon  case 556,559,572,573 

South  Carolina  case 666,638 

arguments  by,  on  the — 

Florida  case 101 

Oregon  case -' 581 

McCrary,  George  W.,  an  objector  on  the  part  of  the  House — 

points  of  order  raised  by 658, 720 

argument  by,  on  the  Florida  case 64 

McDonald,  Joseph  E.,  an  objector  on  the  part  of  the  Senate — 

objections  offered  in  joint  convention  by,  in  the  Louisiana  case 212 

motion  made  by,  to  amend  a  resolution  of  Mr.  Senator  Allison,  by  striking 

out  the  words  "  is  not  good  in  law,  and" 444 

resolution  offered  by,  Whereas  the  Electoral  Commission  created  under  the 
act  of  Congress  approved  January  29,  1877,  entitled  "An  act  to  pro 
vide  for  and  regulate  the  counting  of  votes  for  President  and  Vice- 
President,  and  the  decision  of  questions  arising  thereon,  for  the  term 
commencing  March  4,  A.  D.  1877,"  has  according  to  said  act  commu 
nicated  to  the  Senate  the  fact  of  the  physical  inability  of  Senator 
Allen  G.  Thurman,  a  member  of  said  Commission,  to  perform  the 
duties  required  by  said  act :  Therefore,  Resolved,  That  Francis  Ker- 
nan,  a  Senator  from  the  State  of  New  York,  be,  and  he  hereby  is,  ap 
pointed  a  member  of  said  Commission,  to  fill  the  place  so  made 
vacau't  by  said  physical  inability  of  said  Thurmau,  as  required  by 

said  act 654 

interlocutory  remarks  by,  on  the  Louisiana  case 219,220 

argument  by,  on  the  Louisiana  case 220 

McGrew,  J.  M.,  Sixth  Auditor  of  the  Treasury,  a  witness — 

examination  of,  in  the  Oregon  case 609 

McKenney,  James  H.,  Secretary  of  the  Commission- 
appointed,  on  motion  of  President  Clifford 

communication  from,  announcing  the  physical  inability  of  Hon.  Allen  G. 
Thurman  to  perform  his  duties  as  a  member  of  the  Electoral  Com 
mission  , 654 

McMahon,  John  A.,  a  Representative  from  Ohio — 

resolution  offered  by,  that  the  Senate  be  notified  that  the  House  of  Repre 
sentatives  will  be  ready  to  meet  the  Senate  in  joint  convention  at 
one  o'clock  p.  m.  this  day,  for  the  purpose  of  continuing  the  count 

of  the  electoral  vote 643 

Merrick,  Richard  T.,  counsel — 

interlocutory  remarks  by,  on  the — 

Florida  case ..73,100,101,137,140,143,144,145 

Louisiana  case 339,414,415 

Oregon  case 4<J9,  532,  550, 551, 599,  600, 601,  602,  603 

arguments  bv,  on  the — 

Florida  case 89,182 

Oregon  case 623 


1080  INDEX. 

Page. 
Merrick,  Richard  T.,  couusel — Continued. 

briefs  submitted  by,  in  the  Louisiana  case 772, 775 

Merrimon,  Augustus  S.,  a  Senator  from  North  Carolina — 

resolution  offered  by,  that  it  is  competent  to  receive  testimony  to  sustain 
the  several  exceptions  to  the  decision  of  the  Electoral  Commission  iu 

the  South  Carolina  case 708 

Michigan,  the  State  of— (see  Electoral  votes.) 

Miller,  Samuel  F.,  an  associate  justice  of  the  Supreme  Court,  member  of  the 
Commission — 

act  of  Congress  appointing...... 

sworn  and  certificate  of  oath  filed - 

motions  made  by — 

to  adjourn 139 

to  take  a  recess 53,  421 

that  the  objections  to  certificates  in  the  Florida  case  be  heard  as  one  ob 
jection  to  each  set  of  electors,  and  be  argued  together 33 

that  the  objectors  to  the  second  certificate  in  the  Florida  case  have  until 

three  o'clock  to  present  their  statement 53 

that  counsel  be  allowed  two  hours  on  each  side  to  discuss  the  question 
whether  any  evidence  will  be  considered  by  the  Commission  that 
was  not  submitted  to  the  two  Houses  by  the  President  of  the  Sen 
ate;  and,  if  so,  what  evidence  can  properly  be  considered;  and, 
also,  the  question,  what  is  the  evidence  now  before  the  Commission.  84 

that  Commissioners  Strong,  Frelinghuysen,  and  Bradley  be  a  committee  to 
draught  a  report,  as  required  by  law,  of  the  action  of  the  Commis 
sion  in  the  Louisiana  case 421 

orders  submitted  by — 

that  no  evidence  will  be  received  or  considered  by  the  Commission  which 
was  not  submitted  to  the  joint  convention  of  the  two  Houses  by  the 
President  of  the  Senate  with  the  different  certificates,  except  such 
as  relates  to  the  eligibility  of  F.  C.  Humphreys,  one  of  the  electors.  138 

that  the  decision  and  report  submitted  by  the  committee  appointed  to  pre 
pare  it,  be  adopted  as  the  decision  of  the  Commission  on  the  matters 
submitted  to  it  touching  the  electoral  votes  of  the  State  of  Louis 
iana  421 

that  the  President  inform  the  Senate  by  letter  that  the  Commission  has 
considered  and  decided  upon  the  matters  submitted  to  it,  under  the 
act  of  Congress  concerning  the  same,  touching  the  electoral  votes 
from  the  State  of  Louisiana,  and  transmit  the  same 423 

that  the  President  inform  the  House  of  Representatives  by  letter  that  the 
Commission  has  considered  and  decided  upon  the  matters  submitted 
to  it  under  the  act  of  Congress  concerning  the  same,  touching  the 
electoral  votes  from  the  State  of  Louisiana,  and  has  transmitted  said 
decision  to  the  President  of  the  Senate,  and  transmit  the  same 423 

that  the  decision  and  report  submitted  by  the  committee  appointed  to 
prepare  it,  be  adopted  as  the  decision  of  the  Commission  on  £he  mat 
ters  submitted  to  it  touching  the  electoral  vote  of  the  State  of  South 
Carolina 701 

that  the  President  inform  the  Senate  by  letter  that  the  Commission  has 
considered  and  decided  upon  the  matters  submitted  to  it,  under  the 
act  of  Congress  concerning  the  same,  touching  the  electoral  votes 
from  the  State  of  South  Carolina,  and  transmit  the  same 703 

that  the  President  inform  the  House  of  Representatives  by  letter  that  the 
Commission  has  considered  and  decided  upon  the  matters  submitted 
to  it,  under  the  act  of  Congress  concerning  the  same,  touching  the 
electoral  votes  from  the  State  of  South  Carolina,  and  has  transmit 
ted  said  decision  to  the  President  of  the  Senate 703 

that  the  injunction  of  secrecy  imposed  on  the  acts  and  proceedings  of  the 

Commission  be  removed 704 

that  450  copies  of  the  Record  (after  all  the  proceedings,  including  the 
arguments  of  the  Commissioners,  shall  have  been  published)  shall 
be  bound  with  an  index,  under  the  care  of  the  Secretary  and  his  as 
sistants,  and  distributed  equally  among  the  members  of  the  Com 
mission  728 

interlocutory  remarks  and  questions  by,  on  the — 

business  of  the  Commission 53,218.220,284,421,600 

Florida  case 29,53,73,  80,84,  87, 143, 145, 186 

Louisiana  case 315,322,333 

Oregon  case 464,476,553,554,504,599,600,601,633,633 

South  Carolina  case ...  668,  680 


INDEX.  10.81 

Page. 
Miller,  Samuel  F. — Continued. 

arguments  by,  in  the  consultations  on  the — 

Florida  case 1006 

Oregon  case 1015 

Mills,  Roger  Q.,  a  Representative  from  Texas — 

floor  claimed  by,  to  offer  a  resolution  for  the  immediate  election  of  a  Presi 
dent  by  the  House  of  Representatives 725 

Minnesota,  the  State  of — 

electoral  votes  of,  counted 446 

Mississippi,  the  State  of— 

electoral  votes  of,  counted 446 

Missouri,  the  State  of — 

electoral  votes  of,  counted 446 

Mitchell,  John  H.,  an  objector  on  the  part  of  the  Senate — 

objections  offered  in  joint  convention  by,  in  the  Oregon  case 460 

incidental  remarks  by 455,  459 

interlocutory  remarks  by,  on  the  Oregon  case 465,  466, 475,  476,  482 

argument  by,  on  the  Oregon  case 488 

Money,  Hernando  D.,  a  Representative  from  Mississippi- 
motion  made  by,  to  reconsider  certain  vote 720 

Morse,  Alexander  Porter,  counsel 466 

Morton,  Oliver  P.,  a  Senator  from  Indiana,  member  of  the  Commission — 

appointed  by  the  Senate 6 

sworn  and  certificate  of  oath  filed . .  7 

motions  made  by — 

to  adjourn 138, 218 

that  the  motion  of  Mr.  Commissioner  Hoar  be  amended  so  as  to  include 
the  printing  of  the  election-laws  of  the  States  of  Florida,  Louisiana, 

Oregon,  and  South  Carolina 33 

that  the  doors  be  closed 194 

that  a  committee  of  three  members  of  the  Commission  be  appointed  to  pre 
pare  the  report  in  the  Louisiana  case,  and  that  an  intermission  be 

taken  of  one  hour  for  that  purpose 420 

orders  submitted  by — 

that  the  injunction  of  secrecy  imposed  on  the  acts  and  proceedings  of  the 

Commission  be  removed 642 

that  the  time  heretofore  allowed  for  the  filing  of  opinions  by  members  of 

the  Commission  be  extended  until  the  close  of  the  month  of  March . .  728 

resolutions  offered  by — 

that  the  persons  named  as  electors  in  certificate  No.  1  were  the  lawful 
electors  of  the  State  of  Louisiana,  and  that  their  votes  are  the  votes 
provided  by  the  Constitution  of  the  United  States,  and  should  be 

counted  for  President  and  Vice-President 420- 

that  W.  H.  Odell,  John  C.  Cartwright,  and  John  W.  Watts,  the  persons 
named  as  electors  in  certificate  No.  1,  were  the  lawful  electors  of  the 
State,  of  Oregon,  and  that  their  votes  are  the  votes  provided  for  by  the 
Constitution  of  the  United  States,  and  should  be  counted  for  Presi 
dent  and  Vice-President  of  the  United  States 639 

that  it  is  not  competent  for  the  two  Houses,  assembled  for  the  purpose  of 
counting  the  votes  for  President  and  Vice-President,  to  inquire  by 
evidence  whether  a  State  regularly  represented  in  the  two  Houses 
of  Congress,  and  recognized  as  a  State  of  the  United  States  by  the 
other  departments  of  the  Government,  has  a  government  republican 
in  form.  Resolved,  That  while  the  existence  of  public  disturbance 
and  anarchy  in  any  State  to  such  an  extent  as  to  make  it  impossible 
for  the  State  to  exercise  its  right  to  appoint  electors  of  President 
and  Vice-President,  and  to  express  its  will  in  that  behalf,  is  sufficient 
cause  for  rejecting  any  electoral  votes  purporting  to  be  the  votes  of 
electors  appointed  thereby,  yet,  that  when  a  State  is  regularly  repre 
sented  as  a  State  in  the  Congress  of  the  United  States,  and  is  recog 
nized  as  a  State  by  the  other  departments  of  the  Government,  and 
has  a  government  republican  in  form,  and  does  appoint  electors  in 
the  manner  prescribed  by  the  legislature  thereof,  evidence  cannot 
be  received  by  the  two  Houses  of  Congress  assembled  to  count  the 
votes  for  President  and  Vice-President  as  aforesaid  to  show  that 
disturbances  existed  at  the  time  of  election  which  may  have  inter 
fered,  to  a  greater  or  less  extent,  with  the  freedom  of  election  at  the 
polls  in  said  State.  Resolved,  That  it  is  not  competent  for  the  two 


1082  INDEX. 

Page. 
Morton,  Oliver  P.— Continued. 

Houses  of  Congress  -when  assembled  to  count  the  votes  for  President 
and  Vice-President  by  taking  evidence  to  inquire  into  the  regularity 
of  the  action  of  the  President  of  the  United  States  in  sending  a 
military  force  into  any  State  for  the  preservation  of  order  or  the 
suppression  of  insurrection  and  domestic  violence  in  order  by  such 
proof  to  lay  a  ground  for  rejecting  the  electoral  vote  of  said  State. 
Resolved,  That  in  view  of  the  propositions  contained  in  the  three 
foregoing  resolutions  the  evidence  offered  to  show  that  the  State  of 
South  Carolina  at  the  late  election  did  not  have  a  republican  form 
of  government,  and  the  evidence  offered  on  the  subject  of  disorder 
and  violence  and  the  presence  of  troops  in  said  State  during  said 
election,  is  not  competent,  but  that  notwithstanding  the  offer  of 
such  evidence  the  electoral  votes  of  South  Carolina  ought  to  be 
received  and  counted  if  not  objectionable  on  other  grounds. 
fiesolved,  That  the  other  objections  to  certificate  No.  1  show  no 

valid  cause  for  rejecting  the  same 700 

that  C.  C.  Bowen,  J.  Wiusmith,  Thomas  B.  Johnston,  Timothy  Hurley,  W. 
B.  Nash,  Wilson  Cook,  and  W.  F.  Myers,  the  persons  named  aa  elect 
ors  in  certificate  No.  1,  were  the  lawful  electors  for  the  State  of 
South  Carolina,  and  that  their  votes  are  the  votes  provided  for  by 
the  Constitution  of  the  United  States,  and  should  be  counted  for 

President  and  Vice-President  of  the  United  States 701 

that  the  thanks  of  this  Commission  are  due  to  Commissioner  Clifford  for 
the  ability,  impartiality,  and  urbanity  with  which  he  has  presided 

over  its  deliberations 703 

interlocutorv  remarks  and  questions  by,  on  the— 

business  of  the  Commission 194,218,420,550 

Florida  case 45 

Louisiana  case 227,  316,  329,  330,  336,  346,  353,  384 

Oregon  case 486,596,599 

arguments  by,  in  the  consultations  on  the — 

Florida  case 817 

Louisiana  case 825 

Oregon  case ' 828 

South  Carolina  case 832 

Murphy,  D.  F.,  Stenographer  of  the  Commission — 

appointed,  on  motion  of  President  Clifford  /. 8 

N. 
Nebraska,  the  State  of— 

electoral  votes  of,  counted 446 

Nevada,  the  State  of — (see  Electoral  votes.) 
New  Hampshire,  the  State  of — 

electoral  votes  of,  counted 454 

New  Jersey,  the  State  of— 

electoral  votes  of,  counted 454 

New  York,  the  State  of— 

electoral  votes  of,  counted 454 

North  Carolina,  the  State  of — 

electoral  votes  of,  counted  . . , 454 

O. 

O'Brien,  William  J.,  a  Representative  from  Maryland- 
objections  offered  in  joint  convention  by,  to  the  certificate  from  the  State 

of  Rhode  Island 656,657 

motion  made  by,  to  reconsider  certain  votes 720 

resolution  offered  by,  that  the  vote  of  William  S.  Slater  us  elector  for  the 

State  of  Rhode  Island  be  not  counted 658 

O'Conor,  Charles,  counsel — 

interlocutory  remarks  by,  on  the  Florida  case .'74, 75,  76,  86,  88, 115, 136 

arguments  by,  on  the  Florida  case 33, 77, 124 

Officers  of  the  Electoral  Commission,  selection  of  the .' 8 

Ohio,  the  State  of— 
electoral  votes  of,  counted 454 

Oregon,  the  case  of— 

submitted  to  the  Electoral  Commission 463 

decision  on,  by  the  Electoral  Commission 640, 643 

certificates  and  objections  referred  to  the  Electoral  Commission  in 455,  463 

Organization  of  the  Electoral  Commission 6 


INDEX.  1083 

p. 

Page. 
Page,  Plorace  F.,  a  Representative  from  California — 

incidental  remarks  by,  in  joint  convention .•..  715 

Patterson,  John  J.,  a  Senator  from  South  Carolina — 

objections  offered  in  joint  convention  by,  in  the  South  Carolina  case 063 

Payne,  Henry  B.,  a  Representative  from  Ohio,  member  of  the  Commission — 

appointed  by  the  House 7 

sworn  and  certificate  of  oath  filed 7 

motion  made  by — 

to  adjourn 194,264,728 

that  the  three  certificates  in  the  case  of  Florida  be  printed,  and  the  ob 
jections  thereto 29 

that  the  time  consumed  by  interruptions  of  the  Commission  be  not  counted.  339 
that  the  time  be  extended  to  counsel  on  each  side  for  one  hour  on  the  gen 
eral  question 419 

to  strike  out  the  word  "  not"  in  an  order  submitted  bv  Mr.  Commissioner 

Hoar \ 418 

interlocutory  remarks  and  questions  by,  on  the — 

business  of  the  Commission _" 234,  320,  419,  523 

Florida  case 29 

Louisiana  case 260, 318, 357 

South  Carolina  case ; 665 

Pennsylvania,  the  State  of — (see  Electoral  votes.) 
Philips,  John  F,,  a  Representative  from  Missouri — 

objections  offered  in  joint  convention  by,  in  the  South  Carolina  case 706, 709 

Poppleton,  Earley  F.,  a  Representative  from  Ohio- 
objections  offered  in  joint  convention  by,  to  the  certificate  from  the  State 

of  Vermont 715,716 

motions  made  by — 

to  take  a  recess 658 

to  reconsider  certain  vote 720 

incidental  remarks  by,  in  joint  convention 711,  712,  714,  718, 719 

R. 

Randall,  Samuel  J.,  Speaker  of  the  House  of  Representatives — 

rulings  and  remarks  by 198,  202,  424,  445,  642,  643,  646,  658, 705, 700, 

710,718,719,720,721 
Rauey,  George  P.,  a  witness — 

examination  of,  in  the  Florida  case 140 

Reardon,  William  H.,  marshal  of  the  Commission- 
appointed,  on  motion  of  President  Clifford 

Rhode  Island,  the  State  of — (see  Electoral  votes.) 
Robertson,  Thomas  J.,  a  Senator  from  South  Carolina — 
resolution  offered  by,  that  the  decision  of  the  Commission  upon  the  electoral 
vote  of  the  State  of  South  Carolina  stand  as  the  judgment  of  the 
Senate,  the  objections  made  thereto  to  the  contrary  notwithstanding          708 
Rules  of  the  Electoral  Commission  considered,  amended,  and  adopted 

S. 

Sargent,  Aaron  A.,  an  objector  on  the  part  of  the  Senate — 

objections  offered  in  joint  convention  by,  in  the  Florida  case 26 

order  submitted  by,  that  the  Secretary  notify  the  House  of  Representatives 
that  the  Senate  is  now  ready  to  meet  the  House  to  resume  the  count 
ing  of  the  electoral  votes  for  President  and  Vice-President 202,  652 

resolution  offered  by,  that  the  decision  of  the  Commission  upon  the  electoral 
vote  of  the  State  of  Oregon  stand  as  the  judgment  of  the  Senate, 

the  objections  made  thereto  to  the  contrary  notwithstanding 645 

interlocutory  remarks  by,  on  the — 

Florida  case „ 

Oregon  case .  465 

Sayler,  Milton,  a  Representative  from  Ohio — 
motions  made  by,  that  the  Clerk  notify  the  Senate  that  the  House  will  be 

ready  to  receive  it  to  proceed  with  the  electoral  count 199, 705 

Seely,  Albert  S.,  a  deputy  marshal  of  the  Commission — 

appointed  on  motion  of  President  Clifford 

Senate  Chamber,  the,  use  of,  tendered  to  the  Electoral  Commission.. 

occupied  by  the  Electoral  Commission 554 


1084  INDEX. 

Page. 

Sessions  of  the  Electoral  Commission,  on  the — 
Florida  case — 

Wednesday.  January  31,  1877 -    6 

Thursday,  Febrnary  1,  1877 8, 28 

Friday,  February  2,  1877 34 

Saturday,  February  3,  1877 .' 74 

Monday,  February  5,  1877 113 

Tuesday,  February  6, 1877 138 

Wednesday,  February  7,  1877 138 

Thursday,  February  8,  1877 139 

Friday,  February  9,1877 1 194 

Saturday,  February  10,  1877 202 

Louisiana  case — 

Monday,  February  12, 1877 217 

Tuesday,  February  13,  1877 219 

Wednesday,  February  14,  1877 284 

Thursday,  February  15, 1877 372 

Friday,  February  16, 1877 416 

Saturday,  February  17,  1877 425 

Monday*  Febrnary  19, 1877 • 425 

Tuesday,  February  20,  1877 453 

Oregon  case — 

Wednesday,  February  21,  1877 463 

Thursday,  February  22,  1877 581 

Friday,  February  23,  1877 637 

Saturday,  February  24, 1877 652 

South  Carolina  case — 

Monday,  February  26,  1877 653 

Tuesday,  February  27, 1877 666 

Friday,  March  2,  1877 728 

Sheakley,  James,  a  Representative  from  Pennsylvania — 

motion  made  by,  to  take  a  recess , 709 

Sbellabarger,  Samuel,  counsel — 
interlocutory  remarks  by,  on  the — 

Florida  case 53 

t    Louisiana  case 336 

South  Carolina  case 694 

arguments  by,  on  the — 

Florida  case 165 

Louisiana  case 354 

Sherman,  John,  an  objector  on  the  part  of  the  Senate 30 

resolutions  offered  by — 

that  the  decision  of  the  Commission  upon  the  electoral  vote  of  the  State  of 
Florida  stand  as  the  judgment  of  the  Senate,  the  objections  made 

thereto  to  the  contrary  notwithstanding 202 

that  the  decision  of  the  Commission  upon  the  electoral  vote  of  the  State 
of  Louisiana  stand  as  the  judgment  of  the  Senate,  the  objections 

made  thereto  to  the  contrary  notwithstanding 440 

South  Carolina,  the  case  of— 

submitted  to  the  Electoral  Commission 665 

decision  of,  by  the  Electoral  Commission 701,705 

certificates  and  objections  referred  to  the  Electoral  Commission  in 659-665 

Southard,  Milton  I.,  a  Representative  from  Ohio- 
objections  offered  in  joint  convention  by,  in  the  South  Carolina  case 708 

motion  made  by,  to  take  a  recess 444 

Springer,  William  M.,  a  Representative  from  Illinois — 
objections  offered  in  joint  convention  by — 

to  the  certificate  from  the  State  of  Nevada  446-452 

to  the  certificate  from  the  State  of  Vermont  1 714 

resolution  offered  by,  that  the  vote  of  R.  M.  Daggett,  one  of  the  electors  of 
the  State  of  Nevada,  be  counted,  the  objections  to  the  contrary  not 
withstanding 454 

incidental  remarks  by,  in  joint  convention 709,712,713,714,716,717 

Stenger,  William  S.,  a  Representative  from  Pennsylvania- 
objections  offered  in  joint  convention  by,  to  the  certificate  from  the  State  of 

Pennsylvania 647 

resolution  offered  by,  that  the  vote  of  Henry  A.  Boggs,  as  an  elector  for  the 
State  of  Pennsylvania,  should  not  be  counted,  because  the  said 
Boggs  was  not  appointed  an  elector  for  said  State  in  such  manner 
as  its  legislature  directed 655 


INDEX.  1085 

Page. 
Stone.  William  H.,  a  Representative  from  Missouri — 

appointment  of,  as  a  teller  on  the  part  of  the  House 9 

Stoughton,  E.  W.,  counsel — 

interlocutory  remarks  by,  on  the  Florida  case 142, 143,  144, 145 

arguments  by,  on  the — 

Florida  case 109 

Louisiana  case 342 

Strong,  William,  an  associate  justice  of  the  Supreme  Court,  member  of  the 
Commission — 

act  of  Congress  appointing 4 

sworn  and  certificate  of  oath  filed 7 

motions  made  by — 

to  adjourn 33,113,425 

to  take  a  recess 263,638 

that  general  debate  on  the  question  pending  be  closed  on  or  before  six 

o'clock  p.  m.  on  Friday,  February  9,  1877 194 

that  -counsel  be  allowed  two  hours  on  a  side  for  the  argument  of  the 
question  of  the  admissibility  of  the  evidence  offered  and  objections 

thereto 312 

that  the  evidence  specified  in  the  first  offer  of  the  objectors  to  certificate 
No.  1  in  the  case  of  Oregon  be  now  received,  subject  to  its  legal 
effect,  and  any  evidence  on  the  same  point  that  may  be  offered  on 

the  other  side,  upon  the  same  condition 598 

that  the  vote  be  taken  on  the  question  pending  in  the  case  of  South  Car 
olina  at  five  o'clock  and  twenty  minutes  p.  m 700 

orders  submitted  by— 

that  the  members  of  the  Commission  be  at  liberty  to  reduce  to  writing  the 
remarks  made  by  them  during  the  consultations  of  the  Commission, 
and  cause  them  to  be  published  in  the  printed  proceedings  on  or 

before  the  15th  day  of  March  next 703 

interlocutory  remarks  and  questions  by,  on  the — 

business  of  the  Commission 284,700 

Florida  case 35,53,80,100,147 

Louisiana  case 251,  299,  300,  302,  312,  313,  319,  361,  407,  408,  420 

Oregon  case 482,522,598 

arguments  by,  in  the  consultations  on  the— 

Florida  case 

Oregon  case 1,  001 

Supreme  Court  Room  at  the  Capitol,  the  Electoral  Commission  met  in  the 6 

T. 

Taliaferro,  ,T.  C.,  a  deputy  marshal  of  the  Commission — 

appointed,  on  motion  of  President  Clifford 

Tellers,  appointment  of — 

on  the  part  of  the  House 

on  the  part  of  the  Senate 9 

Tennessee,  the  State  of— 

electoral  votes  of,  counted 711 

Texas,  the  State  of— 

electoral  votes  of,  counted 

Thompson,  Charles  P.,  an  objector  on  the  part  of  the  House 

Thurman,  Allen  G.,  a  Senator  from  Ohio,  member  of  the  Commission — 

appointed  by  the  Senate 

sworn  and  certificate  of  oath  filed 

motions  made  by — 

to  adjourn 137,371 

to  take  a  recess ^ 194,394,600,637 

that  the  motion  of  Mr.  Commissioner  Strong  be  amended  by  striking  out 

"two"  and  inserting  "three" 

order  submitted  by,  that  the  Secretary  of  the  Commission  is  directed  to 
furnish  immediately  to  counsel,  on  both  sides,  copies  of  orders  made 
to-day,  and  to  notify  them  that  the  Commission  will  be  ready  at 
eleven  a.  m.  to-moriow  to  proceed  with  the  case  now  before  them..  139 

resolutions  offered  by— 

that  a  committee  of  two  Justices,  two  Senators,  and  two  Representatives 
be  appointed  to  consider  and  propose  such  rules  of  proceeding  and 
officers  and  employe's  as  may  be  proper  for  the  Commission,  the  com 
mittee  to  be  appointed  by  the  President 


1086  INDEX. 

Page. 

Thnrman,  Allen  G. — Continued, 
resolutions  offered  by — 

that  F.  C.  Humphreys  was  not  a  United  States  shipping-commissioner  on 

the  7th  day  of  November,  1676 194 

that  inasmuch  as  the  votes  of  the  people  of  Louisiana  for  electors  of  Presi- 
dent  and  Vice-President  in  November  last  have  never  been  legally 
canvassed  and  declared,  therefore  the  votes  purporting  to  be  votes 
of  electors  of  that  State  for  President  and  Vice-President  ought 
not  to  be  counted,  and  no  electors  of  President  and  Vice-President 
can  be  regarded  as  chosen  in  that  State.  Offered  as  a  substitute  for 

a  resolution  offered  by  Mr.  Commissioner  Morton 420 

interlocutory  remarks  and  questions  by,  on  the — 

business  of  the  Commission 33,  267,  522,  523,  549,  600,  637 

Florida  case 30,  63,  69,  73,  81,  87, 146, 167, 188, 192,  371 

Louisiana  case ....  224. 227,  237,  238, 279,  281,  282,  315,  316,  319,  330,  336,  337,  347,  360, 

362,  378,  379,  380, 389,  391,  394,  403, 409, 420 

Oregon  case -  475,  476,  532,  552,  559,  595,  599,  633 

letter  from,  announcing  his  inability  to  attend  the  sessions  of  the  Commission, 
and  asking  that  the  vacancy  caused  by  his  absence  may  be  filled  as 

provided  by  law 653 

arguments  by,  in  the  consultations  on  the — 

Florida  case 833 

Louisiana  case 836 

Towusend,  Martin  I.,  a  Representative  from  New  York — 

incidental  remarks  by,  in  joint  convention 714 

Truinbull,  Lyman,  counsel — 

interlocutory  remarks  by,  on  the  Louisiana  case 218,  231,  299,  300,  339,  342,  415 

argument  by,  on  the  Louisiana  case 300,  322 

Tucker,  J.  Randolph,  an  objector  on  the  part  of  the  House- 
objections  offered,  in  joint  convention  by,  to  the  certificate  from  the  State  of 

Michigan .' 442 

resolution  offered  by,  that  Daniel  L.  Grossman  was  not  appointed  an  elector 
by  the  State  of  Michigan,  as  its  legislature  directed,  and  that  the 
vote  of  said  Daniel  L.  Grossman,  as  an  elector  of  said  State,  be  not 

counted 445 

interlocutory  remarks  by,  on  the  Florida  case 34 

argument  by,  on  the  Florida  case 45 

Tyuer,  James  N.,  Postmaster-General,  a  witness — 
examination  of,  in  the  Oregon  case 602-607 

V. 

Vance,  John  L.,  a  Representative  from  Ohio — 
motions  made  by — 

to  take  a  recess 652 

that  certain  testimony  relating  to  the  recent  election  in  South  Carolina  be 

read 710 

that  a  resolution  offered  by  Mr.  Representative  Wood  be  laid  on  the  table          720 

that  Mr.  Representative  Walling  be  excused  from  voting 720 

Vermont,  the  State  of — (see  Electoral  votes.) 
Virginia,  the  State  of — 
electoral  votes  of,  counted   721 

W. 

Wad  dell,  Alfred  M..  a  Representative  from  North  Carolina — 

incidental  remarks  by,  in  joint  convention 717 

Wallace,  William  A.,  a  Senator  from  Pennsylvania — 

objections  offered  in  joint  convention  by,  in  the  Louisiana  case 439 

Walling,  Ansel  T..  a  Representative  from  Ohio — 

motions  made  by — 

to  reconsider  certain  votes 709,818 

that  a  resolution  offered  by  Mr.  Representative  Cochrane  be  amended 710 

appeal  from  decision  of  the  Speaker  by 720 

Watts,  John  W.,  a  witness  — 

examination  of,  in  the  Oregon  case 607 

West  Virginia,  the  State  of — 

electoral  votes  of,  counted 722 


INDEX.  1087 

Page. 

Whitney,  William  C.,  counsel 74 

brief  submitted  by,  in  the  Florida  case 760 

Whyte,  William  Pinkuey,  a  Senator  from  Maryland — 

motions  made  by,  to  take  a  recess 424,440 

resolution  offered  by,  that  while  it  is  the  sense  of  the  Senate  that  no  Sena 
tor  or  Representative  or  person  holding  an  office  of  trust  and  profit 
under  the  United  States  shall  be  appointed  an  elector,  and  that  this 
provision  of  the  Constitution  shall  be  carried  in  its  whole  spirit  into 
rigid  execution,  yet  that  the  proof  is  not  such  as  to  justify  the  ex 
clusion  of  the  vote  of  Daniel  L.  Grossman  as  one  of  the  electors  of 

the  State  of  Michigan,  and  that  his  vote  should  be  counted 444 

Wilson,  James,  a  Representative  from  Iowa— 
motion  made  by,  that  the  Senate  be  notified  by  the  Clerk  of  the  action  of 
the  House  in  regard  to  the  electoral  vote  of  Rhode  Island,  and  that 
the  House  is  ready  to  meet  the  Senate  at  once  and  continue  the 

counting  of  the  electoral  votes  for  President  and  Vice- President 658 

resolution  offered  by,  that  the  Clerk  of  the  House  notify  the  Senate  that  the 
House  is  now  ready  to  meet  them  in  joint  'meeting  of  the  two 

Houses  to  count  the  vote  for  President  an.d  Vice- President 64:} 

Windom,  William,  a  Senator  from  Minnesota — 

motion  made  by,  to  take  a  recess 652 

Wisconsin,  the  State  of— (see  Electoral  votes.) 
Witnesses,  examination  of — 

Humphreys,  F.  C.,  (in  the  Florida  case) 143,144 

McGrew,  J.  N.,  (in  the  Oregon  case) 609 

Raney,  George  P.,  (in  the  Florida  case) 140 

Tyner,  James  N.,  (in  the  Oregon  case) 602-607 

Watts,  John  W.,  (in  the  Oregon  case) 607 

Yonge,  James  E.,  (in  the  Florida  case) 141, 142 

Woodburn,  William,  an  objector  on  the  part  of  the  House 30 

Y. 

Yeas  and  nays 139,195,196,197,372,416,417,418,419, 

420,  421,  638,  639,  640,  641, 701, 702,  704 
Yonge,  James  E.,  a  witness — 

examination  of,  in  the  Florida  case 141,142 


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RcC  D  LD 

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OEC5     1955lUflgv 


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REC'D 

NOV  12  1957 

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APR    81961 

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PECD  due  DEFT 


jD  21-100m-l,'54(1887sl6)47 


76  A' 


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